This rule is issued under Marketing Order No. 924, as amended (7 CFR part 924), regulating the handling of fresh prunes grown in designated counties in Washington and Umatilla County, Oregon, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (Department) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Washington-Oregon fresh prune handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable fresh prunes beginning April 1, 2001, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule decreases the assessment rate established for the Committee for the 2001-2002 and subsequent fiscal periods from $1.50 to $1.00 per ton of fresh prunes handled.

The Washington-Oregon fresh prune marketing order provides authority for the Committee, with the approval of the Department, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of Washington-Oregon fresh prunes. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 1999-2000 and subsequent fiscal periods, the Committee recommended, and the Department approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other information available to the Secretary.

The Committee met on June 5, 2001, and unanimously recommended 2001-2002 expenditures of $7,804 and an assessment rate of $1.00 per ton of fresh prunes handled. In comparison, last year's budgeted expenditures were $7,803. The assessment rate of $1.00 is $0.50 lower than the rate currently in effect. At the rate of $1.50 per ton and an estimated 2001-2002 fresh prune production of 4,850 tons, the projected reserve on March 31, 2002, would exceed the maximum level authorized by the order (approximately one fiscal period's operational expenses). The reserve currently is $9,047.

The major expenditures recommended by the Committee for the 2001-2002 fiscal period include $3,461 for salaries, $1,000 for travel, $528 for rent and maintenance, and $475 for its annual audit. Budgeted expenses for these items in 2000-2001 were $3,360, $1,000, $528, and $475, respectively.

The assessment rate recommended by the Committee was derived for the purpose of reducing the operating reserve to a level consistent with the order. As mentioned earlier, fresh prune shipments for the year are estimated at 4,850 tons which should provide $4,850 in assessment income. This income, along with approximately $2,954 from the Committee's authorized reserve, will be adequate to cover the Committee's budgeted expenses of $7,804. With the decreased assessment rate, the current reserve of $9,047 would be reduced by as much as $2,945, thus leaving a balance of about $6,102 at the end of the 2001-2002 fiscal period. The order permits an operating reserve in an amount not to exceed approximately one fiscal period's operational expenses (§ 924.42).

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate is effective for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or the Department. Committee meetings are open to the public and interested persons may express their views at these meetings. The Department will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2001-2002 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by the Department.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, the AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 60 producers of fresh prunes in the production area and approximately 12 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $500,000 and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.

Based on Committee records, all of the Washington-Oregon fresh prune handlers ship under $5,000,000 worth of fresh prunes. In addition, based on production and producer prices reported by the National Agricultural Statistics Service, and the total number of Washington-Oregon fresh prune producers, the average annual producer revenue is approximately $18,000, excluding receipts from other sources. In view of the foregoing, it can be concluded that the majority of Washington-Oregon fresh prune producers and handlers may be classified as small entities.

This rule decreases the assessment rate established for the Committee and collected from handlers for the 2001-2002 and subsequent fiscal periods from $1.50 to $1.00 per ton of fresh prunes handled. The Committee unanimously recommended 2001-2002 expenditures of $7,804 and an assessment rate of $1.00 per ton of fresh prunes handled. The assessment rate of $1.00 is $0.50 lower than the rate currently in effect. The quantity of assessable fresh prunes for the 2001-2002 fiscal period is estimated at 4,850 tons. Thus, the $1.00 rate should provide $4,850 in assessment income which along with funds from the Committee's authorized reserve will be adequate to cover budgeted expenses.

The major expenditures recommended by the Committee for the 2001-2002 fiscal period include $3,461 for salaries, $1,000 for travel, $528 for rent and maintenance, and $475 for its annual audit. Budgeted expenses for these items in 2000-2001 were $3,360, $1,000, $528, and $475, respectively.

At the rate of $1.50 per ton and an estimated 2001-2002 fresh prune production of 4,850 tons, the projected reserve on March 31, 2002, would exceed the maximum level authorized by the order (approximately one fiscal period's operational expenses). As of March 31, 2001, the Committee's reserve was $9,047. With assessment income of $4,850 and expenditures of $7,804, the Committee may draw up to $2,945 from its reserve, thus leaving the reserve at approximately $6,093 on March 31, 2002.

The Committee considered alternative levels of assessment but determined that decreasing the assessment rate to $1.00 per ton would be adequate to reduce the reserve to a level lower than approximately one fiscal period's expenses. The Committee decided that an assessment rate of more than $1.00 per ton, but less than $1.50 per ton, would not decrease the reserve to an adequate level. Prior to arriving at this budget, the Committee considered information from various sources, such as the Committee's Finance and Executive Committees.

A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the producer price for the 2001-2002 marketing season could range between $160 and $275 per ton of fresh prunes handled. Therefore, the estimated assessment revenue for the 2001-2002 fiscal period as a percentage of total grower revenue should range between 0.36 and 0.63 percent.

This action decreases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the Committee's meeting was widely publicized throughout the Washington-Oregon fresh prune industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the June 5, 2001, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

This action imposes no additional reporting or recordkeeping requirements on either small or large Washington-Oregon fresh prune handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The 2001-2002 fiscal period began on April 1, 2001, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable fresh prunes handled during such fiscal period; (2) the action decreases the assessment rate for all assessable fresh prunes beginning with the 2001-2002 fiscal period; (3) handlers are aware of this action which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years; and (4) this interim final rule provides a 60-day comment period, and all comments timely received will be considered prior to finalization of this rule.

This action temporarily delays for 90 days the effective date of the rule entitled “Acquisition of Title to Land in Trust,” published in the Federal Register on January 16, 2001, at 66 FR 3452, and which has had a prior extension of effective date published in the Federal Register on April 16, 2001. This document now extends the effective date of the final rule from August 13, 2001, to November 10, 2001, in order to continue to review comments that were received from the prior extension. The rule and received comments are being evaluated at this time to determine whether to amend the final rule in whole or in part. Given the imminence of the effective date of the final rule, seeking prior public comment on this temporary delay would have been impractical, as well as contrary to the public interest in the orderly promulgation and implementation of regulations.

The Department is publishing a Notice of Proposed Withdrawal in this issue of the Federal Register that will seek comments on whether this rule should be withdrawn and a new proposed rule promulgated which better addresses the public's continued concern with the procedures set out in 25 CFR Part 151.

Pursuant to sections 182(b)(2) and 182(f) of the Clean Air Act (CAA), the Commonwealth of Pennsylvania (the Commonwealth or Pennsylvania) is required to establish and implement RACT for all major VOC and NO X sources. The major source size is determined by its location, the classification of that area and whether it is located in the ozone transport region (OTR). Under section 184 of the CAA, RACT as specified in sections 182(b)(2) and 182(f)) applies throughout the OTR. The entire Commonwealth is located within the OTR. Therefore, RACT is applicable statewide in Pennsylvania.

State implementation plan revisions imposing reasonably available control technology (RACT) for three classes of VOC sources are required under section 182(b)(2). The categories are:

(1) All sources covered by a Control Technique Guideline (CTG) document issued between November 15, 1990 and the date of attainment;

(2) All sources covered by a CTG issued prior to November 15, 1990; and

(3) All major non-CTG sources. The regulations imposing RACT for these non-CTG major sources were to be submitted to EPA as SIP revisions by November 15, 1992 and compliance required by May of 1995.

The Pennsylvania SIP already includes approved RACT regulations for all sources and source categories covered by the CTGs. On February 4, 1994, PADEP submitted a revision to its SIP to require major sources of NO X and additional major sources of VOC emissions (not covered by a CTG) to implement RACT. The February 4, 1994 submittal was amended on May 3, 1994 to correct and clarify certain presumptive NO X RACT requirements. In the Pittsburgh area, a major source of VOC is defined as one having the potential to emit 50 tons per year (tpy) or more, and a major source of NO X is defined as one having the potential to emit 100 tpy or more. Pennsylvania's RACT regulations require sources, in the Pittsburgh area, that have the potential to emit 50 tpy or more of VOC and sources which have the potential to emit 100 tpy or more of NO X comply with RACT by May 31, 1995. The regulations contain technology-based or operational “presumptive RACT emission limitations” for certain major NO X sources. For other major NO X sources, and all major non-CTG VOC sources (not otherwise already subject to RACT under the Pennsylvania SIP), the regulations contain a “generic” RACT provision. A generic RACT regulation is one that does not, itself, specifically define RACT for a source or source categories but instead allows for case-by-case RACT determinations. The generic provisions of Pennsylvania's regulations allow for PADEP to make case-by case RACT determinations that are then to be submitted to EPA as revisions to the Pennsylvania SIP.

On March 23, 1998 EPA granted conditional limited approval to the Commonwealth's generic VOC and NO X RACT regulations (63 FR 13789). In that action, EPA stated that the conditions of its approval would be satisfied once the Commonwealth either (1) certifies that it has submitted case-by-case RACT proposals for all sources subject to the RACT requirements currently known to PADEP; or (2) demonstrate that the emissions from any remaining subject sources represent a de minimis level of emissions as defined in the March 23, 1998 rulemaking. On April 22, 1999, PADEP made the required submittal to EPA certifying that it had met the terms and conditions imposed by EPA in its March 23, 1998 conditional limited approval of its VOC and NO X RACT regulations by submitting 485 case-by-case VOC/ NO X RACT determinations as SIP revisions and making the demonstration described as condition 2, above. EPA determined that Pennsylvania's April 22, 1999 submittal satisfied the conditions imposed in its conditional limited approval published on March 23, 1998. On May 3, 2001 (66 FR 22123), EPA published a rulemaking action removing the conditional status of its approval of the Commonwealth's generic VOC and NO X RACT regulations on a statewide basis. The regulation currently retains its limited approval status. Once EPA has approved the case-by-case RACT determinations submitted by PADEP to satisfy the conditional approval for subject sources located in Allegheny, Armstrong, Beaver, Butler, Fayette, Washington, and Westmoreland Counties; the limited approval of Pennsylvania's generic VOC and NO X RACT regulations shall convert to a full approval for the Pittsburgh area.

It must be noted that the Commonwealth has adopted and is implementing additional “post RACT requirements” to reduce seasonal NO X emissions in the form of a NO X cap and trade regulation, 25 Pa Code Chapters 121 and 123, based upon a model rule developed by the States in the OTR. That rule's compliance date is May 1999. That regulation was approved as SIP revision on June 6, 2000 (65 FR 35842). Pennsylvania has also adopted regulations to satisfy Phase I of the NO X SIP call and submitted those regulations to EPA for SIP approval. Pennsylvania's SIP revision to address the requirements of the NO X SIP Call Phase I consists of the adoption of Chapter 145—Interstate Pollution Transport Reduction and amendments to Chapter 123—Standards for Contaminants. On May 29, 2001 (66 FR 29064), EPA proposed approval of the Commonwealth's NO X SIP call rule SIP submittal. EPA expects to publish the final rulemaking in the Federal Register in the near future. Federal approval of a case-by-case RACT determination for a major source of NO X in no way relieves that source from any applicable requirements found in 25 PA Code Chapters 121, 123, and 145.

On April 16, 1996 and August 9, 2000, PADEP submitted revisions to the Pennsylvania SIP which establish and impose RACT for several major sources of VOC and/or NO X . This rulemaking pertains to two of those sources. The remaining sources are or have been the subject of separate rulemakings. The Commonwealth's submittals consist of operating permits (OPs) issued by PADEP. These two sources are located in the Pittsburgh area.

GenCorp, Inc. (GenCorp) is located in Jeannette, Westmoreland County, Pennsylvania. The facility produces vinyl plastic film. GenCorp is a major source of VOC and had the potential to be defined as a major source of NO X . The PADEP issued OP 65-000-207 to GenCorp, and on April 16, 1996, PADEP submitted the OP to EPA as a SIP revision. This OP establishes limits to permanently restrict NO X emissions to a level below the major source threshold and establishes RACT to control VOC emissions. OP 65-000-207 requires GenCorp and any associated air cleaning devices to be operated and maintained in a manner consistent with good operating and management practices. OP 65-000-207 also requires GenCorp to comply with the conditions placed in OP 65-318-052A and the VOC limits required under the Consent Order and Agreement 276MD and 25 PA Code section 129. Boilers 031 and 032 shall not exceed 24,000 pounds of steam per hour per boiler. Compliance with this limit shall be demonstrated by keeping records of steam usage. NO X emissions for Boiler 031 or 032 shall not exceed 18.7 tons NO X per year for each unit. VOC emissions shall not exceed the following:

The calendaring lines 1 through 4 combined total emissions shall not exceed 150 tons of VOC per year. All annual limits are to meet on a rolling monthly basis over every consecutive 12 month period. Emission reductions of the targeted contaminant(s) below the level specified above which are achieved by optimizing the effectiveness of the equipment installed pursuant to OP 65-000-207 are not surplus reductions, and thus, may not be used to generate Emission Reduction Credits (ERCS).

CENTRIA owns the United Coaters Ambridge Coil Coating Operations Plant located in Ambridge Borough, Beaver County, Pennsylvania. It is a coil coating operation facility subject to RACT for VOC. In this instance, RACT has been established and imposed by PADEP in OP 04-000-043. On August 9, 2000, PADEP submitted OP 04-000-043 to EPA as a SIP revision. OP 04-000-043 requires that all sources of VOC located at the facility and any associated air cleaning devices be operated and maintained in a manner consistent with good operating and management practices. The facility's Paint Mix Station and the Solvent Cleaning Station must be operated and maintained in accordance with the manufacturer's specifications and operating instructions, and in accordance with good air pollution control practice. OP 04-000-043 imposes VOC emission limits for the Paint Mix Station and the Solvent Cleaning Operations to be 9 tons per year of VOC of which no more than 6 tons per year of hazardous air pollutants (HAPs). United Coaters shall seek to use solvents which will further reduce these releases. United Coaters must maintain records on the hours of operation of the coating line, natural gas consumption, and VOC usage data, in accordance with 25 PA Code sections 129.52(c) and 129.95.

EPA is approving these RACT SIP submittals because PADEP established and imposed these RACT requirements in accordance with the criteria set forth in the SIP-approved RACT regulations applicable to these sources. PADEP has also imposed record-keeping, monitoring, and testing requirements on these sources sufficient to determine compliance with the applicable RACT determinations.

EPA is approving the revisions to the Pennsylvania SIP submitted by PADEP to establish and require RACT to control VOC from two major sources located in the Pittsburgh area. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on September 27, 2001 without further notice unless EPA receives adverse comment by September 12, 2001. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if adverse comment is received for a specific source or subset of sources covered by an amendment, section or paragraph of this rule, only that amendment, section, or paragraph for that source or subset of sources will be withdrawn.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” See 66 FR 28355, May 22, 2001. This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also 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), nor will it 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 (64 FR 43255, August 10, 1999), 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 Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this 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 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. ).

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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for two named sources.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 27, 2001. Filing a petition for reconsideration by the Administrator of this final 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 approving the Commonwealth's source-specific requirements to control VOC and to limit NO X from the GenCorp., Inc., Jeannette Plant; and the CENTRIA, United Coaters Ambridge Coil Coating Operations Plant located in the Pittsburgh Beaver Valley area of Pennsylvania may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Pursuant to sections 182(b)(2) and 182(f) of the Clean Air Act (CAA), the Commonwealth of Pennsylvania (the Commonwealth or Pennsylvania) is required to establish and implement RACT for all major VOC and NO X sources. The major source size is determined by its location, the classification of that area and whether it is located in the ozone transport region (OTR). Under section 184 of the CAA, RACT as specified in sections 182(b)(2) and 182(f)) applies throughout the OTR. The entire Commonwealth is located within the OTR. Therefore, RACT is applicable statewide in Pennsylvania.

State implementation plan revisions imposing reasonably available control technology (RACT) for three classes of VOC sources are required under section 182(b)(2). The categories are:

(1) All sources covered by a Control Technique Guideline (CTG) document issued between November 15, 1990 and the date of attainment;

(2) All sources covered by a CTG issued prior to November 15, 1990; and

(3) All major non-CTG sources. The regulations imposing RACT for these non-CTG major sources were to be submitted to EPA as SIP revisions by November 15, 1992 and compliance required by May of 1995.

The Pennsylvania SIP already includes approved RACT regulations for all sources and source categories covered by the CTGs. On February 4, 1994, PADEP submitted a revision to its SIP to require major sources of NO X and additional major sources of VOC emissions (not covered by a CTG) to implement RACT. The February 4, 1994 submittal was amended on May 3, 1994 to correct and clarify certain presumptive NO X RACT requirements. In the Pittsburgh area, a major source of VOC is defined as one having the potential to emit 50 tons per year (tpy) or more, and a major source of NO X is defined as one having the potential to emit 100 tpy or more. Pennsylvania's RACT regulations require sources, in the Pittsburgh area, that have the potential to emit 50 tpy or more of VOC and sources which have the potential to emit 100 tpy or more of NO X comply with RACT by May 31, 1995. The regulations contain technology-based or operational “presumptive RACT emission limitations” for certain major NO X sources. For other major NO X sources, and all major non-CTG VOC sources (not otherwise already subject to RACT under the Pennsylvania SIP), the regulations contain a “generic” RACT provision. A generic RACT regulation is one that does not, itself, specifically define RACT for a source or source categories but instead allows for case-by-case RACT determinations. The generic provisions of Pennsylvania's regulations allow for PADEP to make case-by-case RACT determinations that are then to be submitted to EPA as revisions to the Pennsylvania SIP.

On March 23, 1998 EPA granted conditional limited approval to the Commonwealth's generic VOC and NO X RACT regulations (63 FR 13789). In that action, EPA stated that the conditions of its approval would be satisfied once the Commonwealth either (1) certifies that it has submitted case-by-case RACT proposals for all sources subject to the RACT requirements currently known to PADEP; or (2) demonstrate that the emissions from any remaining subject sources represent a de minimis level of emissions as defined in the March 23, 1998 rulemaking. On April 22, 1999, PADEP made the required submittal to EPA certifying that it had met the terms and conditions imposed by EPA in its March 23, 1998 conditional limited approval of its VOC and NO X RACT regulations by submitting 485 case-by-case VOC/NO X RACT determinations as SIP revisions and making the demonstration described as condition 2, above. EPA determined that Pennsylvania's April 22, 1999 submittal satisfied the conditions imposed in its conditional limited approval published on March 23, 1998. On May 3, 2001 (66 FR 22123), EPA published a rulemaking action removing the conditional status of its approval of the Commonwealth's generic VOC and NO X RACT regulations on a statewide basis. The regulation currently retains its limited approval status. Once EPA has approved the case-by-case RACT determinations submitted by PADEP to satisfy the conditional approval for subject sources located in Allegheny, Armstrong, Beaver, Butler, Fayette, Washington, and Westmoreland Counties; the limited approval of Pennsylvania's generic VOC and NO X RACT regulations shall convert to a full approval for the Pittsburgh area.

It must be noted that the Commonwealth has adopted and is implementing additional “post RACT requirements” to reduce seasonal NO X emissions in the form of a NO X cap and trade regulation, 25 Pa Code Chapters 121 and 123, based upon a model rule developed by the States in the OTR. That rule's compliance date is May 1999. That regulation was approved as SIP revision on June 6, 2000 (65 FR 35842). Pennsylvania has also adopted regulations to satisfy Phase I of the NO X SIP call and submitted those regulations to EPA for SIP approval. Pennsylvania's SIP revision to address the requirements of the NO X SIP Call Phase I consists of the adoption of Chapter 145—Interstate Pollution Transport Reduction and amendments to Chapter 123—Standards for Contaminants. On May 29, 2001 (66 FR 29064), EPA proposed approval of the Commonwealth's NO X SIP call rule SIP submittal. EPA expects to publish the final rulemaking in the Federal Register in the near future. Federal approval of a case-by-case RACT determination for a major source of NO X in no way relieves that source from any applicable requirements found in 25 PA Code Chapters 121, 123 and 145.

On August 1, 1995, December 8, 1995, April 16, 1996, July 1, 1997, July 2, 1997, January 21, 1997, and February 2, 1999, PADEP submitted revisions to the Pennsylvania SIP which establish and impose RACT for several major sources of VOC and/or NO X . This rulemaking pertains to eight of those sources. The RACT determinations for the other sources are, or have been, the subject of separate rulemakings. The Commonwealth's submittals consist of Operating Permits (OP) issued by PADEP, and an Enforcement Order (EO) issued by the Allegheny County Health Department (ACHD). These OPs, and EOs impose VOC and/or NO X RACT requirements for each source. These sources are all located in the Pittsburgh area.

The table below identifies the sources and their respective OPs, and EOs which are the subject of this rulemaking. A summary of the VOC and NO X RACT determinations for each source follows the table.

Consolidated Natural Gas Transmission Corporation's South Oakford Station is located in Hempfield Township, Pennsylvania. Consolidated Natural Gas Transmission Corporation's South Oakford Station is a major source of NO X and VOC. The PADEP issued OP 65-000-840 to impose RACT on the internal combustion engines at this source. Consolidated Natural Gas Transmission Corporation is required to have INO X plasma ignition systems on two (2) Cooper 14W-330 internal combustion engines at the South Oakford Station. Operating permit 65-000-840 requires the two (2) Cooper 14W-330 internal combustion engines to meet NO X emission limits of 125.99 lbs/hr and 551.8 tons per year (tpy). The non-methane volatile organic carbon (NMVOC) limits for these engines are 28.0 lbs/hr and 122.6 tpy. The following sources at the facility must implement SIP-approved presumptive RACT requirements in accordance with 25 PA Code 129.93 (c)(1) : one (1) BS&B 62212 with a 2.0 MMBtu/hr rating; and one (1) Ajax WGEFD-4000 with a 4.0 MMBtu/hr rating. Consolidated Natural Gas Transmission Corporation is required to operate and maintain the above sources at the South Oakford Station in accordance with good air pollution control practices in accordance with the above citations.

Consolidated Natural Gas Transmission Corporation is required to perform stack testing at the South Oakford Station in accordance with 25 PA Code section 139. A minimum of one stack test is required every five years to verify the emission rates for NO X and NMVOC. Testing shall be performed while engines are operating at full load, full speed, during the ozone season (April to October). All engines operating 750 hours or more during the preceding ozone season shall be stack tested semi-annually to verify the rates of NO X and NMVOC through either an EPA Method stack test or through the use of portable monitors. All engines operating less than 750 hours during the preceding ozone season shall be stack tested annually to verify the rates of NO X and NMVOC through either an EPA Method stack test or through the use of portable monitors. The accuracy of the portable analyzer readings shall be verified during the EPA method stack testing. Consolidated Natural Gas Transmission Corporation is required to submit operating procedures for testing protocols, pretest protocols, notice to the PADEP that a stack test is to be performed (so that an observer may be present), and two copies of the stack test results to the PADEP. The source shall maintain records in accordance with the record keeping requirements of 25 PA Code section 129.95, and retain records for at least two years. At a minimum, the source must record operating hours, daily fuel consumption, operating pressures, and operating temperatures for each engine.

All annual limits must be met on a rolling monthly basis over every consecutive 12 months. Consolidated Natural Gas Transmission Corporation's South Oakford Station is also subject to additional post-RACT requirements to reduce NO X found at 25 PA Code, Chapters 121, 123 and 145.

Consolidated Natural Gas Transmission Corporation's Tonkin Station is located in Murrysville, Pennsylvania. Tonkin Station is a major source of NO X and VOC. The PADEP issued OP 65-000-634 to impose RACT on the natural gas fired engines at this source. Consolidated Natural Gas Transmission Corporation is required to limit NO X emissions from the Cooper 12W-330 engine to 39.68 lbs/hr and 173.8 tpy. The NMVOC limits for this engine are 6.6 lbs/hr and 28.9 tpy. The NO X emissions from the Waukesha L-5790-550 engine are limited to 8.82 lbs/hr and 38.6 tpy. The Cleaver-Brooks CB-700-800 Boiler, with a 3.3 MMBtu/hr rating, is subject to SIP-approved presumptive RACT requirements in accordance with 25 PA Code 29.93 (c)(1). Consolidated Natural Gas Transmission Corporation is required to operate and maintain these sources in accordance with good air pollution control practices.

Consolidated Natural Gas Transmission Corporation's Tonkin Station is required to perform stack testing in accordance with 25 PA Code section 139. A minimum of one stack test is required every five years to verify the emission rates for NO X and NMVOC. Testing shall be performed while engines are operating at full load, full speed, during the ozone season (April to October). All engines operating 750 hours or more during the preceding ozone season shall be stack tested semi-annually to verify the rates of NO X and NMVOC through either an EPA Method stack test or through the use of portable monitors. All engines operating less than 750 hours during the preceding ozone season shall be stack tested annually to verify the rates of NO X and NMVOC through either an EPA Method stack test or through the use of portable monitors. The accuracy of the portable analyzer readings shall be verified during the EPA method stack testing. Consolidated Natural Gas Transmission Corporation is required to submit operating procedures for testing protocols, pretest protocols, notice to the PADEP that a stack test is to be performed (so that an observer may be present), and two copies of the stack test results to the PADEP for the Tonkin Station. The source is required to maintain records in accordance with the record keeping requirements of 25 PA Code section 129.95. The source shall retain records for at least two years. At a minimum, the source must record operating hours, daily fuel consumption, operating pressures, and operating temperatures for each engine.

All annual limits must be met on rolling monthly basis over every consecutive 12 months.

Consolidated Natural Gas Transmission Corporation's Tonkin Station is also subject to additional post-RACT requirements to reduce NO X found at 25 PA Code, Chapters 121, 123 and 145.

Carnegie Natural Gas Company's Creighton Station is located in Creighton, Pennsylvania. Carnegie Natural Gas Company's Creighton Station is a major source of NO X and VOC. In this instance, RACT has been established and imposed by the ACHD in EO 213. The PADEP submitted this EO to EPA on behalf of the ACHD as a SIP revision. The ACHD issued EO 213 to impose RACT on subject combustion units at the facility. The permit for Creighton Station requires an I NO X Plasma Ignition System, for the purpose of reducing both NO X and VOC emissions on both subject combustion units at the facility. For the #1 Cooper-Bessemer GMVH-6, there is a NO X limit of 3.0 g/bhp/hr and a VOC limit of 2.0 g/bhp/hr. The annual NO X limit for this unit is 39.5 tpy, and the annual VOC limit is 26.5 tpy. For the #2 Cooper-Bessemer GMVH-6, the same limits apply. The annual facility wide emission limit for NO X is 79.0 tpy, and the annual facility wide emission limit for VOC is 53.0 tpy.

Consolidated Natural Gas Transmission Corporation is required to perform testing to demonstrate compliance no less than once every five years on each unit. The emission tests shall be conducted in accordance with all applicable EPA approved test methods and section 2108.02 of Article XXI of Allegheny County's regulations. No less than twice a year, the source shall perform NO X and VOC emission testing to demonstrate compliance with the emission limitations referenced above. Such emission test shall be conducted using a portable analyzer with each unit operating at maximum load, maximum speed, and performed between April 1 and October 31 of each year. The source shall conduct these tests in accordance with section 2108.02 of Article XXI. The source shall maintain all appropriate records to demonstrate compliance with the requirements of both section 2105.06 of Article XXI and EO 213. The source is required to record such data and information required to determine compliance for the facility, in a time frame consistent with the averaging period of the requirements of section 2105.06 of Article XXI and EO 213. The source shall retain all records required by both section 2105.06 of Article XXI and EO 213 for at least two years. The source shall at all times properly operate and maintain all process and emission control equipment according to good engineering practices.

All annual limits must be met on rolling monthly basis over every consecutive 12 months. Carnegie Natural Gas Company's Creighton Station is also subject to additional post-RACT requirements to reduce NO X found at 25 PA Code, Chapters 121, 123 and 145.

Consolidated Natural Gas Transmission Corporation's Beaver Station is located in New Sewickly Township, Pennsylvania. Consolidated Natural Gas Transmission Corporation Beaver Station is a major source of NO X and VOC. The PADEP issued OP 04-000-490 to impose RACT on the generator, boiler, and four engines at Beaver Station. The Caterpiller 351251TA generator, with a 778 HP rating, is subject to a NO X limit of 3.4 lbs/hr, and a VOC limit of 0.03 lbs/hr. The Ajax WGFD-8500 boiler, with an 8.5 MMBtu/hr rating, is subject to NO X limits of 1.5 lbs/hr and 6.6 tpy and to VOC limits of 0.04 lbs/hr and 0.2 tpy. The four (4) Dresser Rand TLAD-8 engines, with 3200 HP ratings, are subject to NO X limits of 14.1 lbs/hr and 61.8 tpy, and to VOC limits of 5.6 lbs/hr and 24.6 tpy. This permit requires Consolidated Natural Gas Transmission Corporation to install, operate and maintain all units in accordance with manufacturer's specifications, and in accordance with good air pollution control practice. The auxiliary generator at this facility shall be operated for emergency purposes only, except that it may be operated for non-emergency purposes for up to 250 hours per year. All other units at this facility may be operated continuously.

The source is required to track and record hours of operation, natural gas consumption rate, portable analyzer results, and all maintenance and repair operations performed on the equipment at this station to comply with the record keeping requirements of PA Code, Title 25, Chapter 129.95. Stack testing shall be performed using EPA methods, and in accordance with PA Code, Title 25, Chapter 139 and the PADEP Source Testing Manual, on the four Dresser Rand engines to verify emission rates during the ozone season (April through October) at least once every five years. Fuel consumption rate, engine operation parameters, and portable analyzer readings shall be recorded during the duration of the stack tests. Tests shall be conducted while the engine is running at full load. Under this permit, the source is required to submit pre-test protocols, notify the PADEP prior to stack testing (so that an observer may be present), and submit two copies of the stack test results to the PADEP. Stack testing using a portable analyzer shall be performed one time each year on the exhaust from each TLAD-8 engine. Engines that operated for more than 750 hours during the previous ozone season shall be stack tested using portable analyzers two times each year, to verify the rate of emissions. The source is required to submit a complete portable analyzer operating procedure to the PADEP. The accuracy of the portable analyzer readings shall be verified during the EPA method stack testing. Results of these tests shall be retained and made available upon request to the PADEP.

All annual limits must be met on rolling monthly basis over every consecutive 12 months. Consolidated Natural Gas Transmission Corporation's Beaver Station is also subject to additional post-RACT requirements to reduce NO X found at 25 PA Code, Chapters 121, 123 and 145.

Consolidated Natural Gas Transmission Corporation's Jeannette Station is located in Penn Township, Pennsylvania. Consolidated Natural Gas Transmission Corporation's Jeannette Station is a major source of NO X and VOC. The PADEP issued OP 65-000-852 to impose RACT on the internal combustion engines at this source. The permit for the Jeannette Station requires ignition timing retard technology on three (3) Ingersoll Rand (IR) 412 KVS-DT, one (1) IR 410 KVG-AK, one (1) IR 83 KVG-NL, and two (2) IR PJUG internal combustion engines. The permit also states that the emission sources at Consolidated Natural Gas Transmission Corporation's Jeannette Station may not operate after December 31, 1998. The PADEP still wishes for EPA to approve for this facility. The emission limits for the engines at this source are as follows: Three (3) IR 412 KVS-DT are subject to NO X limits of 88.19 lbs/hr and 386.3 tpy, and to VOC limits of 7.3 lbs/hr and 32.0 tpy. One (1) IR 410 KVG-AK is subject to NO X limits of 38.80 lbs/hr and 170.0 tpy, and to VOC limits of 4.0 lbs/hr and 17.5 tpy. One (1) IR 83 KVG-NL is subject to NO X limits of 31.04 lbs/hr and 136.0 tpy, and to VOC limits of 3.2 lbs/hr and 14.9 tpy. Two (2) IR PJUG are subject to NO X limits of 10.41 lbs/hr and 45.6 tpy. The permit requires the following sources at the facility to implement SIP-approved presumptive RACT in accordance with 25 PA Code section 129.93(c) (1), and 129.57: One (1) Superior Boiler, Model # 4RG60D, with a 2.14 MMBtu/hr rating, is subject to 25 PA Code section 129.93 (c)(1). One (1) BS&B Heater, Model # 5B-7224-45, with a 4.45 MMBtu/hr rating, is subject to 25 PA Code section 129.93 (c)(1). One (1) Drip Gasoline Storage Tank, with an 8,000 gal rating, is subject to 25 PA Code section 129.57.

For the above sources, Consolidated Natural Gas Transmission Corporation shall operate and maintain the source in accordance with good air pollution control practices. Consolidated Natural Gas Transmission Corporation shall perform a minimum of one stack test in accordance with 25 PA Code Chapter 139, and the PADEP's Source Testing Manual, on all engines to verify the emission rates for NO X , and NMVOC. Testing shall be conducted while engines are operating at full load, full speed, during the ozone season (April to October). All engines operating 750 hours or more during the preceding ozone season shall be stack tested semi-annually to verify the rates of NO X and NMVOC through either an EPA Method stack test or through the use of portable monitors. All engines operating less than 750 hours during the preceding ozone season shall be stack tested annually to verify the rates of NO X and NMVOC through either an EPA Method stack test or through the use of portable monitors. The accuracy of the portable analyzer readings shall be verified during the EPA method stack testing. Consolidated Natural Gas Transmission Corporation shall submit pre-test protocols, notify PADEP in advance of stack testing (so that an observer may be present), and submit two copies of the testing results to PADEP. Consolidated Natural Gas Transmission Corporation shall maintain records for the Jeannette Station in accordance with the record keeping requirements of 25 PA Code section 129.95. At a minimum, the source shall keep records for each engine that include operating hours, daily fuel consumption, operating pressures, and operating temperatures. These records shall be maintained on file at the facility for not less than two years.

All annual limits must be met on rolling monthly basis over every consecutive 12 months. Consolidated Natural Gas Transmission Corporation's Jeannette Station is also subject to additional post-RACT requirements to reduce NO X found at 25 PA Code, Chapters 121, 123 and 145.

Consolidated Natural Gas Transmission Corporation's South Bend Station is located in South Bend Township, Pennsylvania. Consolidated Natural Gas Transmission Corporation's South Bend Station is a major source of NO X and VOC. The PADEP issued OP 03-000-180 to impose RACT on the internal combustion engines at this source. The permit for the South Bend Station requires low emission combustion technology on six (6) Clark HLA-8 internal combustion engines. In accordance with 25 PA Code section 127.441, emission limits for the six engines are as follows: At full load and full speed, the NO X limit on each engine is 3.0 g/bhp-hr and the VOC limits are 6.61 lbs/hr and 29.0 tpy. Under all other conditions, the NO X limits on each engine are 26.46 lbs/hr and 115.9 tpy. Under all other conditions, the VOC limits on each engine are 13.22 lbs/hr and 57.9 tpy. The following sources at the facility must implement SIP-approved presumptive RACT in accordance with 25 PA Code section 129.93: One (1) Caterpillar G3512 engine, with a 814 bhp rating. The applicable RACT emission limit is found at 25 PA Code section 129.93 (c)(5). One (1) IR JVG-6 engine, with a 110 bhp rating. The applicable RACT emission limit is found at 25 PA Code section 129.93(c)(3). One (1) PENNCO Boiler, with a 2.4 MMBtu/hr rating. The applicable RACT emission limit is found at 25 PA Code section 129.93(c)(1). One (1) NATCO Dehydrator, with a 2.14 MMBtu/hr rating. The applicable RACT emission limit is found at 25 PA Code section 129.93(c)(1). The IR JVG-6 engine shall be maintained at four degrees retarded, relative to standard timing in accordance with the above citation. The Caterpillar G3512 engine shall be limited to a maximum of 500 hours of operation in any consecutive 12-month period in accordance with the above citation. Consolidated Natural Gas Transmission Corporation is required to operate and maintain the above sources at the South Bend Station in accordance with good air pollution control practices in accordance with the above citations. Consolidated Natural Gas Transmission Corporation is required to implement RACT in accordance with 25 PA Code section 129.57 for (1) 10,000 gal Drip Gasoline Storage Tank at the facility.

Consolidated Natural Gas Transmission Corporation South Bend is required to perform stack testing in accordance with 25 PA Code section 139 and the PADEP's Source Testing Manual. The permit requires that a minimum of one stack test be performed on each of the Clark HLA-8 engine every five years to verify the emissions rates. Testing shall be conducted while the engines are operating at full load, full speed, during the ozone season (April to October) in accordance with 25 PA Code section 127.441. The permit also requires the source to semi-annually stack test any of the six (6) Clark HLA-8 engines that operate 750 hours or more during the preceding ozone season, either through an EPA method stack test, or through the use of portable analyzers in accordance with 25 PA Code section 127.441. The accuracy of the portable analyzer readings shall be verified during the EPA method stack testing. For those engines that operate less than 750 hour, stack tests shall be conducted annually, as described above. Consolidated Natural Gas Transmission Corporation is required to submit a complete operating procedure to PADEP, in accordance with 25 PA Code section 127.441, as described in the permit. The source is required to submit a pretest protocol, to notify the PADEP (so that an observer may be present), and to supply PADEP with two copies of the stack test results as described in the permit, in accordance with 25 PA Code section 127.441. The source is required to maintain records in accordance with the record keeping requirements of 25 PA Code section 129.95. At a minimum, the source must retain records for each engine for not less than two years, and those records must contain operating hours, daily fuel consumption, and all maintenance and repair operations.

All annual limits must be met on rolling monthly basis over every consecutive 12 months. Consolidated Natural Gas Transmission Corporation's South Bend Station is also subject to additional post-RACT requirements to reduce NO X found at 25 PA Code, Chapters 121, 123 and 145.

Consolidated Natural Gas Transmission Corporation's Oakford Station is located in Salem Township, Pennsylvania. Consolidated Natural Gas Transmission Corporation's Oakford Station is a major NO X and VOC emitting facility. The PADEP issued OP 65-000-837 to impose RACT on the internal combustion engines at this source. Consolidated Natural Gas Transmission Corporation is required to have ignition timing retard technology and INO X plasma ignition systems on twelve (12) Cooper GMW-10TF internal combustion engines, and ignition timing retard technology on two (2) Worthington SEHG-L internal combustion engines at the Oakford Station. Emission limits for the engines under this permit are as follows: Twelve (12) Cooper GMW-10TF internal combustion engines each have NO X limits of 74.41 lbs/hr and 325.9 tpy. The VOC limits for each engine are 1.20 lbs/hr and 5.26 tpy. Two (2) Worthington SEHG-L internal combustion engines each have NO X limits of 28.67 lbs/hr and 125.6 tpy. The VOC limits for each engine are 0.25 lbs/hr and 1.07 tpy. One (1) IR JVG Dehy Engine has NO X limits of 3.88 lbs/hr and 17.0 tpy. The VOC limits are 0.40 lbs/hr, 1.75 tpy. The following sources at the facility must implement SIP-approved presumptive RACT in accordance with 25 PA Code section 129.93: Two (2) Kewanee Boilers, with 16.74 MMBtu/hr rating. The applicable RACT emission limit is found at 25 PA Code section 129.93 (c)(7). One (1) Hot Water Boiler, with a 0.1 MMBtu/hr rating. The applicable RACT emission limit is found at 25 PA Code section 129.93(c)(1). Two (2) NATCO Type WT Process Heaters, with 9.4 MMBtu/hr ratings. The applicable RACT emission limit is found at 25 PA Code section 129.93(c)(1). Seven (7) Drip Gasoline Storage Tanks, (2) with 11,600 gal ratings, (5) with 14,600 gal ratings. The applicable RACT emission limit is found at 25 PA Code section 129.57. Two (2) Methanol Storage Tanks, with 6,000 gal ratings. The applicable RACT emission limit is found at 25 PA Code section 129.57.

All annual limits must be met on rolling monthly basis over every consecutive 12 months. Consolidated Natural Gas Transmission Corporation Oakford is required to operate and maintain the above sources in accordance with good air pollution control practices in accordance with the above citations. Consolidated Natural Gas Transmission Corporation is required to perform stack testing in accordance with 25 PA Code section 139 at the Oakford Station. A minimum of one stack test is required every five years to verify the emission rates for NO X and NMVOC. Testing shall be performed while engines are operating at full load, full speed, during the ozone season (April to October). All engines operating 750 hours or more during the preceding ozone season shall be stack tested semi-annually to verify the rates of NO X and NMVOC through either an EPA Method stack test or through the use of portable monitors. All engines operating less than 750 hours during the preceding ozone season shall be stack tested annually to verify the rates of NO X and NMVOC through either an EPA Method stack test or through the use of portable monitors. The accuracy of the portable analyzer readings shall be verified during the EPA method stack testing. Consolidated Natural Gas Transmission Corporation is required to submit operating procedures for testing protocols, pretest protocols, notice to the PADEP that a stack test is to be performed (so that an observer may be present), and two copies of the stack test results to the PADEP. The source shall maintain record in accordance with the record keeping requirements of 25 PA Code section 129.95. The source shall retain records for at least two years. At a minimum, the source must record operating hours, daily fuel consumption, operating pressures, and operating temperatures for each engine.

Consolidated Natural Gas Transmission Corporation's Oakford Station is also subject to additional post-RACT requirements to reduce NO X found at 25 PA Code, Chapters 121, 123 and 145.

Eastern Transmission Corporation's Uniontown Station is located in North Union Township, Pennsylvania. Texas Eastern Transmission Corporation's Uniontown Station is a major source of NO X and VOC. The PADEP issued OP 26-000-413 to impose RACT on the internal combustion engines at this source. The permit for this facility requires non-selective catalytic reduction on (4) IR KVG-103 rich burn engines, dry low-NO X combustors on (2) Solar Mars turbines, and for the implementation of presumptive RACT on eight ancillary sources at the facility. The hours of operation are limited by this permit as indicated in the following table:

The Uniontown Station shall only use low ash lubricating oil (0.5% or less) in the IR KVG-103 engines, and shall continuously monitor and record temperature rise and pressure differential across the catalyst of each engine. The catalytic converter of the engines shall be equipped with a high temperature alarm and/or shutdown set at 1350 degrees Fahrenheit or less. The catalyst on each engine shall be physically inspected annually for physical damage and fouling. A log shall be kept detailing all actions taken to maintain catalyst performance. The file shall be maintained for not less than two years and be made available to PADEP upon request. The source shall continuously monitor and record oz levels prior to the catalyst on each engine, and the source shall maintain oz levels below 0.5% on each engine. The NO X emission limits for each engine are 4.8 lbs/hr and 12.2 tpy. The NMVOC emission limits are 0.5 lbs/hr and 3 tpy. The emission rate for each of the Solar Mars turbines shall be established by stack testing. The hours of operation per year of the Caterpillar 3412 emergency generator shall not exceed 500 hours. The hours of operation per year of the Leroi L3460 emergency generator shall not exceed 500 hours.

The source is required to maintain records in accordance with 25 PA Code section 129.95. At a minimum, the source must keep records of operating hours, daily fuel consumption, operating pressures, and operating temperatures. These records must be kept on file for a period of not less than two years. The source shall perform a minimum of one stack test every five years, in accordance with 25 PA Code Chapter 139, and the PADEP's Source Testing Manual, on all engines to verify the emission rates for NO X , and NMVOC. Testing shall be conducted while engines are operating at full load, full speed, during the ozone season (April to October). All engines operating 750 hours or more during the preceding ozone season shall be stack tested semi-annually to verify the rates of NO X and NMVOC through either an EPA Method stack test or through the use of portable monitors. All engines operating less than 750 hours during the preceding ozone season shall be stack tested annually to verify the rates of NO X and NMVOC through either an EPA Method stack test or through the use of portable monitors. The accuracy of the portable analyzer readings shall be verified during the EPA method stack testing. Texas Eastern Transmission Corporation is required to submit pre-test protocols, notify PADEP in advance of stack testing (so that an observer may be present), and submit a copy of the testing results to PADEP for the Uniontown Station.

All annual limits must be met on rolling monthly basis over every consecutive 12 months. Texas Eastern Transmission Corporation's Uniontown Station is also subject to additional post-RACT requirements to reduce NO X found at 25 PA Code, Chapters 121, 123 and 145.

EPA is approving these RACT SIP submittals because the ACHD and PADEP established and imposed these RACT requirements in accordance with the criteria set forth in the SIP-approved RACT regulations applicable to these sources. The ACHD and PADEP have also imposed record-keeping, monitoring, and testing requirements on these sources sufficient to determine compliance with the applicable RACT determinations.

EPA is approving the revisions to the Pennsylvania SIP submitted by PADEP to establish and require VOC and NO X RACT for eight major of sources located in the Pittsburgh area. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on September 27, 2001 without further notice unless EPA receives adverse comment by September 12, 2001. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” See 66 FR 28355, May 22, 2001. This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also 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), nor will it 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 (64 FR 43255, August 10, 1999), 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 Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this 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 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. ).

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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for eight named sources.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 12, 2001. Filing a petition for reconsideration by the Administrator of this final 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 approving the Commonwealth's source-specific RACT requirements to control VOC and NO X from eight individual gas compressor stations in the Pittsburgh area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On June 15, 2001, EPA published a direct final rule (66 FR 32545) (FR Doc. 01-15027) partially approving and partially disapproving, and a parallel proposed rule (66 FR 32594) (FR Doc. 01-15028) proposing to partially approve and partially disapprove, State Implementation Plan (SIP) revisions submitted by the Governor of Montana on September 19, 1997; December 10, 1997; April 14, 1999; December 6, 1999; and March 3, 2000. The direct final rule was scheduled to become effective on August 14, 2001 (except that the delegation of the NSPS to Montana had already become effective on May 16, 2001). However, our preambles to the rules explained that if we received an adverse comment on our action by July 16, 2001, we would issue a timely withdrawal of the direct final rule and it would not take effect. In addition, only one of the June 15, 2001, rules—the parallel proposed rule—further explained that we would then issue another rule responding to any adverse comments and taking final action on the parallel proposal without instituting another public comment period. Our June 15, 2001, actions contained the following specific errors:

1. The June 15, 2001 direct final rule contained incorrect and misleading language in the Administrative Requirements section. Specifically, on page 32553, third column, the paragraph labeled “G. Submission to Congress and the Comptroller General” is incorrect in stating that “EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability.” Instead, the paragraph should have stated that EPA will submit a report containing the rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the U.S., prior to publication of the rule in the Federal Register . Our subsequent direct final rule will correct this inaccuracy.

2. The June 15, 2001, preamble to the direct final rule stated our intent to partially disapprove two of the State's air quality regulations, specifically, Administrative Rules of Montana (ARM) 17.8.309(5)(b) and 17.8.310(3)(e). See 66 FR at 32547, 32552. Although we indicated in the preamble that we intended to partially disapprove the rules, we failed to promulgate necessary corresponding regulatory text in 40 CFR part 52 subpart BB indicating that the State rules were to be disapproved. The subsequent direct final rule and parallel proposed rule will correct this error.

3. The June 15, 2001, direct final rule failed to identify the existence of or otherwise accurately cross-reference the parallel proposed rule published on the same day, or indicate that if we received an adverse comment—in addition to withdrawing the direct final rule—we would address all comments in a subsequent final rule based on the proposed rule, without instituting a second comment period. As a result, readers who reviewed our direct final rule alone, without knowledge of the parallel proposed rule, could not have been fully informed of our rulemaking process for this action. If, on the other hand, a reader reviewed both the direct final rule and the parallel proposed rule, she or he would have been presented with inconsistent descriptions of the process to be followed after submission of an adverse comment. Our failure to clearly and accurately describe the rulemaking process will be corrected in the subsequent direct final and parallel proposed rules.

4. The Summary of the June 15, 2001, proposed rule contains an inaccurate and misleading description of the proposed action. Specifically, the Summary indicated that we were proposing to take direct final action, which is confusing and not in fact what we intended. Instead, the proposal should have simply stated that we were proposing to take the actions described in the Summary. The Summary also indicated that we were “approving” other provisions, thus suggesting that some things were not only being proposed but were the subject of final action in that proposed rule, when it should have stated that we were proposing to approve those provisions. Our subsequent parallel proposed rule will correct this mistake.

5. The June 15, 2001 preambles to the direct final and proposed rules stated our intent to approve most of the State's recodified air quality rules, including the State's recodified stack height rules. However, in another pending SIP action in Montana (Billings/Laurel), we have questioned aspects of the Montana stack height regulations that are repeated in the recodification. We do not believe we should act on the recodification of these rules before we give full consideration to relevant issues in the context of our ongoing action on the Billings/Laurel SIP, where the issues first arose and should be resolved. The direct final rule's inadvertent approval of the recodification was premature, and should not yet become effective. Accordingly, the subsequent direct final rule will indicate that we will act on the recodified stack height rules at a later date. This deferral of action will have no effect on the existing approved Montana stack height SIP.

We believe that the unique circumstances of the combination of errors in the June 15, 2001, direct final and parallel proposed rules for this action are best remedied, in this case, by a withdrawal of the direct final rule in advance of its taking effect, as would have occurred if someone had filed a comment objecting to the incorrect and misleading preamble language and the mistaken omission of regulatory language or the inadvertent and premature approval of the recodified stack height regulations. In addition, since the parallel proposed rule also contained an inaccurate and misleading description of the nature of that action and since we are withdrawing the direct final rule to which it was paired, it is appropriate to withdraw that rule. Our subsequent direct final and parallel proposed rules will clarify how we are treating the SIP submission, and will contain the necessary regulatory language to fully promulgate the direct final rule, should it become effective. Today's withdrawal action does not affect the status of the May 16, 2001, delegation of the NSPS to Montana, which had already become effective.

In the “Proposed Rules” section of today's Federal Register publication, we are withdrawing the proposed rule published on June 15, 2001.

For the purpose of this document, we are giving meaning to certain words as follows: (a) The words “EPA,” “we,” “us” or “our” mean or refer to the United States Environmental Protection Agency. (b) The words State or Montana mean the State of Montana unless the context indicates otherwise. (c) The initials MDEQ mean the Montana Department of Environmental Quality.

On June 15, 2001, EPA published a direct final rule (66 FR 32545) partially approving and partially disapproving, and a parallel proposed rule (66 FR 32594) proposing to partially approve and partially disapprove, the SIP revisions submitted by the Governor of Montana on September 19, 1997; December 10, 1997; April 14, 1999; December 6, 1999; and March 3, 2000. The direct final rule was scheduled to become effective on August 14, 2001, if EPA did not before that date withdraw the rule, possibly in response to submission of an adverse comment. In separate actions published today, we are withdrawing both the June 15, 2001, direct final rule and parallel proposed rule because the documents contain a number of errors that we had independently identified and wanted to correct before the direct final rule would have otherwise become effective on August 14, 2001. In the withdrawal actions, we indicate that we intend to issue another direct final rule and a parallel proposed rule correcting these errors and addressing the Governor of Montana's September 19, 1997, December 10, 1997, April 14, 1999, December 6, 1999, and March 3, 2000, submittals.

This document is the subsequent direct final rule which addresses the Governor of Montana's September 19, 1997, December 10, 1997, April 14, 1999, December 6, 1999, and March 3, 2000 submittals and corrects the errors we committed in our June 15, 2001, actions as discussed in our withdrawal action. In addition to the errors identified in our withdrawal actions, we have made some additional changes. We expanded the Summary and Final Action paragraphs; revised the regulatory text for 40 CFR 52.1370(c)(49) to (1) make it clearer, (2) indicate that the Governor's submittals also include the Yellowstone County Open Burning Regulation, (3) remove the incorporation by reference of the State's new stack height rules and indicate that the prior stack height rules still remain in the approved SIP, and (4) add another document to the list of Additional Material; expanded section II.B.2.a, below; and made minor editorial changes.

In this document we are acting on five SIP revisions, submitted by the Governor of Montana on September 19, 1997; December 10, 1997; April 14, 1999; December 6, 1999; and March 3, 2000, which modify the Montana air quality rules. The revisions are intended to make the rules consistent with Federal requirements, minimize repetition in the air quality rules, and clarify existing provisions. This document explains our action in response to the five submittals.

The September 19, 1997 submittal is a recodification (renumbering) of the State air quality rules. The December 10, 1997 submittal updates the incorporation by reference (IBR) of various documents in the State air quality rules. The April 14, 1999 submittal consists of various air quality rule revisions the State made between 1995 to 1998 but which had not previously been submitted to us. The December 6, 1999 submittal revises the State's open burning rules and adopts Yellowstone County's Local Regulation No. 002—Open Burning. The March 3, 2000 submittal again updates the IBR of various documents in the State's rules and corrects references to an EPA Handbook for Air Pollution Measurement Systems.

We reviewed the five submittals and placed each rule (or section of a rule) into a category based on the changes that were made in the rule and/or our action on the rule. The first category (see II.A. below) consists of those rules (or sections of rules) which have been recodified; there are no substantive changes in the text of the rules. We are approving these recodified rules. The second category (see II.B below) consists of those rules (or sections of rules) for which, in addition to being recodified, the text of the rule was modified. A discussion of whether or not the text changes are approved or disapproved is provided below. The third category (see II.C. below) includes those rules we cannot approve in the SIP. A discussion of why these rules cannot be approved in the SIP is provided below. Finally, the fourth category (see II.D. below) identifies those rules that we will act on at a later date.

We are approving the following sections of the Administrative Rules of Montana (ARM) because the rules have only been recodified; there are no substantive changes in the text of the rules. These recodified rules replace the prior codified rules in the federally approved SIP.

ARM sections 17.8.101 (except 17.8.101(40)(a)), 17.8.105(1), 17.8.110(3), 17.8.111, 17.8.130-131, 17.8.140-142;

ARM sections 17.8.301, 17.8.304 (except 17.8.304(4)(f)), 17.8.308, 17.8.316, 17.8.320, 17.8.322-323, 17.8.324 (except 17.8.324(1)(c) and (2)(d)), 17.8.325-326, 17.8.330-331, 17.8.333-334;

ARM sections 17.8.605, 17.8.614-615;

ARM sections 17.8.701 (except 17.8.701(10)), 17.8.704(1), (3)-(5), 17.8.705(1)(a)-(n), 17.8.706-707, 17.8.710, 17.8.715-717, 17.8.730-732, 17.8.733 (except (17.8.733(1)(c)), 17.8.734;

ARM sections 17.8.801 (except 17.8.801(29)(a)), 17.8.804-809, 17.8.818-828;

ARM sections 17.8.901 (except 17.8.901(14)(c) and 901(20)(a)), 17.8.904-906;

ARM sections 17.8.1001, 17.8.1006-1007; and

ARM sections 17.8.1101(2) and (3), 17.8.1106(2), 17.8.1108, 17.8.1109(2) and (3), and 17.8.1110.

The second category consists of those rules (or sections of rules) for which, in addition to being recodified, the text of the rule has been modified. A discussion of the modification to each rule (or section of a rule) and whether or not the text changes are approved or disapproved is provided below. The recodified and modified rules that we are approving replace the prior codified rules in the federally approved SIP.

1. Subchapter 1—General Provisions (a) Definitions—ARM 17.8.101(40)(a). On October 6, 1995, June 21, 1996 and June 12, 1998, the State adopted revisions to the definition of “volatile organic compounds (VOC)” in ARM 17.8.101(40)(a) (formerly ARM 16.8.701(40)(a)). The State revised the definition to coincide with revisions to the federal definition. Since the definition of VOC is consistent with our definition we are approving ARM 17.8.101(40)(a) into the SIP.

(b) Incorporation by Reference—ARM sections 17.8.102 and 17.8.103(1)-(4). On June 21, 1996, the State adopted revisions to its incorporation by reference of documents and other statutory references contained in the State's air quality rules, to update the references to the July 1995 edition of the Code of Federal Regulations (CFR), 1995 edition of the Montana Code Annotated (MCA), 1993 edition of the United States Code, and December 31, 1995 edition of the Administrative Rules of Montana. With this revision, the State deleted duplicative rules and combined existing incorporation by references into new rules. The State also made several non-substantive amendments for consistency, to delete unnecessary language and to make the language in the rules conform to current rule drafting requirements. The following sections of the rules were modified or added: ARM 17.8.102 (formerly ARM 16.8.710) and ARM 17.8.103(1)-(4) (formerly ARM 16.8.708(1)-(2)).

On August 22, 1997, the State again adopted updates to its incorporation by reference section of the Administrative Rules of Montana to specify additional sources for obtaining federal material incorporated by reference, and to incorporate the July 1996 edition of the CFR and the December 31, 1996 edition of the Administrative Rules of Montana. The following sections were revised: ARM 17.8.102 and ARM 17.8.103(3).

On June 12, 1998, the State again adopted revisions to incorporate the July 1997 edition of the CFR, the 1997 edition of the MCA and the December 31, 1997 edition of the Administrative Rules of Montana into ARM 17.8.102.

On September 24, 1999, the State again adopted revisions to incorporate the July 1998 edition of the CFR and the December 31, 1998 edition of the Administrative Rules of Montana into ARM 17.8.102 and the reference to EPA's “Quality Assurance Handbook for Air Pollution Measurement Systems” into ARM 17.8.103.

We are approving ARM sections 17.8.102 and 17.8.103(1)-(4) into the SIP.

(c) Testing Requirements—ARM 17.8.105(2) . On June 21, 1996 the State adopted a minor revision in ARM 17.8.105(2) (formerly ARM 16.8.704(2)) to include a reference to another State rule. In addition, on June 21, 1996 the State deleted and did not replace ARM 16.8.704(3). State rule ARM 16.8.704(3) incorporated by reference 40 CFR part 51, Appendix P. This incorporation was duplicative of ARM 16.8.708(1)(d) (now ARM 17.8.103(1)(d)) which also incorporated by reference 40 CFR part 51, Appendix P. We are approving the revision of ARM 17.8.105(2) into the SIP and the deletion of ARM 16.8.704(3) from the SIP.

(d) Source Testing Protocol—ARM 17.8.106. On September 24, 1999 the State adopted revisions to ARM 17.8.106 to correct the reference to EPA's “Quality Assurance Handbook for Air Pollution Measurement Systems.” We are approving the revisions to ARM 17.8.106 into the SIP.

(e) Malfunctions—ARM 17.8.110(1), (2), (4), (5), (6), and (7). On October 6, 1995, the State adopted revisions to its malfunction rule in ARM 17.8.110(7) (formerly ARM 16.8.705(7)). The revised State rule allows a facility to respond to a malfunction of equipment on a temporary basis without obtaining an air quality permit. Because the revisions require that if the temporary replacement equipment constitutes a major stationary source under sub-chapters 8, 9, and 10, then the source must comply with the requirements of the applicable sub-chapter, we believe the revision is acceptable. In addition to the temporary replacement revisions, on October 6, 1995 the State also made several editorial and clarifying revisions in the malfunction rule, ARM 17.8.110(1), (2), (4), (5) and (6) (formerly ARM 16.8.705(1), (2), (4), (5) and (6)). We are approving the revisions to ARM 17.8.110(1), (2), (4), (5), (6), and (7) into the SIP.

(a) Incorporation by Reference —ARM 17.8.302(1)-(4). On May 19, 1995, the State adopted revisions to add ARM 17.8.302(1)(b) and (c) (formerly ARM 16.8.1429(2)(b) and (c)). This revision incorporated by reference 40 CFR part 60, Appendix A, Method 9, and 40 CFR part 60 Appendix B, performance specification 1. This revision occurred at the same time the State adopted revisions to the Kraft Pulp Mill rule. See the discussion of the Kraft Pulp Mill rule in section II.D.1 below.

On August 9, 1996 the State adopted revisions reformatting the incorporation by reference of documents in ARM 17.8.302(1)(a)-(h) and (2)-(4) and adding ARM 17.8.302(1)(i) (formerly ARM 16.8.1429(1)(a)-(h) and (2)-(4) and 16.8.1429(1)(i), respectively). State rule ARM 17.8.302(1)(i) incorporates by reference 40 CFR part 63.

On June 20, 1997, the State adopted revisions to ARM 17.8.302(1) by adding 17.8.302(1)(j). State rule ARM 17.8.302(1)(j) incorporates by reference 40 CFR part 60, subpart Cc.

As indicated in the General Provisions section II.B.1(b) above, on August 22, 1997, the State again adopted updates to its incorporation by reference of documents. State rule ARM 17.8.302(3) was revised.

On June 12, 1998 the State adopted more revisions to update the incorporation by reference of documents in ARM 17.8.302(1)(e) and (i). State rule ARM 17.8.302(1)(e) was revised to incorporate by reference our final rule published on October 7, 1997 (62 FR 52399), entitled “Determination of Total Fluoride Emissions from Selected Sources of Primary Aluminum Production Facilities.” State rule ARM 17.8.302(1)(i) was revised to incorporate by reference our final rule published on October 7, 1997 (62 FR 52407), entitled “National Emission Standards for Hazardous Air Pollutants from Primary Reduction Facilities.”

On November 6, 1998 the State adopted revisions to ARM 17.8.302(1) by adding 302(1)(k). State rule ARM 17.8.302(1)(k) incorporates by reference 40 CFR part 60, subpart Ce.

On September 24, 1999, the State adopted more revisions to ARM 17.8.302(1) to remove superfluous language since a more current version of the CFR is being incorporated elsewhere. As a result, the September 24, 1999 revision deleted some of the prior adopted revisions mentioned above.

We are approving ARM 17.8.302(1)-(4) into the SIP.

(b) Visible Air Contaminants—ARM 17.8.304(4)(f). On May 19, 1995, the State adopted revisions to its rules by adding ARM 17.8.304(4)(f) (formerly 16.8.1404(4)(f)). This pertains to opacity from recovery furnaces at Kraft Pulp Mills. As indicated in section II.D.1 below, we will act on the revisions pertaining to the Kraft Pulp Mill Rule at a later date. Therefore, we are not approving ARM 17.8.304(4)(f) into the SIP at this time.

(c) Fuel Burning—ARM 17.8.309 and ARM 17.8.310. On October 6, 1995, the State adopted revisions to the particulate emission limits for fuel burning equipment and industrial processes (ARM 17.8.309 and 17.8.310, formerly, ARM 16.8.1402 and 16.8.1403, respectively). The State re-wrote and re-formatted the provisions in ARM 17.8.309(1) and (2) (formerly ARM 16.8.1402(1) and (2)) and ARM 17.8.310(1) and (2) (formerly ARM 16.8.1403(1) and (2)). We believe the revisions to these sections do not change the stringency of the rule and are approving them. However, the State added provisions to the rules with ARM 17.8.309(5)(b) and 17.8.310(3)(e) (formerly ARM 16.8.1402(5) and ARM 16.8.1403(3)(e)). State rules ARM 17.8.309(5)(b) and 17.8.310(3)(e) provide an exception that the rules do “* * * not apply to particulate matter emitted from * * * sources constructed after March 16, 1979, that have a specific particulate emission limitation contained in an air quality preconstruction permit obtained under ARM Title 17, Chapter 8, sub-chapter 7, a court order, board order or department order, or a process specific rule.” We interpret this language as allowing terms of a construction permit to override a requirement that has been approved as part of the SIP. We cannot approve this part of the provision into the SIP, as it would allow the State to change a SIP requirement through the issuance of a permit. Pursuant to section 110 of the Act, to change a requirement of the SIP, the State must adopt a SIP revision and obtain our approval of the revision. Alternatively, EPA's March 5, 1996 “White Paper Number 2 for Improved Implementation of the Part 70 Operating Permits Program” explains how States can streamline multiple applicable requirements for the same emission unit under the part 70 permit process. Such process must ensure that the streamlined emission limit is at least as stringent as all applicable emission limits for an emissions unit. This streamlining can only be allowed through the part 70 permit process, in which we have the opportunity to review the streamlined requirements and the ability to veto the part 70 permit if the streamlined requirement is not as stringent as each separate applicable requirement. Because we do not have veto authority under the Prevention of Significant Deterioration (PSD) or minor source permitting programs, we do not allow the State to streamline requirements through either of those construction permitting programs. Therefore, we are approving ARM 17.8.309 and ARM 17.8.310 into the SIP, except that we are disapproving ARM 17.8.309(5)(b) and 17.8.310(3)(e).

(d) Hydrocarbon Emissions, Petroleum Products—ARM 17.8.324(1)(c) and (2)(d). On December 6, 1996, the State adopted a new numbering system for the air rules. We are disapproving ARM 17.8.324(1)(c) and (2)(d) (formerly ARM 16.8.1425(1)(c) and (2)(d), respectively). We previously disapproved these rules under the prior codification. See July 18, 1995 (60 FR 36768) notice and 40 CFR 52.1384(c). Our prior disapproval also applies to the new codification. We are modifying 40 CFR 52.1384(c) accordingly.

(e) Emission Standards for Existing Aluminum Plants—Standards for Visible Emissions—ARM 17.8.332. As indicated in the General Provisions section II.B.1(b) above, on June 21, 1996 the State adopted revisions to its incorporation by reference of documents. State rule ARM 17.8.332(1) (formerly ARM 16.8.1503(1)) was modified and ARM 16.8.1503(2) was deleted. State rule ARM 16.8.1503(2) incorporated by reference method 9 of Appendix A of 40 CFR part 60. This was duplicative of the incorporation by reference material being added with ARM 16.8.1507(1)(a). On November 7, 1996 the state repealed ARM 16.8.1507 because, with the recodification of the rules, sub-chapters 14 and 15 were combined, making ARM 16.8.1507 unnecessary since sub-chapter 14 already had a rule incorporating by reference the same documents being incorporated in sub-chapter 15. Therefore, the material incorporated by reference in ARM 16.8.1503(2) is now incorporated by reference at ARM 17.8.302(1)(b). We are approving the revision of ARM 17.8.332 into the SIP and the deletion of ARM 16.8.1503(2) from the SIP.

(a) Incorporation by Reference and Minor Changes—ARM sections 17.8.602, 17.8.604 and 17.8.612(6). On January 20, 1995, the State adopted revisions to its Open Burning Rules (ARM 17.8.604 and 17.8.612(6) (formerly ARM 16.8.1302 and 16.8.1307(6), respectively)). The State revised the rules to correct incorrect wording, insert a missing rule reference and correct a reference to the Division.

As indicated in the General Provisions section in II.B.1(b) above, on June 21, 1996 the State adopted revisions to its incorporation by reference of documents. The following sections were modified: ARM 17.8.602 (formerly ARM 16.8.1311) and ARM 17.8.604(1)-(2) (formerly ARM 16.8.1302(1)-(3)).

As indicated in the General Provisions section in II.B.1(b) above, on August 22, 1997, the State again adopted updates to its incorporation by reference of documents. State rule ARM 17.8.602(3) was revised.

On July 2, 1999, the State revised ARM 17.8.612(6) to update the MDEQ's telephone number.

We are approving ARM sections 17.8.602, 17.8.604 and 17.8.612(6) into the SIP.

(b) Open Burning Eastern Montana—ARM sections 17.8.601 and 17.8.606. On October 6, 1995 the State adopted revisions to its Open Burning Rules (ARM 17.8.601 and 17.8.606 (formerly ARM 16.8.1301 and 16.8.1303, respectively)). The revisions allow minor open burners in eastern Montana to conduct essential agricultural open burning and prescribed wildland open burning without a permit during December, January and February if they notify the department prior to the burning. Prior to these changes, minor open burners in eastern Montana had to request department permission to conduct such open burning. We are approving the revisions to the open burning rule because we do not believe the revisions will jeopardize existing particulate matter (particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM-10)) nonattainment areas or interfere with attainment and maintenance of the PM-10 NAAQS or increment in Montana. All but one of the State's PM-10 nonattainment areas are in the western region of the State. Although there is one PM-10 nonattainment area in the eastern Montana open burning zone, the difference in the geography and weather patterns of the eastern part of the State should assure that the revisions made in the open burning rule will not jeopardize this one PM-10 nonattainment area. For these same reasons, we believe these rule changes will not interfere with attainment and maintenance of the PM-10 NAAQS or increment in Montana. Therefore, we are approving ARM 17.8.601 and 17.8.606 into the SIP.

(c) Other Revisions to Open Burning Rule—ARM sections 17.8.601, 17.8.606, 17.8.610, 17.8.611, 17.8.612, 17.8.613. On July 2, 1999, the State adopted revisions to the Open Burning Rules (ARM 17.8.601, 17.8.606, 17.8.610, 17.8.611, 17.8.612, 17.8.613). The revisions (1) update the MDEQ's telephone number; (2) remove reference to the national weather service office as a source of forecasts of ventilation conditions and in its place indicate that ventilation conditions may be obtained from MDEQ; (3) allow open burning permits to be issued for periods other than one year; and (4) require additional information be submitted for emergency open burning permits.

We are approving the revisions to ARM 17.8.601, 17.8.606, 17.8.610, 17.8.611, 17.8.612, and 17.8.613, adopted on July 2, 1999, into the SIP.

(a) Definition and IBR—ARM 17.8.701 and ARM 17.8.702. On August 8, 1996, the State adopted a definition for “negligible risk” (ARM 17.8.701(10), formerly ARM 16.8.1101(10)) and updated the incorporation by references in ARM 17.8.702 (formerly ARM 16.8.1120). As indicated in an April 5, 2000 letter from the State to EPA, the definition of “negligible risk,” at ARM 17.8.701(10) and a document incorporated by reference in ARM 17.8.702(1)(f) were not intended to be incorporated into the SIP.

As indicated in the General Provisions section in II.B.1(b) above, on August 22, 1997, the State adopted updates to its incorporation by reference of documents. State rule ARM 17.8.702(3) was revised.

We are approving ARM 17.8.702 (except for ARM 17.8.702(1)(f)) into the SIP. We are not approving ARM 17.8.701(10) nor ARM 17.8.702(1)(f) into the SIP.

(b) Minor Corrections—ARM 17.8.704(2), 17.8.705(1)(o), 17.8.720(2). On January 20, 1995, the State adopted revisions to several sections of the permitting rules to clarify the rules and update incorrect citations. The following rules were revised: ARM 17.8.704(2), 17.8.705(1)(a), 17.8.720(2)) (formerly, ARM 16.8.1119(2), 16.8.1102(1)(o), and 16.8.1107(2), respectively). We are approving ARM 17.8.704(2), 17.8.705(1)(o), and 17.8.720(2) into the SIP.

(c) Malfunctions—ARM 17.8.705(1)(p). On October 6, 1995, the State adopted revisions to its permitting rule (in ARM 17.8.705(1)(p) (formerly ARM 16.8.1102(1)(p)) to coincide with revisions to its malfunction rule. As discussed in section II.B.1(e) above, we believe the revision to the malfunction rule is acceptable. Therefore, we are approving ARM 17.8.705(1)(p) into the SIP.

(d) Public review of Permit Application—ARM 17.8.720. On April 12, 1996, the State adopted revisions to ARM 17.8.720 (formerly ARM 16.8.1107) to allow an applicant to request an extension of the 60-day deadline for the department to issue a permit; to allow the department more time to issue a permit; to correct grammatical and citations in the rule; and to improve clarity of the rule. We are approving ARM 17.8.720 into the SIP.

(a) Definitions—ARM 17.8.801(29)(a). On October 6, 1995, June 21, 1996 and June 12, 1998 the State adopted revisions to the definition of “volatile organic compounds (VOC)” in ARM 17.8.801(29)(a) (formerly 16.8.945(29)(a)). The State revised the definition to coincide with revisions to the federal definition. Since the definition of VOC is consistent with our definition, we are approving ARM 17.8.801(29)(a) into the SIP.

(b) Incorporation by Reference—ARM 17.8.802. As indicated in the General Provisions section II.B.1(b) above, on June 21, 1996 the State adopted revisions to its incorporation by reference of documents. State rule ARM 17.8.802 (formerly ARM 16.8.946) was revised.

As indicated in the General Provisions section II.B.1(b) above, on August 22, 1997, the State again adopted updates to its incorporation by reference of documents. State rules ARM 17.8.802(1)(g) and (3) were revised.

We are approving ARM 17.8.802 into the SIP.

(a) Definitions—ARM 17.8.901(20)(a). On October 6, 1995, June 21, 1996 and June 12, 1998 the State adopted revisions to the definition of “volatile organic compounds (VOC)” in ARM 17.8.901(20)(a) (formerly ARM 16.8.1701(20)(a). The State revised the definition to coincide with revisions to the federal definition. Since the definition of VOC is consistent with our definitions, we are approving ARM 17.8.901(20)(a) into the SIP.

(b) Incorporation by Reference—ARM sections 17.8.901(14)(c) and 17.8.902(1)-(5). As indicated in the General Provisions section II.B.1(b) above, on June 21, 1996 the State adopted revisions to its incorporation by reference of documents. The following sections were modified: ARM 17.8.901(14)(c) (formerly 16.8.1701(14)(c)) and ARM 17.8.902(1)-(5) (formerly ARM 16.8.1702(1)-(2)).

As indicated in the General Provisions section II.B.1(b) above, on August 22, 1997, the State again adopted updates to its incorporation by reference of documents. State rule ARM 17.8.902(3) was revised.

We are approving ARM 17.8.901(14)(c) and 17.8.902 into the SIP.

(a) Incorporation by Reference—ARM 17.8.1002. As indicated in the General Provisions section II.B.1(b) above, on June 21, 1996 the State adopted revisions to its incorporation by reference of documents. State rule ARM 17.8.1002(1)-(5) (formerly ARM 16.8.1802(1)-(2)) was revised.

As indicated in the General Provisions section II.B.1(b) above, on August 22, 1997, the State again adopted updates to its incorporation by reference of documents. State rule ARM 17.8.1002(3) was revised.

We are approving ARM 17.8.1002 into the SIP.

(b) Minor Corrections—ARM sections 17.8.1004 and 17.8.1005. On January 20, 1995, the State adopted revisions to several sections of the permitting rules to clarify the rules and update incorrect citations. The following rules were revised: ARM 17.8.1004 and 17.8.1005 (formerly, ARM 16.8.1803 and 16.8.1804, respectively). We are approving ARM 17.8.1004 and 17.8.1005 into the SIP. 3

(a) Incorporation by Reference—ARM 17.8.1102, 1103 and 1107. As indicated in the General Provisions section II.B.1(b) above, on June 21, 1996 the State adopted revisions to its incorporation by reference of documents. The following sections were modified: ARM 17.8.1102 (formerly ARM 16.8.1009); ARM 17.8.1103(1) (formerly ARM 16.8.1001) and ARM 17.8.1107(1) (formerly ARM 16.8.1004(1)).

As indicated in the General Provisions section II.B.1(b) above, on August 22, 1997, the State again adopted updates to its incorporation by reference of documents. The following sections were revised: ARM 17.8.1102(1)(b) and (3).

Because of the reformatting of the incorporation by reference of documents, on June 21, 1996 the State deleted and did not replace the following sections: ARM 16.8.1001(2) and 16.8.1004(2).

We are approving ARM 17.8.1102, 1103 and 1107 into the SIP and the deletion of ARM 16.8.1001(2) and 16.8.1004(2) from the SIP.

(b) Minor Corrections—ARM 17.8.1101(1), 17.8.1103(1), 17.8.1106(1), 17.8.1109(1), and 17.8.1111. On January 20, 1995 the State adopted revisions to several sections of the visibility rules to update incorrect citations. The following rules were revised: ARM 17.8.1101(1), 17.8.1103(1), 17.8.1106(1), 17.8.1109(1), and 17.8.1111 (formerly, ARM 16.8.1002(1), 16.8.1001(1), 16.8.1003(1), 16.8.1006(1), and 16.8.1008, respectively). We are approving ARM 17.8.1101(1), 17.8.1103(1), 17.8.1106(1), 17.8.1109(1), and 17.8.1111 into the SIP.

We cannot approve certain types of rules into the SIP. A listing of each rule (or section of a rule) we are not approving in the SIP and a discussion of why we believe we can not approve that rule into the SIP is provided below:

(a) Odors—ARM 17.8.315. We believe we have no legal basis in the Act for approving Montana's odor control rule ARM 17.8.315 (formerly ARM 16.8.1427) and making it Federally enforceable because odor control provisions are not generally related to attainment or maintenance of the National Ambient Air Quality Standards (NAAQS). Therefore, we are not taking action to incorporate ARM 17.8.315 into the SIP.

(b) Standard of Performance for New Stationary Sources and Emission Guidelines for Existing Sources—ARM 17.8.340(1) through (3). ARM 17.8.340(1) through (3) (formerly ARM 16.8.1423(1) through (3)) is the rule the State uses to implement our new source performance standards (NSPS) in 40 CFR part 60. On May 16, 2001, we issued a letter delegating the responsibility for all sources located, or to be located, in the State of Montana subject to the NSPS promulgated in 40 CFR part 60. The categories of new stationary sources covered by this delegation are the categories covered by all NSPS subparts in 40 CFR part 60, as in effect on July 1, 1998, except subparts Cb, Cc, Cd and Ce. Given that the State now has delegation of authority for NSPS in 40 CFR part 60, pursuant to 110(k)(6) of the Act, we are removing the old codification, ARM 16.8.1423(1) through (3), from the SIP and not approving the new codification of ARM 17.8.340(1) through (3) into the SIP. We are updating the table in 40 CFR 60.4(c) to indicate that the 40 CFR part 60 NSPS are now delegated to the State and revising EPA's address and Montana's and other States' agency names and addresses in 40 CFR 60.4(a) and (b)(BB), (b)(JJ) and (b)(TT).

The May 16, 2001 letter of delegation to the State follows:

(d) Standard of Performance for New Stationary Sources and Emission Guidelines for Existing Sources—Municipal Solid Waste Landfill Facilities—ARM 17.8.340(4). On June 20, 1997, the State adopted rules for Municipal Solid Waste Landfill Facilities. We believe we have no legal basis in the Act for approving Montana's rule for Municipal Solid Waste Landfill Facilities, ARM 17.8.340(4), into the SIP because these rules are not generally related to attainment or maintenance of the NAAQS. Therefore, we are not taking action to incorporate ARM 17.8.340(4) into the SIP. However, on July 8, 1998 (63 FR 36858), we did approve these rules as meeting section 111(d) of the Act. See 40 CFR 62.6600-6602.

(e) Standard of Performance for New Stationary Sources and Emission Guidelines for Existing Sources—Hospital/Medical/Infectious Waste Incinerator Facilities—ARM 17.8.340(5). On October 16, 1998, the State adopted rules for Hospital/Medical/Infectious Waste Incinerator Facilities. We believe we have no legal basis in the Act for approving Montana's rule for Hospital/Medical/Infectious Waste Incinerator Facilities, ARM 17.8.340(5), into the SIP because these rules are not generally related to attainment or maintenance of the NAAQS. Therefore, we are not taking action to incorporate ARM 17.8.340(5) into the SIP. However, on June 22, 2000 (65 FR 38732), we did approve these rules as meeting section 111(d) of the Act. See 40 CFR 62.6610-6612.

(f) Emission Standards for Hazardous Air Pollutants—ARM 17.8.341. ARM 17.8.341 (formerly ARM 16.8.1424) is the rule the State uses to implement our national emission standards for hazardous air pollutants (NESHAPs) regulations in 40 CFR part 61. On May 16, 2000, we issued a letter indicating that we were delegating the authority of 40 CFR part 61 to the State. Given that the State now has delegation of authority for NESHAPs in 40 CFR part 61, pursuant to 110(k)(6) of the Act, we are removing the old codification ARM 16.8.1424 from the SIP and not approving the new codification of ARM 17.8.341 into the SIP. We are updating the table in 40 CFR 61.04(c)(8) to indicate that the 40 CFR part 61 NESHAPs are now delegated to the State and revising EPA's address and Montana's and other States' agency names and addresses in 40 CFR 61.04(a) and (b)(G), (b)(BB), (b)(JJ), (b)(TT) and (b)(ZZ).

(g) Emission Standards for Hazardous Air Pollutants for Source Categories—ARM 17.8.342. On August 9, 1996, the State adopted ARM 17.8.342 (formerly ARM 16.8.1431) for the Maximum Achievable Control Technology (MACT) standards (i.e., 40 CFR part 63). We believe we have no legal basis in the Act for approving Montana's MACT rules into the SIP because these rules are not generally related to attainment or maintenance of the NAAQS. Therefore, we are not taking action to incorporate ARM 17.8.342 into the SIP. However, on May 16, 2000, we issued a letter indicating that we were delegating the authority of 40 CFR part 63 to the State.

(h) Air Quality Operating Permit Program Applicability—ARM 17.8.1204. On January 20, 1995, the State adopted revisions to ARM 17.8.1204 (formerly ARM 16.8.2004) and the Governor of Montana submitted these revisions on April 14, 1999. Sub-chapter 12 pertains to the Operating Permit Program. We believe we have no legal basis in the Act for approving any of the provisions of the operating permit program into the SIP. Therefore, we are not taking action to incorporate ARM 17.8.1204 into the SIP. However, we fully approved Montana's Title V program on December 22, 2000, 65 FR 80785.

Category 4 consists of those rules that we will act on at a later date.

(1) On April 14, 1999, the Governor of Montana submitted revisions to the Incorporation by Reference Rule, Visible Air Contaminant Rule and Kraft Pulp Mill Rule (ARM 17.8.302(1)(b) and (c), 17.8.304(4)(f) and 17.8.321 (formerly ARM 16.8.1429(2)(b) and (c), 16.8.1404(4)(f) and 16.8.1413, respectively)) which had been adopted by the State on May 19, 1995 and December 11, 1998. The revisions to the Kraft Pulp Mill Rule were adopted both prior to and after the air quality rules were recodified. As discussed earlier in section II.B.2(a), we are approving the revisions to ARM 17.8.302(1). We will act on the revisions and the recodification of ARM 17.8.304(4)(f) and 17.8.321 at a later date. These revisions are not being approved as part of SIP at this time. The prior codified Kraft Pulp Mill Rule, ARM 16.8.1413, effective December 13, 1972, remains in the SIP.

(2) On December 8, 1997, the Governor of Montana submitted revisions to the Incinerator Rule, ARM 17.8.316, which were adopted by the State on June 11, 1997. The revisions to the Incinerator rule were adopted after the recodification of the air quality rules. We are approving the recodification, as indicated in section II.A.2 above, but we will act on the June 11, 1997 revisions to the Incinerator Rule at a later date.

(3) The September 19, 1997 submittal contained Subchapter 13, Conformity. We will act on the Conformity sub-chapter at a later date.

(4) The September 19, 1997 recodification contains paragraphs ARM 17.8.705(1)(q), 17.8.708, and 17.8.733(1)(c) (formerly ARM 16.8.1102(1)(q), 16.8.1121 and 16.8.1113(1)(c), respectively) that had been adopted by the State on August 8, 1996 but had not been submitted to us prior to the recodification. Revisions to ARM 17.8.705(1) and (2), 17.8.708 (repealed), and 17.8.733(1)(b) and (c) were subsequently adopted by the State on May 14, 1999. The August 8, 1996 and May 14, 1999 adopted revisions were submitted to EPA on August 26, 1999. With this document we are not approving ARM 17.8.705(1)(q), 17.8.708 and 17.8.733(1)(c), which were submitted with the recodification. We will address the August 26, 1999 submittal along with these recodified rules at a later date.

(5) On January 20, 1995, the State adopted revisions to several sections of the stack height rules to update incorrect citations. The following rules were revised: ARM 17.8.401(4)(b) and 17.8.403(1) (formerly, ARM 16.8.1204(4)(b) and 16.8.1206(1), respectively). On September 17, 1997, the State submitted a recodification of its rules including the stack height rules. We will address the January 20, 1995 stack height rule revisions along with the recodified stack height rules in a future rulemaking action. The prior codified stack heights and dispersion techniques rule, ARM 16.8.1204 through 16.8.1206, effective June 13, 1986, remains in the approved SIP.

The June 15, 2001 preambles to the direct final and proposed rules stated our intent to approve most of the State's recodified air quality rules, including the State's recodified stack height rules. However, in another pending SIP action in Montana (Billings/Laurel), we have questioned aspects of the Montana stack height regulations that are repeated in the recodification. We do not believe we should act on the recodification of these rules before we give full consideration to relevant issues in the context of our ongoing action on the Billings/Laurel SIP, where the issues first arose and should be resolved. Accordingly, we will act on the recodified stack height rules at a later date. This deferral of action will have no effect on the existing approved Montana stack height SIP.

(1) On June 21, 1996, the State repealed ARM 16.8.1419, Fluoride Emissions—Phosphate Processing. Previously we had incorporated this provision into the Federally approved SIP. Since fluoride emissions are not generally related to attainment or maintenance of the NAAQS, we are approving the deletion of ARM 16.8.1419 from the SIP. In a February 14, 2001 letter, the State indicated that ARM 16.8.1419 was not developed to satisfy the Clean Air Act section 111(d) requirements and that there are no phosphate fertilizer plants in Montana that meet the definition of affected facility under any of the 40 CFR part 60, subparts T, U, V, W or X, and that there are no phosphate fertilizer plants in Montana that meet the definition of affected facility under any of the subparts T, U, V, W, or X, constructed before October 22, 1974, and that have not reconstructed or modified since 1974. We are revising 40 CFR part 62, subpart BB to indicate that Montana has certified that it has no such sources.

(2) On November 7, 1996, the State repealed ARM 16.8.301, Standing (pertaining to a rehearing before the Board), because it merely refers the reader to existing statutory requirements, and ARM 16.8.401-404, Emergency Procedures (pertaining to Board hearings on emergency orders of the department), because most of the provisions repeat statutory language. Previously we had incorporated these provisions into the Federally approved SIP. Since these provisions are not generally related to attainment or maintenance of the NAAQS, we are approving the deletion of ARM 16.8.301 and 16.8.401-404 from the SIP.

(3) On November 7, 1996, the State repealed ARM 16.8.1104, Existing Sources and Stacks—Permit Application Requirements (requiring existing sources constructed after November 23, 1968, to apply for an air quality permit), because the State believed the rule was no longer necessary; all such facilities have either applied for an air quality permit or have altered the facility in a manner that would require an air quality permit under other provisions of the department's air quality rules. Previously we had incorporated ARM 16.8.1104 into the Federally approved SIP. We agree with the State's assessment and are approving the deletion of ARM 16.8.1104 from the SIP.

(4) The April 14, 1999 submittal contained rule ARM 17.4.101 pertaining to alternative public hearing procedures. According to the State's April 5, 2000 letter to EPA, the State will be rescinding this rule. We are not acting on rule ARM 17.4.101.

(5) The State's September 19, 1997 submittal also contained the State Emergency Episode Avoidance Plan (EEAP). The same EEAP was submitted on July 8, 1997. We approved the July 8, 1997 submittal on December 6, 1999 (64 FR 68034). Since the September 19, 1997 EEAP merely duplicates the July 8, 1997 EEAP, and we have already approved the July 8, 1997 EEAP, we are not acting on the September 19, 1997 submittal.

(6) On August 22, 1997, the Board revised ARM 17.8.1202 (formerly ARM 16.8.2003). The Governor's April 14, 1999 letter requested that ARM 17.8.1202 be rescinded. Sub-chapter 12 pertains to the Operating Permit Program. We have no legal basis in the Act for approving any of the provisions of the operating permit program into the SIP. However, on October 23, 1996 (61 FR 54946) we inadvertently incorporated ARM 16.8.2003 (now ARM 17.8.1202) into the SIP. Since approval of ARM 16.8.2003 into the SIP was in error, we are removing ARM 16.8.2003 from the SIP pursuant to section 110(k)(6) of the Act. Also, we fully approved Montana's Title V program on December 22, 2000, 65 FR 80785.

(7) On December 6, 1999, the Governor of Montana submitted a regulation from the Yellowstone County Air Pollution Control (YCAPC) program. The submittal consists solely of Regulation No. 002—Open Burning Restrictions. We believe it is appropriate to incorporate local air pollution control programs in the SIP if the program is needed for attainment and maintenance of any National Ambient Air Quality Standard (NAAQS). The State's Group II PM-10 SIP relies on many rules, including the State's open burning rules, to assure maintenance of the PM-10 NAAQS. We approved the Group II PM-10 SIP on January 20, 1994 (59 FR 2988). By approving the YCAPC's Regulation No. 002, the State has given Yellowstone County the responsibility to ensure that State open burning rules are met. Since the County is implementing measures that the State is relying upon to assure that the PM-10 NAAQS are maintained, we believe it is appropriate to incorporate the county rules in the SIP. In addition, including the county rules in the SIP will make the county-issued open burning permits federally enforceable, further assuring the effectiveness of the PM-10 plan.

On December 23, 1992, then Montana Governor Stan Stephens submitted a SIP revision regarding the YCAPC major rule revisions. To date we have not acted on the December 23, 1992 submittal. The December 6, 1999 letter from Governor Marc Racicot indicates that the recent modifications to the YCAPC's program supersede the 1992 submittal and, therefore, rescinds the December 23, 1992 submittal. Accordingly, we are acting to approve the December 6, 1999 submittal of the YCAPC open burning program.

We are approving the revisions and recodification to the Administrative Rules of Montana submitted by the Governor on September 19, 1997, December 10, 1997, April 14, 1999 December 6, 1999 and March 3, 2000 except for the following provisions that we are not acting on, are disapproving, or will act upon at a later date. The portions of the recodification and revisions that we are approving replace the prior SIP approved regulations (except for the Kraft Pulp Mill Rule, ARM 16.8.1413, effective December 13, 1972, and the Stack Heights and Dispersion Techniques Rule, ARM 16.8.1204-1206, effective June 13, 1986, which will remain a part of the approved SIP). We are also approving into the SIP Yellowstone County's Local Regulation No. 002—Open Burning. The provisions that we are not acting on because these rules are not appropriate to be in the SIP or because the State does not want them in the SIP include: ARM sections 17.4.101, 17.8.315, 17.8.340, 17.8.341, 17.8.342, 17.8.701(10) and 17.8.702(1)(f), and 17.8.1204.

The provisions that we are disapproving include: ARM 17.8.309(5)(b), 17.8.310(3)(e), and 17.8.324(1)(c) and 2(d).

The provisions that we will act upon at a later date include: ARM sections 17.8.304(4)(f), revisions to ARM 17.8.316 (adopted on 6/11/97), 17.8.321, 17.8.401-403, 17.8.705(1)(q), 17.8.708, 17.8.733(1)(c), and 17.8.1301-1313.

The provisions that we are removing from the SIP include: ARM sections 16.8.301, 16.8.401-404, 16.8.704(3), 16.8.1001(2), 16.8.1004(2), 16.8.1104, 16.8.1419, 16.8.1423, 16.8.1424, 16.8.1503(2) and 16.8.2003.

Finally, we are announcing the delegation of authority for NSPS implementation and enforcement to the State and updating the tables in 40 CFR 60.4(c) and 40 CFR 61.04(c)(8) to indicate that the 40 CFR part 60 NSPS and 40 CFR part 61 NESHAPs are now delegated to the State and revising EPA's address and Montana's and other States' agency names and addresses in 40 CFR 60.4(a), (b)(BB), (b)(JJ) and (b)(TT), and 40 CFR 61.04(a), (b)(G), (b)(BB), (b)(JJ), (b)(TT) and (b)(ZZ). We are also updating 40 CFR part 62 subpart BB to indicate that Montana submitted a negative declaration.

EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective October 12, 2001 without further notice unless we receive adverse comments by September 12, 2001. If the EPA receives adverse comments, we will before October 12, 2001 publish a withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

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, 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 rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

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 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 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 partially approves and partially disapproves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, 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 in Executive Order 13175. This action does not involve or impose any requirements that affect Indian Tribes. Thus, Executive Order 13175 does not apply to this rule.

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.

The Regulatory Flexibility Act (RFA) 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 partial approval rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this 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 Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA , 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Moreover, EPA's partial disapproval rule will not have a significant impact on a substantial number of small entities. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities. Furthermore, as explained in this action, the submission does not meet the requirements of the Clean Air Act and EPA cannot approve the submission. EPA has no option but to partially disapprove the submittal. The partial disapproval will not affect any existing State requirements applicable to the entities. Federal disapproval of a State submittal does not affect its State enforceability.

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), 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 the partial approval and partial disapproval actions promulgated do 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 Federal action partially approves and partially disapproves 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 action.

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. 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 action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective October 12, 2001 unless EPA receives adverse written comments by September 12, 2001.

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.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 12, 2001. Filing a petition for reconsideration by the Administrator of this final 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 Clean Air Act.)

The Clean Air Act (CAA) Amendments of 1990 required all state and local permitting authorities to develop operating permits programs that meet certain Federal criteria. Washington's operating permits program was submitted in response to this directive. EPA granted interim approval to Washington's air operating permit program on November 9, 1994 (59 FR 55813). EPA repromulgated final interim approval on one issue, and a notice of correction for Washington's operating permits program, on December 8, 1995 (60 FR 62992).

After the state and local agencies that implement the Washington operating permits program revised their programs to address the conditions of the interim approval, EPA promulgated a proposal to approve Washington's title V operating permits program on January 2, 2001, (66 FR at 84). At the same time, because EPA viewed the proposal as a noncontroversial action and did not anticipate adverse public comment on the proposal, EPA also published a direct final rule approving the Washington operating permits program (66 FR 16).

EPA received one adverse public comment on the proposal. Therefore, EPA removed the direct final approval on April 2, 2001 ( 66 FR 17512). After carefully reviewing and considering the issues raised by the commenter, EPA is taking final action to give full approval to the Washington operating permits program.

The comment received by EPA related to Washington's provisions for insignificant emission units (IEUs). As discussed in the direct final approval notice, the Washington operating permits program specifically exempts IEUs from monitoring, recordkeeping, reporting, and compliance certification requirements except where such requirements are specifically imposed in the applicable requirement itself. See WAC 173-401-530(2)(c) and (d); see also 66 FR at 19. Because EPA does not believe that part 70 exempts IEUs from the monitoring, recordkeeping, reporting, and compliance certification requirements of 40 CFR 70.6, but instead provides only a limited exemption from permit application requirements for IEUs, EPA initially determined that Ecology must revise its IEU regulations as a condition of full approval. See 60 FR at 62993-62997 (final interim approval of Washington's operating permits program based on exemption of IEUs from certain permit content requirements); 60 FR 50166 (September 28, 1995) (proposed interim approval of Washington's operating permits program on same basis).

As also discussed in the direct final notice, however, the Western States Petroleum Association (WSPA), together with several other companies and the Washington Department of Ecology, challenged EPA's determination that Ecology must revise its IEU regulations as a condition of full approval. See 66 FR at 19. On June 17, 1996, the Ninth Circuit found in favor of the petitioners. WSPA v. EPA, 87 F.3d 280 (9th Cir. 1996). The Ninth Circuit did not opine on whether EPA's position was consistent with part 70. It did, however, find that EPA had acted inconsistently in its title V approvals, and had failed to explain the departure from precedent that the Court perceived in the Washington interim approval. The Court then remanded the matter to EPA, instructing EPA to give full approval to Washington's IEU regulations. In light of the Court's order, EPA proposed in the direct final notice to give full approval to Washington's operating permits program even though Washington continued to exempt IEUs from monitoring, recordkeeping, reporting, and compliance certification requirements. See 66 FR at 19. EPA noted, however, that it continued to believe that part 70 does not allow the exemption of IEUs from the monitoring, recordkeeping, reporting, and compliance certification requirements of 40 CFR 70.6. See 66 FR at 19.

The commenter on EPA's direct final action objected to EPA giving full approval to the Washington operating permits program without first requiring correction of the Washington's provisions for IEUs. The commenter agreed with EPA that part 70 does not allow the exemption of IEUs subject to applicable requirements from the monitoring, recordkeeping, reporting, and compliance certification requirements of 40 CFR part 70. The commenter further asserted, however, that the Ninth Circuit's decision in WSPA v. EPA does not compel EPA to now grant full program approval to Washington because the procedural circumstances forming the basis for that decision no longer exist. EPA assumes the commenter is referring to EPA's statement in the direct final notice that, with respect to three of the states identified by the Ninth Circuit, EPA has determined that the states' regulations were not in fact inconsistent with EPA's position on IEUs and, in the case of the five other states identified by the Ninth Circuit, EPA has been working with these permitting authorities to ensure changes are made to their IEU provisions. See 66 FR at 19.

After carefully reviewing the Ninth Circuit's order, EPA continues to believe that it must give full approval to Washington's operating permits program even though Washington's regulations exempt IEUs from monitoring, recordkeeping, reporting, and compliance certification requirements because the Court ordered EPA to do so. The Court subsequently denied EPA's request for rehearing on the matter. WSPA v. EPA, No. 95-70034 (9th Cir. October 17, 1996).

As stated in the direct final notice, however, EPA maintains its position that part 70 does not allow the exemption of IEUs subject to generally applicable requirements from the monitoring, recordkeeping, reporting, and compliance certification requirements of 40 CFR 70.6. See 66 FR at 19. EPA will therefore be addressing this deficiency in Washington's IEU regulations in another context. On December 11, 2000 (65 FR 77376), EPA published a Federal Register notice notifying the public of the opportunity to submit comments identifying any programmatic or implementation deficiencies in state title V programs that had received interim or full approval. In that notice, EPA committed to respond to the merits of any such claims of deficiency on or before December 1, 2001, for those states, such as Washington, that have received interim approval and on or before April 1, 2002, for states that have received full approval. In response to that December 11, 2000, Federal Register notice, a commenter identified Washington's IEU regulations as deficient because Washington exempts IEUs subject to generally applicable requirements from monitoring, recordkeeping, reporting, and compliance certification requirements. Therefore, if the deficiencies in Washington's IEU regulations are not promptly addressed, EPA will respond to the deficiencies in Washington's IEU regulations and those of any other states identified by the WSPA Court that have not already been addressed in accordance with the time frames set forth in the December 11, 2000, Federal Register notice.

EPA is granting full approval of the State of Washington's operating permits program implemented by Ecology, EFSEC, and the seven local air authorities in Washington. Except with respect to non-trust lands within the 1873 Survey Area of the Puyallup Reservation, 1 this approval does not extend to “Indian Country”, as defined in 18 U.S.C. 151. See 64 FR 8247, 8250-8251 (February 19, 1999); 59 FR at 55815, 55818; 59 FR 42552, 42554 (August 18, 1994).

Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this final approval is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) the Administrator certifies that this final approval will not have a significant economic impact on a substantial number of small entities because it merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. This rule does not contain any unfunded mandates and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) because it approves pre-existing requirements under state law and does not impose any additional enforceable duties beyond that required by state law. This rule also does not have tribal implications because it will 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, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it 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, “Federalism” (64 FR 43255, August 10, 1999). This rule merely approves existing requirements under state law, and does not alter the relationship or the distribution of power and responsibilities between the State and the Federal government established in the Clean Air Act. This final approval also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) or 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. This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

In reviewing State operating permit programs submitted pursuant to title V of the Clean Air Act, EPA will approve State programs provided that they meet the requirements of the Clean Air Act and EPA's regulations codified at 40 CFR part 70. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a State 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 a State program that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

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. 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 action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective September 12, 2001.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 12, 2001. Filing a petition for reconsideration by the Administrator of this final 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).)

This rule amends 40 CFR 258.28(a) by adding a new 40 CFR 258.28(a)(3) and creates a new section, 40 CFR 258.41. Section 258.28(a) currently prohibits application of bulk or noncontainerized liquid waste into a municipal solid waste landfill unit unless: (1) The waste is household waste other than septic waste; or (2) leachate or gas condensate derived from the landfill unit and the unit is designed with a specific composite liner meeting the requirements of 40 CFR 258.40(b), as incorporated by 40 CFR 258.40(a)(2). The rule creates a third exception to the prohibition pertaining to the application of bulk or noncontainerized liquid waste by referring to the new section 40 CFR 258.41, pertaining to Project XL Bioreactor Landfills and the owner or operator places documentation of the landfill design in the operating record and so notifies the State Director.

This rule adds a new section 40 CFR 258.41. Section 258.41(b) applies only to Module D of the Yolo County Landfill in Davis, California. Currently, Module D of the Yolo County Landfill, which otherwise conforms to the requirements of 40 CFR 258.40(a)(2), has a composite liner which not only meets, but exceeds the requirements set forth at 40 CFR 258.40(b). Thus, Module D of this Landfill can, under EPA's regulations, not only currently add household liquid waste, other than septic waste, but can also recirculate leachate or condensate gas derived from the landfill unit. Today's rule allows the owner/operator of the Yolo County Landfill to add other types of liquid waste to Module D of the Landfill as well.

This final rule allowing for addition of other types of liquid waste into Module D of the Yolo County Landfill requires compliance with the specific design, monitoring, recordkeeping, reporting, and operational requirements set forth in the rule. It is also “conditional” on the issuance of a permit executed by the local air quality management district under the Clean Air Act, 42 U.S.C. 7401 et seq., as set forth in the rule. These requirements and conditions are enforceable in the same way that current RCRA standards for solid waste landfills are enforceable to ensure that management of nonhazardous solid waste is performed in a manner that is protective of human health and the environment.

EPA is allowing Yolo County to undertake this XL Project with the requested regulatory flexibility to determine if the addition of other types of liquid wastes will result in superior environmental performance and significant costs savings while remaining protective of human health and the environment.

Today's rule will not affect the provisions or applicability of any other existing or future regulations.

The information presented in this preamble is arranged as follows:

This rule is promulgated under the authority of sections 1008, 2002, 4004, and 4010 of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act, as amended (42 U.S.C. 6907, 6912, 6945, and 6949).

EPA proposed to amend 40 CFR 258.28(a) by adding a new paragraph § 258.28(a)(3) to refer to a new section of the rules, § 258.41, (66 FR 23652, May 9, 2001). Section 258.41(b) applies only to Module D of the Yolo County Landfill in Davis, California. Currently, Module D of the Yolo County Landfill, which otherwise conforms to the requirements of 40 CFR 258.40(a)(2), has a composite liner which not only meets, but exceeds the requirements set forth at 40 CFR 258.40(b). Module D of this Landfill can, under federal law, not only currently add household liquid waste, other than septic waste, but can also recirculate leachate or condensate gas derived from the landfill unit. Today's rule will allow the owner/operator of the Yolo County Landfill to also add other types of liquid waste to Module D of the Landfill. See Section III.C of this preamble for a full description of the regulatory relief provided for this project.

EPA received one comment letter from the California Integrated Waste Management Board (CIWMB). The letter stated that CIWMB, along with the California Water Resources Board and Regional Water Quality Control Board implement California's RCRA Subtitle D program, and they will provide regulatory oversight of this project. CIWMB stated that this project is of particular interest to California's energy crisis as anaerobic bioreactor conversion technology has the potential to significantly increase renewable electricity production from landfill gas. CIWMB further stated that they have facilitated resolution of all local and state approvals of this project. No other comments were received on the proposed rule. No changes have been made to the proposed rule.

Project XL is an EPA initiative to allow regulated entities to achieve better environmental results at less cost. Project XL—“eXcellence and Leadership”—was announced on March 16, 1995 as a central part of the National Performance Review and EPA's efforts to reinvent environmental protection. See 60 FR 27282 (May 23, 1995). Specifically, Project XL gives a limited number of regulated entities the opportunity to develop their own pilot projects and alternative strategies to achieve environmental performance that is superior to what would be achieved through compliance with current and reasonably anticipated future regulations. These efforts are crucial to the Agency's ability to test new regulatory strategies that reduce regulatory burden and promote economic growth while achieving better environmental and public health protection. The Agency intends to evaluate the results of this and other XL projects to determine which specific elements of the projects, if any, should be more broadly applied to other regulated entities for the benefit of both the economy and the environment.

Project XL is intended to allow EPA to experiment with untried, potentially promising regulatory approaches, both to assess whether they provide benefits at the specific facility affected, and whether they should be considered for wider application. Such pilot projects allow EPA to proceed more quickly than would be possible when undertaking changes on a nationwide basis. EPA may modify rules, on a site- or state-specific basis, that represent one of several possible policy approaches within a more general statutory directive, so long as the alternative being used is permissible under the statute.

Adoption of such alternative approaches or interpretations in the context of a given XL project is not an indication that EPA plans to adopt that interpretation as a general matter or even in the context of other XL projects. It would be inconsistent with the forward-looking nature of these pilot projects to adopt such innovative approaches prematurely on a widespread basis without first determining whether or not they are viable in practice and successful for the particular projects that embody them. These pilot projects are not intended to be a means for piecemeal revision of entire programs.

EPA believes that adopting alternative policy approaches and/or interpretations, on a limited, site- or state-specific basis and in connection with a carefully selected pilot project, is consistent with the expectations of Congress about EPA's role in implementing the environmental statutes (so long as EPA acts within the discretion allowed by the statute). Congress' recognition that there is a need for experimentation and research, as well as ongoing reevaluation of environmental programs, is reflected in a variety of statutory provisions, e.g., section 8001 of RCRA, (42 U.S.C. 6981).

Under Project XL, participants in four categories (facilities, industry sectors, governmental agencies, and communities) are offered the opportunity to develop common sense, cost-effective strategies that will replace or modify specific regulatory requirements on the condition that they produce and demonstrate superior environmental performance. To participate in Project XL, applicants must develop alternative pollution reduction strategies pursuant to eight criteria: (1) superior environmental performance; (2) cost savings and paperwork reduction; (3) stakeholder involvement and support; (4) test of an innovative strategy; (5) transferability; (6) feasibility; (7) identification of monitoring, reporting, and evaluation methods; and (8) avoidance of shifting risk burden. The project must have the full support of affected federal, state, and tribal agencies to be selected. For more information about the XL criteria, readers should refer to two descriptive documents published in the Federal Register (60 FR 27282, published May 23, 1995 and 62 FR 19872, published April 23, 1997) and the document entitled “Principles for Development of Project XL Final Project Agreements,” dated December 1, 1995.

Development of a Project has four basic phases: the initial pre-proposal phase where the project sponsor comes up with an innovative concept that it would like EPA to consider as an XL pilot; the second phase where the project sponsor works with EPA and interested stakeholders in developing its XL proposal; the third phase where EPA, local regulatory agencies, and other interested stakeholders review the XL proposal; and the fourth phase where the project sponsor works with EPA, local regulatory agencies, and interested stakeholders in developing the Final Project Agreement and legal mechanisms. The XL pilot proceeds into the implementation phase and evaluation phase after promulgation of the required federal, state and local legal mechanisms and after the designated participants sign the FPA.

The FPA is a non-binding written agreement between the project sponsor and regulatory agencies. The FPA contains a detailed description of the proposed pilot project. It addresses the eight Project XL criteria and discusses how EPA expects the project to meet that criteria. The FPA identifies performance goals and indicators which will enable the project sponsor to demonstrate superior environmental benefits. The FPA also discusses administration of the agreement, including dispute resolution and conditions for termination of the agreement. On September 14, 2000, EPA, Yolo County Planning and Public Works, California Regional Water Quality Control Board, Yolo-Solano Air Quality Management District, Solid Waste Association of North America, and the Institute for Environmental Management signed the FPA for the Yolo County bioreactor landfill XL Project. In the event that Yolo County, EPA Region 9's Regional Administrator and the state of California agree to extend this rule beyond Phase I of Module D, another Final Project Agreement will be entered into.

A bioreactor landfill is generally defined as a landfill operated to transform and stabilize the readily and moderately decomposable organic constituents of the waste stream by purposeful control to enhance microbiological processes. Bioreactor landfills often employ liquid addition including leachate recirculation. A byproduct of the decomposition process is landfill gas, which includes methane, carbon dioxide, and volatile organic compounds (VOC's). Landfill gases are produced sooner in a bioreactor than in a conventional landfill. Therefore, bioreactors often incorporate state-of-the-art landfill gas collection systems.

On April 6, 2000, EPA published a document in the Federal Register requesting information on bioreactor landfills, because the Agency is considering whether and to what extent the Criteria for Municipal Solid Waste Landfills, 40 CFR part 258, should be revised to allow for leachate recirculation over alternative liners in MSWLFs. (65 FR 18015). EPA is seeking information about liquid additions and leachate recirculation in MSWLFs to the extent currently allowed, i.e., in MSWLFs designed and constructed with a composite liner as specified in 40 CFR 258.40(a)(2).

Proponents of bioreactor technology note that operation of MSWLFs as bioreactors provide a number of environmental benefits, including: (1) increasing the rate of waste decomposition, which in turn would extend the operating life of the landfill and lessen the need for additional landfill space or other disposal options; (2) decreasing, or even eliminating, the quantity, and increasing the quality, of leachate requiring treatment and offsite disposal, leading to decreased risks and costs associated with leachate management, treatment and disposal; (3) reduced post-closure care costs and risks, due to the accelerated, controlled settlement of the solid waste during landfill operation; (4) lower long term potential for leachate migration into the subsurface environment; and (5) opportunity for recovery of methane gas for energy production.

EPA is also in the process of implementing several other XL pilot projects involving operation of landfills as bioreactors throughout the country. These landfill projects will enable EPA to evaluate benefits of different alternative liners and leachate recirculation systems under various terrains and operating conditions. As expressed in the above-referenced April 2000 Federal Register document, EPA is interested in assessing the performance of landfills operated as bioreactors, and these XL projects are expected to contribute valuable data.

The Yolo County XL project and other XL projects are expected to provide additional information on the performance of MSWLFs when liquids are added to the landfill. The Agency is also interested in determining whether and which types of alternative liners are capable of meeting the design performance standard including maintaining a hydraulic head at acceptable levels.

The terms of the Yolo County bioreactor project are contained in the FPA. The FPA is available to the public at the EPA RCRA Docket in Washington, D.C., in the EPA Region 9 library, and on the world wide web at http://www.epa.gov/projectxl/.

The Yolo County Central Landfill (YCCL) is an existing non-hazardous municipal waste landfill with two surface impoundments for disposal of selected non-hazardous liquid wastes. This site encompasses 722 acres and is owned and operated by Yolo County. It is located at the intersection of Road 104 and Road 28H, 2 miles northeast of the City of Davis, California. The YCCL was opened in 1975 for the disposal of non-hazardous solid waste, construction debris, and non-hazardous liquid waste. Existing on-site operations include an eleven-year old landfill methane gas recovery and energy generation facility, a drop-off area for recyclables, a metal recovery facility, a wood and yard waste recovery and processing area, and a concrete recycling area.

Adjacent land uses include the City of Davis Wastewater Treatment Plant lagoons located immediately east and south of the landfill and the Willow Slough By-pass which runs parallel to the southern boundary of the site. The remainder of land uses adjacent to the site are agricultural (row crops).

Groundwater levels at the facility fluctuate 8 to 10 feet during the year, rising from the lowest in September to the highest around March. Water level data indicate that the water level table is typically 4 to 10 feet below ground surface during the winter and spring months. During the summer and fall months, the water table is typically 5 to 15 feet below ground surface. In January 1989, the County of Yolo constructed a soil/bentonite slurry cutoff wall to retard groundwater flow to the landfill site from the north. The cutoff wall was constructed along portions of the northern and western boundaries of the site to a maximum depth of 44 feet and has a total length of 3,680 feet, 2,880 feet along the north side and 800 feet along the west. In the fall of 1990, irrigation practices to the north of the landfill site were altered to minimize the infiltration of water. Additionally, sixteen groundwater extraction wells were installed south of the cutoff wall in order to lower the water table south and east of the wall. The purpose was to depress the water table to provide vertical separation between the base of the landfill and the groundwater.

Yolo County proposes to operate the next phase of its landfill module (Module D) as both an anaerobic and aerobic bioreactor. Twelve acres of the 20-acre module have been constructed (Phase I). Ten acres would be operated as a full scale anaerobic bioreactor, while the remaining two acres would be operated as an aerobic pilot demonstration cell.

Currently, the Federal regulations outline two methods for complying with liner requirements for municipal solid waste landfills. The first method is a performance standard set out under 40 CFR 258.40(a)(1). This standard allows installation of any liner configuration provided the liner design is approved by an EPA-approved state and the design ensures that certain constituent concentrations are not exceeded in the uppermost aquifer underlying the landfill facility at the point of compliance.

The second method is set out in 40 CFR 258.40(a)(2) and (b). Section 258.40(b) specifies a liner design which consists of two components: (1) an upper component comprising a minimum of 30 mil flexible membrane liner (60 mil if High Density Polyethylene (HDPE) is used); and (2) a lower component comprising at least two feet of compacted soil with a hydraulic conductivity no greater than 1x10 − 7 cm/sec.

The bottom liner system of Module D was designed to exceed the requirements of Subtitle D of the Federal guidelines and was upgraded from other liner systems used previously at the site. The County believes and EPA agrees that, given the constructed configuration and the stringent monitoring and operational requirements established for Module D, the liner system will be suitable for use in the bioreactor operations.

The Module D liner and leachate collection system consists, from top to bottom, of a 2 foot thick chipped tire operations/drainage layer (k> 1 cm/sec), a blanket geocomposite drainage layer, a 60-milliliter (mil) High Density Polyethylene (HDPE) liner, 2 feet of compacted clay (k<6×10 − 9 cm/sec), 3 feet of compacted earth fill (k< 1×10 − 8 cm/sec), and a 40 mil HDPE vapor barrier layer. 1

The permeability (k) of the clay liner, as constructed, is on the average about 6×10 − 9 cm/sec and the earth fill averaged about 1×10 − 8 cm/sec. These two layers in effect provide a 5 foot thick composite liner. It is anticipated that this liner system, coupled with the lower permeability, will result in a significantly more effective barrier to leachate migration than the prescriptive liner system.

The liner system within the collection trenches and sump areas was upgraded further to a double composite liner to account for infringement on the 5 foot groundwater offset and to minimize potential leakage in these critical collection areas where head on the primary liner will be at its greatest. Specifically, the liner and leachate collection system in the collection trenches and sumps consists, from top to bottom, of a minimum of 2 feet of gravel drainage material, a protective geotextile layer, a blanket geocomposite drainage layer, a primary 60-mil HDPE liner, a geosynthetic clay liner (GCL) (k< 5×10 − 9 cm/sec), a secondary 60-mil HDPE liner, 2 feet of compacted clay (k< 6×10 − 9 cm/sec), a minimum of 0.5 feet of compacted earth fill (k< 1×10 − 8 cm/sec), and a 40-mil HDPE vapor barrier layer. The thickness of the compacted earth fill actually varies from a minimum at the south end of the trench of 0.5 feet to a maximum of about 2.5 feet at the upper, north end of the leachate collection trench. Leachate collection pipes were also placed in the collection trench and at other locations on top of the primary liner to transport leachate immediately to the sumps for recovery, removal, and recirculation, as needed.

As described above, the more rigorous Module D leachate collection and recovery system (LCRS) and liner system is expected to outperform the Subtitle D liner design requirements. The LCRS has been designed and constructed to be free-draining throughout the life of the module and will maintain less head over the primary liner system than the type of liner prescribed by Subtitle D.

For the anaerobic operation, it is estimated that during peak liquid additions, up to 10 gallons per minute (gpm) of liquid per 10,000 square feet (.1 gpm per 100 square feet) of disposal area will typically be delivered to the waste once the module has reached its design height. Based on a previous smaller scale demonstration cell, the amount of liquid added would be in the range of 30 to 50 gallons per ton of waste. According to results of the bioreactor demonstration project by Moore et al. 2 , the average leachate generated during liquid introduction peaked at about 47% of the liquid delivery rate, which would equate to approximately 20 gpm per acre for the proposed program. Given a 10 acre drainage area, the total anticipated flow into any given sump would be approximately 200 gpm (288,000 gallons per day) assuming there will be no preferred pathways within the waste mass.

For the aerobic operation, liquid will be added to waste at a faster rate since the aerobic reaction causes much of the liquid to evaporate. It is estimated that the range of liquid used will be 200 to 400 gallons of liquid per ton of waste.

Liquid will be applied during strategic periods to temporarily raise the moisture content of the waste to provide optimum conditions for rapid degradation and improved gas production. This liquid will initially consist of a mixture of leachate and condensate from other Waste Management Units and ground water (from the extraction wells) delivered through a series of pipes, drip irrigation, or other application systems either after the landfill reaches its design height or after an interim cover and gas collection system has been constructed to control the landfill gases generated. The liquid will continually be introduced (as needed) to raise the moisture content within the waste to near its field capacity. The liquid application system will be constructed such that the solution can be applied or discontinued at designated locations to raise and lower the moisture within the waste.

Yolo County will monitor moisture content throughout the life of the module through the use of a network of moisture sensors to be installed during waste placement. A moisture sensor system used during a bioreactor demonstration project in Module B proved to be very effective and will be the basis for the layout in Module D. Specifically, the moisture sensors will be installed at 20-foot increments of depth at a spacing of about 100 feet on center. Using these sensors, the County can determine where liquid application can be increased or decreased to optimize the effectiveness of the system and to prevent build-up of head over the liner.

The County will measure the quantity of leachate and applied liquid throughout the life of the module. Once leachate is produced, it will supplement the system and be re-circulated, thereby reducing the amount of clean water used. Liquid will be quantified using flow sensors installed on the leachate discharge line, re-circulation line, and liquid application line. These sensors will provide direct flow readout for determining flow rates in the pipelines and the total flow of all the liquid used and leachate produced.

The County will also monitor the head over the liner after waste placement using a network of pressure transducers and sensors. These devices will be installed on the primary liner, immediately before waste placement, to provide measurements of the leachate depth. Several of these transducers were installed in the LCRS during the Module D construction.

In the event that the transducers indicate that the head is going to exceed the allowable value, the system will automatically start pumps to reduce the liquid level and shut-off valves to reduce the liquid application rate. These measures would be used to reduce the liquid application rate across the entire module or specifically, in the area of head build-up. Generally, the County will only continue to apply the liquid until the gas generation phase of the unit is complete, at which time leachate production is anticipated to continually decrease until conclusion of the post-closure period. The County will also closely monitor the quality of the leachate to evaluate the system, determine the methods for future leachate treatment, and provide a basis for future use of similar bioreactors at the site or elsewhere.

Finally, the degradation and gas production of the waste is also related to the temperature within the decomposing waste. The effectiveness of both aerobic and anaerobic bioreactors is dependent on keeping within an optimum temperature range; therefore, the County will install temperature gauges to aid in the operation of the system. The temperature gauge network will be placed in a similar pattern to the moisture sensors at designated intervals throughout the waste mass.

For the Yolo County bioreactor landfill proposal, the superior environmental benefits include: (a) maximizing landfill gas control and minimizing fugitive methane and VOC emissions; (b) greater recovery of landfill methane; (c) landfill life extension and/or reduced landfill use; and (d) minimizing leachate-associated concerns.

b. Expedited methane generation/recovery. In the Yolo bioreactor, the majority of the methane will be generated over a much earlier and shorter time period than a conventional landfill. This is expected to minimize the long-term low-rate methane generation often lost in conventional landfill practices.

c. Landfill life extension and/or reduced landfill use. The more rapid conversion of greater quantities of solid waste to gas reduces the volume of the waste. Settlement in the Yolo test cell is already over 18% in three years. Volume reduction translates into either landfill life extension and/or less landfill use. Thus, this bioreactor landfill will be able to accept more waste over its working lifetime. Additionally, fewer landfills may be needed to accommodate the same inflows of waste from a given population

d. Minimizing leachate-associated concerns. The bioreactor processes, both anaerobic and aerobic, have been shown in studies at many scales to reduce the concentration of many leachate pollutants. These include organic acids and other soluble organic pollutants. Since a bioreactor operation brings pH to near-neutral conditions, metals of concern are largely precipitated and immobilized in the waste.

Today's site specific rule grants regulatory flexibility from 40 CFR 258.28 Liquid Restrictions, which precludes the addition of bulk or noncontainerized liquid waste. In its XL project, the County will add ground water from its extraction wells as a liquid amendment, as well as other liquids such as gray-water from the local waste water treatment plant, septic waste, and food-processing waste that is currently being land applied. Liquid wastes such as these, which normally have no beneficial use, may beneficially enhance the biodegradation of solid waste in the landfill which is the subject of this project.

Today's rule amends 40 CFR 258.28(a) by adding a new paragraph § 258.28(a)(3) to refer to a new section of the rules, § 258.41. The new § 258.41(b) specifically applies to the Yolo County Landfill in Davis, California only and will allow Module D of that landfill to receive bulk or non-containerized liquid wastes as long as that module meets the design criteria set forth in § 258.41(b). Additionally, today's rule imposes certain minimum monitoring and reporting requirements on Yolo County, which, among other things, will facilitate EPA's evaluation of the project.

The reason that the existing regulation requires a leachate collection system and a composite liner design as specified in 40 CFR 258.40(a)(2) is to ensure that contaminant migration to the aquifer is controlled (56 FR 50978, 51056, Oct. 9, 1991). Today's rule does not change the requirement in § 258.28(a)(2) that a leachate collection system as described in § 258.40(a)(2) be in place in order for leachate to be recirculated in the landfill unit. Yolo County's design for Module D is required to have leachate collection systems designed to maintain leachate over the liner at a depth of less than 30 cm. In addition, since Yolo County's design of its liner goes beyond the requirements of Subtitle D of the Federal Regulations, EPA believes that adding additional liquid wastes into Module D will not result in any increased leakage to groundwater from the bioreactor cells.

Stakeholder involvement and support has already been demonstrated by previous federal, state, and local support of this bioreactor concept. For example, in 1994, the Yolo County Planning and Public Works Department, initiated a demonstration project (Module B) to evaluate the Bioreactor Landfill concept for its Central Landfill near Davis, California. The construction phase of the project was funded by Yolo and Sacramento Counties ($125,000 each), the California Energy Commission ($250,000), and the California Integrated Waste Management Board ($63,000). More recent grant funding for the monitoring phase of the project has been received from the U. S. Department of Energy through the Urban Consortium Energy Task Force ($110,000), and the Western Regional Biomass Energy Program ($50,000). Greenhouse gas and emission abatement cost-effectiveness studies have recently been completed with $48,000 in support from the Federal Energy Technology Center/National Energy Technology Laboratory (hereafter, NETL). Further support, $462,000 recently committed by NETL, is enabling operation of the test cells for approximately 2 more years as well as helping prepare for the larger module operation. Furthermore, on January 26, 2000, the California Integrated Waste Management Board granted Yolo County $400,000 for the construction and testing of this full-scale bioreactor demonstration project.

Concerning local involvement for this XL project, Yolo County held a stakeholder meeting on June 5th, 2000 for the full-scale demonstration project. Other informational meetings have been held during the regular Waste Advisory Committee meetings to keep the community informed on the project. The County will also convene periodic meetings of the stakeholder group to provide updates on the project's progress during the duration of the XL agreement. A public file on this XL project has been maintained at the website throughout project development, and the EPA will continue to update it as the project is implemented. Additional information is available at EPA's website at http://www.epa.gov/projectxl.

A detailed description of this program and the stakeholder support for this project is included in the Final Project Agreement, which is available through the docket or through EPA's Project XL site on the Internet (see ADDRESSES section of this preamble).

Yolo County has preliminarily identified the following stakeholders:

As stated earlier, this project is expected to result in cost savings by virtue of assisting in an increased rate of decomposition of the waste placed in Module D of the landfill. The increased decomposition rate is, in turn, expected to extend the life of the landfill, and, potentially, result in direct cost savings to Yolo County. In addition, the methane generation and recovery operations are expected to yield increased methane recovery over a shorter time period, thereby resulting in increased energy generation for Yolo County beyond what would otherwise occur in a conventional landfill. Finally, no appreciable reduction in paperwork is anticipated.

As with all XL projects testing alternative environmental protection strategies, the term of this XL Project is one of limited duration. Today's rule will be in effect for five years. In the event that EPA determines that this project should be terminated before the end of the five year period and that the site-specific rule should be rescinded, the Agency would withdraw this rule through a subsequent rulemaking. This will afford all interested persons and entities the opportunity to comment on the proposed early termination and withdrawal of regulatory authority, and the proposed termination would also include any proposal for an interim compliance period while Yolo County returned to full compliance with the existing requirements of 40 CFR part 258.

The FPA allows any party to the agreement to withdraw from the agreement at any time before the end of the five year period. It also sets forth several conditions that could trigger an early termination of the project, as well as procedures to follow in the event that EPA, the State or the local agency seeks to terminate the project.

For example, an early conclusion would be warranted if the project's environmental benefits do not meet the Project XL requirement for the achievement of superior environmental results. In addition, new laws or regulations may become applicable during the project term which might render the project impractical, or might contain regulatory requirements that supersede the superior environmental benefits that are being achieved under this XL Project. Or, during the project duration, EPA may decide to change the federal rule allowing recirculation over alternative liners and the addition of outside bulk liquids for all Subtitle D landfills. In that event, the FPA and site-specific rule for this project would no longer be needed.

Under 5. U.S.C. 553(d), the rulemaking section of the Administrative Procedure Act, EPA is making this rule effective upon publication. Under 5 U.S.C. 553(d)(1), EPA is making this rule immediately effective because the rule relieves a restriction in that it allows the Yolo County Central Landfill to add to the landfill additional types of liquid waste beyond what is currently allowed under 40 CFR 258.28(a)(1) and (2). In addition, under 5. U.S.C. 553(d)(3), EPA finds good cause exists to make this rule effective immediately because Yolo County is the only regulated entity affected by the rule, sought the conditional relief provided in this rule, and has had full notice of the rule. Making the rule immediately effective will allow Yolo County to proceed sooner with the bioreactor project.

Because this rule affects only one facility, it is not a rule of general applicability and therefore not subject to OMB review and Executive Order 12866. In addition, OMB has agreed that review of site-specific rules under Project XL is not necessary.

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq. , generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and public 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. Only the definition of “small governmental jurisdiction” is relevant here. 5 U.S.C. 601(5) defines “small governmental jurisdiction” to mean governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand. According to Yolo County officials, the county population in 1990 exceeded 150,000; thus, Yolo County does not qualify as “small governmental jurisdiction” within the meaning of 5 U.S.C. 601(5).

After considering the economic impacts of today's final rule on small entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. The requirements of this rule do not apply to 10 or more entities, therefore the PRA does not apply.

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 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 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 affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of the EPA regulatory proposal with significant Federal mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. As used here, “small government” has the same meaning as that contained under 5 U.S.C. 601(5), that is, governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.

As discussed above, this rule has limited application. It applies only to the Yolo County landfill. This rule will result in a cost savings for Yolo County when compared with the costs it would have had to incur if required to adhere to the requirements contained in the current rule. As such, this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for state, local, or tribal governments, in the aggregate, or the private sector in any one year. Thus, today's rule is not subject to the requirements of section 202 and 205 of the UMRA. EPA has also determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments.

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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability.

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 in Executive Order 12886; 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 potentially effective and feasible alternatives considered by the Agency.

This rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This rule will allow the addition of bulk or non-containerized liquid amendments over a liner that not only meets but exceeds the design requirements in 40 CFR 258.40(b). Modeling results predict that this liner is more protective than the prescribed composite liner. Therefore, no additional risk to public health, including children's health, is expected to result from this rule.

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.” The phrase, “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.”

This rule does not have federalism implications. It 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 will only affect one local governmental entity and state, and will provide regulatory flexibility for the state and local governmental entity concerned. Thus, Executive Order 13132 does not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This rule does not have tribal implications within the meaning of Executive Order 13175. It will not have substantial direct effects on tribal governments, 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 in Executive Order 13175. The rule would impose no new requirements or costs on tribal governments, nor does it alter the relationship or distribution of power or responsibilities between the Federal government and Indian tribes. Thus, Executive Order 13175 does not apply to this rule.

However, EPA identified two Native American communities in the vicinity of the Yolo County Landfill, the Rumsey and Cortina Rancherias. EPA notified the governments of both tribes of this project and site-specific rule, and both tribes expressed interest in being kept informed of the project as it progresses.

As noted in the proposed rules, Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“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 (for example, material specifications, test methods, sampling procedures, and business practices) developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. EPA did not identify any applicable voluntary consensus standards related to this rule.

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.

On June 4, 1998, the National Science Foundation (NSF) published a proposed rule to implement emergency response plan and environmental protection information requirements contained in the Antarctic Conservation Act of 1978, as amended by the Antarctic Science, Tourism, and Conservation Act of 1996 (ASTCA), and invited public comment on the proposed rule (63 FR 30438). NSF received written comments from the International Association of Antarctica Tour Operators (IAATO) and the U.S. Environmental Protection Agency (EPA).

IAATO expressed uncertainty as to whether NSF is the appropriate Federal agency to issue a rule implementing Article 15 of the Protocol on Environmental Protection to the Antarctic Treaty (the Protocol) with respect to vessels. In enacting ASTCA, Congress reaffirmed NSF's role as the lead Federal agency in Antarctica with longstanding responsibility for ensuring that U.S. scientific activities and tourism are conducted with an eye to preserving the unique values of the Antarctic region. (16 U.S.C. 2401(a)(3)). Article 15 of the Protocol requires that the U.S. Government provide for prompt and effective response action to environmental emergencies arising from scientific research programs, tourism and non-governmental activities in Antarctica. The U.S. Coast Guard has issued regulations which implement this obligation with respect to U.S. flagged vessels. However, many U.S. non-governmental expeditions charter non-U.S. flagged vessels. To ensure that the U.S. obligation to comply with Article 15 is met for all activities in Antarctica for which advance notice is required under Article VII of the Antarctic Treaty, it was necessary to have a regulation addressing Article 15 obligations for those U.S. non-governmental expeditions which charter non-U.S. flagged vessels. Section 6(a) of the Antarctic Conservation Act, as amended by ASTCA, authorizes NSF to issue such regulations as are necessary and appropriate to implement the Protocol and the ACA. It is under this authority, and to fully meet the U.S. obligations under Article 15, that NSF is issuing this regulation.

IAATO also suggested that the proposed rule could be interpreted as an attempt to govern the operations of foreign flag vessels. The U.S. obligation under the Protocol is to ensure that all expeditions for which advance notice is required by the United States under the Treaty are prepared to provide for prompt and effective response actions to environmental emergencies, regardless of the flag state or the state of registry of the vessel being used for the expedition. This regulation regulates the U.S. expedition organizer rather than the foreign flagged vessel by requiring the expedition organizer to make provision for prompt and effective response action as required under Article 15. The expedition organizer may do so by contract. NSF has revised the language in § 673.1, Purpose of Regulations, of the final rule to provide clarification in this respect.

IAATO also noted that different national authorities may impose different rules to implement Article 15 and that amending Shipboard Oil Pollution Emergency Plans (“SOPEPs”) will be an iterative process. IAATO commented that the regulatory requirements should be flexible enough to accommodate varying approaches to response plans. IAATO sought clarification as to whether the preamble language, stating that a plan which met Coast Guard's rule implementing Article 15 would also meet the requirements of this regulation, would limit such flexibility. NSF agrees that a flexible approach is necessary. The regulation does not dictate the detailed content of the response plan and the reference to the Coast Guard regulation was merely intended to provide consistent guidance on one acceptable approach to the content of an effective response plan.

EPA also submitted written comments on the proposed rule. EPA expressed concern with the language in § 673.4 which limited the requirement for providing environmental protection information to persons organizing non-governmental expeditions “who do business” in the United States. The limitation to an entity who “does business in the United States” reflects the specific statutory language contained in section 4(a)(6) of the ACA, as amended by ASTCA. The scope of coverage for the response action provisions in the rule is not limited to organizers “who do business” in the United States.

EPA also expressed concern that the proposed rule appeared to be limited to tour operators rather than all non-governmental operators. Of course, the majority of non-governmental operators are tour operators. However, to the extent that any language contained in the preamble to the proposed rule would have given the impression that the rule is limited to tour operators, NSF wishes to clarify that the rule applies to all categories of non-governmental expeditions organized in or proceeding from the United States and required to give notice under Article VII(5) of the Antarctic Treaty. In order to avoid any misperception about the scope of the rule, NSF is changing the title of part 673 to Antarctic Non-Governmental Expeditions. However, as noted above, the environmental protection information provision is limited in applicability to expedition organizers who do business in the United States as provided in section 4(a)(6) of the ACA.

EPA also raised concerns that the preamble to the proposed rule gave the impression that requirements to amend SOPEPs were being levied on non-U.S. flagged vessels. However, the rule regulates the U.S. expedition organizer rather than the foreign flagged vessel by requiring the expedition organizer who uses non-U.S. flagged vessels to ensure that the vessel owner or operator has an emergency response plan.

EPA suggested that NSF might wish to incorporate preamble language in the final rule stating that “* * * any plan which satisfies the requirements contained in 33 CFR 151.26 of the Coast Guard regulations will also satisfy the requirements of this rule.” NSF's reference to the Coast Guard regulation was intended to provide consistent guidance to Antarctic expedition organizers. NSF considered EPA's suggestion and has modified the final rule to incorporate this provision.

EPA also suggested that NSF add definitions to its final rule found in EPA's interim final rule for environmental impact assessment of non-governmental activities in Antarctica. Specifically, EPA suggested adding definitions for Antarctic Treaty area and operator. Since NSF has defined “Antarctica” as the area south of 60 degrees south latitude which is also the Antarctic Treaty area, NSF will consistently use the single term “Antarctica” throughout the regulation. NSF does not believe that the addition of the term “operator” to the regulation would provide any additional clarification to the rule.

Finally, EPA recommends that NSF change the term “tour operators” to “nongovernmental operators” in § 673.4(b). This provision in the rule preserves the option for NSF to prepare educational information at its discretion for dissemination to passengers aboard tourist vessels. Since the vast majority of nongovernmental expeditions to Antarctic are tourist expeditions, NSF is limiting the mandatory distribution of such materials to tour operators. This information could certainly be provided to other non-governmental expeditions but mandatory dissemination is not needed.

Determinations:

NSF has determined, under the criteria set forth in Executive Order 12866, that this rule is not a significant regulatory action requiring review by the Office of Information and Regulatory Affairs.

As required by the Regulatory Flexibility Act (5 U.S.C. 605(b)), it is hereby certified this rule will not have significant impact on a substantial number of small businesses.

For purposes of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ), the collection of information requirements have been approved by the Office of Management and Budget (OMB No. 3145-0180).

The Unfunded Mandates Act of 1995 (Pub. L. 104-4) requires agencies to prepare several analytic statements before proposing any rule that may result in annual expenditures of $100 million by State, local, Indian Tribal governments, or the private sector. Since this rule will not result in expenditures of this magnitude, it is hereby certified that such statements are not necessary.

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 804). The rule will not result in an annual effect on the economy of $100 million or more; result in a major increase in cost or prices; or have significant adverse effects on competition, employment, investment, productivity, innovation or on the ability of the United States-based companies to compete with foreign-based companies in domestic and export markets.

The 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. Therefore, in accordance with section 6 of Executive Order 13132, NSF has determined that this rule does not have sufficient federal implications to warrant the preparation of a federalism summary impact statement.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of the Executive Order 12988.

This rule does not have tribal implications.

The Congressional Review Act (5 U.S.C. 801 et seq. ), provides that agencies shall submit a report, including a copy of all final rules, to each House of Congress and the Comptroller General of the United States. The Foundation has submitted this report, identifying this rule as non-major.

The Federal Communications Commission is modifying § 0.467(a) of the Commission's rules. This rule pertains to the charges for searching and reviewing records requested under the FOIA. The FOIA requires federal agencies to establish a schedule of fees for the processing of requests for agency records in accordance with fee guidelines issued by the Office of Management and Budget (OMB). In 1987, OMB issued its Uniform Freedom of Information Act Fee Schedule and Guidelines. However, because the FOIA requires that each agency's fees be based upon its direct costs of providing FOIA services, OMB did not provide a unitary, government-wide schedule of fees. The Commission based its FOIA Fee Schedule on the grade level of the employee who processes the request. Thus, the Fee Schedule was computed at a Step 5 of each grade level based on the General Schedule effected January 1987. The revisions correspond to modifications in the rate of pay recently approved by Congress.

This proposed rule has been reviewed under Executive Order No. 12866 and has been determined not to be a “significant rule” since it will not have an annual effect on the economy of $100 million or more.

In addition, it has been determined that this proposed rule will not have a significant economic impact on a substantial number of small entities.

The Northwest Regional Administrator, NMFS (Regional Administrator), determined that the guideline of 17,000 chinook for the area from the U.S.-Canada Border to Cape Falcon, OR, had been reached and closed the fishery for all salmon except coho on June 15, 2001. Regulations governing the ocean salmon fisheries at 50 CFR 660.409(a)(1) state that, when a quota for any salmon species in any portion of the fishery management area is projected by the Regional Administrator to be reached on or by a certain date, NMFS will, by notification issued under 50 CFR 660.411(a)(2), close the fishery for all salmon species in the portion of the fishery management area to which the quota applies, as of the date the quota is projected to be reached.

In the 2001 annual management measures for ocean salmon fisheries (66 FR 23185, May 8, 2001), NMFS announced that the commercial fishery for all salmon except coho in the area from U.S.-Canada Border to Cape Falcon, OR would open May 1, 2001, through the earlier of June 30, 2001, or a 17,000-chinook guideline.

The Washington Department of Fish and Wildlife (WDFW) reported the landed catch, as of June 10, 2001, for the commercial fishery in the area from U.S.-Canada Border to Cape Falcon, OR, was 14,300 chinook salmon. The rate of landed catch was estimated to be 500 chinook per day. Accordingly, the WDFW projected the area to reach the 17,000-chinook guideline on June 15, 2001, and recommended that NMFS close the area effective midnight on that date.

Modification of fishing seasons is authorized by regulations at 50 CFR 660.409(b)(1)(i).

In the 2001 annual management measures for ocean salmon fisheries (66 FR 23185, May 8, 2001), NMFS announced that the commercial fishery for all salmon except coho in the area from Humbug Mountain to Oregon-California Border would open June 3, 2001, through the earlier of June 30, 2001, or a 1,500-chinook quota. The fishery was to follow a cycle of 2 days open/2 days closed, with a provision that it may be adjusted inseason to match management needs.

The Oregon Department of Fish and Wildlife (ODFW) reported that, as of June 13, 2001, both fishing effort and landed catch had been low due to poor weather conditions. Better catches in the area to the north of the area from Humbug Mountain to Oregon-California Border resulted in reduced effort in the restricted fishery. Oregon reported the catch landed in the area to date was only 37 chinook salmon. Therefore, the ODFW recommended that the weekly opening period for commercial fishing from Humbug Mountain to Oregon-California Border be adjusted to open 7 days per week effective June 15, 2001, at 0001 hours l.t. through June 30, 2001, or the 1500-chinook quota.

The 2001 annual management measures for the ocean salmon fishery were published in the Federal Register on May 8, 2001 (66 FR 23185), and amended at 66 FR 34582 (June 29, 2001, and at 66 FR 36212 (July 11, 2001).

NMFS announced in the 2001 annual management measures that the recreational fishery in the area from Cape Alava to Queets River (La Push Area) would open July 1 through earlier of September 23 or subarea sub-quota of 5,350 coho; September 24 through earlier of October 21 or overall subarea quota of 5,850 (500 set-aside) coho. All salmon (7 days per week), 2 fish per day, but only 1 chinook, and all retained coho must have a healed adipose fin clip. Inseason management measure C.4 may be used to sustain season length and keep harvest within a guideline of 1,000 chinook for the general season and 100 chinook for the set-aside season. However, the late season fishery that begins September 24 was planned preseason as a geographically limited bubble fishery off the mouth of the Quillayute River and totally within 3 miles of shore.

The recreational management measures for the State of Washington included an area description for the late season bubble fishery (La Push Late Season). However, the limiting area restriction was inadvertently omitted from the 2001 annual management measures that currently allow for fishing throughout the Cape Alava to Queets River area. To rectify the inconsistency, WDFW requested that NMFS amend the 2001 annual management measures by restricting the late season fishery to the Washington State La Push Late Season Area.

The opening date for the all-species treaty troll fishery for the Quinault tribal fishery was announced in the 2001 management measures for ocean salmon fisheries as starting August 1, 2001. This was an error. The opening date should have been July 1, the same as for the other coastal treaty tribes, and as indicated in "Preseason Report III Analysis of Council-Adopted Management Measures for 2001 Ocean Salmon Fisheries." Therefore, the Quinault Tribe requested that NMFS correct the 2001 annual management measures with a July 1 opening date for the all-species treaty troll fishery.

In the rule FR Doc. 01-11444, in the issue of May 8, 2001 (66 FR 23185), the following corrections are made:

1. On page 23191, in the first column, the first full paragraph is corrected to read as follows:

July 1 through earlier of September 23 or subarea sub-quota of 5,350 coho; September 24 through earlier of October 21 or overall subarea quota of 5,850 (500 set-aside) coho (La Push Late Season). The La Push Late Season Area is limited to an area defined by a line from Teahwhit Head northwesterly to “Q” buoy to Cake Rock then true east to the shoreline. All salmon (7 days per week), 2 fish per day, but only 1 chinook, and all retained coho must have a healed adipose fin clip. Inseason management (C.4) may be used to sustain season length and keep harvest within a guideline of 1,000 chinook for the general season and 100 chinook for the set-aside season.

2. On page 23193, the second column in the table, in the last line, the description of the Open Seasons for the Quinault Tribe is corrected to read as follows: ”July 1 through earliest of September 15 or chinook or coho quota.”

The Regional Administrator consulted with representatives of the Council, WDFW, ODFW, and the California Department of Fish and Game regarding the two above-described inseason actions and two corrections at the June 2001 Council meeting in California. The best available information on June 13, 2001, indicated that the catch and effort data and catch projections supported the commercial fishery closure and the season modification. The two corrections were made with concurrence of the Council and the affected State and tribe. The states will manage the fisheries in state waters adjacent to the areas of the exclusive economic zone in accordance with these Federal actions. As provided by the inseason notice procedures of 50 CFR 660.411, actual notice to fishermen of the closure in the area from U.S.-Canada Border to Cape Falcon, Oregon, effective 2359 hours l.t., June 15, 2001, and the adjustment in the area from Humbug Mountain to Oregon-California Border effective 0001 hours l.t., June 15, 2001, were given prior to the effective dates by telephone hotline number 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz. The Quinault Tribe was notified of the correction to the all-species treaty troll fishery by letter prior to July 1, 2001.

Because of the need for immediate action to stop the fishery upon achievement of the quota for the area from the U.S.-Canada Border to Cape Falcon, OR, and for the modification of the weekly opening period for the area from Humbug Mountain to the Oregon-California Border, NMFS has determined that good cause exists for this notification to be issued without affording a prior opportunity for public comment because such notification would be unnecessary, impracticable, and contrary to the public interest. Moreover, because of the immediate need to stop the fishery upon achievement of the quota and modify the weekly opening period, the Assistant Administrator for Fisheries, NOAA (AA), finds, for good cause, under 5 U.S.C. 553(d)(3), that delaying the effectiveness of this rule for 30 days is impracticable and contrary to public interest. These actions do not apply to other fisheries that may be operating in other areas.

Furthermore, because of the need to ensure that harvest specifications are accurate, NMFS has determined that good cause exists for this notification to be issued without affording a prior opportunity for public comment because such notification would be unnecessary, impracticable, and contrary to the public interest. Moreover, because of the immediate need to correct errors, the AA finds, for good cause, under 5 U.S.C. 553(d)(3), that delaying the effectiveness of this rule for 30 days is impracticable and contrary to public interest. These actions do not apply to other fisheries that may be operating in other areas.

These actions are authorized by 50 CFR 660.409 and 660.411 and are exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and CFR part 679.

The 2001 TAC allocation of “other rockfish” for the Western Regulatory Area of the GOA was established as 20 metric tons (mt) by the Final 2001 Harvest Specifications and Associated Management Measures for the Groundfish Fisheries Off Alaska (66 FR 7276, January 22, 2001 and 66 FR 37167, July 17, 2001). “Other rockfish” in the Western Regulatory Area means slope rockfish and demersal shelf rockfish.

In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS, has determined that the allocation of the “other rockfish” TAC in the Western Regulatory Area of the GOA has been achieved. Therefore, NMFS is requiring that further catches of “other rockfish” in the Western Regulatory Area of the GOA be treated as prohibited species in accordance with § 679.21(b).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to prevent overharvesting the allocation of the “other rockfish” TAC in the Western Regulatory Area of the GOA constitutes good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(3)(B) and 50 CFR 679.20(b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly, the need to implement these measures in a timely fashion to prevent overharvesting the allocation of the “other rockfish” TAC for the Western Regulatory Area of the GOA constitutes good cause to find that the effective date of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.