[Federal Register Volume 59, Number 180 (Monday, September 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23117]


[[Page Unknown]]

[Federal Register: September 19, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[AR001; FRL-5073-8]

 

Clean Air Act Proposed Interim Approval Operating Permits 
Program; the State of Arkansas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed interim approval.

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SUMMARY: The EPA proposes interim approval of the operating permits 
program submitted by the Arkansas Department of Pollution Control and 
Ecology (ADPCE) through the Governor of Arkansas for the purpose of 
complying with Federal requirements which mandate that States develop, 
and submit to EPA, programs for issuing operating permits to all major 
stationary sources, with the exception of sources on Indian Lands.
DATES: Comments on this proposed action must be received in writing by 
October 19, 1994.

ADDRESSES: Written comments on this action should be addressed to Ms. 
Jole C. Luehrs, Chief, New Source Review Section, at the EPA Region 6 
Office listed. Copies of the State's submittal and other supporting 
information used in developing the proposed rule are available for 
inspection during normal business hours at the following locations. 
Interested persons wanting to examine these documents should make an 
appointment with the appropriate office at least 24 hours before 
visiting day.
    Environmental Protection Agency, Region 6, Air Programs Branch (6T-
AN), 1445 Ross Avenue, suite 700, Dallas, Texas 75202-2733.
    Arkansas Department of Pollution Control and Ecology, 8001 National 
Drive, Little Rock, Arkansas 72219-8913.

FOR FURTHER INFORMATION CONTACT: Wm. Nicholas Stone, New Source Review 
Section (6T-AN), Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, suite 700, Dallas, Texas 75202-2733, telephone (214) 655-7226.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    As required under title V of the Clean Air Act as amended in 1990 
(``the Act''), the EPA has promulgated rules which define the minimum 
elements of an approvable State operating permits program and the 
corresponding standards and procedures by which the EPA will approve, 
oversee, and withdraw approval of State operating permits programs (see 
57 FR 32250 (July 21, 1992)). These rules are codified at 40 Code of 
Federal Regulations (CFR) part 70. Title V requires States to develop, 
and submit to the EPA, programs for issuing these operating permits to 
all major stationary sources and to certain other sources, with the 
exception of sources on Indian Lands.
    The Act requires that States develop and submit these programs to 
the EPA by November 15, 1993, and that the EPA act to approve or 
disapprove each program within one year after receiving the submittal. 
The EPA's program review occurs pursuant to section 502 of the Act and 
the part 70 regulations which together outline criteria for approval or 
disapproval. Where a program substantially, but not fully, meets the 
requirements of 40 CFR part 70, the EPA may grant the program interim 
approval for a period of up to two years. If the EPA has not fully 
approved a program by two years after the November 15, 1993, date, or 
by the end of an interim program, it must establish and implement a 
Federal program.

II. Proposed Action and Implications

A. Analysis of State Submission

1. Support Materials
    Pursuant to section 502(d) of the Act, the Governor of each State 
is required to develop and submit to the Administrator an operating 
permit program under State or local law or under an interstate compact 
meeting the requirements of title V of the Act. The Arkansas submittal 
was made under the signature of Governor Jim Guy Tucker in a letter to 
Acting Regional Administrator, Joe Winkle, EPA, Region 6, dated October 
29, 1993. The program will be implemented in all areas of the State of 
Arkansas.
    The State provided a general overview under Tab 1 of the submittal. 
This overview meets the requirements of 40 CFR 70.4(b)(1) by describing 
the State program in general terms.
    Pursuant to 40 CFR 70.4(b)(3), the Governor is required to submit a 
legal opinion from the attorney general (or the attorney for the State 
air pollution control agency that has independent legal counsel) 
demonstrating adequate authority to carry out all aspects of a title V 
operating permit program. The Attorney General's (AG) Opinion appears 
under Tab 3 of the submittal. The Opinion is signed by the Chief of the 
Legal Division, ADPCE, certifying full authority to represent the State 
in all matters relating to the Department's environmental programs. 
This opinion adequately addresses the thirteen provisions listed at 40 
CFR 70.4(b)(3)(i)-(xiii).
    40 CFR 70.4(b)(4) requires the submission of relevant permitting 
program documentation not contained in the regulations, such as permit 
forms and relevant guidance to assist in the State's implementation of 
its permit program. The State provides relevant program documentation 
under Tab 4 of the submittal. This documentation includes a complete 
application form, permit form, and a guidance document. The submittal 
did not contain a model reporting form for the permitted facilities to 
report emissions to the regulatory authority. However, Arkansas 
Regulation 26.7(a) references the Federal reporting requirements at 40 
CFR 70.6(a)(3). These provisions must be included or formally 
incorporated by reference. All sources subject to monitoring 
requirements must submit monitoring reports every six months and must 
promptly report any deviation from permit requirements.
    In the ADPCE operating permits program submittal, the ADPCE does 
not assert jurisdiction over Indian Lands or reservations. To date, no 
Indian Lands have been identified in the State of Arkansas. Title V 
sources located on Indian Lands in Arkansas will be subject to the 
Federal operating permits program, to be promulgated at 40 CFR part 71, 
or subject to the operating permits program of any Tribe delegated 
authority for treatment as a State under regulations being developed 
pursuant to section 301(d) of the Act.
2. Regulations and Program Implementation
    The State submitted under Tab 2, Regulation 26, ``Regulations of 
the Arkansas Operating Permit Program,'' as required at 40 CFR 
70.4(b)(2). Regulation 26 follows the rule at 40 CFR part 70 very 
closely. Supporting documentation of procedurally correct adoption and 
copies of all applicable State statutes and regulations which authorize 
the part 70 program, including those governing State administrative 
procedures, were submitted with the State's program. Regulation 26 
received written comments from March 25 through April 24, 1993, and a 
public hearing was held April 14, 1993. The response to comments was 
made by ADPCE on July 28, 1993. Sufficient evidence of their 
procedurally correct adoption was submitted and meets the requirements 
of 40 CFR 70.4(b)(2).
    The following requirements, set out in the EPA's part 70 regulation 
are addressed in the State's submittal: (a) Provisions to determine 
applicability (40 CFR 70.3(a)), Regulation 26.3; (b) provisions to 
determine complete applications (40 CFR 70.5(a)(2)), Regulation 26.4; 
(c) public participation (40 CFR 70.7(h)), Regulation 26.6; (d) 
provisions for minor permit modifications (40 CFR 70.7(e)(2)), 
Regulation 26.10(b); (e) provisions for permit content (40 CFR 
70.6(a)), Regulation 26.7; (f) provisions for operational flexibility 
(40 CFR 70.4(b)(12)), Regulation 26.8; (g) enforcement provisions (40 
CFR 70.4(b)(5) and 70.4(b)(4)(ii)), the AG Opinion and Tab 5 of the 
submittal, Compliance Tracking and Enforcement.
    Following is a discussion of certain specific provisions in the 
State's submission as they relate to requirements of 40 CFR part 70:

    (a) Applicability criteria, including any criteria used to 
determine insignificant activities or emissions levels (40 CFR 
70.4(b)(2) and 70.3(a)): Applicability criteria are defined at 
Regulation 26.3. Regulation 26.3(a)(3) specifies that new construction 
or modification at a part 70 source requires a new or modified part 70 
permit before construction begins. However, the State regulation does 
not require that a source must first undergo a preconstruction permit 
review as outlined in Section 108, prevention of significant 
deterioration (PSD) supplement to the Arkansas SIP. The SIP has been 
submitted for recodification, with the PSD provisions at Regulation 
19.9, and has not yet been acted on by the EPA. Regulation 26.3 must be 
amended to incorporate by reference the applicable PSD requirements.
    Insignificant activities are addressed at Regulation 26.3(d) which 
refers to the SIP at Regulation 19.4(c). The SIP lists the following 
emissions for which a permit is not required: 1) comfort heating, 
cooling, and ventilation equipment; 2) portable internal combustion 
engines used in conjunction with temporary construction operations, or 
emergency standby generators; or 3) natural gas and oil exploration and 
production site equipment. An exemption may be obtained for these 
activities provided that operation of the equipment does not affect any 
provision of the Federal Clean Air Act and does not contribute to an 
exceedance of a National Ambient Air Quality Standard (NAAQS). No other 
federally regulated emissions are allowed an exemption under Regulation 
26.
    (b) Provisions to determine complete applications are listed at 
Regulation 26.4. The State references the required provisions for a 
complete application listed at 40 CFR 70.5(c). In order to receive full 
approval, the State must formally incorporate these provisions by 
reference or list them specifically in the regulation. Recommended 
language for formal incorporation by reference would read: ``The 
Department hereby adopts and incorporates by reference those provisions 
of 40 CFR 70.5(c), as in effect on July 21, 1992.''
    Complete application forms, model permit, and instructions are 
located under Tab 4 of the submittal. These application forms may be 
amended without rulemaking to facilitate changes required by new 
applicable requirements. These provisions meet the requirements of 40 
CFR 70.5(a)(2).
    (c) Provisions for adequate public participation are found at 
Regulation 26.6. The State regulation provides for adequate public 
participation and notice to affected States for permit issuance, 
renewals, and reopenings. These provisions meet the requirements of 40 
CFR 70.7(h).
    (d) The rule at 40 CFR 70.7(e)(2) specifies criteria for minor 
permit modifications that are incorporated in the State regulations at 
Regulation 26.10(b). The rule at 40 CFR 70.7(e)(2)(i)(A)(5) and 
Regulation 26.10(b)(7) prohibits changes which constitute modifications 
under any provision of title I of the Act from being processed as a 
minor modification. ``Title I modifications'' in Arkansas, are 
determined by the permitting procedures federally approved into the 
Arkansas Plan of Implementation for Air Pollution Control (SIP). The 
SIP, Regulation 19.2, defines any increase in emissions as a 
modification. The State incorporates an additional criteria, Regulation 
26.10(b)(1), that allows the minor permit modification process to be 
used for permit modifications that involve emission increases.
    The additional criteria at Regulation 26.10(b)(1) allows the minor 
permit modification process to be used for permit modifications that 
involve emission increases not over 20% of the applicable definition of 
major source, or 15 tons/year of PM-10, or 0.6 tons/year of lead, 
whichever is less, based on potential to emit. 40 CFR 70.7(e)(3)(i) 
allows group processing of minor modifications that collectively meet 
this emission threshold, or a total of 5 tons per year (tpy) whichever 
is less, provided the minor modification criteria at 40 CFR 
70.7(e)(2)(i)(A) are also met. However, the criteria for minor 
modifications at 40 CFR 70.7(e)(2)(i)(A), which applies to individual 
as well as group processing of minor modifications does not contain 
this allowance.
    Therefore, Regulation 26.10(b)(1) is inconsistent with the rule at 
40 CFR 70.7(e)(2)(i)(A)(5), as well as Regulation 26.10(b)(7). In order 
for Regulation 26 to provide minor modification procedures consistent 
with 40 CFR part 70, and as a condition of full approval, the ADPCE 
must revise Regulation 26.10(b)(1) or delete the allowance from the 
minor modification procedure.
    (e) Provisions for permit content are found at Regulation 26.7. The 
State regulations require inclusion of the enumerated elements at 40 
CFR 70.6(a), (b), and (c). In order to receive full approval, the State 
must formally incorporate these provisions by reference or list them 
specifically in the regulation. Recommended language for formal 
incorporation by reference would read: ``The Department hereby adopts 
and incorporates by reference those provisions of 40 CFR 70.6(a), (b), 
and (c) as in effect on July 21, 1992.''
    Additional provisions are found to provide for adequate permit 
duration, allow a permit shield, provide for general permits, and 
provide for temporary sources and emergency situations.
    Part 70 of the operating permits regulations requires prompt 
reporting of deviations from the permit requirements. The rule at 40 
CFR 70.6(a)(3)(iii)(B) requires the permitting authority to define 
``prompt'' in relation to the degree and type of deviation likely to 
occur and the applicable requirements. The State of Arkansas has not 
defined ``prompt'' in Regulation 26, and must do so in order to achieve 
full approval. With formal incorporation by reference and defining 
``prompt'' with regard to reporting deviations, the provisions at 
Regulation 26.7 meet the requirements of 40 CFR 70.6.
    (f) Provisions for operational flexibility and alternative 
scenarios are listed at Regulation 26.8. This section meets the 
requirements of 40 CFR 70.4(b)(12) by closely tracking the language of 
part 70.
    (g) Enforcement provisions are discussed under Tab 5 of the 
submittal, Compliance Tracking and Enforcement Program. This section 
contains copies of the Enforcement Memorandum of Understanding, signed 
May 3, 1993. The AG Opinion discussed in section 1 above, outlines the 
State's authority to enforce all aspects of the program. Under Tab 9 of 
the submittal, the State provides a commitment to submit annual 
information concerning the State's enforcement activities. These 
submission elements meet the requirements of 40 CFR 70.4(b)(4)(ii) and 
(5).
    The State of Arkansas has the authority to issue a variance from 
requirements imposed by State law under Arkansas Code, Annotated 
(A.C.A.) 8-4-313. The EPA regards this provision as wholly external to 
the program submitted for approval under part 70, and consequently is 
proposing to take no action on this provision of State law. The EPA has 
no authority to approve provisions of State law, such as the variance 
provision referred to, which are inconsistent with the CAA. The EPA 
does not recognize the ability of a permitting authority to grant 
relief from the duty to comply with a federally enforceable part 70 
permit, except where such relief is granted through the procedures 
allowed by part 70. A part 70 permit may be issued or revised 
(consistent with part 70 permitting procedures) to incorporate those 
terms of a variance that are consistent with applicable requirements. A 
part 70 permit may also incorporate, via part 70 permit issuance or 
modification procedures, the schedule of compliance set forth in a 
variance. However, EPA reserves the right to pursue enforcement of 
applicable requirements notwithstanding the existence of a compliance 
schedule in a permit to operate. This is consistent with 40 CFR 
70.5(c)(8)(iii)(C), which states that a schedule of compliance ``shall 
be supplemental to, and shall not sanction noncompliance with, the 
applicable requirements on which it is based.'' The State provides a 
legal position on variances in the AG Opinion, Section XXIII, page 9. 
Historically, Arkansas has not granted a variance without approval from 
EPA. Counsel for the ADPCE commits to assure that variances are not 
granted to part 70 sources.
    The Arkansas operating permits program is contained in Regulation 
26, but several applicable requirements are found in Regulation 19 
(e.g. PSD requirements at 19.9). The State of Arkansas has submitted a 
revision to Regulation 19 and the EPA is currently undertaking a review 
of the revision. The EPA will continue to work closely with the State 
to ensure consistency between the SIP permits system and operating 
permits systems in Arkansas. The EPA reserves comment on the SIP 
revision until such time as review is completed. A subsequent notice 
will be published in the Federal Register when the review is complete.
3. Permit Fee Demonstration
    The State provided a detailed workload analysis and permit fee 
demonstration to justify the fee of $16 per ton per year. Federal 
guidance recommends a presumptive minimum fee of $25 per ton per year, 
based on 1989 dollars and adjusted annually by the Consumer Price Index 
(CPI). The fee will be applied to the allowable emissions at each part 
70 source. Approximately $4.16 million dollars per year is expected to 
be generated by the Arkansas fee. This figure is based on the emissions 
inventory and does not include hazardous air pollutant (HAP) emission 
sources. Program costs are expected to run approximately $3.6 million 
dollars per year. The State utilized historical information concerning 
permitting costs and the emissions inventory to estimate the revenue 
required to fund the program. The EPA noted that the fee demonstration 
does not estimate resource needs for section 112 programs that will be 
promulgated in the near future. Expansion of the State program is 
anticipated to facilitate incorporation of these new requirements. The 
ADPCE has the authority to adjust the fee as necessary using the State 
administrative procedures as new applicable requirements are 
promulgated. The fee demonstration submitted by Arkansas meets the 
requirements at 40 CFR 70.4(b)(7) and (8).
4. Provisions Implementing the Requirements of Other Titles of the Act
    The State of Arkansas acknowledges that its request for approval of 
a part 70 program is also a request for approval of a program for 
delegation of unchanged section 112 standards under the authority of 
section 112(l) as they apply to part 70 sources. Upon receiving 
approval under section 112(l), the State may receive delegation of any 
new authority required by section 112 of the Act through the delegation 
process.
    The State also has the option at any time to request, under section 
112(l) of the Act, delegation of section 112 requirements in the form 
of State regulations which the State demonstrates are equivalent to the 
corresponding section 112 provisions promulgated by the EPA. At this 
time, the State plans to use the mechanism of incorporation by 
reference to adopt unchanged Federal section 112 requirements into its 
regulations.
    The radionuclide NESHAP is a section 112 regulation and therefore, 
also an applicable requirement under the State operating permits 
program for part 70 sources. There is not yet a Federal definition of 
``major'' for radionuclide sources. Therefore, until a major source 
definition for radionuclides is promulgated, no source would be a major 
section 112 source solely due to its radionuclide emissions. However, a 
radionuclide source may, in the interim, be a major source under part 
70 for another reason, thus requiring a part 70 permit. The EPA will 
work with the State in the development of its radionuclide program to 
ensure that permits are issued in a timely manner.
    Section 112(g) of the Act requires that, after the effective date 
of a permits program under title V, no person may construct, 
reconstruct or modify any major source of HAPs unless the State 
determines that the maximum achievable control technology emission 
limitation under section 112(g) will be met. Such determination must be 
made on a case-by-case basis where no applicable limitations have been 
established by the Administrator. During the period from the title V 
effective date to the date the State has taken appropriate action to 
implement the final section 112(g) rule (either adoption of the 
unchanged Federal rule or approval of an existing State rule under 
112(l)), Arkansas intends to implement section 112(g) of the Act 
through the State's preconstruction process.
    The State of Arkansas commits to appropriately implementing and 
enforcing the existing and future requirements of sections 111, 112 and 
129 of the Act, and all maximum achievable control technology (MACT) 
standards promulgated in the future, in a timely manner.
    The submittal was amended with a letter from J.B. Jones, Chief of 
the Air Division, ADPCE, to Gerald Fontenot, Chief of the Air Programs 
Branch, EPA, dated January 13, 1994. This letter commits the ADPCE to 
meet the January 1, 1995, deadline for incorporation and submittal of 
the Federal acid rain program into the State regulations.
5. Enforcement Provisions
    The Arkansas operating permits program submittal addressed the 
enforcement requirements under Tab 5 of the submittal. This section 
contains, as required at 40 CFR 70.4(b)(4)(ii) and 70.4 (b)(5), the 
Enforcement Memorandum of Understanding, signed by the State and the 
EPA on May 3, 1993. This information serves to describe the current 
processes in place to track air permits and conduct enforcement 
actions. The State has committed to use the AIRS computer tracking 
system in the operating permits program. Under Tab 9 of the submittal, 
the State committed to annual submission of information concerning the 
State's enforcement activities. This submission, as required at 40 CFR 
70.4(b)(9), includes the number of enforcement actions either commenced 
or concluded; the penalties, fines, and sentences obtained in those 
actions; and the number of administrative orders issued. The AG's 
Opinion under Tab 3 of the submittal clearly documents the State's 
authority to issue, inspect, and enforce operating permits in both 
civil and criminal actions. This statement of authority is required at 
40 CFR 70.4(b)(3)(vii).
6. Technical Support Document
    The results of this review will be shown in a document entitled 
``Technical Support Document,'' which will be available in the docket 
at the locations noted above. The technical support documentation shows 
that all operating permits program requirements of 40 CFR part 70 and 
relevant guidance were met by the submittal with the exception of those 
requirements described below.
7. Summary
    The State of Arkansas submitted to the EPA, under a cover letter 
from the Governor, the State's operating permits program on November 9, 
1993. The submittal has adequately addressed all sixteen elements 
required for full approval as discussed in part 70 with the exception 
of the issues described in section B below. The State of Arkansas 
addressed appropriately all requirements necessary to receive interim 
approval of the State operating permits program pursuant to title V of 
the Act, 1990 Amendments and 40 CFR part 70. The EPA is proposing 
interim approval for the operating permits program submittal for the 
State of Arkansas.

B. Options for Approval/Disapproval and Implications

    The EPA is proposing to grant interim approval to the operating 
permits program submitted by the State of Arkansas on November 9, 1993. 
Interim approvals under section 502(g) of the Act do not create any new 
requirements, but simply approve requirements that the State is already 
imposing. If promulgated, the State must make the following changes to 
receive full approval:

(1) PSD Applicability. As discussed in section A.2.a above, the 
provisions at Regulation 26.3(a)(3) should incorporate by reference 
the PSD requirements in the State regulations applicable to new 
construction and modification.
(2) Incorporation by Reference. As discussed in section A.2.b and 
A.2.e above, the State must formally incorporate the part 70 
provisions referenced in Regulation 26 regarding complete 
application requirements and permit content requirements.
(3) Minor Modification Procedures. As discussed in section A.2.d 
above, the State must remove or revise the language at Regulation 
26.10(b)(1).
(4) Definition of ``prompt''. As discussed in section A.2.e above, 
the State must define ``prompt'' with regard to reporting deviations 
in order to be consistent with the rule at 40 CFR 
70.6(a)(3)(iii)(B).
(5) Submission of Regulation 19. As discussed in section A.2 above, 
The State of Arkansas must ensure consistency between the operating 
permits program, Regulation 26, and the SIP, Regulation 19.

    Evidence of these regulatory revisions and their procedurally 
correct adoption must be submitted to EPA within 18 months of EPA's 
approval of the Arkansas operating permits program. This interim 
approval, which may not be renewed, extends for a period of up to two 
years. During the interim approval period, the State is protected from 
sanctions for failure to have a program, and the EPA is not obligated 
to promulgate a Federal permits program in the State. Permits issued 
under a program with interim approval have full standing with respect 
to 40 CFR part 70, and the one year time period for submittal of permit 
applications by subject sources begins upon interim approval, as does 
the three year time period for processing the initial permit 
applications.
    If the interim approval is converted to a disapproval, it will not 
affect any existing State requirements applicable to small entities. 
Federal disapproval of the State submittal does not affect its State-
enforceability. Moreover, the EPA's disapproval of the submittal does 
not impose a new Federal requirement. Requirements for approval, 
specified in 40 CFR 70.4(b), encompass section 112(l)(5) approval 
requirements for delegation of section 112 standards as promulgated by 
EPA as they apply to part 70 sources. Section 112(l)(5) requires that 
the State's program contain adequate authorities, adequate resources 
for implementation, and an expeditious compliance schedule, which are 
also requirements under 40 CFR part 70.

III. Proposed Rulemaking Action

    In this action, EPA is proposing interim approval of the operating 
permits program submitted by the State of Arkansas. The program was 
submitted by the State to EPA for the purpose of complying with Federal 
requirements found at the 1990 Amendments, title V and at part 70, 
which mandates that States develop, and submit to EPA, programs for 
issuing operating permits to all major stationary sources and certain 
other sources, with the exception of Indian Lands. Therefore, the EPA 
is also promulgating approval under section 112(l)(5) and 40 CFR 63.91 
of the State's program for receiving delegation of section 112 
standards that are unchanged from Federal standards as promulgated. 
This program for delegations only applies to sources covered by the 
part 70 program.
    EPA has reviewed this submittal of the Arkansas operating permits 
program and is proposing interim approval. Certain defects in the 
State's regulations preclude EPA from granting full approval of the 
State's operating permits program at this time. EPA is proposing to 
grant interim approval, subject to the State obtaining the needed 
regulatory revisions within 18 months after the Administrator's 
approval of the Arkansas title V program pursuant to 40 CFR 70.4.

IV. Administrative Requirements

A. Request for Public Comments

    The EPA is requesting comments on all aspects of this proposed 
rule. Copies of the State's submittal and other information relied upon 
for the proposed interim approval are contained in a docket maintained 
at the EPA Regional Office. The docket is an organized and complete 
file of all the information submitted to, or otherwise considered by, 
the EPA in the development of this proposed rulemaking. The principal 
purposes of the docket are:

    (1) To allow interested parties a means to identify and locate 
documents so that they can effectively participate in the rulemaking 
process; and

    (2) To serve as the record in case of judicial review.

    The EPA will consider any comments received by October 19, 1994.

B. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866 review.

C. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA 
must prepare a regulatory flexibility analysisassessing the impact of 
any proposed or final rule on small entities, (5 U.S.C. 603 and 604). 
Alternatively, the EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.

    Operating permits program approvals under section 502 of the Act do 
not create any new requirements, but simply approve requirements that 
the State is already imposing. Therefore, because the Federal operating 
permits program approval does not impose any new requirements, I 
certify that it does not have a significant impact on any small 
entities affected. Moreover, due to the nature of the Federal-State 
relationship under the Act, preparation of a regulatory flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness of State action. The Act forbids the EPA to base its 
actions concerning operating permits programs on such grounds, (Union 
Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct 1976); 42 
U.S.C. 7410(a)(2)).

List of Subjects in 40 CFR Part 70

    Administrative practice and procedure, Air pollution control, 
Environmental protection, Intergovernmental relations, Operating 
permits.

    Authority: 42 U.S.C. 7401-7671q.

    Date: September 7, 1994.
Joe D. Winkle,
Acting Regional Administrator (6A).
[FR Doc. 94-23117 Filed 9-16-94; 8:45 am]
BILLING CODE 6560-50-F