[Federal Register Volume 60, Number 20 (Tuesday, January 31, 1995)]
[Proposed Rules]
[Pages 5883-5887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2335]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[AD-FRL-5147-7]


Clean Air Act Proposed Approval of Operating Permits Program; 
Lincoln-Lancaster County Health Department; State of Nebraska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes approval of the Operating Permits Program 
submitted by the Lincoln-Lancaster County Health Department (LLCHD) 
(Nebraska) 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, and to certain other 
sources.
DATES: Comments on this proposed action must be received in writing by 
March 2, 1995.

ADDRESSES: Comments should be addressed to Christopher D. Hess at the 
Region VII address.
    Copies of the LLCHD submittal and other supporting information used 
in developing the proposed rule are available for inspection during 
normal business hours by contacting: Christopher D. Hess, USEPA, Region 
VII, Air Branch, 726 Minnesota Avenue, Kansas City, Kansas 66101.

FOR FURTHER INFORMATION CONTACT: Christopher D. Hess (913) 551-7213.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    As required under title V of the Clean Air Act (``the Act'') as 
amended (1990), 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 EPA, programs for issuing these operating permits to all 
major stationary sources and to certain other sources.
    The Act requires that states develop and submit these programs to 
EPA by November 15, 1993, and that 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 which outlines 
criteria for approval or disapproval. Where a program substantially, 
but not fully, meets the requirements of part 70, EPA may grant the 
program interim approval for a period of up to two years. If 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 Submission by Local Authority

1. Introduction
    What follows are brief explanations indicating how the submittal 
meets the requirements of part 70. The reader may consult the Technical 
Support Document (TSD) for a more detailed explanation of these topics.
2. Support Materials
    a. Governor's letter. The designated representative of the Governor 
of Nebraska has requested approval on behalf of the LLCHD as a local 
permitting agency. LLCHD has also requested approval in its submittal 
cover letter. Lincoln-Lancaster proposes to administer title V in its 
two counties.
    b. Regulations. The basic regulatory framework for the operating 
permit program is the ``1993 Lincoln-Lancaster County Air Pollution 
Control Program,'' version 1.2, as amended May 1994. These rules 
essentially adopt the state's ``Title 129--Nebraska Air Quality 
Regulations,'' which includes the title V requirements for the state. 
LLCHD rules use a different numbering system than the state's but is 
essentially the same in content. These rules were approved by the 
Lincoln City Council and by the Lancaster County Board of Supervisors. 
LLCHD has also incorporated by reference the Nebraska Environmental 
Protection Act and Nebraska statutes into its program. The submittal 
includes a discussion of the public review and hearing process which 
the local agency followed in adopting the rules.
    The submittal currently contains two provisions which would 
restrict operation of the program. However, LLCHD has agreed to make 
modifications to both of these provisions in order to receive full 
approval of the program. The reader is directed to the applicability 
provisions section of this notice (II.A.2.e.) for discussion of the 
first item (applicable requirements definition), and (II.A.2.h.) for 
the second item (Title I modifications).
    c. Attorney General's legal opinion. The opinion of the County 
Attorney contains the elements required by 40 CFR 70.4(b)(3) and states 
there is adequate authority to meet all of the title V and part 70 
requirements.
3. Implementation
    a. Program description. A comprehensive plan for implementing the 
title V program was included in the submittal. This plan includes 
program authority, agency organization, and staffing. Approximately 80 
sources have been identified that will be required to submit a title V 
permit application within LLCHD jurisdiction.
    LLCHD has also identified adequate procedures for its permit 
application and review process, along with inspection and enforcement 
provisions. The EPA has determined the program description meets the 
requirements of 40 CFR 70.4(b)(1). An implementation agreement was not 
included in LLCHD's [[Page 5884]] submittal, but the EPA is encouraging 
its development in anticipation of program approval.
    The presumptive minimum plus consumer price index (CPI) will be 
used for the operating permit fee. This will be discussed further under 
the fee demonstration section (II., 3.). Like the state, LLCHD will 
maintain a Class II program for minor, non-title V sources.
    b. Program implementation. A permit registry is being established 
to ensure issuing one-third of all permits in the first year of the 
program. This registry also includes a provision to review permit 
applications within nine months of receipt for those sources of 
hazardous air pollutants participating in the early reduction program 
under section 112(i)(5) of the Clean Air Act.
    In terms of initial permit applications, LLCHD outlines adequate 
procedures to satisfy part 70 requirements. The application process 
includes affected state and EPA review. LLCHD's procedures and guidance 
are designed to ensure that a permit is issued within 18 months of 
application.
    LLCHD has established criteria for monitoring source compliance 
which include compliance inspections, citizen complaint responses, 
follow-up inspections, and permit application review. LLCHD will 
physically inspect each title V source at least once per year. 
Surveillance through monitoring will also be conducted to ensure 
compliance.
    c. Personnel. LLCHD provided a workload analysis for each program 
category of title V activity to include permitting, compliance and 
enforcement, planning, monitoring, small business assistance, and 
communications to determine the amount of personnel needed. EPA's 
analysis suggests that LLCHD's estimate appears adequate for 
implementing the title V program.
    d. Data management. All permit application information will be 
submitted to the state which will, in turn, make that information 
available to the EPA. The proposed permits will be made available for 
EPA review. LLCHD requires the retention of permit information by the 
source for five years in Article 2, section 8, (D)(2)(b). LLCHD has 
also committed to maintaining records for five years in its program 
description.
    e. Applicability provisions. LLCHD provides for permitting of all 
major sources, affected sources, sources that opt to apply for a 
permit, and all sources subject to sections 111 or 112 standards (new 
source performance standards and standards for hazardous air 
pollutants).
    LLCHD exempts sources that are not major sources, affected sources, 
or solid waste incineration units required to obtain a permit pursuant 
to section 129(e) of the Act. This exemption is allowed by 
Sec. 70.3(b)(1) until the Administrator completes a rulemaking to 
determine how the program should be structured for nonmajor sources.
    (1) Applicable requirements. On the one hand, LLCHD's rules require 
all applicable requirements to be included in the permit. This includes 
requirements that have been promulgated or approved by EPA through 
rulemaking at the time of issuance but which have future effective 
dates. Additionally, the director may insert EPA promulgated 
requirements into permits before LLCHD has adopted the standard.
    However, the EPA has determined that the items enumerated in 
Article 1, section 2 (3-10) in the definition of ``applicable 
requirements'' undermine the ability to incorporate all applicable 
requirements. As currently written, a rule must be promulgated by EPA 
and adopted by LLCHD to be considered an applicable requirement.
    As an example of this concern, item (4) of the applicable 
requirement definition states, ``Any standard or other requirement 
established pursuant to Section 112 of the Act and regulations adopted 
in Section 27 of these Regulations and Standards relating to hazardous 
air pollutants listed in Appendix II.'' The practical effect of this 
definition, as an example, is that a source could claim it need not 
identify certain hazardous air pollutant standards in its application, 
for inclusion in the permit, if the requirement is not both promulgated 
under section 112 of the Act and in section 27 of the Lincoln-Lancaster 
regulations.
    LLCHD has committed to modify the definition of applicable 
requirements in accordance with EPA guidance to receive program 
approval. The state of Nebraska has already initiated action to correct 
this deficiency. The Nebraska Environmental Quality Council adopted 
regulatory changes on December 2, 1994, which are included in the 
docket for this proposed rulemaking for the LLCHD program. Once LLCHD 
adopts the revisions made by the Council on December 2, including those 
described in II.A.2.h. also, the EPA intends to take final action to 
fully approve the program.
    (2) Variances. Both the state's and LLCHD's rules allow sources to 
petition the permitting authority for a variance. Importantly, both 
rules clearly state that no variance will be granted that sanctions any 
violation of state or Federal statutes or regulations. Based on these 
provisions, the submittal is approvable with respect to variances.
    f. Permit content. LLCHD's regulations require title V permits to 
include part 70 terms and conditions for all applicable requirements in 
Article 2, section 7 (C)(1). These rules also stipulate that the 
duration of the permit (five years) will be specified in the permit. 
LLCHD has also provided for the inclusion of enhanced monitoring in 
permits.
    LLCHD's regulations do require the permit to contain a condition 
prohibiting emissions exceeding any allowances that the source lawfully 
holds under title IV of the Act as required by Sec. 70.6(a)(4). The 
regulations also meet the requirements of Sec. 70.6(a)(5) 
(severability), Sec. 70.6(a)(6) (permit provisions), Sec. 70.6(a)(7) 
(fees), and Sec. 70.6(a)(8) (emissions trading). Part 70 also requires 
terms and conditions for reasonably anticipated operating scenarios to 
be included in the permit. LLCHD's rules require that the terms and 
conditions of each alternative scenario meet all the requirements of 
part 70. Section 70.6(a)(10) requires the permit to contain terms and 
conditions, if the permit applicant requests them, for the trading of 
emissions increases and decreases at the facility. LLCHD's regulations 
fulfill this requirement.
    Part 70 also has federally enforceable requirements for the terms 
and conditions in a part 70 permit at Sec. 70.6(b), compliance 
requirements at Sec. 70.6(c), and emergency provisions at Sec. 70.6(g). 
LLCHD's regulations comply with these requirements.
    LLCHD's program provides for general permits in Article 2, section 
9. In section 9(B), the director will identify criteria by which 
sources may qualify for the general permit as required by 
Sec. 70.6(d)(1).
    The permitting program can also have provisions for permitting 
temporary sources and for permit shields. LLCHD's permitting program 
has both of these options and meets the requirements of part 70. 
LLCHD's program provides for operational flexibility and closely 
follows EPA's requirements.
    The program does make provision to exempt the listing of 
insignificant activities in permit applications. The state has 
developed this list, which will be approved in December 1994 and then 
adopted by LLCHD.
    g. Permit forms. LLCHD addresses permit application requirements in 
Article 2, sections 5 and 7 of its regulations. Within its rules 
adequate procedures are outlined for the following: duty to apply, 
complete [[Page 5885]] applications, confidential information, 
correcting a permit application, standard forms, and compliance 
certification. A detailed analysis of how the submittal meets these 
part 70 requirements is included in the TSD.
    h. Permit issuance. LLCHD regulations satisfy both the complete and 
timely component of section 503 of the Act and 40 CFR 70.5(a). Sources 
are required to submit permit applications within 12 months after 
becoming subject to the permit program, or on or before some earlier 
date established under the LLCHD operating permit registry. Source 
permit applications must conform to the standard LLCHD application 
form, and must contain information sufficient to allow LLCHD to 
determine all applicable requirements with respect to the applicant. An 
application will be deemed complete within 60 days of receipt unless 
LLCHD finds them to be incomplete. LLCHD regulations only require 
notification of the source if the application is incomplete.
    LLCHD regulations also require that final action be taken on 
complete applications within 18 months of submittal of a complete 
application, except for initial permit applications which are subject 
to the three-year transition plan set forth by the Clean Air Act 
Amendments of 1990.
    LLCHD regulations also require compliance with public participation 
procedures, notification to affected states, compliance with all 
applicable requirements, and allow for a 45-day period for EPA 
objection.
    The regulations provide for priority on applications for 
construction or modification under an EPA-approved preconstruction 
review program. The operating permit regulations do not affect the 
requirement that any source have a preconstruction permit under an EPA-
approved preconstruction review program. The program also provides that 
permits being renewed are subject to the same procedural requirements, 
including those for public participation and affected state and EPA 
review that apply to initial permit issuance. The operating permit 
program provides for administrative amendments which meet the 
requirements of the Federal rule.
    Permit modification processing procedures are equivalent to Federal 
requirements as they provide for the same degree of permitting 
authority, EPA, and affected state review and public participation.
    The program satisfies all but one of the Federal minor permit 
modification procedures. The Federal permit rule requires that a title 
I modification not be processed as a minor permit modification. The 
LLCHD rules (see section 15(C)(1)(e)) require that the activity not be 
a modification which requires a construction permit under section 17; 
this section is titled ``Construction Permits-When Required.'' Thus, 
LLCHD is required to include a reference in section 15(C)(1)(e) 
referring to section 19, ``Prevention of Significant Deterioration,'' 
and section 18, ``New Source Performance Standards,'' since activities 
under these chapters could be considered title I modifications.
    The origin of the LLCHD rule is in title 129 of the state rule. The 
state has proposed rule changes for adoption in December 1994 to 
correct this deficiency. As with all other rules adopted by the state, 
LLCHD will incorporate this change approximately two months afterward 
and therefore fulfill all minor permit modification requirements. This 
change, along with the modification of ``applicable requirement,'' will 
be required before the EPA will grant approval for the program.
    The program provides for promptly sending to EPA any notice that 
LLCHD refuses to accept all recommendations of an affected state 
regarding a proposed minor permit modification. In addition, the 
program provides that the permitting authority may approve, but may not 
issue, a final permit modification until after EPA's 45-day review 
period or until the EPA has notified the permitting authority that the 
EPA will not object to issuance, whichever is first.
    The LLCHD program provides for minor permit modification group 
processing which meets the Federal criteria. Specifically, the program 
provides that any application for group processing must meet permit 
application requirements similar to those outlined in Sec. 70.7(e)(3), 
and also provides for notifying the EPA and affected states of the 
requested permit modification within five working days of receipt of an 
application demonstrating that the aggregate of a source's pending 
applications equals or exceeds the threshold level.
    Significant modification procedures are defined in a manner that 
parallels Federal provisions. The submittal's program description 
commits to completion of review of the majority of significant permit 
modifications within nine months after receipt of a complete 
application.
    (1) Permit reopenings. LLCHD provides that a permit is to be 
reopened and revised when additional applicable requirements become 
applicable to a major source with a remaining permit term of three or 
more years, and that such a reopening is to be completed within 18 
months after promulgation of the applicable requirement. In addition, 
the proceedings to reopen a permit will follow the same procedures that 
apply to initial issuance, will affect only those parts of the permit 
for which cause to reopen exists, and will ensure reopenings are made 
as expeditiously as practicable. The rule provides that at least 30 
days' advance notice must be given to the permittee for reopenings and 
that notice will be given of the intent to reopen the permit.
    (2) Off-permit revisions. LLCHD has elected to not allow off-permit 
activities.
    i. Compliance tracking and enforcement. The requirement for 
proposed compliance tracking and enforcement reporting has been met by 
the LLCHD. This reporting will be accomplished by providing enforcement 
information to the state monthly for subsequent monthly entry into the 
Aerometric Information Retrieval System. The proposed enforcement 
program will consist of source inspection, surveillance, response to 
complaints, permit application review, and enforcement responses. 
Proposed enforcement authorities mirror the state's and meet the 
requirements of Sec. 70.11. These responses include permit 
modification, permit revocation, stipulation, administrative orders, 
injunctive relief, civil/criminal referral, and referral to the EPA.
    j. Public participation, EPA and affected States review. LLCHD's 
submittal ensures that all permit applications are available to the 
public. All requirements are included to ensure that each concerned 
citizen will be aware of proposed and final permit actions. This 
includes the commitment to keep a record of proceedings that will allow 
citizens to object to a permit up to 60 days after the EPA review 
period.
    LLCHD has adopted rules that ensure mutual review by affected 
states and the EPA. LLCHD will not issue a permit when it is objected 
to in accordance with Sec. 70.8(c).
4. Fee Demonstration
    LLCHD has elected to collect the presumptive minimum plus CPI 
(currently $30.07) in accordance with part 70 to cover direct and 
indirect costs of developing and administering its program.
    The submittal states that a specific title V fund, with individual 
billing codes for this program, will be created. Article 2, section 29 
of the LLCHD regulations directs all moneys collected from the permit 
fees to be made payable to LLCHD and to be credited to the Air 
Pollution Control Fund. [[Page 5886]] 
    Part 70 also requires permitting authorities to submit periodic 
accounting reports to EPA. Upon further guidance by EPA, LLCHD will be 
requested to submit these reports.
    LLCHD's submittal included a list of sources and the amount of fees 
that it expects to collect in the first year from each source as part 
of its fee demonstration ($379,122). LLCHD's year-to-year estimates of 
resources by major activities adequately satisfies the four-year 
projection.
5. Provisions Implementing the Requirements of Other Titles of the Act
    a. Acid rain. The legal requirements for an approval under the 
title V operating permits program for a title IV program were cited in 
EPA guidance distributed on May 21, 1993, entitled ``Title V--Title IV 
Interface Guidance for States.'' The LLCHD has met the five major 
criteria of this guidance which include legal authority, regulatory 
authority, forms, regulatory revisions, and a commitment to acid rain 
deadlines. The LLCHD has adopted by reference 40 CFR part 72.
    b. Section 112. The specific title V program approval criteria with 
respect to section 112 provisions are enumerated in a memorandum from 
John Seitz, Office of Air Quality Planning and Standards, dated April 
13, 1993. LLCHD has met these criteria as described in the following 
topics:

    (1) Section 112(d), (f), and (h).-EPA emissions standards. In 
accordance with part 70, LLCHD will not issue any permit (or permit 
revision addressing any emissions unit subject to a newly promulgated 
section 112 standard) unless it would ensure compliance with all 
applicable section 112 standards. Additionally, part 70 permits will be 
reopened which have three or more years remaining before their 
expiration date to incorporate any newly promulgated standard (section 
70.7 (f)(1)(i)).
    (2) General provisions. The Seitz memorandum notes that the 
implementation of all current National Emission Standard for Hazardous 
Air Pollutants (NESHAP) standards and future maximum achievable control 
technology (MACT) (and residual risk) standards includes the 
implementation of any ``general provisions'' that EPA develops for 
these standards. Initial title V approval must ensure that states will 
carry out these provisions as in effect at the time of any permit 
issuance or revisions. EPA adopted the 40 CFR part 63, subpart A 
General Provisions on February 28, 1994. Neither the state nor Lincoln-
Lancaster has had an opportunity to adopt these provisions to date. 
However, the intention is to adopt all applicable requirements as noted 
in the general program description. EPA thus considers this requirement 
to be met.
    (3) Section 112 (g)-Case-by-Case MACT for modified/constructed and 
reconstructed major toxic sources.  The agency proposes to require best 
available control technology for new and modified sources of air 
toxics. In the absence of any EPA guidance/regulations defining case-
by-case MACT procedures and methods for determining agency equivalency 
of Federal requirements at the time of agency program submittal, the 
agency's submission should be adequate for the interim. LLCHD's intent 
is to adopt Federal air toxic regulations expeditiously.
    (4) Section 112 (i)(5)-early reductions. LLCHD has adequate 
provisions for implementation of this program by adopting by reference 
40 CFR part 63, subpart D, early reduction compliance extension rules, 
promulgated in the Federal Register on December 29, 1992. To date, no 
source in the agency area has made a commitment to participate in the 
early reductions program. The agency provides for incorporating 
alternative emission limits into permits in section 8, paragraph 
(B)(3).
    (5) Section 112(j)-case-by-case MACT hammer. It is the agency's 
intent to make case-by-case MACT determinations and to issue permits to 
subject sources in accordance with the section 112(j) requirements. 
Section 7(B)(2) requires newly subject sources to file a permit 
application within 12 months of first becoming operational or otherwise 
subject to the title V program. Section 7(B)(3) requires sources 
subject to section 28 (MACT) to submit a permit application within 12 
months of becoming operational. The agency would make its case-by-case 
MACT determination after receipt of the permit application and prior to 
permit issuance.
    (6) Section 112(l)-State air toxics programs. The EPA intends to 
delegate authority for existing section 112 standards under the 
authority of section 112(l) concurrent with approval of the title V 
program. It is expected that the agency will request delegation of 
future 112 standards/rules in accordance with the adoption-by-reference 
procedures in 40 CFR part 63, subpart E, Sec. 63.91. Since the agency 
has already adopted by reference the section 112(i) early reduction 
rule (Section 27), EPA anticipates delegating this authority concurrent 
with title V approval.
    (7) Section 112(r)-accidental release plans.  The agency has 
provided for the section 112(r) requirements in its rules in section 
8(K). The permit of a source subject to the requirements of section 
112(r) will contain a requirement to register the plan; verification of 
plan preparation and submittal to the state (NDEQ), the state Emergency 
Response Commission, and any local emergency planning committee; and 
will require an annual certification in accordance with section 7(B), 
that the risk management plan is being properly implemented.
    The permit application requires a schedule of compliance for 
sources that are not in compliance with all applicable requirements at 
the time of permit issuance: section 7, paragraph (F)(2). The permit 
requirement for a compliance schedule is listed in section 8, paragraph 
(L)(3).

B. Options for Approval/Disapproval and Implications

    The EPA is proposing to grant approval to the operating permits 
program submitted by the LLCHD on November 12, 1993, and modified on 
June 15, 1994. Prior to final action, LLCHD must: (1) Render a 
modification of the definition ``applicable requirement,'' and (2) 
modify the provisions related to title I modifications.
    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 LLCHD program contain adequate 
authorities, adequate resources for implementation, and an expeditious 
compliance schedule, which are also requirements under part 70. 
Therefore, the EPA is also proposing to grant approval under section 
112(l)(5) and 40 CFR 63.91 of LLCHD'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.

III. Administrative Requirements

A. Request for Public Comments

    The EPA is requesting comments on all aspects of this proposed 
rule. Copies of LLCHD'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, EPA in 
the development of this proposed rulemaking. The principal purposes of 
the docket are:

    [[Page 5887]] 1. To allow interested parties a means to identify 
and locate documents for participating in the rulemaking process; and
    2. To serve as the record in case of judicial review. The EPA will 
consider any comments received by March 2, 1995.

B. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant'' regulatory action as one that is likely to lead to a 
rule that may:

    1. Have an annual effect on the economy of $100 million or more, or 
adversely and materially affecting a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or state, local, or tribal governments or communities;
    2. Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    3. Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligation of recipients 
thereof; and
    4. Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.''

    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

C. Paperwork Reduction Act

    Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), Federal 
agencies must obtain the OMB clearance for collection of information 
from 10 or more non-Federal respondents.

D. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, 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.
    Interim 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 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). If the interim approval 
is converted to a disapproval, it will not affect any existing LLCHD 
requirements applicable to small entities. Federal disapproval of the 
submittal does not affect its state enforceability. Moreover, EPA's 
disapproval of the submittal does not impose a new Federal requirement. 
Therefore, EPA certifies that this disapproval action does not have a 
significant impact on a substantial number of small entities because it 
does not remove existing LLCHD requirements nor does it substitute a 
new Federal requirement.

List of Subjects in 40 CFR Part 70

    Air pollution control, Intergovernmental relations, Operating 
permits, Reporting and recordkeeping requirements.

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

    Dated: January 6, 1995.
William Rice,
Acting Regional Administrator.
[FR Doc. 95-2335 Filed 1-30-95; 8:45 am]
BILLING CODE 6560-50-F