[Federal Register Volume 60, Number 98 (Monday, May 22, 1995)]
[Proposed Rules]
[Pages 27064-27069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12474]



=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[IN001; FRL-5209-6]


Clean Air Act Proposed Interim Approval of Operating Permits 
Program; Indiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed interim approval.

-----------------------------------------------------------------------

SUMMARY: The EPA proposes interim approval of the operating permits 
program submitted by Indiana 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 
June 21, 1995. Comments should be addressed to the contact indicated 
below.

ADDRESSES: Copies of the State's submittal and other supporting 
information used in developing the proposed interim approval are 
available for inspection during normal business hours at the following 
location: EPA Region 5, 77 West Jackson Boulevard, AR-18J, Chicago, 
Illinois 60604. Please [[Page 27065]] contact Sam Portanova at (312) 
886-3189 to arrange a time if inspection of the submittal is desired.

FOR FURTHER INFORMATION CONTACT: Sam Portanova, AR-18J, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-3189.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

    As required under Title V of the Clean Air Act (``the Act'') as 
amended (1990), EPA has promulgated regulations 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 regulations 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 1 year after receiving the submittal. 40 CFR 
70.4(e)(2), however, allows the Administrator to extend the review 
period of a State's submittal if the State's submission is materially 
altered during the 1-year review period. This additional review period 
may not extend beyond 1 year following receipt of the revised 
submission.
    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 part 70, EPA may grant the program interim 
approval for a period of up to 2 years. If EPA has not fully approved a 
program by 2 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

    The EPA is proposing to grant interim approval to the operating 
permits program submitted by Indiana on August 10, 1994. Indiana's 
program substantially meets the requirements of part 70; however, 
certain issues must be addressed in the State's submittal before EPA 
can grant full approval. This notice will outline the corrections 
necessary for full approval.
    For more detailed information on the analysis of the State's 
submission, please refer to the part 70 Operating Permits Program 
Review Checklist and technical support document (TSD) included with the 
docket of this interim approval.
1. Support Materials
    An August 5, 1994, letter from Kathy Prosser, Commissioner of the 
Indiana Department of Environmental Management (IDEM), to Valdas V. 
Adamkus, Regional Administrator of EPA Region 5, accompanying the 
State's submittal, names the IDEM as the state agency responsible for 
the administration of Indiana's Title V operating permit program 
throughout the entire state.
    The Indiana Title V submittal contains all the elements required by 
40 CFR 70.4(b). Also included in the State's submittal is a narrative 
description of the State's program summarizing how the State will meet 
the requirements of part 70 and a legal opinion from Pamela Carter, 
Attorney General of the State of Indiana, certifying that the legal 
authority exists for the State to administer and enforce the Title V 
program.
    The State's Title V program regulations are found in the Indiana 
Administrative Code (IAC) under 326 IAC 2-7. Although the Indiana Title 
V submittal contains regulations other than 326 IAC 2-7, this notice is 
only taking action on 326 IAC 2-7. Supporting legislative authority is 
found in the Indiana Code (IC) under IC 4-21, IC 5-14, IC 13-1, IC 13-
6, and IC 13-7.
2. Regulations and Program Implementation

a. Applicability

    The Indiana program meets the requirements of 40 CFR 70.2 and 70.3 
for applicability in 326 IAC 2-7-2. Please refer to the TSD, included 
with the docket of this interim approval, for more information 
regarding the language in 326 IAC 2-7-2.

b. Permit Applications

    The Indiana program, in 326 IAC 2-7-4, substantially meets the 
requirements of 40 CFR 70.5 for permit applications. The Indiana 
program submittal also includes complete permit application forms.
    A deficiency in the State's permit application requirements exists, 
however, concerning insignificant activities, which are defined in 326 
IAC 2-7-1(20). The following are the insignificant activity threshold 
levels for the Indiana program:

5 pounds per hour (lb/hr) or 25 pounds per day (lb/day) of 
particulate matter (PM);
10 lb/hr or 50 lb/day of sulfur dioxide (SO2);
5 lb/hr or 25 lb/day of nitrogen oxides (NOX);
3 lb/hr or 15 lb/day of volatile organic compounds (VOC);
25 lb/day of carbon monoxide (CO);
0.6 tons per year (tpy) or 3.29 lb/day of lead or lead compounds 
measured as elemental lead.

    A source must meet both emission levels (i.e., lb/hr and lb/day) to 
qualify for the exemption. These levels equal a maximum potential of 
2.74 tpy of VOC, 4.56 tpy of CO, NOX, and PM, and 9.13 tpy of 
SO2. In addition, 326 IAC 2-1-1(b)(1)(H) exempts modifications to 
major sources of hazardous air pollutants (HAP) which will increase 
allowable emissions by less than 4 tpy for one HAP or 10 tpy of any 
combination of HAPs from the Title V program.
    EPA is granting full approval to the VOC, CO, NOX, and PM 
insignificant activity levels. EPA is granting interim approval to the 
SO2 and HAP insignificant activity levels. If EPA's concerns for 
the SO2 and HAP levels are addressed in the State's final 
regulations before final action on this notice, then EPA can fully 
approve Indiana's SO2 and HAP insignificant activities. 
Alternatively, if the State does not address EPA's concerns before 
final action on this notice, then EPA's final action will include an 
interim approval on this issue. The rationale for the interim approval 
status is provided in the TSD included with the docket of this interim 
approval.
c. Permit Issuance, Renewal, Reopenings and Revisions

    The Indiana program meets the requirements of 40 CFR 70.7 and 70.8 
for permit issuance, renewal, reopenings, and public participation and 
the requirements of 40 CFR 70.4(b)(12) for operational flexibility. 
Please refer to the TSD, included with the docket of this interim 
approval, for more information regarding the language in 326 IAC 2-7-11 
for administrative permit amendments.
    An interim approval issue exists, however, with respect to the 
State's threshold levels for group processing of permits. The Indiana 
program's threshold level for minor permit modification (MPM) group 
processing eligibility is not as stringent as the part 70 threshold 
level. According to 326 IAC 2-7-12(c)(1)(B), Indiana's thresholds are:

PM = 5 lb/hr or 25 lb/day (4.56 tpy)
SO2 = 10 lb/hr or 50 lb/day (9.13 tpy)
NOX = 5 lb/hr or 25 lb/day (4.56 tpy)
VOC = 3 lb/hr or 15 lb/day (2.74 tpy) [[Page 27066]] 
CO = 25 lb/hr or 125 lb/day (22.81 tpy)
Lead = 0.6 tpy
HAP = 4 tpy of one HAP/10 tpy of any combination of HAPs

    40 CFR 70.7(e)(3)(i) states that the threshold for allowing group 
processing of permit modifications are modifications that collectively 
emit: 10 percent of the emissions allowed by the permit for the unit 
for which the change is requested; or 20 percent of the applicable 
definition of major source; or 5 tons per year; whichever is least. EPA 
is proposing interim approval for the Indiana threshold levels. To 
obtain full approval, Indiana must establish a group processing 
threshold consistent with 40 CFR 70.7(e)(3)(i) or demonstrate that an 
alternative threshold would alleviate severe administrative burden and 
would result in trivial environmental impact. If EPA's concerns are 
addressed by a change in the State's final regulations or by a State 
demonstration before final action on this notice, then EPA can fully 
approve the State's group processing threshold levels. Alternatively, 
if the State does not address EPA's concerns before final action on 
this notice, then EPA's final action will include an interim approval 
on this issue.

d. Permit Content

    Another major component of Indiana's program concerns the contents 
of a Title V permit. The program substantially meets the requirements 
of 40 CFR 70.6. A Title V permit will incorporate applicable 
requirements of existing State Implementation Plans (SIP), as well as 
any future applicable requirements promulgated by EPA. Authority exists 
in 326 IAC 2-7-13 to develop general permits covering numerous similar 
sources, except for sources subject to the Acid Rain Program. These 
general permits are targeted for future development.
    326 IAC 2-7-5(1)(F) states that emission limitations applicable to 
start-up, shutdown and emergency bypasses shall be addressed on a case-
by-case basis in the permit. Sources that request these limitations 
must do so in their Title V permit application. In response to EPA's 
concern that such a provision could be interpreted to enable the State 
to issue a permit which would violate a SIP requirement, Indiana has 
provided assurance that it will issue only those permits that comply 
with all applicable requirements of the Indiana SIP. See letter of 
April 28, 1995, from Kathy Prosser, Commissioner of the Indiana 
Department of Environmental Management, to Valdas Adamkus, Regional 
Administrator, EPA, Region 5.
    Another component of permit content is the length of time in which 
a source must notify the permitting authority to report a deviation 
from a permit condition. Part 70 of the operating permits regulations 
requires prompt reporting of deviations from the permit requirements. 
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. Although the permit program 
regulations should define ``prompt'' for purposes of administrative 
efficiency and clarity, an acceptable alternative is to define the term 
in each individual permit. Prompt reporting, however, must be more 
frequent than the semiannual reporting requirement, given this is a 
distinct reporting obligation under 40 CFR 70.6(a)(3)(iii)(A). Indiana 
addresses the issue of prompt reporting in 326 IAC 2-7-5(3)(C)(ii). 
Because Indiana did not actually define ``prompt,'' EPA may veto 
permits that do not contain sufficiently prompt reporting requirements 
for deviations. EPA and Indiana will address the appropriate definition 
of ``prompt'' in the Implementation Agreement that will be developed 
for the Indiana program.

e. Public and EPA Comment Periods

    326 IAC 2-7-18 provides for the public comment period for a draft 
permit and the EPA review of a proposed permit to occur concurrently. 
EPA will receive a copy of a draft permit when it is issued for a 30-
day comment period for the public and affected States.
    If comments are received, but the State does not change the permit, 
the State will notify EPA and send to EPA a signed copy of the draft 
permit that will then be the proposed permit. EPA has up to 15 days 
after the receipt of the proposed permit to notify the State if it 
wishes to have a full 45-day review period for the proposed permit. 
Otherwise, EPA's comment period ends 45 days after it first receives 
the draft permit. Please refer to the TSD, included with the docket of 
this interim approval, for more information regarding Indiana's public 
comment procedures.

f. Enforcement

    The Indiana program meets the enforcement authority requirements of 
40 CFR 70.11. The Indiana statute addresses these requirements in IC 
13-7-5, 13-7-11, 13-7-12, and 13-7-13. The Indiana Attorney General's 
legal opinion certifies that the Indiana statue adequately meets the 
requirements of 40 CFR 70.11.
3. Permit Fee Demonstration
    According to 326 IAC 2-7-19, Indiana will charge part 70 sources a 
$1500 flat fee plus $33 per ton of actual emissions of each regulated 
pollutant. If the source emits over 100 tpy of both VOC and NOX 
and is located in Lake or Porter County, it shall not pay more than 
$200,000 in Title V fees. All other sources shall not pay more than 
$150,000. Sources will have to pay 50 percent of this amount in 1994 
and 75 percent of this amount in 1995. The dollar amounts will be 
adjusted by the Consumer Price Index beginning in 1996. Indiana has 
demonstrated in the Title V program submittal that its fee schedule 
will collect adequate fees to satisfy the EPA presumptive minimum 
amount beginning in 1996.
    Indiana's fee schedule for 1995 will be $24.75 per ton of emissions 
plus a $1,125 flat fee per source. This is below the EPA presumptive 
minimum fee amount. Indiana's program, however, will be in effect for 
only a portion of 1995 and Indiana has demonstrated that it will 
provide enough of the 1995 fee schedule for the post-program approval 
period to meet the EPA presumptive minimum amount. Please refer to the 
TSD, included with the docket of this interim approval, for more 
information regarding the State's fee demonstration.
4. Provisions Implementing the Requirements of Other Titles of the Act

a. Authority and/or Commitments for Section 112 Implementation

    Indiana has demonstrated in its Title V program submittal adequate 
legal authority to implement and enforce all section 112 requirements 
through Title V permits. This legal authority is contained in Indiana's 
enabling legislation and in regulatory provisions defining ``applicable 
requirements'' and stating that the permit must incorporate all 
applicable requirements. EPA has determined that this legal authority 
is sufficient to allow Indiana to issue permits that assure compliance 
with all section 112 requirements.
    The EPA is accepting the above legal authority as an adequate 
demonstration that Indiana is able to carry out all section 112 
activities relative to Title V sources. For further rationale on this 
interpretation, please refer to the TSD accompanying this rulemaking 
and the April 13, 1993, guidance memorandum titled ``Title V Program 
Approval Criteria for section 112 activities,'' signed by John Seitz, 
Director of the Office of Air Quality Planning and Standards. 
[[Page 27067]] 

b. Implementation of section 112(g) Upon Program Approval

    As a condition of approval of the Title V program, Indiana is 
required to implement section 112(g) of the Act. Indiana has 
promulgated a ``MACT Rule'' in 326 IAC 2-1-3.3. The purpose of this 
regulation is to provide Indiana the necessary mechanism to implement 
section 112(g). 326 IAC 2-1-3.3(e) states that permit conditions 
necessary to implement the provisions of 326 IAC 2-1-3.3 shall be 
established in 326 IAC 2-1-3. 326 IAC 2-1-3 is the Indiana NSR 
construction permit regulation, which has been approved into the 
Indiana SIP. 326 IAC 2-1-3.3 applies to new or reconstructed sources 
emitting greater than 10 tpy of a HAP or 25 tpy of any combination of 
HAPs. The regulation also applies to modifications to HAP sources which 
emit 4 tpy of one HAP or 10 tpy of any combination of HAPs.
    According to the Federal Register notice published on February 14, 
1995, 60 FR 8333, the requirements of section 112(g) will not become 
effective until after EPA has promulgated a regulation addressing that 
provision. The Federal Register notice sets forth in detail the 
rationale for this interpretation. At the time of Indiana's program 
submittal and EPA's subsequent review period, EPA has not promulgated a 
federal regulation containing the specific requirements of section 
112(g).
    The section 112(g) interpretive notice explains that EPA is still 
considering whether the effective date of section 112(g) should be 
delayed beyond the date of promulgation of the Federal regulation so as 
to allow States time to adopt regulations implementing the Federal 
regulation, and that EPA will provide for any such additional delay in 
the final section 112(g) rulemaking. Unless and until EPA provides for 
such an additional postponement of section 112(g), Indiana must be able 
to implement section 112(g) during the period between promulgation of 
the Federal section 112(g) regulation and adoption of implementing 
State regulations. Imposition of case-by-case determinations of maximum 
achievable control technology (MACT) or offsets under section 112(g) 
will require the use of a mechanism for establishing federally 
enforceable restrictions on a source-specific basis.
    For this reason, EPA is proposing approval of Indiana's MACT 
regulation (326 IAC 2-1-3.3) under the authority of Title V and part 70 
solely for the purpose of implementing section 112(g) during the 
transition period between promulgation of the section 112(g) regulation 
and adoption by Indiana of regulations implementing the provisions of 
section 112(g). However, since the approval is for the single purpose 
of providing a mechanism to implement section 112(g) during the 
transition period, the approval itself will be without effect if EPA 
decides in the final section 112(g) regulation that sources are not 
subject to the requirements of the regulation until State regulations 
are adopted. The EPA is limiting the duration of this proposal to 18 
months following promulgation by EPA of the section 112(g) regulation. 
Once promulgated by EPA, the 112(g) regulation will serve as the 
mechanism for establishing federally enforceable case-by-case MACT 
emission limits for HAPs. EPA is interpreting Indiana's legal authority 
and commitment (Enclosure H, page 33 of the Indiana program submittal) 
to mean that, upon promulgation of the section 112(g) regulation, the 
State will expeditiously adopt regulations consistent with the 
provisions of 112(g).
    Although section 112(l) generally provides authority for approval 
of State air toxics programs, Title V and section 112(g) provide 
authority for this limited approval because of the direct linkage 
between implementation of section 112(g) and Title V. The scope of this 
approval is narrowly limited to section 112(g) and does not confer or 
imply approval for purposes of section 110 or any other provision under 
the Act.

c. Program for Delegation of Section 112 Standards as Promulgated

    The requirements for a Title V program approval, specified in 40 
CFR 70.4(b), also encompass section 112(l)(5) requirements for approval 
of a State program for delegation of section 112(d), (f), or (h) 
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 part 70. 
Therefore, the EPA is proposing to grant approval, under section 
112(l)(5) and 40 CFR 63.91, of Indiana's program for receiving 
delegation of section 112(d), (f), or (h) standards that are unchanged 
from the Federal standards as promulgated. This program approval 
applies to both existing and future standards, but is limited to 
sources covered by the part 70 program.
    Indiana has informed EPA that it intends to accept delegation of 
section 112(d), (f), or (h) standards through rule adoption. The 
details of this delegation mechanism will be set forth in a Memorandum 
of Agreement between Indiana and EPA expected to be completed prior to 
approval of Indiana's section 112(l) program for delegations.

d. Limiting HAP Emissions Through a FESOP Program

    At the time of the publication of this Federal Register notice, 
USEPA has not approved a FESOP regulation which would establish 
federally enforceable limits on sources' potential to emit. If USEPA 
approves the Indiana FESOP regulation, Indiana will have the ability to 
place federally enforceable limits on HAPs in addition to criteria 
pollutants. The federal enforceability of HAP limits will be addressed 
in any future SIP approving the FESOP program.
e. Title IV

    Indiana's program contains adequate authority to issue permits 
which reflect the requirements of Title IV and its implementing 
regulations. 326 IAC 21-1-1 incorporates by reference 40 CFR parts 72, 
75, 76, 77, and 78. Indiana's program submittal contains a commitment 
to revise its regulations as necessary to accommodate federal revisions 
and additions to Title IV and the Acid Rain regulations once they are 
promulgated.

B. Options for Approval/Disapproval and Implications

    The EPA is proposing to grant interim approval to the operating 
permits program submitted by Indiana on August 10, 1994. If this 
interim approval is promulgated, the State must make the following 
changes to receive full approval: (1) The State must amend its 
insignificant activities levels for SO2 and HAPs to levels which 
assure that large sources are included in Title V review and (2) the 
State must revise its emissions threshold level for MPM group 
processing eligibility to be consistent with the 40 CFR 
70.7(e)(3)(i)(B) threshold level or the State may demonstrate that an 
alternative to the 40 CFR 70.7(e)(3)(i)(B) level is acceptable. 
Indiana's program is not fully approvable because of the deficiencies 
mentioned above. The program, however, substantially meets the 
requirements of part 70 because Indiana's regulations and legislation 
comply with all other part 70 requirements. If EPA's concerns on the 
issues mentioned above are addressed before final action on this 
notice, then EPA can fully approve Indiana's program. Alternatively, if 
the State does not address EPA's concerns on these issues before final 
action on this notice, then EPA's final action will remain an interim 
approval of the Indiana program. [[Page 27068]] 
    This interim approval, which may not be renewed, extends for a 
period of up to 2 years. During the interim approval period, the State 
is protected from sanctions for failure to have a program, and 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 part 70, and the 1-year time period for submittal of 
permit applications by subject sources begins upon interim approval, as 
does the 3-year time period for processing the initial permit 
applications. Because the interim approval automatically expires 2 
years after promulgation of a final interim approval, the State may 
submit its interim corrections at any time. However, the State may not 
submit its corrections any later than 18 months after promulgation of 
final interim approval. The EPA will then have 6 months to promulgate a 
final action.

C. Federal Oversight and Sanctions

    Where EPA grants interim approval, it would extend for 2 years 
following the effective date of final interim approval, and could not 
be renewed. During the interim approval period, the State would not be 
subject to sanctions and EPA would not be obligated to promulgate, 
administer, and enforce a Federal permits program for the State. 
Permits issued under a program with interim approval have full standing 
with respect to part 70, and the 1-year time period for submittal of 
permit applications by subject sources begins upon the effective date 
of interim approval as does the 3-year time period for processing the 
initial permit applications.
    State failure to timely correct the deficiencies which are the 
basis for an interim approval or EPA disapproval of a submitted 
corrective program will start an 18-month clock for the mandatory 
imposition of section 179(b) sanctions. Each of these occasions starts 
a separate sanctions clock and time is not accumulated from one clock 
to another. Section 179(b) of the Act mandates the impositions of the 
following sanctions: (1) 2 to 1 emission offsets for new construction 
in nonattainment areas and (2) restriction on federal funding of 
highway projects. The offset sanction would be imposed 18 months after 
a sanctions clock is started and the highway sanction would be imposed 
6 months after the offset sanction.
    Following final interim approval, if the State failed to submit a 
complete corrective program for full approval by 6 months before 
expiration of the interim approval, EPA would start the sanctions 
clock. If the State then failed to submit a corrective program that EPA 
found complete before the expiration of that 18-month period, EPA would 
be required to apply the first section 179(b) sanction, which would 
remain in effect until EPA determined that the State had submitted a 
complete corrective program. Moreover, if the Administrator found a 
lack of good faith on the part of the State, both sanctions under 
section 179(b) would apply after the expiration of the 18-month period 
until the Administrator determined that the State had come into 
compliance. In any case, if, 6 months after the application of the 
first sanction, the State still had not submitted a corrective program 
that EPA found complete, the second sanction would be required.
    If, following final interim approval, EPA were to disapprove the 
State's complete corrective program, EPA would be required to apply the 
first section 179(b) sanction on the date 18 months after the effective 
date of the disapproval, unless, prior to that date, the State had 
submitted a revised program and EPA had determined that it corrected 
the deficiencies that prompted the disapproval. Moreover, if the 
Administrator found a lack of good faith on the part of the State, both 
sanctions under section 179(b) would apply after the expiration of the 
18-month period until the Administrator determined that the State had 
come into compliance, In all cases, if, 6 months after EPA applied the 
first sanction, the State had not submitted a revised program that EPA 
had determined corrected the deficiencies that prompted disapproval, 
the second sanction would be required.
    In addition, discretionary sanctions may be applied where warranted 
any time after the end of an interim approval period if a State has not 
timely submitted a complete corrective program or EPA had disapproved a 
submitted corrective program. Moreover, if EPA has not granted full 
approval to a State program by the expiration of an interim approval 
and that expiration occurs after November 15, 1995, EPA must 
promulgate, administer and enforce a Federal permits program for that 
State upon interim approval expiration.

III. Administrative Requirements

A. Request for Public Comments

    The EPA is requesting comments on all aspects of this proposed 
interim approval. 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, 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 June 21, 1995.

B. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this action 
from Executive Order 12866 review.
C. 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 regulation on small entities. 5 U.S.C. sections 
603 and 604. Alternatively, EPA may certify that the regulation 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 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).
    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- [[Page 27069]] 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.
    The EPA has determined that the proposed approval action 
promulgated today does not include a Federal mandate that may result in 
estimated costs of $100 million or more to either State, local, or 
tribal governments in the aggregate, or to the private sector. This 
Federal action approves pre-existing requirements under State or local 
law, and imposes no new Federal requirements. Accordingly, no 
additional costs to State, local, or tribal governments, or to the 
private sector, result from this action.

List of Subjects in Part 70

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

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

    Dated: May 9, 1995.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 95-12474 Filed 5-19-95; 8:45 am]
BILLING CODE 6560-50-P