[Federal Register Volume 61, Number 95 (Wednesday, May 15, 1996)]
[Rules and Regulations]
[Pages 24460-24461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12077]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[AD-FRL-5461-6]


Clean Air Act Interim Approval of Operating Permits Program; 
Delegation of Section 112 Standards; State of Massachusetts

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On February 2, 1996, the Environmental Protection Agency 
published a proposed and direct final rule promulgating interim 
approval of the Operating Permits Program submitted by the Commonwealth 
of Massachusetts for the purpose of complying with the Federal 
requirements of an approved program to issue operating permits to all 
major stationary sources, and to certain other sources, with the 
exception of Indian Lands. This submittal for the operating permits 
program was made by the Commonwealth of Massachusetts on April 28, 
1995. The 30-day comment period for these documents concluded on March 
4, 1996. Also in this document, EPA is correcting the date for the 
interim approval of the Operating Permits Program for the Commonwealth 
of Massachusetts.

EFFECTIVE DATE: This final rule is effective on May 15, 1996.

FOR FURTHER INFORMATION CONTACT: Ida E. Gagnon, Air Permits Program, 
CAP, U.S. Environmental Protection Agency, Region 1, JFK Federal 
Building, Boston, MA 02203-2211, (617) 565-3500.

SUPPLEMENTARY INFORMATION: On February 2, 1996, EPA published a direct 
final rule (61 FR 3827) which announced that this rule would take 
effect in 60 days, or April 2, 1996, unless EPA received adverse 
comment on the rule within 30 days of publication in response to a 
notice of proposed rulemaking published on the same day (61 FR 3893). 
EPA also committed to withdraw the direct final rule in the event it 
received adverse comment, and to respond to any adverse comments in a 
subsequent final rulemaking action. EPA did receive a timely adverse 
comment on this rule. EPA failed, however, to withdraw the final rule 
within the 60 days given in the direct final rule, and the rule took 
effect on April 2, 1996.
    In this document, EPA is responding to the comment it received, but 
for the reasons stated below, EPA is not changing the final rule in 
response to that comment. For reasons unrelated to the comment, EPA is 
correcting a clerical error in the effective date of the rule, as 
explained below. Had EPA withdrawn the direct final rule prior to its 
going into effect, EPA would have taken final action based on the 
proposal to promulgate a rule identical to the direct final rule that 
went into effect. Rather than now take the action of withdrawing the 
direct final rule only to repromulgate simultaneously an identical 
rule, however, EPA in this action is deciding to maintain the rule 
unchanged. EPA believes that withdrawal and repromulgation are 
unnecessary since the results would be identical to that obtained 
simply by leaving the rule unchanged and responding to the comments in 
this document. This document provides interested parties an opportunity 
to review how EPA addressed the comment, and to petition for review of 
EPA's action in this final rulemaking within 60 days of publication of 
this document, as provided in section 307(b)(1) of the Act.

I. Summary of Comments and Responses

    EPA received two comments from the National Environmental 
Development Association's Clean Air Regulatory Project (NEDA/CARP). 
First, NEDA/CARP disagrees with EPA's statement that ``prompt reporting 
[of deviations] must be more frequent than the semi-annual reporting 
requirement, given this is a distinct reporting obligation under 
Section 70.6(a)(3)(iii)(A).'' NEDA/CARP believes there is no legal 
basis for such a statement. Therefore, NEDA/CARP asserts EPA has no 
basis for expecting deviations to be reported more often than every 6 
months.
    EPA disagrees that there is no legal basis for this statement. 
Section 503(b)(2) of the Act requires a permittee ``to promptly report 
any deviations from permit requirements to the permitting authority.'' 
This requirement to report deviations promptly is distinct from section 
504(a) of the Act which requires the results of all monitoring to be 
submitted no less often than every six months. The Act clearly 
distinguishes between the routine semi-annual reporting of all 
monitoring, whether or not deviations have occurred, from the 
requirements to report deviations that may be violations of the Act and 
that at least provide an indication of potential compliance problems. 
It makes sense that Congress would expect permittees to report 
potential Act violations more quickly than routine monitoring that 
confirms compliance. Additionally, the statute has a clear requirement 
for prompt reporting of deviations and EPA believes that six months is 
not prompt when dealing with information that may document a violation 
of the Clean Air Act.
    Second, in the February 2, 1996 rulemaking, EPA proposes interim 
approval of the program regulation unless the Commonwealth changes its 
rule to ensure that all ``significant'' monitoring changes, not just 
``relaxations'' are processed as significant changes. NEDA/CARP points 
out that this change may not be required when the proposed changes to 
Part 70 are finalized and requests EPA take this issue into 
consideration before the state revises its procedures.
    EPA understands the concerns of NEDA/CARP, but EPA is obligated to 
evaluate the Commonwealth's program based on Part 70 rules promulgated 
on July 21, 1992. Once the proposed changes to Part 70 are finalized, 
EPA and the Commonwealth will revisit this matter and address it 
consistent with the program transition provisions of the revised Part 
70 regulations.

II. Final Rulemaking Action

    Except for the effective date, as explained below, EPA is not 
modifying the interim approval to the operating permits program 
associated with the February 2, 1996 direct final rulemaking in 
response to the comments EPA received. The State must make the changes 
specified in the proposed rulemaking, under II.A.2., Regulations and 
Program Implementation, in order to be granted full approval.
    This interim approval, which may not be renewed, extends for a 
period of up to 2 years. During the interim approval period, the 
Commonwealth is protected from sanctions for failure to have a

[[Page 24461]]

program, and EPA is not obligated to promulgate a Federal permits 
program in the Commonwealth. Permits issued under a program with 
interim approval have full standing with respect to Part 70, and the 1-
year time period under the Act 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.
    The scope of the Commonwealth of Massachusetts' part 70 program 
applies to all part 70 sources (as defined in the approved program) 
within the Commonwealth of Massachusetts, except any sources of air 
pollution over which an Indian Tribe has jurisdiction. See, e.g., 59 FR 
55813, 55815-18 (Nov. 9, 1994). The term ``Indian Tribe'' is defined 
under the Act as ``any Indian tribe, band, nation, or other organized 
group or community, including any Alaska Native village, which is 
Federally recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.'' See section 302(r) of the CAA; see also 59 FR 43956, 43962 
(Aug. 25, 1994); 58 FR 54364 (Oct. 21, 1993).
    EPA is also not modifying its approval of DEP's authority to 
implement and enforce section 112 standards at Part 70 sources. 
Requirements for operating permit program approval, specified in 40 CFR 
70.4(b), encompass section 112(l)(5) requirements for approval of a 
program 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 Part 70. Therefore, the EPA has also granted 
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 is hereby correcting a mistaken effective date for our interim 
approval. The prior document indicated an effective date of March 4, 
1996, 30 days from the date of publication of the document rather than 
the correct date of April 2, 1996, 60 days from the date of publication 
of the document. In light of the Small Business Regulatory Enforcement 
Act (SBREFA) which became effective on March 29, 1996 prior to the 
April 2, 1996 corrected date, the rule will take effect on the latter 
of the rule's submission to Congress or the date of publication. The 
rule has been submitted to Congress, therefore, this final rulemaking 
will be effective May 15, 1996.

III. Administrative Requirements

A. Docket

    Copies of the Commonwealth's submittal and other information relied 
upon for the final interim approval, including public comments received 
and reviewed by EPA on the proposal, are maintained in a docket 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 final interim approval. The docket is available 
for public inspection at the location under the ADDRESSES section of 
this document.

B. Opportunity for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 15, 1996. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

C. Executive Order 12866

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

D. Regulatory Flexibility Act

    The EPA's actions under section 502 of the Act do not create any 
new requirements, but simply address operating permits programs 
submitted to satisfy the requirements of 40 CFR Part 70. Because this 
action does not impose any new requirements, it does not have a 
significant impact on a substantial number of small entities.

E. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the 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 
preexisting 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 40 CFR Part 70

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

    Dated: April 2, 1996.
John P. DeVillars,
Regional Administrator, Region I.

    Part 70, title 40 of the Code of Federal Regulations is amended as 
follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

    2. Appendix A to part 70 is amended by revising the entry for 
Massachusetts to reflect the dates of the final rulemaking to read as 
follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Massachusetts

    (a) Department of Environmental Protection: submitted on April 
28, 1995; interim approval effective on April 2, 1996; interim 
approval expires April 2, 1998.
    (b) (Reserved)
* * * * *
[FR Doc. 96-12077 Filed 5-14-96; 8:45 am]
BILLING CODE 6560-50-P