[Federal Register Volume 62, Number 95 (Friday, May 16, 1997)]
[Proposed Rules]
[Pages 27158-27166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12918]
[[Page 27157]]
_______________________________________________________________________
Part VII
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 51 and 52
Prevention of Significant Deterioration of Air Quality (PSD) Program:
Permit Review Procedures for Sources That May Adversely Affect Air
Quality in Non-Federal Class I Areas; Proposed Rule
Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed
Rules
[[Page 27158]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 52
[FRL-5826-5]
RIN 2060-AH01
Prevention of Significant Deterioration of Air Quality (PSD)
Program: Permit Review Procedures for Sources That May Adversely Affect
Air Quality in Non-Federal Class I Areas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Advance Notice of Proposed Rulemaking (ANPR).
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SUMMARY: Under the Clean Air Act's PSD program, States and Tribes may,
with EPA approval, redesignate their lands as ``Class I'' areas to
enhance protection of their air quality resources. This notice requests
early public input on preliminary issues in clarifying the PSD permit
review procedures for new and modified major stationary sources that
may have an adverse effect on the air quality of these non-Federal
Class I areas. EPA seeks to develop clarifying PSD permit procedures
that are effective, efficient and equitable.
DATES: Comments. All public comments must be received by August 14,
1997.
Public Workshops. EPA will hold public workshops on this
rulemaking. A Federal Register notice announcing the dates of these
workshops will be published at least 30 days prior to the workshop.
ADDRESSES: Comments. Comments on this notice should be mailed (in
duplicate if possible) to: U.S. EPA, Air Docket Section, Air Docket A-
96-53; 401 M Street, S.W., Washington, D.C. 20460.
Public Workshops. EPA will hold public workshops in Phoenix,
Arizona and in Chicago, Illinois. A Federal Register notice announcing
the dates of these workshops will be published at least 30 days prior
to the workshops. Please contact the EPA official listed under FOR
FURTHER INFORMATION CONTACT if you are interested in participating in
the public workshops.
Public Docket. Supporting information for this rulemaking is
contained in Docket No. A-96-53. This docket is available for public
review and copying between 8:00 a.m. and 5:30 p.m., Monday through
Friday at the EPA's Air Docket Section, 401 M Street, S.W., Washington,
D.C.; Room M-1500. A reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: David LaRoche, U.S. EPA, Office of Air
and Radiation (6102), 401 M Street, S.W., Washington, D.C. 20460, (202)
260-7652.
SUPPLEMENTARY INFORMATION:
I. Overview
The PSD program authorizes States and Tribes to request
redesignation of their lands as ``Class I'' areas. Over the past twenty
years, only federally-recognized Tribes have sought redesignation under
this authority. EPA has approved Class I redesignations for the
Northern Cheyenne Indian Reservation, the Flathead Indian Reservation,
the Fort Peck Indian Reservation, and the Spokane Indian Reservation.
See 40 CFR 52.1382(c) and 52.2497(c). Recently, EPA approved Class I
redesignation of the Yavapai-Apache Reservation, located in the State
of Arizona. See 61 FR 56461 (Nov. 1, 1996) (to be codified at 40 CFR
52.150). EPA has proposed approval of the Forest County Potawatomi
Community request for redesignation located in the State of Wisconsin.
See 60 FR 33779 (June 29, 1995). EPA will provide opportunity for
public comment and hold a public hearing before it makes a final
decision on this proposed action.
During EPA's review of the Yavapai-Apache and Forest County
Potawatomi redesignation requests, nearby States submitted formal
objections to EPA. A common concern has been confusion about the PSD
permit review procedures that would apply in these States in the event
a Class I redesignation request is granted, and what EPA's specific
role would be in resolving any intergovernmental disputes that arise
over proposed permits for PSD sources that may adversely affect non-
federal Class I areas. In response to these concerns, EPA has initiated
this rulemaking to clarify the PSD permit review and dispute resolution
procedures for proposed new and modified major stationary sources
locating near non-Federal Class I areas.
The new procedures established in this rulemaking would apply for
any State or Tribal lands redesignated as Class I. Thus, the rulemaking
is intended to clarify PSD permit review procedures for proposed PSD
sources that may adversely affect the air quality of any State or
Tribal non-Federal Class I area, and would set forth more specific
procedures for EPA's resolution of any intergovernmental permit
disputes which may arise.
The discussion in part II below contains an overview of the PSD
program to help provide context and further understanding of the issues
presented in this notice. Part III of this notice examines preliminary
issues on which EPA seeks early public input. Part IV describes the
workshops EPA will hold to facilitate public input.
II. The PSD Program
The central purpose of the PSD program is to protect clean air
resources. Thus, the PSD program is an important air pollution
prevention program. The genesis of the program was a lawsuit to enjoin
EPA's approval of state implementation plans that allowed air quality
degradation in areas having air quality better than the national
ambient air quality standards. Sierra Club v. Ruckelshaus, 344 F.Supp.
253 (D.D.C. 1972), aff'd per curiam, 4 Env't Rep. Cases 1815 (D.C. Cir.
1972), aff'd by an equally divided court, sub. nom. Fri v. Sierra Club,
412 U.S. 541 (1973). The court granted the injunction reasoning that
the congressionally-declared purpose of the Clean Air Act to ``protect
and enhance'' the quality of the nation's air resources embodied a non-
degradation policy. Sierra Club, 344 F.Supp. at 255-56.
In response to the Sierra Club decision EPA adopted a PSD program.
See 39 FR 42510 (Dec. 5, 1974). The administrative program was
superseded by a congressionally-crafted program in the 1977 amendments
to the Clean Air Act. Public Law 95-95, 91 Stat. 685. EPA presently has
two sets of regulations implementing the 1977 statutory PSD program:
(1) 40 CFR 51.166 establishes the requirements for State-administered
PSD programs, and (2) 40 CFR 52.21 provides for Federal implementation
of PSD requirements in States not having approved programs and for
federally-recognized Indian Tribes.1
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\1\ The 1990 amendments to the Clean Air Act made relatively
minor revisions to the PSD program. Pub. L. 101-549, 104 Stat. 2399.
Conforming changes have not been made to the implementing
regulations. Also, EPA has proposed rules under section 301(d) of
the Clean Air Act that would treat Federally-recognized Indian
Tribes in the same manner as States for purposes of numerous Clean
Air Act programs including the PSD program. 59 FR 43 956 (Aug. 25,
1994). Depending on their final form, these rules may allow Tribes
to administer Federally-approved PSD permit review programs in the
same way that States do.
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A. PSD Areas
Areas nationwide are ``designated'' based on their air quality
status relative to the national ambient air quality standards (NAAQS).
The PSD program applies to areas designated ``attainment'' and
``unclassifiable'' under section 107 of the CAA, 42 U.S.C. Sec. 7407;
these are areas that meet the NAAQS, or areas that cannot be determined
on the basis
[[Page 27159]]
of available information as meeting or not meeting the NAAQS.
PSD areas are further categorized as Class I, II or III. The
classification of an area determines the maximum increase in pollutant
concentrations, or ``increment'' of air quality deterioration, allowed
over a baseline air quality concentration. Class I areas have the
smallest increments and therefore allow the least amount of air quality
deterioration. Conversely, Class III areas have the largest air quality
increments and allow the greatest deterioration. In all instances, the
NAAQS are the overarching air pollution concentration ceilings. That
is, regardless of the size of the increment, the NAAQS may not be
violated in a PSD area.
There are PSD increments for particulate matter, sulfur dioxide and
nitrogen dioxide. EPA's PSD regulations establish the incremental
amount of air quality deterioration allowed for these pollutants in
Class I, II and III areas. 40 CFR 51.166(c) and 52.21(c).
When Congress enacted the PSD program in 1977 it provided that
specified Federal lands, including certain national parks and
wilderness areas, must be designated as Class I areas and may not be
redesignated to another classification. Because they may not be
redesignated, these Federal areas are called mandatory Class I areas.
CAA Secs. 162 and 163, 42 U.S.C. Secs. 7472 and 7473.
The statute also carried forward as Class I areas any areas
redesignated as Class I under EPA's pre-1977 regulations. CAA Sec.
162(a). The Northern Cheyenne reservation was the only redesignated
Class I area affected by this provision. See Nance v. EPA, 645 F.2d 701
(9th Cir. 1981), cert denied, Crow Tribe of Indians v. EPA, 454 U.S.
1081 (1981).
All other PSD areas of the country were designated as Class II
areas under the 1977 Clean Air Act amendments. CAA Sec. 162(b). At the
same time, States and Tribes were authorized to seek redesignation of
their Class II areas as Class I or Class III. CAA Sec. 164, 42 U.S.C.
Sec. 7474. As noted, several Tribes have sought a Class I air quality
designation. Currently, there are no Class III areas.
B. PSD Sources
The PSD preconstruction review permit program applies to new and
modified major stationary sources. Construction, or subsequent
operation, of new major stationary sources and major modifications to
existing major stationary sources are prohibited unless the source
obtains a permit meeting PSD requirements.
Major stationary sources generally include sources that have the
potential to emit at least 250 tons of air pollution annually. 40 CFR
51.166(b)(1)(i)(b) and 52.21(b)(1)(i)(b). Major stationary sources also
include specific ``listed'' sources that have the potential to emit at
least 100 tons per year of air pollution. 40 CFR 51.166(b)(1)(i)(a) and
52.21(b)(1)(i)(a). The listed sources include, among other facilities,
coal-fired power plants (with more than 250 million British thermal
units per hour heat input), primary zinc and copper smelters, and
portland cement plants. Thus, the PSD program applies to relatively
large stationary sources.
Major modifications to existing major stationary sources are also
subject to the PSD preconstruction review permit program. Major
modifications include a physical or operational change at a major
stationary source that would result in a significant net emissions
increase in any regulated air pollutant. 40 CFR 51.166(b)(2) and
52.21(b)(2).
C. General PSD Preconstruction Review Permit Requirements
In broad overview, the PSD preconstruction review permit program
requires the owner or operator of a proposed source to adopt the best
available control technology (BACT) and analyze the air quality impacts
associated with the source. CAA Sec. 165(a), 42 U.S.C. Sec. 7475(a).
BACT is defined in section 169(3) of the CAA, 42 U.S.C. Sec. 7479(3) as
an emission limitation based on the maximum degree of pollutant
reduction that is achievable taking into account energy, environmental
and economic impacts.
The PSD air quality impact assessment involves several
considerations. Generally, the owner or operator of the proposed source
must demonstrate that it will not contribute to air pollution that
violates any NAAQS or PSD increment. CAA Sec. 165(a)(3). The source
must also analyze the ambient air quality, climate and meteorology,
terrain, soils and vegetation, and visibility at the site and in the
area potentially affected by its emission. CAA Sec. 165(e).
D. Special PSD Program Protection for Class I Areas
There are additional, special protections under the PSD program
that apply for Class I areas. As examined in more detail below, the
statute appears to distinguish between the preconstruction review
permit procedures that apply for Federal Class I areas and non-Federal
Class I areas. As a necessary prerequisite, the discussion below first
explores in more detail the delineation between Federal and non-Federal
Class I areas.
1. Federal Class I Areas
a. Mandatory Federal Class I Areas
The Clean Air Act provides two ways for Federal lands to be
designated as Class I--either by congressional mandate, or by EPA
approval of a State or Tribal request to redesignate Federal lands.
Congress specified certain Federal lands as mandatory Class I areas.
National parks larger than 6000 acres, national memorial parks and
national wilderness areas larger than 5000 acres, and international
parks that were in existence on August 7, 1977 are designated by
statute as mandatory Class I areas. CAA Sec. 162(a). These areas cannot
be redesignated.
b. Other Federal Class I Areas
Congress also authorized States and Tribes to seek redesignation of
other Federal public lands within their boundaries as Class I. These
are lands currently designated as Class II. To inform such
redesignation decisions, Congress directed the Federal Land Managers
(FLM) to review all national monuments, primitive areas and national
preserves and to recommend the areas having important air quality
related values (AQRVs) be redesignated as Class I. CAA Sec. 164(d). The
FLM is defined as the Secretary of the Federal Department with
authority over the lands.2 CAA Sec. 302(i), 42 U.S.C. Sec.
7602(i). The recommendations have not resulted in the redesignation of
any Federal lands from Class II to Class I. The only Federal Class I
areas that presently exist are the original mandatory areas.
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\2\ The FLM authority has been delegated to other officials
within these Departments. For example, the Assistant Secretary for
Fish and Wildlife and Parks is the FLM for areas under the
jurisdiction of the National Park Service and the U.S. Fish and
Wildlife Service.
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2. Non-Federal Class I Areas
Class I areas may also be created if EPA approves a State or Tribal
request to redesignate its own lands as Class I. The resulting areas
would be non-Federal Class I areas. The PSD permit review procedures
that apply to new or modified PSD sources that may adversely affect
these non-Federal Class I areas are the central focus of this notice.
As noted in part I, a few Tribes have exercised their discretion to
seek heightened air quality protection status under the PSD program by
requesting redesignation of lands within reservation boundaries as
Class I areas. States may similarly request
[[Page 27160]]
redesignation of their lands as Class I in accordance with the
procedures outlined at 40 CFR 51.166(g) and 52.21(g). Thus, the permit
review procedures developed in this rulemaking would apply equally for
all non-Federal Class I areas--State or Tribal.
It is important to understand the differences implied by the use of
the terms ``Federal'' and ``non-Federal'' areas. The PSD program treats
as ``Federal'' lands various national public lands that the Federal
government owns and for which it has stewardship responsibility. These
public lands include the following: national parks, national memorial
parks, national wilderness areas, national monuments, national
lakeshores and seashores, national primitive areas, national preserves,
national recreation areas, national wild and scenic rivers, national
wildlife refuges, and other similar national public lands. See, e.g.,
CAA Secs. 160(2), 162(a) and 164(a), (d). The term ``non-Federal''
refers to State lands or to lands within the boundaries of an Indian
reservation that are not Federal lands within the meaning of the CAA's
PSD program. See, e.g., CAA Sec. 164(c). For example, the legislative
history distinguishes between the ``Federal lands'' which the Federal
government manages as a ``property owner * * * under the stewardship of
various Federal agencies'' and tribal lands. Senate Comm. on
Environment and Public Works, 95th Cong., 2d Sess., A Legislative
History of the Clean Air Act Amendments of 1977 724 (Comm. Print 1978)
(statement of Senator Muskie).
In a recent proposal to reform the PSD program, EPA explained that
lands within reservation boundaries may or may not be Federal lands
within the meaning of the PSD program. In fulfilling its fiduciary
responsibility toward federally-recognized Indian Tribes, the Federal
government holds some Tribal lands in ``trust'' for the benefit of the
Tribe. Such lands may have a federal feature under Federal Indian law
but are not ``Federal'' lands within the meaning of the PSD program.
However, national public lands within reservation boundaries, such as
national monuments, are included within the term ``Federal'' lands. See
61 FR 38250, 38293, n. 71 (July 23, 1996). Thus, the PSD permit review
procedures for State lands and lands within Indian reservation
boundaries that are non-Federal or non-public lands and redesignated as
Class I are the subject of this notice.
3. PSD Permit Review Provisions for Federal and Non-Federal Class I
Areas
A congressionally-declared purpose of the PSD program is to
preserve, protect, and enhance the air quality in national parks,
national wilderness areas, national monuments, national seashores, and
other areas of special national or regional natural, recreational,
scenic, or historic value. CAA Sec. 160(2). To this end, Congress
established special PSD permit review procedures that apply to proposed
PSD sources whose emissions may adversely impact Federal Class I areas.
Based on the statutory text, statutory structure and legislative
history it appears that these special permit review procedures, set out
at section 165(d) of the CAA, are intended to apply only to Federal
lands originally designated, or subsequently redesignated, as Class I
areas. The legislative history indicates that these special
requirements were intended ``to provide additional protection for air
quality in areas where the Federal Government has a special stewardship
to protect the natural values of a national resource. Such areas are
the federally-owned class I areas under the bill.'' S. Rep. No. 127,
95th Cong., 1st Sess. at 34 (1977) (emphasis added).
The central focus of the permit review procedures for Federal Class
I areas is to protect the air quality related values (AQRVs) of these
areas. The Clean Air Act specifies that AQRVs include visibility. CAA
Sec. 165(d). The legislative history further provides that for Federal
Class I areas the term AQRVs includes ``the fundamental purposes for
which such lands have been established and preserved by the Congress
and the responsible Federal agency. For example, under the 1916 Organic
Act to establish the National Park Service (16 U.S.C. 1), the purpose
of such national park lands `is to conserve the scenery and the natural
and historic objects and the wildlife therein and to provide for the
enjoyment of the same in such manner and by such means as will leave
them unimpaired for the enjoyment of future generations.' '' S. Rep.
No. 127, 95th Cong., 1st Sess. 36 (1977).
Specifically, for Federal Class I areas, the statute places an
``affirmative responsibility'' on the FLM to protect the air quality
related values of Federal lands. CAA Sec. 165(d)(2)(B).
The FLMs protect AQRVs through a prescribed statutory role. If the
proposed source will cause or contribute to a violation of a Class I
increment, then the owner or operator must demonstrate to the
satisfaction of the FLM that the emissions will not adversely impact
AQRVs. If the FLM so certifies, then the permit may be issued.
Conversely, even if a proposed source will not cause or contribute to a
violation of a Class I increment, the FLM may nevertheless demonstrate
to the satisfaction of the permitting authority that the source will
have an adverse impact on AQRVs. If so demonstrated, then the permit
shall not be issued. CAA Sec. 165(d)(2)(C). Thus, compliance with the
Class I increments determines the burden of proof for demonstrating the
presence or absence of an adverse impact on AQRVs.
EPA recently proposed significant changes to its PSD and
nonattainment New Source Review (NSR) program. The proposal includes
revisions to the PSD permit review procedures for sources that may
adversely impact Federal Class I areas. See 61 FR 38250, 38282-38295
(July 23, 1996). The proposed revisions are intended to improve
coordination and cooperation, and clarify relative responsibilities
among FLMs, proposed sources, and permitting agencies.
Part III below examines whether EPA's permit review procedures for
non-Federal Class I areas should be similar to EPA's recent proposal
for Federal Class I areas in all respects or whether some differences
must or should exist. While, as noted above, section 165(d) contains
specific permit review procedures for Federal Class I areas, the Clean
Air Act does not contain such specific provisions for non-Federal Class
I areas. However, the CAA does contain provisions aimed at protecting
air quality in non-Federal Class I areas when a dispute arises between
affected States or Tribes. The Clean Air Act recognizes that a PSD
source proposing to locate in one jurisdiction can have adverse effects
on the air quality of another jurisdiction. By contrast with the
provisions that give the FLM responsibility for protecting Federal
Class I areas, any State or Tribal government, concerned that a
proposed source outside its jurisdiction may adversely impact the air
quality of a non-Federal Class I area, may seek to protect such area.
The Clean Air Act establishes a special dispute resolution process to
address such intergovernmental disagreements.
The Clean Air Act provides that the Governor of an affected State
or the Indian ruling body of an affected Indian Tribe may request the
EPA Administrator to enter negotiations with the parties involved to
resolve the dispute. If the parties are unable to reach agreement, the
Clean Air Act makes EPA the ultimate arbiter of the intergovernmental
dispute. Section 164(e) of the CAA establishes the special process for
resolving these
[[Page 27161]]
intergovernmental disputes, and reads in relevant part as follows:
[I]f a permit is proposed to be issued for any new major
emitting facility proposed for construction in any State which the
Governor of an affected State or governing body of an affected
Indian tribe determines will cause or contribute to a cumulative
change in air quality in excess of that allowed in this part within
the affected State or tribal reservation, the Governor or Indian
ruling body may request the Administrator to enter into negotiations
with the parties involved to resolve such dispute. If requested by
any State or Indian tribe involved, the Administrator shall make a
recommendation to resolve the dispute and protect the air quality
related values of the lands involved. If the parties involved do not
reach agreement, the Administrator shall resolve the dispute and his
determination, or the results of agreements reached through other
means, shall become part of the applicable plan and shall be
enforceable as part of such plan.
Thus, the broad contours of this provision include (but are not
limited to) intergovernmental PSD permit disputes over potential
impacts on non-Federal Class I areas.3 This provision is
codified in 40 CFR 52.21(t).
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\3\ Further, several additional provisions of the Clean Air Act
and PSD program are aimed at curbing interjurisdictional air
pollution transport. A purpose of the PSD program is to assure that
emissions from a source in one jurisdiction do not interfere with
PSD in another jurisdiction. CAA Sec. 160(4). State air quality
management plans are required to contain provisions that prohibit
in-State emissions from interfering with PSD measures in another
State. CAA Sec. 110(a)(2)(D). The interstate pollution abatement
provisions of the CAA direct State Implementation Plans (SIPs) to
require PSD sources to notify nearby States whose air pollution
levels may be affected by the source. CAA Sec. 126.
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In this rulemaking, EPA endeavors to clarify the PSD permit review
procedures in a manner that will facilitate amicable resolution of
intergovernmental disputes about potential impacts on non-Federal Class
I areas without the need for recourse to EPA. Additionally, EPA will
examine the methods EPA should consider and the procedures it should
employ in the event it is necessary for EPA to resolve an
intergovernmental PSD permit dispute. In resolving any
intergovernmental permit disputes EPA will act consistent with its
trust responsibilities toward Tribes.
III. Preliminary Issues
The overall objective of the rulemaking revisions addressed in this
notice is to clarify and improve the PSD permit review procedures
applicable to proposed sources that may adversely affect non-Federal
Class I areas.4 In developing these rules EPA will be guided
by the core purposes of the Clean Air Act and the PSD program. As
noted, the genesis of the PSD program was the non-degradation policy
embodied in section 101(b)(1) to ``protect and enhance'' air quality
resources to ``promote the public health and welfare.'' The
congressionally declared objectives of the PSD program include ensuring
that ``economic growth will occur in a manner consistent with the
preservation of existing clean air resources'' and ensuring that ``any
decision to permit increased air pollution'' is made ``only after
careful evaluation of all the consequences * * * and after adequate
procedural opportunities for informed public participation.'' CAA Sec.
160 (3) and (5), 42 U.S.C. 7470 (3) and (5). EPA seeks to develop
workable rules that consider preservation of existing clean air
resources and potential impacts on economic growth. EPA intends to
fashion rules that are clear, sensible and improve the PSD permit
process.
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\4\ EPA is not proposing to modify its rules on the PSD
redesignation process itself. The statute clearly prescribes the
process and the implementing regulations (i.e., 40 CFR 51.166(g) and
52.21(g)) provide adequate guidelines.
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EPA seeks public input on the following preliminary issues for use
in developing proposed revisions to its PSD permit review procedures at
40 CFR 51.166 and 52.21. EPA's public workshops, discussed in Part IV
of this document, will focus on these preliminary issues and other
issues raised by members of the public. EPA also encourages public
commenters to address the issues in their written submissions to the
Agency.
A. Scope of New Rulemaking Initiative
EPA seeks public input on the appropriate scope of this regulatory
initiative. Currently, after more than 20 years of authority to
redesignate, there are five non-Federal Class I areas. By contrast,
there are more than 150 mandatory Federal Class I areas. Thus, non-
Federal Class I areas are not nationally prevalent in the same manner
as Federal Class I areas.
EPA already has detailed PSD permit review procedures in place. In
addition, EPA's recent proposal to reform its PSD rules includes
proposed revisions related to permit review procedures for Federal and
non-Federal Class I areas. 61 FR 38282-38295. For example, EPA proposed
to define the term ``air quality related value'' for both Federal and
non-Federal Class I areas as ``a scenic, cultural, physical,
biological, ecological, or recreational resource which may be affected
by a change in air quality, as defined by the FLM for Federal lands and
as defined by a State or Indian Governing Body for non-Federal lands
within their respective jurisdictions.'' 61 FR 38283-38284.
EPA has also proposed significance levels for all Class I areas. 61
FR 38291-38292. Under the proposal, PSD sources with a predicted
(modeled) air quality impact below the significance levels would be
excluded from the requirement to conduct a full Class I increment
analysis. EPA indicated that permitting authorities could use the
finding of an insignificant impact to determine that the source's
emissions would not contribute to an increment violation. However, an
impact below the significance level of the PSD increments would not
necessarily indicate that the proposed source also has an insignificant
impact on AQRVs.
In the pending rulemaking to reform the PSD program, EPA also
clarified the PSD requirements applicable to non-Federal lands
redesignated as Class I areas. 61 FR 38293-38295. EPA explained that
States and Tribes with non-Federal Class I areas may identify AQRVs for
their lands and may pursue protection of the AQRVs through the
intergovernmental dispute resolution provisions under section 164(e) of
the CAA. EPA proposed to adopt a regulation at 40 CFR 51.166(t) to
implement section 164(e), as a companion to the regulation currently in
place at 40 CFR 52.21(t). 61 FR 38293-38295. EPA also proposed to
define ``Federal Class I areas'' to clarify the distinctions between
Federal and non-Federal Class I areas. 61 FR 38293-38295.
As noted, section 164(e) provides that a State or Tribe may request
intergovernmental dispute resolution if a State or Tribe determines
that emissions from a proposed PSD source ``will cause or contribute to
a cumulative change in air quality in excess of that allowed in [the
PSD program] within the affected State or tribal reservation.'' Section
164(e) further provides that if requested by the State or Tribe
involved, EPA shall make a recommendation to resolve the dispute and
``protect the air quality related values of the lands involved.'' If
the parties do not reach agreement, EPA shall resolve the dispute and
its determination shall become part of the applicable plan. Because
section 164(e) specifically provides for protection of AQRVs, EPA has
previously explained its view that States and Tribes may seek
protection of AQRVs through these intergovernmental dispute resolution
provisions. [Letter to George Meyer, Wisconsin Department of Natural
Resources, from Valdas Adamkus, EPA
[[Page 27162]]
Regional Administrator for Region V (July 27, 1994).]
In the PSD reform proposal, EPA explained its interpretation of the
language authorizing intergovernmental dispute resolution if a proposed
source ``will cause or contribute to a cumulative change in air quality
in excess of that allowed in [the PSD program].'' EPA stated that a
State or Tribe may request intergovernmental dispute resolution when a
State or Tribe determines that a proposed source will cause or
contribute to a violation of the NAAQS or PSD increment or will harm
AQRVs identified by the State or Tribe. 61 FR 38294.
EPA believes its interpretation is supported by the plain language
of the statute and statutory structure. The statutory language at issue
is expansive--referring generally to ``changes in air quality.'' The
increments are a central limit on air quality deterioration established
under the PSD program and well within the ambit of this language. At
the same time, increments are explicitly referred to elsewhere in the
PSD provisions as ``maximum allowable increases'' and ``maximum
allowable concentrations'' of pollutants. CAA Secs. 163 & 165(a)(3)(A).
Thus, EPA believes that the language in section 164(e)is not confined
to PSD increments. The statutory text also appears to encompass adverse
impacts on AQRVs due to ``changes in air quality.'' EPA believes AQRVs
are properly a basis for initiating dispute resolution since their
protection is a stated purpose of the provision. 61 FR 38294. In other
words, to allow states or tribes to initiate intergovernmental dispute
resolution because of adverse impacts on AQRVs is consistent with the
statutory language in section 164(e) that calls for EPA to ``make a
recommendation to resolve the dispute and protect the air quality
related values of the land involved.'' Today, EPA seeks further public
comment on this interpretation.
The proposed revisions to reform the PSD program are the outgrowth
of extensive discussions with representatives of State and local
governments, regulated industry, Federal Land Managers, and
environmental organizations. EPA held a public hearing in September
1996 and has provided abundant opportunity for public comment. Except
for interpretation of section 164(e) discussed immediately above,
regarding the basis for initiating intergovernmental disputes, EPA does
not intend to reopen in this rulemaking the proposals advanced in the
separate rulemaking to reform the PSD program published on July 23,
1996 (61 FR 38250).
Thus, the question for this new rulemaking initiative is what
additional changes to the PSD permit program are needed to clarify and
improve the permit review procedures for proposed sources that may
adversely affect air quality in non-Federal Class I areas. EPA requests
public input on the appropriate scope of this rulemaking, considering
the previously proposed revisions to improve the PSD program and the
relatively small number of non-Federal Class I areas.
B. Improving Coordination Between Permitting Authorities and States or
Tribes With Non-Federal Class I Areas
The July 1996 proposed rules to reform the PSD program contained
provisions to address concerns about the PSD permit review procedures
for Federal Class I areas. 61 FR 38282-38295. The proposal is intended
to reduce delays and disputes associated with permitting near Federal
Class I areas by facilitating coordination between the FLM, the permit
applicant and the permit authority, and clarifying the relative roles
and responsibilities of the involved parties. A central goal of
improved coordination is to help identify potential disagreements early
in the permit process, when it is less disruptive. Roles are clarified
to ensure that responsibilities are reasonably, and mutually,
allocated.
EPA seeks public comment on whether some of the basic policy
concerns reflected in EPA's recent proposal to revise the PSD rules for
Federal Class I areas are also concerns that should be addressed when
developing proposed programmatic improvements for non-Federal Class I
areas. These basic policy concerns, as they apply to non-Federal Class
I areas, are outlined below. 5
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\5\ As noted, this notice does not seek public comment on EPA's
proposed revisions to the permit review procedures for Federal Class
I areas published on July 23, 1996 and already subjected to public
comment.
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1. Permit Application Coordination
A State or Tribe with a non-Federal Class I area will be aware of
sources proposing to locate within its jurisdiction and can work with
the permitting authority to review and resolve potential impacts on
non-Federal Class I areas. However, if the source is located in another
jurisdiction, a State or Tribe can only effectively protect its non-
Federal Class I area from potentially adverse effects if it knows about
the proposed source.
In its July 1996 proposed revisions to the PSD rules, EPA generally
proposed to require submittal of permit applications to the FLMs for
sources locating within 100 kilometers (km) of a Federal Class I area.
EPA also proposed to require basic source information concerning
sources locating more than 100 km from a Federal Class I area to be
input into an electronic database in lieu of transmitting entire permit
applications to the FLMs. The database enables the FLMs to review
information about proposed PSD sources and determine whether further
information about the project is needed. 61 FR 38287-38288.
EPA's current regulations generally require State-administered PSD
programs to send the public notice of PSD permits to any State or
Indian Governing Body whose lands may be affected by emissions from the
source or modification. 40 CFR 51.166(q)(2)(iv). The public notice
includes the following information: indicates that a PSD permit
application has been received, states the permitting authority's
preliminary determination to approve or deny the permit, describes the
degree of increment consumption that is expected, and addresses the
opportunity for comment at a public hearing as well as written public
comment.
EPA requests public comment on whether EPA should clarify when a
permit authority must provide an affected State or Tribe with a copy of
the public notice. EPA also requests comment addressing whether, when a
non-Federal Class I area may be affected, EPA should also require
permit authorities to provide affected States or Tribes with copies of
the permit application or other advance notice before the permit
authority makes a preliminary determination to grant or deny the
permit.
For example, commenters should address whether EPA should establish
standard procedures for permit application notification of sources that
may adversely affect non-Federal Class I areas, and how such
notification could be effectively and efficiently accomplished. Using
the distance between the proposed source and non-Federal Class I area
as a basis for determining whether coordination is necessary is
simplistic and clear. However, rigid distances alone can be over- and
under-inclusive. For example, if States or Tribes with non-Federal
Class I areas were required to be notified of all proposed sources
within 100 km of the Class I area, then this may place a burden on some
sources that do not threaten the area and exclude some
[[Page 27163]]
large sources that may impact the area. EPA seeks suggestions on how to
ensure that States and Tribes with non-Federal Class I areas receive
adequate information about proposed sources that may affect the areas
without placing undue burdens on PSD permit applicants and permit
agencies.
EPA also requests public comment on how to facilitate
intergovernmental coordination during the permit review process to
avoid the need for EPA to resolve disputes over potential impacts on
non-Federal Class I areas. EPA's July 1996 proposal contained several
potential revisions to the PSD rules that call for consultation between
the permitting authority and FLM at various key stages of the permit
process. 61 FR 38283-38295. Intergovernmental consultation may
facilitate resolution of concerns. Further, the earlier all parties are
aware of potential concerns, then the sooner the concerns can be
resolved and constructive discourse can begin. EPA requests public
comment addressing consultation and other measures that can be taken to
help resolve intergovernmental permit disputes at an early stage in the
permit process. Commenters should address whether consultation would be
productive, what alternative measures would be appropriate, and what
stages in the permit process consultation should be formalized.
2. Identifying and Disseminating Information About Air Quality Related
Values
As noted, EPA's July 1996 proposed PSD revisions define ``AQRVs''
for Federal and non-Federal lands as visibility or a scenic, cultural,
physical, biological, ecological, or recreational resource that may be
affected by a change in air quality, as defined by the Federal Land
Manager for Federal lands and as defined by the applicable State or
Indian Governing Body for non-Federal lands. 61 FR 38284. EPA's July
1996 notice sought public comment on this proposed definition and EPA
is not seeking further comment in today's notice.
However, EPA does request public input on measures to encourage
identification and dissemination of information about the AQRVs for
non-Federal lands. EPA's July 1996 proposal included provisions for the
public dissemination of information about the AQRVs for Federal lands.
61 FR 38283-86. EPA proposed to place responsibility on the FLM to
ensure that permit applicants and permit agencies have adequate
information about any AQRV which the FLM has identified. Public
commenters should address reasonable steps that can be taken by States
or Tribes with AQRVs to inform PSD permit agencies and applicants about
the AQRVs. Commenters should also suggest the type of information that
would be useful to potential permit applicants and permit agencies.
A related issue is the level of technical support that should
accompany identification of AQRVs. Technical or scientific information
about AQRVs may be necessary for a neighboring permit agency and permit
applicant to understand and address potential concerns. EPA requests
comments on whether EPA should propose rules addressing the technical
support information for AQRVs identified by a State or Tribe, and seeks
input on approaches that may be appropriate.
3. No Affirmative Responsibility to Protect AQRVs of Non-Federal Lands
As noted, the Clean Air Act places an affirmative responsibility on
FLMs to protect the AQRVs of Federal Class I areas. Thus, the FLM has a
special duty under Federal law to protect the air quality related
resources of Federal Class I areas.
However, it does not seem appropriate for a State or Tribe with a
non-Federal Class I area to be under a similar responsibility to
protect AQRVs. This is an area where a departure between Federal and
non-Federal lands seems appropriate. Because a decision by a State or
Tribe to seek redesignation of its lands as a Class I area is entirely
discretionary, EPA believes that it would be inappropriate to place an
affirmative responsibility on a State or Tribe to challenge permit
applications from proposed sources locating in other jurisdictions.
Thus, EPA is disinclined in this rulemaking to place any duty on an
affected State or Tribe to invoke the intergovernmental dispute
resolution process and intends to leave this entirely within the
State's or Tribe's discretion. EPA solicits public comment on this
proposed approach.
C. EPA Resolution of Intergovernmental Permit Disputes
When a State or Tribe does elect to invoke the dispute resolution
process, section 164(e) of the CAA makes EPA the arbiter of
intergovernmental PSD permit disputes. Section 164(e) of the CAA
provides that if the Governing Body of an affected Indian Tribe or the
Governor of an affected State determines that a proposed PSD source
``will cause or contribute to a cumulative change in air quality in
excess of that allowed [under the PSD program],'' the Tribe or State
may request EPA to enter into negotiations with the parties involved to
resolve the dispute. Then, if requested by a State or Tribe, EPA will
make a recommendation to resolve the dispute and protect the AQRV's of
the lands involved. If that does not lead to resolution, EPA is
ultimately called upon to resolve such disputes regardless of whether
the proposed permit is being reviewed under a State, Tribal, or
Federally administered program. EPA seeks public input on the issues
outlined below related to EPA's resolution of permit disputes about
potential air pollution impacts on non-Federal Class I areas.
1. EPA's Discretion to Fashion Reasonable Solutions
EPA has broad discretion in crafting solutions to intergovernmental
permit disputes under section 164(e) of the CAA. The key statutory text
in section 164(e) provides as follows:
If requested by any State or Indian tribe involved, the
Administrator shall make a recommendation to resolve the dispute and
protect the air quality related values of the lands involved. If the
parties involved do not reach agreement, the Administrator shall
resolve the dispute and his determination, or the results of
agreements reached through other means, shall become part of the
applicable plan and shall be enforceable as part of such plan.
Thus, Congress has directed EPA to ``make a recommendation to
resolve the dispute and protect the air quality related values of the
lands involved.'' If the parties cannot reach agreement, EPA is
authorized to ``resolve the dispute.'' The statute does not specify or
constrain the measures or methods EPA may employ to resolve the
dispute.
EPA's discretion to resolve disputes may mean that EPA draws from a
variety of methods in resolving any particular PSD permit dispute. This
will enable EPA to tailor a solution to the circumstances and issues
presented. For example, in the event that EPA is requested to resolve a
dispute involving a proposed source's potential impacts on AQRVs and
the affected governments disagree about the nature of the projected
effects, EPA may need to explore and resolve underlying technical and
scientific issues. EPA seeks comment on whether it should elaborate how
it might evaluate such technical or scientific disagreements.
Post-construction monitoring may be an effective way to resolve
some disputes conditionally. Where there are irreconcilable disputes
over the potential impact of a proposed source, post-construction
monitoring and subsequent evaluation provides a means
[[Page 27164]]
to ascertain actual source impacts and assess the need for any further
action.
EPA also requests comment on whether it should address measures
that could be employed to mitigate effects on AQRVs. In the July 1996
PSD rulemaking proposal, EPA explored methods to mitigate adverse
impacts on the AQRVs of Federal Class I areas to allow permitting of
sources that would otherwise face permit modification or denial. 61 FR
38290-38291. Similarly, if resolution of an intergovernmental permit
dispute necessitated permit modification or denial to protect the AQRVs
of non-Federal Class I areas, mitigation of source impacts through
emissions offsets from other sources or other mitigation techniques may
present a means to avoid harsher results.
It is also possible that a proposed source may not adversely impact
AQRVs but still exceed Class I increments. If that is the case, EPA may
consider whether, in certain circumstances and consistent with its
trust responsibilities toward tribes, it is within EPA's discretion
under section 164(e) to allow issuance of a permit that exceeds Class I
increments. It is unclear whether section 164(e) would authorize such
action by EPA. This issue is examined in more detail below.
As noted, the Class I increments are the most stringent PSD
increments. Therefore, it is conceivable that a proposed source could
exceed a Class I increment and yet not adversely impact AQRVs. The
Clean Air Act expressly recognizes this situation for Federal Class I
areas. As noted, under the specific statutory provisions for Federal
Class I areas at section 165(d)(2) of the CAA, a source's contribution
to the Class I increments determines who bears the burden of proof for
demonstrating the presence or absence of an adverse impact on AQRVs and
is not decisive of whether a permit may be issued. If a proposed source
will contribute to a Class I increment violation in a Federal Class I
area, then the owner or operator may nevertheless demonstrate to the
satisfaction of the FLM that the source will not adversely impact
AQRVs. Therefore, the FLM may conclude that AQRVs are not threatened
despite the Class I increment violation. If the FLM certifies that no
adverse impact will occur despite the source's violation of the Class I
increment, the permitting authority may issue a PSD permit provided the
source demonstrates compliance with the Class II increments (as well as
a more stringent three-hour sulfur dioxide concentration
level).6 CAA Sec. 165(d)(2)(C)(iv), 40 CFR 51.166(p)(4) and
52.21(p)(5). Thus, in limited circumstances for Federal Class I areas,
the Clean Air Act contemplates that a PSD permit could be issued for a
source that exceeds the Class I increments.
---------------------------------------------------------------------------
\6\ The source must demonstrate compliance with a concentration
level for sulfur dioxide measured over three hours that is more
stringent than the Class II increment but less stringent than the
Class I increment. CAA Sec. 165(d)(2)(C)(iv), 40 CFR 51.166(p)(4)
and 52.21(p)(5). If the FLM declines to certify that no adverse
impact will occur, the permit must be denied or modified. If the
proposed source may not be constructed because of the sulfur dioxide
increment for periods of twenty-four hours or less, the Governor may
grant a variance of the increment if doing so will not adversely
affect AQRVs and the FLM concurs. If the Governor and FLM do not
agree, their respective recommendations may be transmitted to the
President who may grant the variance if it is in the national
interest and the facility meets specific limits on its sulfur
dioxide concentrations. CAA Sec. 165(d)(2)(D), 40 CFR 51.166 (p)(5)
through (p)(7) & 52.21 (p)(6) through (p)(8).
---------------------------------------------------------------------------
However, section 164(e) does not contain a similar express
exemption of the Class I increments for non-Federal lands. Further,
other provisions of the Clean Air Act specify that a proposed source
must comply with increments to qualify for a PSD permit. For example,
as underscored, section 163 establishes the Class I increments
providing that ``the maximum allowable increase in concentrations of
sulfur dioxide and particulate matter shall not exceed'' certain
prescribed amounts. See also 40 CFR 51.166(c) and 52.21(c). Further,
section 165(a) directs PSD sources to demonstrate that emissions will
not contribute to an increment exceedance more than one time per year.
Thus, the absence of an explicit statutory exemption to the Class I
increments for non-Federal Class I areas would suggest that section
164(e) should not be construed to provide one.
Additionally, for non-Federal Class I areas, the Class I increments
appear to have relevance independent of AQRVs. The intergovernmental
dispute resolution provisions for non-Federal lands provide that a
State or Tribe may object to a proposed PSD permit if it determines
that emissions ``will cause or contribute to a cumulative change in air
quality in excess of that allowed [under Part C of the Act--the PSD
program] within the affected State or tribal reservation.'' CAA Sec.
164(e). As noted, EPA has previously proposed to interpret excess air
quality changes to include a proposed source's contribution to a NAAQS
violation, PSD increment violation or AQRV impact. 61 FR 38294. Thus,
EPA interprets this provision to direct EPA mediation, at the request
of a State or Tribe, when a State or Tribe determines that a proposed
source will cause or contribute to a violation of a NAAQS or increment,
or contribute to AQRV impacts. The bases for invoking the PSD
intergovernmental dispute provisions arguably suggest that Class I
increments should be among the concerns protected in resolving
disputes.
Further, for non-Federal Class I areas, there are additional
reasons to give the Class I increments consideration independent of
AQRVs. Because Congress gave States and Tribes broad latitude to seek
redesignation of non-Federal lands as Class I areas, States and Tribes
could seek redesignation to prevent incremental air quality
deterioration without regard to protection of AQRVs. In such a
situation, compliance with Class I increments enables States and Tribes
to advance public health and welfare concerns associated with air
quality degradation independent of AQRVs. Thus, EPA may be requested to
resolve a dispute involving only a PSD increment, where no AQRV has
been defined. In that case, it could be argued that EPA should never
waive a PSD increment in a non-Federal Class I area because the State's
or Tribe's goal in redesignating the area to Class I may have been
solely the protection of the increments.
At the same time, the section 164(e) dispute resolution provisions
direct EPA to ``make a recommendation to resolve the dispute and
protect the air quality related values of the lands involved.'' This
might suggest that AQRVs, not increments, are the principal focus of
protection under section 164(e). But, relying on the objective of
protecting AQRVs in section 164(e) as a basis for a Class I increment
exemption could be very broad since this explanation could conceivably
justify an exemption of the Class II or III increments. Perhaps in
exercising its administrative discretion under section 164(e) EPA would
be confined to a Class I increment exemption, by direct analogy to the
statutory exemption provisions for Federal Class I areas.
EPA requests comment on whether EPA should explore in this
rulemaking EPA's discretion to waive the Class I increments for non-
Federal Class I areas in resolving permit disputes under section 164(e)
of the CAA. While it is clear that such action is impermissible unless
AQRVs will also be protected, there may nevertheless be circumstances
when Class I increment violations occur that do not threaten AQRVs. EPA
also seeks comment on the circumstances under which it might be
appropriate for EPA to consider providing an exemption for a Class I
[[Page 27165]]
increment. EPA also requests comment on how to weigh competing concerns
in determining whether a Class I increment exclusion may be
appropriate. For example, if a State or Tribe with a Class I area was
very concerned about increases in direct particulate matter pollution,
perhaps it would be appropriate for EPA to consider an exclusion from
the short-term sulfur dioxide increment but not from PM-10.
In sum, EPA requests public comment on whether EPA should address
in this rulemaking some of the potential measures and tools that may be
employed to resolve intergovernmental disputes and, if so, what
approaches may be appropriate. Alternatively, it may be appropriate for
EPA to adopt very general rules that enable EPA to take any number of
actions depending upon the circumstances.
2. Dispute Resolution Procedures
EPA also seeks input on whether and to what extent EPA should
prescribe the procedures to be followed in resolving intergovernmental
permit disputes under section 164(e). For example, EPA is interested in
the public's views about whether EPA should establish a particular
dispute resolution process. Further, EPA requests comment on whether
EPA should address how the dispute resolution process relates to the
permit proceeding and how the resulting solution is implemented.
3. Incentives for Amicable Dispute Resolution
Ideally, intergovernmental permit disputes could be amicably
resolved without recourse to EPA. EPA seeks public comment on
incentives EPA could create for governments to resolve their concerns
amicably.
D. Miscellaneous Changes
EPA also seeks public input on any clarifying, administrative
changes EPA should make to its existing PSD regulations in light of the
distinctions between Federal and non-Federal Class I areas. Comments
regarding consistent use of terminology would be appropriate. For
example, the existing rules may generally refer to Class I areas where
the context implies that Federal Class I areas is the intended meaning.
Technical revisions may help avoid any confusion.
The public should also comment on whether EPA should make any
conforming regulatory changes to the Guideline on Air Quality Modeling
to clarify and improve the PSD permit procedures for non-Federal Class
I areas. The Guideline prescribes the air quality models employed to
estimate the air quality impacts of proposed PSD sources and is
codified at 40 CFR part 51, Appendix W.
E. Summary of the Principal Issues
To facilitate public input, EPA has summarized the issues raised
for comment in this notice.
1. Scope of Rulemaking. What regulatory changes should EPA consider
in this rulemaking beyond the PSD programmatic revisions proposed in
EPA's July 23, 1996 Federal Register notice (61 FR 38250)?
2. Analogy to Federal Class I Area Issues. To what extent should
EPA draw from the PSD permit review procedures proposed for Federal
Class I areas in the July 23, 1996 notice in considering rule changes
for non-Federal Class I?
3. Permit Application Notification. What effective, and efficient,
measures should EPA consider to ensure that States and Tribes with non-
Federal Class I areas receive adequate information about proposed
sources that may adversely impact such areas?
4. Intergovernmental Coordination. How can EPA facilitate
intergovernmental consultation and coordination during the permit
review process in a manner that helps avoid intergovernmental disputes?
5. Identifying AQRVs. What guidance, if any, should EPA provide
about the technical support that should accompany identification of
AQRVs by States and Tribes?
6. Disseminating Information about AQRVs. What methods should EPA
consider to ensure that States and Tribes with AQRVs provide adequate,
timely information about their AQRVs to permit applicants and permit
agencies?
7. Responsibility to protect AQRV. Should non-Federal land managers
have the same affirmative responsibility as Federal land managers to
protect AQRVs?
8. EPA Resolution of Intergovernmental Disputes. Should EPA specify
the procedures, measures and techniques that might be employed in
resolving intergovernmental permit disputes under section 164(e) and,
if so, which of these might be appropriate?
9. Waiver of Class I Increments. Should EPA explore in this
rulemaking EPA's discretion to waive the Class I increments for non-
Federal Class I areas in resolving permit disputes?
10. Dispute Resolution Procedures. What rules, if any, should EPA
consider to govern the manner in which EPA will conduct resolution of
intergovernmental permit disputes under section 164(e)?
11. Incentive for Amicable Intergovernmental Dispute Resolution.
How can EPA create incentives for amicable resolution of
intergovernmental permit disputes?
12. Additional Clarifying Regulatory Changes. What regulatory
revisions are necessary to clarify the distinction between Federal and
non-Federal Class I areas?
13. Regulatory Flexibility Act. What steps can EPA take in this
rulemaking to facilitate public participation by any small entities
that may be adversely affected and to mitigate any such impacts?
14. Paperwork Reduction Act. What steps can EPA take in this
rulemaking initiative to ensure that any informational requirements are
necessary and of practical utility, and to minimize the burden of any
information requirements?
IV. Public Workshops
EPA recognizes the complexities of the issues surrounding the PSD
permit application process. EPA seeks input from all interested members
of the public in formulating a reasonable, workable approach to the PSD
permit review procedures for sources potentially impacting non-Federal
Class I areas.
The preceding discussion has attempted to identify some major
issues in developing an approach to this rulemaking. However, these are
only preliminary ideas that do not necessarily exhaust all possible
issues and approaches regarding the PSD permit review process. EPA
wishes to engage in a public discussion about the PSD permit review
process and intends to hold public workshops that will provide
opportunity for interested members of the public to address the issues
raised in this notice and suggest additional approaches.
The first of these public workshops will be held in Phoenix,
Arizona and in Chicago, Illinois. A Federal Register notice announcing
specific dates, times, and locations of these workshops will be
published at least 30 days prior to the workshops. If there is public
interest, additional public workshops will be announced in the Federal
Register.
V. Additional Information
A. Public Docket
This rulemaking action involves promulgation or revision of PSD
regulations. Thus, the rulemaking is subject to the procedures in
section 307(d) of the CAA, 42 U.S.C. Sec. 7607(d), in accordance with
section 307(d)(1)(J). The public docket for this rulemaking action is
A-96-53. The docket is a file of information relied on by EPA in the
development of
[[Page 27166]]
regulations. All written comments and accompanying materials received
in response to this notice will be placed in the public docket. The
docket is available for public review and copying at EPA's Air Docket,
as indicated in the ADDRESSES section at the beginning of this
document.
B. Executive Order (EO) 12866
Section 3(f) of EO 12866 defines ``significant regulatory action''
for purposes of centralized regulatory review by the Office of
Management and Budget (OMB) to mean any regulatory action that is
likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, 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 obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
A draft of this ANPR and associated materials were reviewed by OMB
prior to publication. Information related to OMB's review of this ANPR
has been placed in the public docket referenced at the beginning of
this notice, including: (1) Materials provided to OMB in conjunction
with OMB's review of this ANPR; and (2) Materials that identify
substantive changes made between the submittal of a draft ANPR to OMB
and this notice, and that identify the changes that were made at the
suggestion or recommendation of OMB.
C. Regulatory Flexibility Act as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
Under the RFA, 5 U.S.C. 601-612, EPA must prepare an initial
Regulatory Flexibility Analyses to accompany notices of proposed
rulemaking that assess the impact of proposed rules on small entities.
Small entities include small businesses, small not-for-profit
enterprises and government entities with jurisdiction over populations
of less than 50,000. However, the requirement of preparing such
analyses is inapplicable if the Administrator certifies that the rule
will not, if promulgated, have a significant economic impact on a
substantial number of small entities. 5 U.S.C. 605(b).
The regulatory revisions that are being considered in this
rulemaking initiative would affect the PSD permit review procedures for
new major stationary sources and major modifications to existing major
stationary sources. This regulatory initiative is also intended to
clarify and improve the existing rules. It is unclear at this stage of
the rulemaking process whether this rulemaking initiative may have a
significant adverse impact on a substantial number of small entities.
Nevertheless, EPA seeks public comment on steps EPA can take in this
rulemaking to facilitate public participation by any small entities
that may be adversely affected and to mitigate any such impacts.
D. Paperwork Reduction Act
EPA requests public comments on steps EPA can take in this
rulemaking initiative to ensure that any informational requirements are
necessary and of practical utility, and to minimize the burden of any
information requirements.
Dated: May 8, 1997.
Mary D. Nichols,
Assistant Administrator for Air and Radiation.
[FR Doc. 97-12918 Filed 5-15-97; 8:45 am]
BILLING CODE 6560-50-P