[Federal Register Volume 64, Number 22 (Wednesday, February 3, 1999)]
[Rules and Regulations]
[Pages 5189-5190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-2555]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-6229-9]


Section 112(l) Approval of the State of Florida's Construction 
Permitting Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule: Clarification.

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SUMMARY: On February 1, 1996 (61 FR 3572), the Environmental Protection 
Agency published in the Federal Register a direct final rule for State 
Implementation Plan (SIP) and section 112(l) approval of the State of 
Florida's minor source operating permit program so that Florida could 
begin to issue federally-enforceable operating permits on a source's 
potential emissions and thereby avoid major source applicability. 
Today's action is taken to clarify that EPA's section 112(l) approval 
of the Florida minor source operating permit program be extended to the 
State's minor source preconstruction permitting program as well as the 
operating permit program to allow Florida to issue both Federally-
enforceable construction permits and Federally-enforceable operating 
permits pursuant to section 112 of the Clean Air Act (CAA) as amended 
in 1990.

DATES: This direct final rule clarification is effective April 5, 1999 
without further notice, unless EPA receives adverse comment by March 5, 
1999. If adverse comment is received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: All comments should be addressed to: Lee Page, U.S. 
Environmental Protection Agency, Region 4, Air and Radiation Technology 
Branch, Atlanta Federal Center, 61 Forsyth Street, SW, Atlanta, Georgia 
30303-8909; [email protected]. Copies of Florida's original 
submittal and accompanying documentation are available for public 
review during normal business hours, at the address listed above.

FOR FURTHER INFORMATION CONTACT: Lee Page, U.S. Environmental 
Protection Agency, Region 4, Air and Radiation Technology Branch, 
Atlanta Federal Center, 61 Forsyth Street, SW, Atlanta, GA 30303, 
Phone: (404) 562-9131; [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On December 21, 1994, the State of Florida, through the Florida 
Department of Environmental Protection (FDEP) submitted a SIP revision 
designed to make certain permits issued under the State's existing 
minor source operating permit program Federally-enforceable pursuant to 
EPA requirements as specified in a Federal Register notice, 
``Requirements for the preparation, adoption, and submittal of 
implementation plans; air quality, new source review; final rules,'' 
(see 54 FR 22274, June 28, 1989). Additional materials were provided by 
the FDEP to EPA in a supplemental submittal on April 24, 1995.
    The intent of Florida's December 21, 1994, submittal was to request 
SIP approval and 112(l) approval of certain operating permits issued 
under the State's existing minor source operating permit program and 
also to request 112(l) approval of certain construction permits issued 
under the same minor source operating permit program. However, the EPA 
approval of the state's construction permit program was not addressed 
in the February 1, 1996, FR notice.
    Florida will continue to issue permits which are not Federally-
enforceable under its existing minor source operating permit program 
and the minor source construction permit program as it has done in the 
past. Today's action clarifies that certain operating and construction 
permits issued under the State's minor source permitting program that 
has been approved under section 112(l), provide Federally-enforceable 
permit limits to sources of hazardous air pollutants pursuant to 
section 112 of the CAA.
    Eligibility for Federally-enforceable construction permits extends 
not only to permits issued after the effective date of this rule, but 
also to permits issued under the State's current rule after February 1, 
1996. For minor source construction permits issued in a manner 
consistent with both State regulations and established federal 
criteria, EPA considers all such construction permits as federally-
enforceable as of February 1, 1996.

II. Final Action

    In this action, EPA is clarifying that previous section 112(l) 
approve of the State of Florida's minor source operating permit program 
be extended to the State's minor source preconstruction permitting 
program as well as the operating permit program to allow Florida to 
issue both Federally-enforceable construction permits and Federally-
enforceable operating permits pursuant to section 112 of the Clean Air 
Act as amended in 1990.
    The EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial submittal and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the section 112(l) revision 
should adverse comments be filed. This rule will be effective April 5, 
1999 without further notice unless the Agency receives adverse comments 
by March 5, 1999.
    If the EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on April 5, 1999 and no 
further action will be taken on the proposed rule.

III. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, entitled 
``Regulatory Planning and Review.''

B. Executive Order 12875

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the OMB a 
description of the extent of EPA's prior consultation with 
representatives of affected state, local, and tribal governments, the 
nature of their concerns, copies of written communications from the 
governments, and a statement supporting the need to

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issue the regulation. In addition, E.O. 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of E.O. 12875 
do not apply to this rule.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to E.O. 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the OMB, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected and 
other representatives of Indian tribal governments ``to provide 
meaningful and timely input in the development of regulatory policies 
on matters that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
conduct a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small not-for-profit enterprises, and small governmental jurisdictions. 
This final rule will not have a significant impact on a substantial 
number of small entities because section 112(l) approvals of the Clean 
Air Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
section 112(l) approval does not create any new requirements, I certify 
that this action will not have a significant economic impact on a 
substantial number of small entities.

F. 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 
annual costs to State, local, or tribal governments in the aggregate; 
or to 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 approval action promulgated does not 
include a Federal mandate that may result in estimated annual 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 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major'' rule as defined by 5 U.S.C. 804(2).

H. Petitions 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 April 5, 1999. 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).)

    Dated: November 13, 1998.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

[FR Doc. 99-2555 Filed 2-2-99; 8:45 am]
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