[Federal Register Volume 65, Number 245 (Wednesday, December 20, 2000)]
[Proposed Rules]
[Pages 79791-79794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32243]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[FRL-6918-9]


State Operating Permit Programs; Revision to Interim Approval 
Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: This action would amend EPA's regulations governing the 
interim approval of State and local operating permits programs. 
Currently, the regulations allow the Agency to extend expiration dates 
of interim approvals beyond 2 years from the date the interim approval 
is originally granted. This action removes that provision.

DATES: Submit comments on or before January 19, 2001.

ADDRESSES: Comments should be submitted (in duplicate, if possible) to: 
Air and Radiation Docket and Information Center (6102), Attention 
Docket Number A-93-50, U.S. Environmental Protection Agency, 401 M 
Street, SW., Washington, DC 20460. The EPA requests that a separate 
copy also be sent to the contact person listed below.
    Supporting material used in developing the proposal and final 
regulatory revisions is contained in Docket Number A-93-50. This docket 
is available for public inspection and copying between 8:30 a.m. and 
5:30 p.m., Monday through Friday, at the address listed above, or by 
calling (202) 260-7548. The Docket is located at the above address in 
Room M-1500, Waterside Mall (ground floor). A reasonable fee may be 
charged for copying.

FOR FURTHER INFORMATION CONTACT: Roger Powell, Mail Drop 12, United 
States Environmental Protection Agency, Research Triangle Park, North 
Carolina 27711 (telephone 919-541-5331, e-mail: [email protected]).

SUPPLEMENTARY INFORMATION:

I. Background

    If an operating permits program administered by a State or local 
permitting authority under title V of the Clean Air Act (Act) does not 
fully meet, but does ``substantially [meet],'' the requirements of part 
70, EPA may grant that program ``interim approval.'' (See 
Sec. 70.4(d)(1).) Permits issued under an interim approval are fully 
effective and expire at the end of their fixed term, unless renewed 
under a part 70 program. (See Sec. 70.4(d)(2).) To obtain full 
approval, a permitting authority must submit to EPA program revisions 
correcting all deficiencies that caused the operating permits program 
to receive interim instead of full approval. Such submittal must be 
made no later than 6 months prior to the expiration of the interim 
approval. (See Sec. 70.4(f)(2).) Originally 99 State and local 
permitting programs were granted interim approval. For 14 of the 
original interim approved programs, permitting authorities have 
corrected the deficiencies identified in their interim approvals, and 
we have granted all of these programs full approval. (See part 70, 
Appendix A.)
    On August 29, 1994 (59 FR 44460), and August 31, 1995 (60 FR 
45530), we proposed revisions to our part 70 operating permits program 
regulations. Primarily, the proposals addressed changes to the system 
for revising permits, but a number of other proposed changes were also 
included. The preamble to the August 31, 1995, proposal noted the 
concern of many permitting authorities over having to revise their 
operating permits programs twice; once to correct interim approval 
deficiencies, and again to address the revisions to part 70. In the 
August 1995 preamble, we proposed that States with interim approval ``* 
* * should be allowed to delay the submittal of any program revisions 
to address program deficiencies previously listed in their notice of 
interim approval until the deadline to submit other changes required by 
the proposed revisions to part 70'' (60 FR 45552).

[[Page 79792]]

II. Extension of Interim Approval Expiration Dates

    On October 31, 1996 (61 FR 56368), we amended Sec. 70.4(d)(2) to 
permit the Administrator to grant extensions to interim approval 
expiration dates to allow permitting authorities the opportunity to 
combine their program revisions correcting interim approval 
deficiencies with their program revisions that will conform to the part 
70 revisions. In this rulemaking, we granted a 10-month extension to 
all interim approved programs for which the interim approval was 
granted prior to the date of issuance of a memorandum announcing our 
position on this issue (memorandum from Lydia N. Wegman to Regional 
Division Directors, ``Extension of Interim Approvals of Operating 
Permits Programs,'' June 13, 1996).
    We then extended the interim approval expiration dates for certain 
State and local permitting programs a second time, on August 29, 1997 
(62 FR 45732). On July 27, 1998, we published a direct final rulemaking 
extending interim approval expiration dates a third time, this time 
covering all interim approved programs, until June 1, 2000. In each of 
these instances, delays in the expected promulgation of the final part 
70 revisions beyond the previous interim approval expiration dates led 
us to grant the further extensions of the expiration deadlines. We 
intended these extensions to provide the time needed for State and 
local agencies to combine their program revisions for both the interim 
approval deficiencies and the part 70 revisions.
    On February 14, 2000 (65 FR 7333), we published a direct final 
rulemaking to extend interim approvals a fourth time. In this action, 
we would have set an interim approval expiration date of June 1, 2002, 
for all programs. We received an adverse comment on that action and 
withdrew the direct final action on March 29, 2000 (65 FR 16523).
    The commenter asserted that our proposed action was contrary to the 
express terms of the Act and must be withdrawn. The commenter referred 
to section 502(g) of the Act which provides that ``[a]n interim 
approval under [Section 502(g)] shall expire on a date set by the 
Administrator not later than 2 years after such approval, and may not 
be renewed.''
    This commenter further argued that our existing regulations 
(Sec. 70.4(d)(2)) do not justify an extension of interim approval 
deadlines until June 1, 2002. The commenter stated that to the extent 
that Sec. 70.4(d)(2) allowed an extension of interim approvals by up to 
10 months on an individual basis, we had already granted this 10-month 
extension in the October 31, 1996, rulemaking.
    This commenter also asserted that to the extent Sec. 70.4(d)(2) 
allowed longer interim approval periods for States to combine program 
changes, this provision did not justify the proposed extension to June 
1, 2002, because Sec. 70.4(d)(2) contemplated such extensions only 
after the promulgation of part 70 revisions, which had not occurred. 
Moreover, the commenter noted that this provision authorized additional 
time ``only once per State'' and that we had already granted multiple 
extensions in the past.
    We considered these comments, as well as the further delays in 
promulgating the revisions to part 70 and the recently determined need 
for a supplemental part 70 proposal before the part 70 revisions can be 
promulgated. In light of those considerations and the need to provide 
State and local agencies with sufficient time to correct their interim 
approval deficiencies, on May 22, 2000, we published a final action 
extending interim approvals until December 1, 2001, and indicated that 
we will not extend interim approvals further. Consequently, a Federal 
permitting program will apply by operation of law in any area without a 
fully approved program as of December 1, 2001.

III. Litigation on Extension

    The Sierra Club and New York Public Interest Research Group 
(NYPIRG) challenged our final action in the Court of Appeals for the 
District of Columbia Circuit [Sierra Club et al. v. EPA (D.C. Cir. No. 
00-1262)]. As a result of that litigation, we have entered into a 
settlement agreement with the litigants that will hold that case in 
abeyance, pending implementation of the settlement agreement.

IV. Regulatory Revision

    One of the terms of the settlement agreement is that we will remove 
from Sec. 70.4(d)(2) the language added on October 31, 1996, to allow 
granting extensions to interim approval expiration dates. The language 
of Sec. 70.4(d)(2) is proposed to be amended to restore it to the 
original language that was in that section when part 70 was 
promulgated. The revision to this provision is consistent with our 
intent not to extend further the interim approval of the current 
operating permits programs. This action, if finalized, will have no 
effect on the current expiration date of December 1, 2001, for programs 
that received an extension of their interim approvals in the May 22, 
2000, action.

V. Administrative Requirements

A. Docket

    The docket for this regulatory action is A-93-50. The docket is an 
organized and complete file of all the information submitted to, or 
otherwise considered by, EPA in the development of this rulemaking. The 
principal purposes of the docket are: (1) to allow interested parties a 
means to identify and locate documents so that the parties can 
effectively participate in the rulemaking process, and (2) to serve as 
the record in case of judicial review (except for interagency review 
materials). The docket is available for public inspection at EPA's Air 
Docket, which is listed under the ADDRESSES section of this notice.

B. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether each regulatory action is 
``significant,'' and therefore subject to the Office of Management and 
Budget (OMB) review and the requirements of the Order. The Order 
defines ``significant'' regulatory action as one that is likely to lead 
to a rule that may:
    1. Have an annual effect on the economy of $100 million or more, 
adversely and materially affecting a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities.
    2. Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency.
    3. Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligation of recipients 
thereof.
    4. Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
Executive Order 12866.
    This action is not a ``significant'' regulatory action pursuant to 
Executive Order 12866 because it does not substantially change the 
existing part 70 requirements for States or sources; requirements which 
have already undergone OMB review. As such, this action is exempted 
from OMB review.

C. Regulatory Flexibility Act Compliance

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), I certify that this action will not have a significant 
economic impact on a substantial number of small entities.

[[Page 79793]]

In developing the original part 70 regulations, the Agency determined 
that they would not have a significant economic impact on a substantial 
number of small entities. Similarly, the same conclusion was reached in 
an initial regulatory flexibility analysis performed in support of the 
proposed part 70 revisions (a subset of which constitutes the action in 
this rulemaking). This action does not substantially alter the part 70 
regulations as they pertain to small entities and accordingly will not 
have a significant economic impact on a substantial number of small 
entities.

D. Paperwork Reduction Act

    The OMB has approved the information collection requirements 
contained in part 70 under the provisions of the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-
0243. The Information Collection Request (ICR) prepared for part 70 is 
not affected by the action in this rulemaking notice because the part 
70 ICR determined burden on a nationwide basis, assuming all part 70 
sources were included without regard to the approval status of 
individual programs. The action in this rulemaking notice does not 
alter the assumptions of the approved part 70 ICR used in determining 
the burden estimate. Furthermore, this action does not impose any 
additional requirements which would add to the information collection 
requirements for sources or permitting authorities.

E. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with Federal mandates that may 
result in expenditures to State, local, and tribal governments, in the 
aggregate, or to the private sector, of $100 million or more in any one 
year. Before promulgating an EPA rule for which a written statement is 
needed, section 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    The EPA has determined that the action in this rulemaking does not 
contain a Federal mandate that may result in expenditures of $100 
million or more for State, local, and tribal governments, in the 
aggregate, or the private sector, in any one year. Although the part 70 
regulations governing State operating permit programs impose 
significant Federal mandates, this action does not amend the part 70 
regulations in a way that significantly alters the expenditures 
resulting from these mandates. Therefore, the Agency concludes that it 
is not required by section 202 of the UMRA of 1995 to provide a written 
statement to accompany this regulatory action.

F. Applicability of Executive Order 13045

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1977), applies 
to any rule that EPA determines (1) is ``economically significant'' as 
defined under Executive Order 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 final rule is not subject to Executive Order 13045 because it 
is not an economically significant regulatory action as defined by 
Executive Order 12866, and it does not address an environmental health 
or safety risk that would have a disproportionate effect on children.

G. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, EPA may 
not issue a regulation that has federalism implications, that imposes 
substantial direct compliance costs, and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, or EPA consults with State and local officials early in 
the process of developing the proposed regulation. The EPA also may not 
issue a regulation that has federalism implications and that preempts 
State law unless the Agency consults with State and local officials 
early in the process of developing the proposed regulation.
    If EPA complies by consulting, Executive Order 13132 requires EPA 
to provide to OMB, in a separately identified section of the preamble 
to the rule, a federalism summary impact statement (FSIS). The FSIS 
must include a description of the extent of EPA's prior consultation 
with State and local officials, a summary of the nature of their 
concerns and the agency's position supporting the need to issue the 
regulation, and a statement of the extent to which the concerns of 
State and local officials have been met. Also, when EPA transmits a 
draft final rule with federalism implications to OMB for review 
pursuant to Executive Order 12866, EPA must include a certification 
from the agency's Federalism Official stating that EPA has met the 
requirements of Executive Order 13132 in a meaningful and timely 
manner.
    This rule change will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
Thus, the requirements of section 6 of the

[[Page 79794]]

Executive Order do not apply to this rule.

H. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly 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, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to 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 
officials 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.''
    This rule does not significantly or uniquely affect the communities 
of Indian tribal governments because it applies only to State and local 
permitting programs. Accordingly, the requirements of section 3(b) of 
Executive Order 13084 do not apply to this rule.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
one or more voluntary consensus standard bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This rule does not involve technical standards. Therefore, EPA is 
not considering the use of any voluntary consensus standards.

List of Subjects in 40 CFR Part 70

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

    Dated: December 12, 2000.
Robert Perciasepe,
Assistant Administrator, Office of Air and Radiation.

    For the reasons set out in the preamble, title 40, chapter I, of 
the Code of Federal Regulations is proposed to be 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. Section 70.4 is amended by revising paragraph (d)(2) to read as 
follows:


Sec. 70.4  State program submittals and transition.

* * * * *
    (d) * * *
    (2) Interim approval shall expire on a date set by the 
Administrator (but not later than 2 years after such approval), and may 
not be renewed. Sources shall become subject to the program according 
to the schedule approved in the State program. Permits granted under an 
interim approval shall expire at the end of their fixed term, unless 
renewed under a part 70 program.
* * * * *
[FR Doc. 00-32243 Filed 12-19-00; 8:45 am]
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