[Federal Register Volume 66, Number 190 (Monday, October 1, 2001)]
[Rules and Regulations]
[Pages 49839-49841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24254]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-7068-9]


Clean Air Act Final Approval of Operating Permits Program; State 
of Rhode Island

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is taking final action to fully approve the Operating 
Permits Program of the State of Rhode Island. Rhode Island submitted 
its program for the purpose of complying with requirements for a State 
to develop a program to issue operating permits to all major stationary 
and certain other sources. EPA granted source category-limited interim 
approval to Rhode Island's operating permit program on May 6, 1996.

DATES: This direct final rule is effective on November 30, 2001 without 
further notice, unless EPA receives relevant adverse comment by October 
31, 2001. If relevant 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: Comments may be mailed to Steven Rapp, Unit Manager, Air 
Permit Program Unit, Office of Ecosystem Protection (mail code CAP) 
U.S. Environmental Protection Agency, EPA--New England, One Congress 
Street, Suite 1100, Boston, MA 02114-2023. Copies of the State 
submittal and other supporting documentation relevant to this action, 
are available for public inspection during normal business hours, by 
appointment at the Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, EPA--New England, One Congress Street, 11th floor, 
Boston, MA Region I, JFK Federal Building, Boston, MA.

FOR FURTHER INFORMATION CONTACT: Ida E. Gagnon, (617) 918-1653.

SUPPLEMENTARY INFORMATION: This section provides additional information 
by addressing the following questions:

    What is the operating permit program?
    How has Rhode Island addressed EPA's interim approval issue?
    What changes to Rhode Island's program is EPA approving?
    How has Rhode Island addressed EPA's questions about its 
environmental audit statute?
    What is involved in this final action?

What Is the Operating Permits Program?

    The Clean Air Act Amendments (CAA) of 1990 required all state and 
local permitting authorities to develop operating permit programs that 
meet certain Federal criteria. 42 U.S.C. 7661-7661e. In implementing 
the operating permit programs, the permitting authorities require 
certain sources of air pollution to obtain permits that contain all 
applicable requirements under the CAA. The focus of the operating 
permit program is to improve compliance and enforcement by issuing each 
source a permit that consolidates all of the applicable CAA 
requirements into a federally enforceable document. By consolidating 
all of the applicable requirements for a facility, the source, the 
public, and the permitting authorities can more easily determine what 
CAA requirements apply and how to determine compliance with those 
requirements.
    Sources required to obtain an operating permit under this program 
include ``major'' sources of air pollution and certain other sources 
specified in the CAA or in EPA's implementing regulations. See 40 CFR 
70.3. For example, all sources regulated under the acid rain program, 
regardless of size, must obtain operating permits. Examples of major 
sources include: those that have the potential to emit 100 tons per 
year or more of volatile organic compounds, carbon monoxide, lead, 
sulfur dioxide, nitrogen oxides, or particulate matter (PM 10); those 
that emit 10 tons per year of any single hazardous air pollutant 
specifically listed under the CAA (HAP); or those that emit 25 tons per 
year or more of a combination of HAPs. In areas that are not meeting 
the National Ambient Air Quality Standards for ozone, carbon monoxide, 
or particulate matter, major sources are defined by the gravity of the 
nonattainment classification. For example, in ozone nonattainment areas 
classified as ``serious,'' such as Rhode Island, major sources include 
those with the potential of emitting 50 tons per year or more of 
volatile organic compounds or nitrogen oxides.

How Has Rhode Island Addressed EPA's Interim Approval Issue?

    Where an operating permit program substantially, but not fully, 
meets the criteria outlined in the implementing regulations codified at 
40 Code of Federal Regulations (CFR) part 70, and where a State 
requests source category-limited interim approval, EPA may grant the 
program interim approval. Because Rhode Island's operating permit 
program substantially, but not fully, met the requirements of part 70, 
EPA granted interim approval to the program in a rulemaking published 
on May 6, 1996 (61 FR 20150). Normally, with interim approval, a state 
must submit a corrective program to receive full approval. But Rhode 
Island's program was fully approvable, with the exception that the 
State planned to issue permits within a five-year schedule, rather than 
the three year schedule provided for in section 503(c) of the Act. In 
its interim approval notice, EPA discussed the possibility that Rhode 
Island's program might automatically convert to a full approval. But 
EPA made that conversion contingent upon Rhode Island issuing permits 
in a timely fashion consistent with its five year transition plan. 
Since Rhode Island did not meet the five year schedule, we could not 
automatically convert their program to full approval.
    We are granting full approval under our current Part 70 rules 
because the only issue that limited our 1996 approval of Rhode Island's 
program was the State's schedule for permit issuance. To date Rhode 
Island has made reasonable progress in issuing Title V permits to its 
sources. Although Rhode Island has only issued 28% of their permits, 
they have issued 80% of those in the last year. EPA believes that 
disapproving Rhode Island's program at this point would not result in 
permits being issued any more quickly. The State now has the 
organization in place to support its program, and having EPA take over 
permit issuance now would only disrupt a program that has gotten beyond 
the inertia of startup. It would

[[Page 49840]]

be counterproductive to disapprove a program that fully meets the 
requirements of part 70 only to force EPA to absorb the responsibility 
that Rhode Island is finally prepared to handle. However, failure to 
issue permits according to statutory and regulatory requirements is a 
deficiency in program implementation nationally. The Agency will be 
addressing this national permit issuance deficiency later this year.

What Changes to Rhode Island's Program Is EPA Approving?

    Rhode Island made additional changes after the source category 
limited-interim approval was submitted to EPA on June 2, 1995. On 
October 1, 1996, Rhode Island submitted revisions to APC Regulation No. 
29, Operating Permits, and APC Regulation No. 28, Operating Permit Fees 
that amended the definition of ``volatile organic compound'' (VOC). 
Acetone, paracholorobenzotrifluoride, and volatile methyl siloxanes are 
now included on the list of compounds that are exempted from the 
definition of VOC because of their negligible photochemical reactivity. 
Rhode Island's revisions to its VOC definition are consistent with 
revisions EPA has made to its definition of VOC.
    On October 1, 1996 and October 26, 2000, Rhode Island submitted 
changes to APC Regulation No. 28, Operating Permit Fees, amending the 
due date for fees and the inventory year used in calculating the fees. 
This allows Rhode Island sufficient time to determine the prior year's 
carryover amounts to be included when billing a source for the upcoming 
year. The revisions also added an application fee for facilities 
receiving a general emissions cap designed to keep them out of Title V.
    On January 1, 1999, Rhode Island submitted a revision that 
incorporated by reference the revised provisions of the Acid Rain 
Program in 40 CFR part 72. This allows the state to utilize the 
provisions of the revised federal regulation when drafting a facility's 
operating permit.
    On October 26, 2000, the State submitted a revision to its list of 
insignificant activities that must be included in the operating permit 
application but are exempted from having to be fully described because 
of size, emission levels, or production rate. The application must 
contain enough information to show that the activity qualifies for the 
exemption. This change is consistent with the applicability thresholds 
in APC Regulation No. 9 for preconstruction permits, and includes 
changes with such minor emissions impacts that they are exempted even 
from Rhode Island's minor new source review program, for example a 
natural gas-burning device with a heat input capacity of less than ten 
million Btu per hour.
    All these changes are consistent with EPA's operating permit 
program regulations.

How Has Rhode Island Addressed EPA's Questions About Its 
Environmental Audit Statute?

    Following EPA's interim approval of Rhode Island's operating permit 
program, the State adopted the Rhode Island Environmental Compliance 
Incentive Act (ECIA), which provides certain incentives for facilities 
that conduct environmental compliance audits, voluntarily disclose 
violations found in an audit, and promptly bring themselves into 
compliance. R.I.G.L. section 42-17.8. The ECIA is not an interim 
approval issue, because it did not exist at the time EPA acted on Rhode 
Island's original program. But the Agency asked the State to clarify 
the operation of the statute to avoid any question whether Rhode Island 
retains adequate enforcement authority to support continued 
implementation of federal environmental programs. On July 25, 2001, the 
Rhode Island Attorney General provided EPA with a legal opinion 
concerning the State's criminal enforcement authority under the ECIA. 
EPA has determined that Rhode Island retains sufficient criminal 
enforcement authority under the ECIA to support implementation of 
federal environmental programs, including the Clean Air Act operating 
permit program.

What Is Involved in This Final Action?

    EPA is taking final action to fully approve the State's operating 
permit program.\1\ EPA is also taking action to approve program changes 
Rhode Island made on October 1, 1996, January 1, 1999 and October 26, 
2000, since EPA granted the source category limited-interim approval. 
EPA is publishing this action without prior proposal because the Agency 
views this as a noncontroversial amendment 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 grant full approval should we receive relevant 
adverse comments. This action will be effective November 30, 2001 
unless the Agency receives relevant adverse comments by October 31, 
2001.
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    \1\ EPA's action today granting full approval to this program 
may raise a question about the application deadline for existing 
facilities in Rhode Island. Section 29.4.2(a) of Rhode Island's 
program regulation requires all existing sources subject to the 
program to apply no later than 12 months after EPA's ``full 
approval'' of the program. Therefore, it might appear that EPA's 
full approval at this point triggers the 12-month deadline for 
applications. EPA relies on the Clean Air Act, not state program 
regulations, however, to enforce the application requirement for the 
title V program. Under section 503(c), all sources must apply for a 
title V permit no later than 12 months after becoming subject to the 
program. EPA has consistently interpreted section 503(c) to impose 
the 12-month deadline following an interim, as well as a full, 
approval. All sources existing when Rhode Island first submitted its 
program to EPA must have applied for a permit by the date 12 months 
following the effective date of EPA's interim approval of Rhode 
Island's program, or July 15, 1997.
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    If 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 action will be effective on November 30, 2001.

Administrative Requirements

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this proposed action is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. Under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) the Administrator certifies that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities because it merely approves state law as 
meeting federal requirements and imposes no additional requirements 
beyond those imposed by state law. This rule does not contain any 
unfunded mandates and does not significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4) because it proposes to approve pre-existing 
requirements under state law and does not impose any additional 
enforceable duties beyond that required by state law. This rule also 
does not have tribal implications because it will not have a 
substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR

[[Page 49841]]

67249, November 9, 2000). This rule also does not have Federalism 
implications because it 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, 
``Federalism'' (64 FR 43255, August 10, 1999). The rule merely proposes 
to approve existing requirements under state law, and does not alter 
the relationship or the distribution of power and responsibilities 
between the State and the Federal government established in the Clean 
Air Act. This proposed rule also is not subject to Executive Order 
13045, ``Protection of Children from Environmental Health Risks and 
Safety Risks'' (62 FR 19885, April 23, 1997) or Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001), because it 
is not a significant regulatory action under Executive Order 12866. 
This action will not impose any collection of information subject to 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
other than those previously approved and assigned OMB control number 
2060-0243. For additional information concerning these requirements, 
see 40 CFR part 70. An agency may not conduct or sponsor, and a person 
is not required to respond to, a collection of information unless it 
displays a current valid OMB control number.
    In reviewing State operating permit programs submitted pursuant to 
Title V of the Clean Air Act, EPA will approve State programs provided 
that they meet the requirements of the Clean Air Act and EPA's 
regulations codified at 40 CFR part 70. In this context, in the absence 
of a prior existing requirement for the State to use voluntary 
consensus standards (VCS), EPA has no authority to disapprove a State 
operating permit program for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews an operating 
permit program, to use VCS in place of a State program that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 November 30, 2001. Interested 
parties should comment in response to the rule rather than petition for 
judicial review, unless the objection arises after the comment period 
allowed for in the rule. 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).)

List of Subjects in 40 CFR Part 70

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

    Dated: September 20, 2001.
Robert W. Varney,
Regional Administrator, EPA New England.

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

PART 70--[AMENDED]

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

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

    2. Appendix A to part 70 is amended by adding paragraph (b) in the 
entry for Rhode Island to read as follows:

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

* * * * *

Rhode Island

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    (b) The Rhode Island Department of Environmental Management 
submitted program revisions on October 1, 1996, January 21, 1999 and 
October 26, 2000. EPA is hereby granting Rhode Island full approval 
effective on November 30, 2001.
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[FR Doc. 01-24254 Filed 9-28-01; 8:45 am]
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