[Federal Register Volume 66, Number 214 (Monday, November 5, 2001)]
[Rules and Regulations]
[Pages 55883-55885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27595]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 70 and 71

[FRL-7096-4]
RIN 2060-AJ04


State and Federal Operating Permits Programs: Amendments to the 
Compliance Certification Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct Final Rule, removal of amendments.

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SUMMARY: We, EPA, received adverse comment, on the direct final action 
published on March 1, 2001 (66 FR 12872) to amend the State Operating 
Permits Program and the Federal Operating Permits Program. We had 
stated in that direct final action that, if we received adverse comment 
by April 2, 2001, we would publish a timely withdrawal in the Federal 
Register. We, however, did not publish the withdrawal prior to the 
April 30, 2001, effective date of the direct final rule. In this 
action, we are removing the amendments that were published in the March 
1, 2001 direct final rule. We will address the adverse comment in a 
subsequent final action based on the parallel proposal also published 
on March 1, 2001 (66 FR 12916). We have determined that there is good 
cause for making this rule final without notice and comment procedures 
because under the terms of the March 1, 2001 direct final action, no 
amendment to the State and Federal Operating Permits Programs should 
have occurred. Thus, notice and comment are contrary to the public 
interest and unnecessary. We find that this constitutes good cause 
under 5 U.S.C. 553(b)(B) and 553(d).

DATES: This action is effective November 5, 2001.

ADDRESSES: Docket No. A-91-52, containing information relevant to the 
direct final action being withdrawn, is available for public inspection 
between 8 a.m. and 5:30 p.m., Monday through Friday (except for Federal 
holidays) at the following address: Air and Radiation Docket and 
Information Center (6102), U.S. Environmental Protection Agency, 401 M 
Street, SW., Room 1500, Washington, DC 20460 or by phoning the Air 
Docket Office at (202) 260-7548. Refer to Docket No. A-91-52. The 
Docket Office may charge a reasonable fee for copying docket materials.

FOR FURTHER INFORMATION CONTACT: Peter Westlin, Environmental 
Protection Agency, Office Air Quality Planning and Standards, at 919/
541-1058, e-mail: [email protected], facsimile 919/541-1039.

SUPPLEMENTARY INFORMATION: On October 22, 1997 (62 FR 54900), we 
published the final part 64, Compliance Assurance Monitoring (CAM) 
rule, and revisions to parts 70 and 71, the State and Federal Operating 
Permits Programs. Part 64 included procedures, design specifications, 
and performance criteria intended to satisfy, in part, the enhanced 
monitoring requirements of the Clean Air Act (``the Act''). The 
revisions to parts 70 and 71 included language to Secs. 
70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B) specifying the minimum 
information necessary for the compliance certification required of

[[Page 55884]]

responsible officials. Subsequent to that publication, the Natural 
Resources Defense Council, Inc. (NRDC) and the Appalachian Power 
Company et al. (industry) filed petitions with the United States Court 
of Appeals for the District of Columbia Circuit (Court) challenging 
several aspects of the CAM rule. In particular, the NRDC argued that 
the parts 70 and 71 revisions were inconsistent with the Act's explicit 
requirement that compliance certifications indicate whether compliance 
is continuous or intermittent. On October 29, 1999, the Court issued 
its decision (see docket A-91-52, item VIII-A-1) Natural Resources 
Defense Council v. EPA, 194 F.3d 130 (D.C. Cir. 1999) and agreed with 
NRDC that EPA's removal from parts 70 and 71 of the explicit 
requirement that compliance certifications address whether compliance 
is continuous or intermittent revisions ran contrary to the statutory 
requirement that each source must certify ``whether compliance is 
continuous or intermittent * * *''
    On March 1, 2001, we published a direct final action (66 FR 12872) 
and a parallel proposal (66 FR 12916) to amend the State Operating 
Permits Program and the Federal Operating Permits Program to effect the 
direction expressed in the remand. We stated in the direct final action 
that if we received adverse comment by April 2, 2001, we would publish 
a withdrawal in the Federal Register informing you that this direct 
final rule will not take effect. We received several adverse comments 
and, therefore, took steps to withdraw the direct final action. The 
withdrawal action, however, was not published prior to April 30, 2001, 
the date upon which the direct final rule amending Parts 70 and 71 took 
effect.
    Because we received several adverse comments on the amendments to 
the State and Federal Operating Permits Programs, the direct final rule 
effecting those amendments, by its terms, should not have become 
effective. We, therefore, are hereby removing those amendments in 
today's action.
    This removal action is simply a ministerial correction of the prior 
direct final rulemaking, which by its terms should not have become 
effective because several parties commented adversely on the amendments 
to the State and Federal Operating Permits Programs. Therefore, we are 
invoking the good cause exception under the Administrative Procedure 
Act (APA), 5 U.S.C. 553(b)(3)(B) because we believe that notice-and-
comment rulemaking of this removal action is contrary to the public 
interest and unnecessary. This removal action merely restores the 
regulatory text that existed prior to the direct final rule. We stated 
in the March 1, 2001 direct final action that should adverse comment be 
received, the rule would not take effect. The rule took effect because 
we did not publish a timely withdrawal in the Federal Register prior to 
the rule's effective date. It would be contrary to the public interest 
to keep that final rule in effect when it should not have taken effect 
since adverse comment was received. Additionally, further notice-and-
comment on this action is unnecessary because we are merely restoring 
the regulatory text that existed prior to the final rule. For the same 
reasons, we believe there is good cause for this removal to become 
effective upon publication. We will address all public comments in a 
subsequent final action on the parallel proposed rule amendment.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and is therefore not 
subject to review by the Office of Management and Budget. Executive 
Order 13175, Consultation and Coordination with Indian Tribal 
Governments does not apply to this action. Because this action is not 
subject to notice-and-comment requirements under the Administrative 
Procedure Act or any other statute, it is not subject to the regulatory 
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.) or sections 202 and 205 of the Unfunded Mandates Reform Act of 
1995 (Pub. L. 104-4). This rule also is not subject to Executive Order 
13045 (62 FR 19885, April 23, 1997) because EPA interprets E.O. 13045 
as applying only to those regulatory actions that are based on health 
or safety risks, such that the analysis required under section 5-501 of 
the Order has the potential to influence the regulation. This rule is 
not subject to Executive Order 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks. 
This rule is not subject to Executive Order 13211, Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use because it is not a significant regulatory action under Executive 
Order 12866. This notice does not have any federalism implications 
under Executive Order 13132. The Paper Reduction Act, the Unfunded 
Mandates Reform Act, and the National Technology Transfer and 
Advancement Act do not apply here. 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. Section 
808 allows the issuing agency to make a rule effective sooner than 
otherwise provided by the CRA if the agency makes a good cause finding 
that notice and public procedure is impracticable, unnecessary or 
contrary to the public interest. This determination must be supported 
by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has 
made such a good cause finding, including the reasons therefore, and 
established an effective date of November 5, 2001. 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 action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

    Dated: October 25, 2001.
Christine Todd Whitman,
Administrator.

    For the reasons stated in the preamble, we amend title 40, chapter 
I, parts 70 and 71 of the Code of Federal Regulations to read as 
follows:

PART 70--STATE OPERATING PERMIT PROGRAMS

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

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


    2. Section 70.6 is amended by revising paragraph (c)(5)(iii)(C) to 
read as follows:


Sec. 70.6  Permit content.

* * * * *
    (c) * * *
    (5) * * *
    (iii) * * *
    (C) The status of compliance with the terms and conditions of the 
permit for the period covered by the certification, based on the method 
or means designated in paragraph (c)(5)(iii)(B) of this section. The 
certification shall identify each deviation and take it into account in 
the compliance certification. The certification shall also identify as 
possible exceptions to compliance any periods during which compliance 
is required and in which an excursion or exceedance as defined under 
part 64 of this chapter occurred; and
* * * * *


[[Page 55885]]



PART 71--FEDERAL OPERATING PERMITS PROGRAMS

    1. The authority citation for part 71 continues to read as follows:

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


    2. Section 71.6 is amended by revising paragraph (c)(5)(iii)(C) to 
read as follows:


Sec. 71.6  Permit content.

* * * * *
    (c) * * *
    (5) * * *
    (iii) * * *
    (C) The status of compliance with the terms and conditions of the 
permit for the period covered by the certification, based on the method 
or means designated in paragraph (c)(5)(iii)(B) of this section. The 
certification shall identify each deviation and take it into account in 
the compliance certification; and
* * * * *

[FR Doc. 01-27595 Filed 11-2-01; 8:45 am]
BILLING CODE 6560-50-P