[Federal Register Volume 66, Number 233 (Tuesday, December 4, 2001)]
[Rules and Regulations]
[Pages 62945-62946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29959]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[HIO62-OPP; FRL-7111-5]


Clean Air Act Full Approval of the Operating Permits Program; 
State of Hawaii

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to fully approve the State of 
Hawaii's operating permits program. Hawaii's program was submitted in 
response to the directive in the 1990 Clean Air Act (CAA) Amendments 
that permitting authorities develop, and submit to EPA, programs for 
issuing operating permits to all major stationary sources and to 
certain other sources within the permitting authorities' jurisdiction. 
On December 1, 1994 EPA granted interim approval to the Hawaii 
operating permits program. Hawaii revised its program to satisfy the 
conditions of the interim approval, and EPA proposed full approval in 
the Federal Register on October 15, 2001. EPA did not receive any 
comments on the proposed action, so this action promulgates final full 
approval of the State of Hawaii's operating permits program.

EFFECTIVE DATE: This rule is effective on November 30, 2001.

ADDRESSES: Copies of the Hawaii submittal and other supporting 
information used in developing this final full approval are available 
for inspection during normal business hours at the following location: 
U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street, 
San Francisco, California, and Oahu: Clean Air Branch, Department of 
Health, 919 Ala Moana Blvd., Room 203, Honolulu.

FOR FURTHER INFORMATION CONTACT: Robert Baker, EPA Region IX, at (415) 
972-3979 ([email protected]).

SUPPLEMENTARY INFORMATION: This section contains additional information 
about our final rulemaking, organized as follows:

I. Background on the Hawaii operating permits program.
II. Comments received by EPA on our proposed rulemaking and EPA's 
responses.
III. EPA's final action.
IV. Effective date of EPA's full approval of the Hawaii operating 
permits program.

I. Background on the [District/State] Operating Permits Program

    The Clean Air Act (CAA) Amendments of 1990 required all state and 
local permitting authorities to develop operating permits programs that 
meet certain federal criteria. The State of Hawaii's operating permits 
program was submitted in response to this directive. Because the 
State's program substantially, but not fully, met the requirements of 
part 70, EPA granted interim approval to the program in a rulemaking 
published on December 1, 1994 (59 FR 61549). The interim approval 
notice described the conditions that had to be met in order for the 
State program to receive full approval.
    After Hawaii revised its program to address the conditions of the 
interim approval, EPA promulgated a proposal to approve Hawaii's Title 
V operating permits program on October 15, 2001 (66 FR 52368).

II. Comments Received by EPA on Our Proposed Rulemaking and EPA's 
Responses

    EPA did not receive any comments on the proposed action, so this 
action promulgates final full approval of the State of Hawaii's 
operating permits program.

III. EPA's Final Action

    EPA is granting full approval to the operating permits program 
submitted by the State of Hawaii based on the revisions submitted on 
September 21, 2001, which satisfactorily address the program 
deficiencies identified in EPA's July 26, 1994 interim approval (see 59 
FR 37957). In addition, the State has made other changes to its 
operating permit program that are unrelated to the changes made to 
correct interim approval deficiencies. EPA is not taking any action on 
these additional program changes in this notice. EPA will evaluate the 
additional program changes and will take appropriate action at a later 
date.

IV. Effective Date of EPA's Full Approval of the Hawaii Operating 
Permits Program

    EPA is using the good cause exception under the Administrative 
Procedure Act (APA) to make the full approval of the State's program 
effective on November 30, 2001. In relevant part, section 553(d) 
provides that publication of ``a substantive rule shall be made not 
less than 30 days before its effective date, except-- * * * (3) as 
otherwise provided by the agency for good cause found and published 
with the rule. Good cause may be supported by an agency determination 
that a delay in the effective date is ``impracticable, unnecessary, or 
contrary to the public interest.'' EPA believes that it is necessary 
and in the public interest to make this action effective sooner than 30 
days following publication. In this case, EPA believes that it is in 
the public interest for the program to take effect before December 1, 
2001. The interim approved program expires on December 1, 2001. In the 
absence of this approved program taking effect on November 30, the 
federal program would automatically take effect and would remain in 
place until the effective date of the fully-approved state/district 
program. EPA believes it is in the public interest for sources, the 
public and the State to avoid any gap in coverage of the State program, 
as such a gap could cause confusion regarding permitting obligations. 
Furthermore, a delay in the effective date is unnecessary because the 
State of Hawaii has been administering the Title V permit program for 
seven years under an interim approval. Through this action, EPA is 
approving a few revisions to the existing and currently operational 
program. The change from the interim approved program which 
substantially but did not fully meet the part 70 requirements, to the 
fully approved program is relatively minor, in particular if compared 
to the changes between a state approved program and the federal 
program. Finally, sources are already complying with all of the newly 
approved requirements as a matter of state law. Thus, there is little 
or no additional burden with complying with these requirements under 
the federally approved program.

Administrative Requirements

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this final approval 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 final 
approval 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

[[Page 62946]]

contain any unfunded mandates and does not significantly or uniquely 
affect small governments, as described in the Unfunded Mandates Reform 
Act of 1995 (Pub. L. 104-4) because it approves 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 
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). This rule merely 
approves 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 final approval 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 currently 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.
    The Congressional Review Act, 5 U.S.C. Section 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. 
section 804(2). This rule will be effective on November 30, 2001.
    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 February 4, 2002. 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: November 27, 2001.
Wayne Nastri,
Regional Administrator, Region 9.

    40 CFR part 70, chapter I, 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) under 
Hawaii to read as follows:

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

* * * * *
Hawaii
* * * * *
    (b) Revisions were submitted on September 21, 2001. The rule 
amendments contained in the September 21, 2001 submittal adequately 
addressed the conditions of the interim approval effective on December 
1, 1994. The Department of Health, State of Hawaii, is hereby granted 
final full approval effective on November 30, 2001.
* * * * *
[FR Doc. 01-29959 Filed 12-3-01; 8:45 am]
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