[Federal Register Volume 68, Number 73 (Wednesday, April 16, 2003)]
[Rules and Regulations]
[Pages 18548-18550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-9343]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[DC-T5-2003-01a; FRL-7483-6]


Clean Air Act Approval of Operating Permits Program Revision; 
District of Columbia

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the 
District of Columbia's Clean Air Act title V operating permit program, 
pertaining to requirements for public notification of permit actions. 
In a notice of deficiency (NOD) published in the Federal Register on 
December 21, 2001, EPA notified the District of Columbia of EPA's 
finding that the District's provisions for providing public 
notification of permitting actions did not fully comply with the 
requirements of the Clean Air Act (CAA) and its implementing 
regulations. Direct final approval of this program revision resolves 
the deficiency identified in the NOD and the District of Columbia 
maintains final full approval of the Clean Air Act title V operating 
permits program.

EFFECTIVE DATE: This rule is effective on June 2, 2003 without further 
notice, unless EPA receives adverse written comment by May 16, 2003. If 
EPA receives such comments, it 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: Written comments may be mailed to Kristeen Gaffney, Acting 
Chief, Permits and Technical Assessment Branch, Mailcode 3AP11, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. Copies of the documents relevant to 
this action are available for public inspection during normal business 
hours at the Air Protection Division, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103 
and District of Columbia Department of Health, Air Quality Division, 51 
N Street, NE., Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT: Paresh R. Pandya, U.S. Environmental 
Protection Agency, Region III (3AP11), 1650 Arch Street, Philadelphia, 
PA 19103 at (215) 814-2167, or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    The EPA granted final interim approval of the District of 
Columbia's operating permit program on August 7, 1995 (60 FR 40101). 
The District amended its operating permit program to address 
deficiencies identified in the interim approval action. The EPA 
proposed full approval of the District of Columbia's operating permit 
program in the Federal Register on October 16,

[[Page 18549]]

2001 (66 FR 52538). Adverse comments were received and EPA withdrew 
that approval. A final rulemaking action was published in the Federal 
Register on December 4, 2001 (66 FR 62954) which summarized the adverse 
comments, provided EPA's responses, and promulgated final full approval 
of the District of Columbia's operating permit program. Subsequently, 
in reevaluating the commenter's concerns, EPA agreed that the commenter 
had identified a deficiency in the District of Columbia's title V 
operating permit program relating to the District of Columbia's public 
notification requirements. The EPA published a notice of deficiency 
(NOD) in the Federal Register (pursuant to 40 CFR 70.4(i) and 70.10(b)) 
on December 21, 2001 (66 FR 65947) to notify the District of Columbia 
and the public that EPA found a deficiency in the District of 
Columbia's title V operating permit program. The deficiency relates to 
the District of Columbia's regulatory authority to provide public 
notification of permit actions.

II. Description of Action

    The EPA's regulations at 40 CFR 70.7(h) and 70.7(d)(3)(i) provide 
that public notice shall be provided for all permit proceedings, except 
those qualifying as administrative permit amendments or minor permit 
modifications. Such public notification shall be provided by a number 
of means, including ``by publication in a newspaper of general 
circulation in the area where the source is located or in a State 
publication designed to give general public notice; to persons on a 
mailing list developed by the permitting authority, including those who 
request in writing to be on the list; and by other means if necessary 
to assure adequate notice to the affected public.'' See, 40 CFR 
70.7(h)(1). EPA's regulations at 40 CFR 70.4(b)(16) require that State 
part 70 program submittals contain provisions requiring the permitting 
authority to implement the requirements of 40 CFR 70.7. The District of 
Columbia's operating permit program regulations at 20 DCMR 303.10 
required that public notice of draft initial permits, significant 
modifications and permit renewals be published in the District of 
Columbia Register and that copies of such notice be sent to persons on 
a permit mailing list. However, the regulations did not expressly 
require that ``other means'' be employed if necessary to assure 
adequate public notice. Because the District of Columbia's operating 
permit program regulations did not require the District to provide 
public notice by other means if necessary to assure adequate notice to 
the affected public, the District of Columbia's operating permit 
program did not fully comply with the requirements of the Clean Air Act 
and 40 CFR part 70.
    Title V provides for the approval of State programs for the 
issuance of operating permits that incorporate the applicable 
requirements of the Clean Air Act. To receive title V program approval, 
a State permitting authority must submit a program to EPA that meets 
certain minimum criteria, and EPA must disapprove a program that fails, 
or withdraw an approved program that subsequently fails, to meet these 
criteria. These criteria include requirements for proper public 
participation procedures (40 CFR 70.7(h)).
    The EPA's title V implementing regulations at 40 CFR 70.4 and 
70.10(b) and (c) provide that EPA may withdraw a part 70 program 
approval, in whole or in part, whenever the approved program no longer 
complies with the requirements of part 70 and the permitting authority 
fails to take corrective action. A list of potential bases for program 
withdrawal is provided at 40 CFR 70.10(c)(1)(i), and includes the case 
where the permitting authority's legal authority does not meet the 
requirements of 40 CFR part 70.

III. Final Action

    On April 4, 2003, the District of Columbia submitted revisions to 
20 DCMR 303.10(a)(1)(B) which require that a notice be published in the 
District of Columbia Register and using any ``other means'' necessary 
to assure adequate notice to the affected public of the application, 
the preliminary determination, the location of the public file and the 
procedures for submitting written comments and requesting a hearing. 
With this amendment to 20 DCMR 303.10(a)(1)(B), the District of 
Columbia has adequately resolved the deficiency EPA identified in its 
December 21, 2001 notice of deficiency and maintains final full 
approval of the Clean Air Act title V operating permits program.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comment. However, in the ``Proposed Rules'' section of today's 
Federal Register, EPA is publishing a separate document that will serve 
as the proposal to approve the operating permit program revisions if 
adverse comments are filed relevant to the issues discussed in this 
action. This rule will be effective on June 2, 2003 without further 
notice unless EPA receives adverse comments by May 16, 2003. If EPA 
receives adverse comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect. EPA will address all public comments in a subsequent final rule 
based on the proposed rule. EPA will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4). 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 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
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 (64 FR 43255, August 10, 1999). 
This action merely approves a state rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the

[[Page 18550]]

Clean Air Act. This 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), because it is not economically 
significant.
    In reviewing state operating permit program submissions, EPA's role 
is to approve state choices, provided that they meet the criteria of 
the Clean Air Act. 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 an operating permits program 
submission for failure to use VCS. It would thus be inconsistent with 
applicable law for EPA, when it reviews an operating permit program 
submission, to use VCS in place of an operating permit program 
submission 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.).

B. 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).

C. 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 June 16, 2003. 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 approving revisions to the District of Columbia 
operating permit program 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, Reporting and 
recordkeeping requirements.

    Dated: April 9, 2003.
James W. Newsom,
Acting Regional Administrator, Region III.

0
Appendix A of part 70 of title 40, chapter I, of the Code of Federal 
Regulations is amended as follows:

PART 70--[AMENDED]

0
1. The authority citation for part 70 continues to read as follows:

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

0
2. Appendix A to part 70 is amended by adding paragraph (c) in the 
entry for the District of Columbia to read as follows:

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

* * * * *
District of Columbia
* * * * *
    (c) The District of Columbia Department of Health submitted 
program amendments on April 4, 2003. The rule amendments contained 
in the April 4, 2003 submittal adequately addressed the deficiency 
identified in the Notice of Deficiency effective on December 13, 
2001. The District of Columbia hereby maintains final full approval 
effective on June 2, 2003.
* * * * *

[FR Doc. 03-9343 Filed 4-15-03; 8:45 am]
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