ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[FRL-5521-4]
RIN 2060-AF70
Operating Permits Program Interim Approval Criteria
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: The EPA is promulgating revisions to the interim
approval criteria within the regulations in part 70, chapter I,
title 40, of the Code of Federal Regulations (CFR). Part 70
contains regulations requiring States to develop, and submit to
EPA for approval, programs for issuing operating permits to
major, and certain other, stationary sources of air pollution as
required by title V of the Clean Air Act (Act). Two changes to
the interim approval criteria were proposed on August 29, 1994 to
address difficulties in program development that have occurred
since promulgation of part 70. Todayþs action finalizes one of
those changes; the other will be finalized in a subsequent
action.
As a result of todayþs revision to part 70, certain State
operating permit programs will become eligible for interim
program approval. Without todayþs changes, these programs would
not have been eligible for interim program approval under the
part 70 regulations. Specifically, interim approval may now be
granted for programs which do not provide for the incorporation
of terms contained in permits issued under EPA-approved minor
source preconstruction permit programs into corresponding part 70
permits.
To be eligible for this interim approval, such programs
would have to show compelling reasons for the interim approval
and meet certain other requirements regarding the content of part
70 permits that exclude these applicable preconstruction permit
terms during the 2-year interim period. After 2 years, interim
approval expires and the State must have revised its program to
address the exclusion of these terms, and any other deficiencies,
in order to receive full approval.
EFFECTIVE DATE: [Insert date 30 days after publication in the
Federal Register].
FOR FURTHER INFORMATION CONTACT: Michael Ling (telephone number
919-541-4729), U. S. Environmental Protection Agency, Office of
Air Quality Planning and Standards, Information Transfer and
Program Integration Division, Mail Drop 12, Research Triangle
Park, North Carolina 27711.
SUPPLEMENTARY INFORMATION:
Regulated entities
Entities potentially regulated by this action are those
State, local, or tribal governments who seek approval of their
part 70 operating permit programs, but whose programs do not
include minor preconstruction permit terms in their part 70
permits. Regulated categories include: Category Examples of regulated entities State/Local/Tribal Government Governments who have developed
operating permit programs that
exclude minor NSR terms from
title V permits and who seek
EPA approval of such programs
under the part 70 regulations.
This table is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be regulated by
this action. This table lists the types of entities that EPA is
now aware could potentially be affected by this action. If you
have questions regarding the applicability of this action to a
particular entity, consult the person listed in the preceding
þFOR FURTHER INFORMATION CONTACTþ section.
Docket
Supporting information used in developing the part 70 rules,
including todayþs promulgated change, is contained in docket
number A-93-50. This docket is available for public inspection
and copying between 8:30 a.m. and 3:30 p.m. Monday through
Friday, at EPA's Air Docket, Room M-1500, Waterside Mall, 401 M
Street SW, Washington, D.C. 20460. A reasonable fee may be
charged for copying.
I. Background and Purpose
A. Introduction. Title V of the Clean Air Act Amendments
of 1990 (1990 Amendments), Public Law 101-549, requires EPA to
promulgate regulations establishing the requirements for
development and submittal of State operating permit programs and
the minimum elements these programs must contain to be
approvable. On July, 21, 1992, EPA published regulations meeting
these requirements in the Federal Register (57 FR 32250).
Title V and the part 70 regulations require States and local
agencies to submit operating permit programs to EPA within 3
years of enactment of the 1990 Amendments, and require EPA to
take action within 1 year of program submittal to approve or
disapprove these programs. Section 502(g) of the Act allows EPA
to grant interim approval to a program if it þsubstantially
meetsþ the requirements of title V but is not fully approvable.
Interim approval may be granted for a period of up to 2 years and
may not be renewed. The interim approval provision allows
permitting authorities time to correct the program deficiencies
preventing full approval. The minimum elements that a program
must contain to be eligible for interim approval are contained in
70.4(d).
The EPA proposed two changes to the interim approval
criteria on August 29, 1994 (59 FR 44571). The first change
would allow interim approval for part 70 programs which allow
permits to be revised through the minor permit modification
procedure to reflect those changes at a facility which is subject
to EPA-approved minor source preconstruction permit requirements,
commonly referred to as þminor new source reviewþ (minor NSR)
changes. Because this proposal is linked to proposed changes to
the permit revision system, which EPA is not yet ready to
finalize, and because current EPA policy already allows for
approval of programs which allow changes established through
minor NSR to be addressed using minor permit modification
procedures, EPA is not taking final action on this proposed
change in todayþs rulemaking.
The second proposed change to the interim approval criteria
addresses programs that do not incorporate terms and conditions
into a sourceþs part 70 permit which are established through an
EPA-approved minor NSR program. Title V and part 70 require a
permit to contain provisions which assure compliance with all
applicable requirements (section 502(b)(5)(A) of the Act, 40 CFR
70.6(a)). The definition of the term þapplicable requirementþ in
part 70 includes requirements established through minor NSR
permitting procedures ( 70.2). The proposed change to part 70
would, for the period of interim approval, allow part 70 permits
to be issued and revised without incorporating those terms and
conditions that are applicable requirements solely because they
are established through minor NSR. These minor NSR terms and
conditions would still remain federally enforceable through the
provisions of the minor NSR program. In todayþs notice, EPA is
taking final action on this proposed rule change.
B. Summary of Proposed Changes Addressing Applicable
Requirements. The August 29, 1994 proposal noted that, in order
to be eligible for interim approval, a program must contain
adequate authority to issue permits that assure compliance with
all applicable requirements including all applicable requirements
under title I of the Act [see 70.4(d)(3)(ii) and 70.4(c)(1)].
The proposal explained that EPA believes the term þapplicable
requirementsþ clearly includes all terms and conditions of minor
NSR permits. Therefore, a part 70 program that would not provide
for incorporating into permits those requirements established
through the EPA-approved minor NSR program would be prohibited by
70.4(d)(3)(ii) from receiving interim approval.
One State, Texas, argued that there are compelling reasons
supporting its exclusion of minor NSR requirements as title V
applicable requirements, and that its submitted part 70 program
should thus be eligible for approval. Although EPA reads 70.2
and 70.6(a)(1) to unequivocally require minor NSR terms to be
applicable requirements (meaning that the submitted Texas program
could not obtain full approval), the Agency proposed that Texasþ
demonstration of compelling reasons warranted further
consideration of the submitted program for interim approval on
the basis that it substantially meets the requirements of
title V. Texasþ demonstration of compelling reasons included the
following arguments: (1) Texasþ existing minor NSR program is so
stringent that the integration of all its minor NSR terms would
be infeasible and unnecessary for environmental protection;
(2) Texas has an exceptionally large number of part 70 sources
which are candidates for minor NSR, making part 70 permitting
difficult and time-consuming; and (3) Texas believes that its
system of cross-referencing minor NSR permits in part 70 permits
will serve essentially the same program purposes as inclusion of
the minor NSR requirements themselves, rendering direct inclusion
of these requirements unnecessary from Texasþ viewpoint.
On the basis of this type of showing, EPA proposed to
consider interim approval for programs facing significant minor
NSR/part 70 integration difficulties. The proposal further
provided that, for a program operating under this type of interim
approval: (1) each part 70 permit issued during the interim
approval must (if applicable) state that applicable minor NSR
requirements are not included; (2) each minor NSR permit
containing requirements applicable to the source must be cross-
referenced in the sourceþs part 70 permit so that citizens may
access and review those requirements; (3) excluded minor NSR
requirements would not be eligible for the permit shield under
70.6(f); and (4) upon conversion to full approval, all permits
issued during the interim approval period that excluded minor NSR
terms would have to be reopened to include these terms.
Although the exclusion of minor NSR means that important
title V compliance measures (e.g., compliance certification,
public review, etc.) will be deferred for 2 years for minor NSR
terms, the proposed provisions would limit the scope and duration
of the effects of this deferral, and would assure that the public
could examine, in federally-enforceable NSR permits, any terms
which are not subject to title Vþs compliance measures during the
interim period. This helps strengthen the proposalþs position
that programs which exclude minor NSR terms could þsubstantially
meetþ the requirements of part 70 and receive interim approval.
However, EPA reiterates that all compliance measures contained in
title V must be applied to all applicable requirements, including
minor NSR terms, before a part 70 program can receive full
approval.
II. Discussion of Todayþs Action
A. Summary of Changes Since Proposal. In response to
comments, EPA is making three minor rule changes to clarify the
requirements discussed in the proposal preamble. These include:
(1) adding rule language clarifying that any excluded NSR permits
must be cross-referenced in the applicable part 70 permit; (2)
adding rule language clarifying that excluded NSR requirements
would not be eligible for the permit shield under 70.6(f); and
(3) adding rule language clarifying that, upon conversion to full
approval, permits issued during the interim period would have to
be revised or reopened to include any excluded minor NSR terms.
Regarding reopening, todayþs rule also provides for a streamlined
reopening process for excluded minor NSR terms that does not
require the full permit issuance process. The rule provisions
are also being rearranged into separate paragraphs in the final
rule for clarity. In addition to these rule clarifications, the
EPA also reiterates in todayþs preamble its position that minor
NSR is an applicable requirement for part 70 purposes.
Additional discussion is also provided on the proposed
þcompelling reasonsþ demonstration requirement being promulgated
today.
B. Significant Comments and Responses. The August 29, 1994
proposal concerning interim approval criteria was grouped with a
larger proposal revising the part 70 permit revision system
(published separately at 59 FR 44459). The EPA received a total
of 246 comment letters on these two proposals, some of which
addressed each action separately and some of which addressed both
actions together. This section addresses only the major comments
received on the proposed revision to the interim approval
criteria regarding minor NSR as an applicable requirement.
Discussion of additional issues raised by the commenters related
to todayþs action is contained in the technical support document
for this rule, which is included in the docket for todayþs
rulemaking. Comments on other proposed changes to the interim
approval criteria not addressed by todayþs rule change, including
comments on other aspects of the August 1994 proposals (as well
as the August 31, 1995 proposal which supplemented the August
1994 notice on permit revisions), will be addressed in a future
rulemaking.
1. Minor NSR as an Applicable Requirement. Several
commenters asserted that revisions to the interim approval
criteria are unnecessary because minor NSR is not an "applicable
requirement" under part 70. The EPA notes that it has the
authority to promulgate this revision to the interim approval
criteria regardless of the correctness of the assertion that
minor NSR is not an applicable requirement. However, EPA also
disagrees with the commentersþ assertion, and stands by the
position and the rationale articulated in the proposal, that
minor NSR is an applicable requirement. Key points of this
rationale are reiterated below in response to comments received,
and are discussed further in the technical support document found
in the docket.
One commenter disagreed with EPA's reading of the part 70
definition of "applicable requirement," noting that something is
not necessarily an "applicable requirement" simply because it is
a requirement of the Act. The EPA agrees with this broad
statement, noting--for example--that requirements of title II are
not "applicable requirements." However, EPA sees no basis for
concluding that minor NSR permits issued under a State
implementation plan (SIP) approved program are not applicable
requirements. Furthermore, as explained in the proposal
preamble, EPA believes the part 70 rule is clear in defining
"applicable requirements" to include minor NSR. A challenge to
this point should have been raised in the context of the July 21,
1992 promulgation of part 70.
Another commenter argued more broadly that the intent of the
Act is to regulate major sources while allowing States to
regulate minor sources through minor NSR programs. The EPA
disagrees. Section 110(a)(2)(c) of the Act and EPA's regulations
at 51.161 clearly establish Federal requirements for
preconstruction review of activities below the NSR major source
applicability thresholds. The EPA further disagrees with this
commenter's assertion that its argument is supported by EPA's
proposed resolution of the "title I modifications" issue. A
determination by EPA that "title I modifications" do not include
minor NSR actions does not mean that minor NSR programs are
optional under the Act.
A commenter also noted that many State minor NSR programs go
beyond the Federal minimum, and that a detailed analysis would be
necessary to determine the precise extent to which a minor NSR
program is necessary to attain and maintain the national ambient
air quality standards (NAAQS). The EPA disagrees that any such
analysis is necessary or appropriate. A State that submitted a
minor NSR program for approval into the SIP presumably did so
because it believed that the submitted program was necessary to
attain and maintain the NAAQS. The EPA believes this is the only
reasonable presumption that can be made in retrospect.
Although EPA reiterates that minor NSR terms are applicable
requirements, EPA also recognizes that certain terms found in
existing NSR permits (including minor NSR permits) may be
obsolete, extraneous, environmentally insignificant, or otherwise
not required as part of the SIP or a federally-enforceable NSR
program. Inclusion of these terms in a part 70 permit could
present program implementation difficulties and is not needed to
fulfill the purposes of the Act. Noting this, EPA issued a
policy addressing incorporation of these permit terms into part
70 permits. This policy is described in þWhite Paper for
Streamlined Development of Part 70 Permit Applications, July 10,
1995þ (White Paper). The White Paper states that, although minor
NSR permit terms are applicable requirements, the permitting
authority may use a joint title V/NSR þparallel processþ to make
appropriate revisions to an NSR permit to exclude NSR terms which
are obsolete, unrelated to attainment and maintenance of a NAAQS,
extraneous, or otherwise environmentally insignificant. By
revising the underlying NSR permit to delete, revise, or
designate as State-only these unnecessary minor NSR permit terms,
the permit authority has discretion to exclude these terms from
the set of federally-enforceable minor NSR conditions, and thus
from the definition of þapplicable requirementþ for part 70
purposes.
The EPA notes that programs which exclude minor NSR as an
applicable requirement under todayþs approach to interim
approval, and which seek to streamline minor NSR permits using a
White Paper approach, would not need to have revised existing
minor NSR permits in this way until conversion to full approval,
because these programs will not include minor NSR terms in part
70 permits until that time. However, programs considering this
type of parallel processing are encouraged to consult the White
Paper and begin this permit revision process, so that the task of
streamlining minor NSR permits does not conflict with other
permit authority responsibilities at the time full approval is
received.
2. Demonstration of þCompelling Reasonsþ. The proposal
allows EPA to grant interim approval to part 70 programs that do
not include minor NSR as an applicable requirement upon a showing
by the permitting authority of þcompelling reasonsþ which support
the interim approval. One commenter stated that the requirement
for compelling reasons is unworkable and should be deleted, and
that EPA does not provide guidance on what constitutes compelling
reasons. The EPA disagrees that the compelling reasons
requirement should be deleted, and does not believe that
additional guidance on compelling reasons is necessary for
reasons explained below.
The EPA believes it is important to include a requirement
that a State demonstrate compelling reasons to grant interim
approval if a part 70 program excludes minor NSR from the
definition of þapplicable requirement.þ The EPA believes, in
general, that an interim approval on this basis is undesirable
because it delays the implementation of title V for a large
number of Act requirements at a large number of sources, and is a
significant departure from the part 70 regulations. The Agency
believes that this type of departure should be made only for
those programs that demonstrate a strong need for the interim
exclusion of minor NSR. Therefore, the Agency is requiring that
such programs demonstrate compelling reasons for granting the
interim approval.
Two commenters also asserted that EPA has no basis under the
Act to require States to show compelling reasons for granting
interim approval; EPA disagrees. Section 502(g) of the Act gives
EPA broad discretion as to when and how it grants interim
approval. This discretion includes requiring that a State show
compelling reasons before making significant departures from part
70. The commenters presented no basis, nor does EPA see any
reason, to remove the þcompelling reasonsþ requirement.
The þcompelling reasonsþ demonstration should be based
primarily on a showing that extraordinary difficulties would be
encountered in incorporating minor NSR terms into initial title V
permits. It is also appropriate to include in the demonstration
any measures the State is taking in its interim part 70 program
to support the implementation of the excluded minor NSR program.
The EPA reserves its discretion to evaluate demonstrations of
compelling reasons on a case-by-case basis, with consideration
given to the degree of the minor NSR/title V integration
difficulties and the extent to which the State part 70 program
addresses minor NSR implementation in the interim. Because of
the case-by-case nature of such decisions, EPA cannot provide
prescriptive criteria for the compelling reasons demonstration.
The Texas demonstration of compelling reasons, described in
the August 1994 proposal, is an example of the type of
demonstration that could be considered for interim approval under
todayþs rule. Texas argued that: (1) its minor NSR program is
so stringent that integration of all minor NSR terms would be
infeasible; (2) it has an exceptionally large number of part 70
sources which receive minor NSR; and (3) its part 70 program
would cross-reference minor NSR permits in part 70 permits (i.e.,
identifies in each part 70 permit the applicable minor NSR
permits, but does not incorporate by reference the requirements
of minor NSR into the part 70 permit).
Although EPA does not believe that the existence of a
stringent minor NSR program justifies exclusion of minor NSR from
a title V program, the Agency acknowledges that a program such as
Texasþ does produce an extremely large number of minor NSR
permits, because of both its inclusive applicability provisions
and because of the large number of facilities statewide. Thus,
integration of minor NSR permits into initial title V permits
presents significant difficulty in Texas. Similarly, although
EPA does not believe that simply cross-referencing minor NSR
permits satisfies title V, EPA acknowledges that the cross-
referencing requirement in Texasþ part 70 program serves to
provide additional notice in part 70 permits when minor NSR
applies to a facility. Although this measure falls short of the
permit content requirements of a fully-approvable title V
program, EPA believes it is appropriate for a State to reference
such measures in its compelling reasons demonstration.
Therefore, because of the combination of integration difficulties
and program measures, EPA would consider such a program for
interim approval. The EPA notes that todayþs notice is not
intended to present the Agencyþs position as to whether Texasþ
compelling reasons demonstration (together with the rest of its
program) warrants interim approval under the revised criteria.
Rather, todayþs rule simply provides for the possibility that
such a program could be considered for interim approval in light
of the fact that it excludes minor NSR terms from part 70
permits.
In addition to requiring a showing of compelling reasons,
the proposal preamble noted that EPA will consider the following
as factors against this type of interim approval: (1) whether a
programþs exclusion of minor NSR terms will diminish the
effectiveness of the Stateþs minor NSR program during the interim
period; and (2) whether the State has already submitted a part 70
program that included minor NSR as an applicable requirement. It
is recommended that States considering excluding minor NSR as an
applicable requirement carefully consider whether, in light of
these factors, its reasons for the exclusion truly constitute a
compelling need. Such States should also consider whether the
time delays in program approval associated with necessary program
changes and the development of a case-by-case analysis of
compelling reasons are worth the interim relief that may be
achieved through the temporary exclusion of minor NSR from title
V permitting.
3. Incorporation of Minor NSR on Transition to Full
Approval. The proposal preamble noted that a part 70 program
which does not incorporate minor NSR as an applicable requirement
must, upon conversion from interim to full approval, provide for
the reopening of permits issued during the interim period in
order to include the excluded minor NSR requirements in each part
70 permit. Three commenters stated that such a reopening would
be unnecessary and impractical. The commenters were concerned
about the timing and impact of the resource burden imposed on
sources and on permitting authorities by the reopening process,
which, in accordance with 70.7(f)(2), must follow the same
procedural requirements as permit issuance. They felt that
reopening was an unnecessary procedural burden with little
environmental benefit and believed that minor NSR terms could be
included at renewal, rather than reopening, with little adverse
impact.
While EPA is sensitive to resource concerns, the Agency does
not agree that these concerns should result in exclusion of minor
NSR terms from title V permits until renewal. The EPA, in
proposing to allow this type of interim approval, did not
contemplate that minor NSR applicable requirements could be
excluded until renewal, which could be up to 5 years after full
program approval. Furthermore, part of the rationale for
granting interim approval is that the excluded minor NSR terms
are subject to other safeguards in the part 70 regulations. One
such safeguard is the reopening of permits when interim approval
expires to incorporate excluded applicable requirements. Without
such a safeguard, minor NSR terms would not be subject to key
provisions of title V, such as annual compliance certification,
recordkeeping and reporting, and other similar requirements, for
up to 5 years.
The EPA does agree that, if reopenings to incorporate
excluded minor NSR permits must follow the same procedural
requirements as full permit issuance, the process of reopening
each permit issued during the interim approval period could
impose considerable administrative burden at a time when the
permitting authority is still also processing initial permit
applications. This burden is greatly mitigated in Texas where
the earliest permits, and hence the ones requiring reopening, are
for the simplest sources and source categories. The EPA believes
that remaining concerns over the resource burden associated with
reopenings will be reasonably addressed by the provisions
discussed below.
The EPA reiterates that any permit issued during the interim
period must, upon transition to full approval, assure compliance
with the permit content requirements of title V (i.e., 70.6(a)
and (c)) for all applicable requirements, including the
previously excluded minor NSR terms. However, the Act does not
specifically require a full reopening when interim approval
expires as the only means to achieve this end. The EPA believes
that excluded minor NSR applicable requirements may be brought on
to the title V permit prior to or upon full program approval
using procedures more streamlined than full reopening. This is
because some of the excluded minor NSR requirements have already
been subjected to some title V procedural requirements (e.g.,
public review) during issuance of the NSR permit. The EPA
recognizes that under this approach, other excluded minor NSR
terms will be incorporated into part 70 permits without an
opportunity for public comment, EPA objection, or citizen
petition until renewal. However, EPA believes that deferral of
these title V requirements until renewal is appropriate for
excluded minor NSR applicable requirements. A minor NSR permit
that is newly issued during the permit term would be incorporated
into the permit through procedures that are less that those
required for permit issuance. The EPA believes it is reasonable
to allow for equitable treatment of pre-existing minor NSR
permits that were initially excluded from the permit in the same
manner, particularly since the permit shield will not apply until
the minor NSR permit undergoes full title V procedures at
renewal.
The EPA is adding language at 70.3(d)(3)(ii)(D) allowing
this streamlined reopening approach for excluded minor NSR terms.
The EPA notes that any such process should at least meet the part
70 permit revision requirements for changes subject to minor NSR.
This would include any minimum requirements for public notice and
access to records contained in the part 70 regulations in effect
at the time of program transition to full approval. The EPA is
further allowing permitting authorities to dispense with the need
to give each source a 30-day notice of its intent to revise the
permit to incorporate previously-excluded minor NSR permits. The
EPA believes this individual notice is unnecessary because
sources, by virtue of this action and actions taken by the State
to implement this approach, will have ample notice of the fact
that permits excluding minor NSR permits will need to be
reopened.
As an alternative to the streamlined reopening described
above, EPA believes that an interim program that does not include
minor NSR terms in title V permits can be designed in such a way
that it provides in advance for the inclusion of minor NSR terms
upon transition to full approval. This can be accomplished by
providing that each part 70 permit issued during the interim
period contains a condition that automatically incorporates, at
the date of transition to full approval, the terms and conditions
of any minor NSR permits referenced in the facilityþs title V
permit. This would not simply be cross-referencing, but would be
advance incorporation of the NSR requirements by reference, which
would subject them to title V requirements such as the
requirement for an annual compliance certification. This
approach would provide in advance for a streamlined transition to
full approval without any need for reopening.
The EPA believes that the allowance for more streamlined
procedures for incorporating excluded applicable requirements,
together with the advance incorporation approach described above,
provide less burdensome alternatives to full reopening. Interim
programs that exclude minor NSR are encouraged to adopt one, or a
combination, of these streamlined approaches to assure that title
V is met for excluded minor NSR terms prior to or upon conversion
to full approval, thus avoiding the need for full reopening.
However, EPA notes that, in the absence of any other assurance
that 70.6(a) and (c) are met for any applicable requirements,
including minor NSR terms, the reopening provisions under
70.7(f) and (g), including full issuance process, would apply
if and when EPA grants full approval, as noted in the preamble to
the proposal.
4. Cross-Referencing of Minor NSR Permits Under Interim
Program. The preamble to the proposed revision provided that
each part 70 permit issued by an interim program that does not
include minor NSR as an applicable requirement must state that
applicable minor NSR requirements are not included in the permit,
and must cross-reference any excluded minor NSR permits so that
citizens may access and review those permits. One commenter
noted that, while the preamble asserts that such cross-
referencing is required, the corresponding rule language is
ambiguous with respect to this requirement. Another commenter
felt that if EPA does require such cross-referencing, specific
criteria regarding what constitutes adequate cross-referencing
should also be provided.
The EPA agrees that there is a need to clarify the rule
language regarding cross-referencing. Therefore, EPA is adding a
sentence to the proposed rule language in 70.4(d)(3)(ii) to
clarify that a facilityþs part 70 permit must contain a list of
all minor NSR permits that contain excluded applicable
requirements for that facility. Most States have a numbering
system for minor NSR permits, so a listing in the part 70 permit
of the permit numbers for each minor NSR permit applicable to
that facility would fulfill the cross-referencing requirement.
For similar reasons, EPA is adding language clarifying the
proposal preamble discussion of the permit shield. The preamble
stated that the permit shield would not apply to the excluded
minor NSR terms. Rule language is being added to codify this
requirement in parallel with the other requirements for the
interim program.
III. Administrative Requirements
A. Docket. The docket for this regulatory action is number
A-93-50. All the documents referenced in this preamble fall into
one of two categories. They are either reference materials that
are considered to be generally available to the public, or they
are memoranda and reports prepared specifically for this
rulemaking. Both types of documents can be found in docket
number A-93-50.
B. Executive Order (E.O.) 12866. Under E.O. 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 program 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 E.O. 12866.
Pursuant to the terms of E.O. 12866, it has been determined
that this rule is not a "significant" regulatory action because
it does not substantially change the existing part 70
requirements for States or sources--requirements which have
already undergone OMB review. Rather than impose any new
requirements, this rule removes an obstruction to part 70 program
approval for a small number of State programs, allowing them to
implement their own part 70 programs. In the absence of todayþs
rule, EPA would implement its part 71 program in such States,
which, as noted in the Information Collection Request (ICR) for
the part 71 rule, would be more burdensome in a given State than
a part 70 program for both the sources and the applicable
permitting authority. Thus, not only does the rule avoid new
direct costs, it leads indirectly to a savings. As such, this
action was exempted from OMB review.
C. Regulatory Flexibility Act Compliance. Under the
Regulatory Flexibility Act, whenever an Agency publishes any
proposed or final rule in the Federal Register, it must prepare a
Regulatory Flexibility Analysis (RFA) that describes the impact
of the rule on small entities (i.e., small businesses,
organizations, and governmental jurisdictions). The EPA has
established guidelines which require an RFA if the proposed rule
will have any economic impact, however small, on any small
entities that are subject to the rule, even though the Agency may
not be legally required to develop such an analysis.
The original part 70 rule was determined to not have a
significant and disproportionate adverse impact on small
entities. Similarly, a regulatory flexibility screening analysis
of the impacts of the proposed part 70 revisions determined that
the proposed revisions (a subset of which constitutes todayþs
action) would likewise not have a significant and
disproportionate adverse impact on small entities. Consequently,
the Administrator certified that the part 70 regulations would
not have a significant and disproportionate impact on small
entities. Because todayþs rule does not substantially alter the
part 70 regulations as they pertain to small entities, and does
not necessitate changes to the part 70 RFA, these changes to
part 70 will not have a significant and disproportionate impact
on small entities, and a new RFA is not needed for this action.
D. Submission to Congress and the General Accounting
Office. Under section 801(a)(1)(A) of the Administrative
Procedures Act (APA) as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996, EPA submitted 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 General Accounting Office prior to publication of
the rule in today's Federal Register. This rule is not a "major
rule" as defined by section 804(2) of the APA as amended.
E. Paperwork Reduction Act. The OMB has approved the
information collection requirements contained in this rule under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et.
seq. and has assigned OMB control number 2060-0243. The ICR
prepared for the part 70 rule is not affected by todayþs action
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. Todayþs rule, which
simply provides for the interim approval of certain programs
which would have otherwise not been eligible for such approval,
does not alter the assumptions of the approved part 70 ICR used
in determining the burden estimate. Furthermore, todayþs action
does not impose any additional requirements which would add to
the information collection requirements for sources or permitting
authorities.
Send comments on the Agency's need for this
information, the accuracy of the provided burden estimates, and
any suggested methods for minimizing respondent burden, including
through the use of automated collection techniques, to:
Director, Regulatory Information Division
Office of Policy, Planning, and Evaluation (2136)
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
and:
Office of Information and Regulatory Affairs
Office of Management and Budget
Attention: Desk Officer for EPA
725 17th Street, NW
Washington, DC 20503
Include the ICR number in any correspondence.
F. Unfunded Mandates Reform Act. Title II of the
Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 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 1 year.
The EPA has determined that todayþs rule 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 1 year. Although
the part 70 regulations governing State operating permit programs
impose significant Federal mandates, todayþs 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.
List of Subjects in 40 CFR Part 70
Environmental protection, Air pollution control,
Carbon monoxide, Fugitive emissions, Hydrocarbons, Lead, New
source review, Nitrogen dioxide, Operating permits, Particulate
matter, Prevention of significant deterioration, Volatile
organic.
Dated: June 11, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR part 70 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. Section 70.4 is amended by revising paragraphs (d)(3)
introductory text and (d)(3)(ii) to read as follows:
70.4 State program submittals and transition.
* * * * *
(d) * * *
(3) The EPA may grant interim approval to any program if it
meets each of the following minimum requirements and otherwise
substantially meets the requirements of this part:
* * * * *
(ii) Applicable requirements.
(A) The program must provide for adequate authority to
issue permits that assure compliance with the requirements of
paragraph (c)(1) of this section for those major sources covered
by the program.
(B) Notwithstanding paragraph (d)(3)(ii)(A) of this
section, where a State or local permitting authority lacks
adequate authority to issue or revise permits that assure
compliance with applicable requirements established exclusively
through an EPA-approved minor NSR program, EPA may grant interim
approval to the program upon a showing by the permitting
authority of compelling reasons which support the interim
approval.
(C) Any part 70 permit issued during an interim approval
granted under paragraph (d)(3)(ii)(B) of this section that does
not incorporate minor NSR requirements shall:
(1) Note this fact in the permit;
(2) Indicate how citizens may obtain access to excluded
minor NSR permits;
(3) Provide a cross reference, such as a listing of the
permit number, for each minor NSR permit containing an excluded
minor NSR term; and
(4) State that the minor NSR requirements which are
excluded are not eligible for the permit shield under 70.6(f).
(D) A program receiving interim approval for the reason
specified in (d)(3)(ii)(B) of this section must, upon or before
granting of full approval, institute proceedings to reopen part
70 permits to incorporate excluded minor NSR permits as terms of
the part 70 permits, as required by 70.7(f)(1)(iv). Such
reopening need not follow full permit issuance procedures nor the
notice requirement of 70.7(f)(3), but may instead follow the
permit revision procedure in effect under the Stateþs approved
part 70 program for incorporation of minor NSR permits.
* * * * *
BILLING CODE 6560-50-P
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