Extension of Operating Permits Program, Interim Approval Expiration Dates

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This action amends the operating permits regulations of EPA. Those regulations were originally promulgated on July 21, 1992. These amendments will extend up to December 1, 2001 all operating permits program interim approvals. This action will allow the time needed for permitting authorities to correct all remaining interim approval deficiencies and obtain full approval for their operating permits programs.

DATES:

The regulatory amendments announced herein take effect on May 31, 2000. For those programs whose interim approval expiration dates are amended by this action, interim approval will expire on December 1, 2001. Any program revisions necessary for a program to obtain full approval must be submitted to EPA not later than June 1, 2001.

ADDRESSES:

Docket. Supporting material used in developing the proposal and final regulatory revisions is contained in Docket Number A-93-50. This docket is available for public inspection and copying between 8:30 a.m. and 5:30 p.m., Monday through Friday. The address of the EPA air docket is: Air and Radiation Docket and Information Center (6102), Attention Docket Number A-93-50, U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460. The Docket is located in Room M-1500, Waterside Mall (ground floor). The telephone number for the EPA air docket is (202) 260-7548. A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT:

Roger Powell, Mail Drop 12, United States Environmental Protection Agency, Research Triangle Park, North Carolina 27711 (telephone 919-541-5331, e-mail: powell.roger@epa.gov).

SUPPLEMENTARY INFORMATION:

On February 14, 2000, EPA published in the Federal Register a direct final rulemaking which would have extended until June 1, 2002, expiration dates for all State and local operating permits programs that have interim approvals (65 FR 7290) granted by EPA under its regulations at 40 CFR part 70 (part 70). A proposal to that effect was published the same day (65 FR 7333). In the rulemaking, EPA stated that if relevant adverse comments were received by the comment deadline specified in that action, March 15, 2000, EPA would publish a document informing the public that the rule would not take effect and that comments would be addressed in any final rule based on the proposed rule.

The EPA did receive an adverse comment on the direct final rulemaking within the comment deadline. Accordingly, EPA published a Federal Register document on March 29, 2000 withdrawing the rulemaking (65 FR 16523). This rulemaking represents the final rule based on the February 14, 2000 proposal, to which the adverse comment also applied. The comments on the proposal are addressed herein.

I. Background

If an operating permits program administered by a State or local permitting authority under title V of the Clean Air Act (Act) does not fully meet, but does “substantially [meet],” the requirements of part 70, EPA may grant that program “interim approval.” Permits granted under an interim approval are fully effective and expire at the end of their fixed term, unless renewed under a part 70 program. See 40 CFR 70.4(d)(2). Many State and local permitting programs have been granted interim approval, with most final interim approval actions having occurred in 1995 and 1996. See 40 CFR part 70, Appendix A. To obtain full approval, a permitting authority must submit to EPA program revisions to correct all deficiencies that caused the operating permits program to receive interim approval. Such submittal must be made no later than 6 months prior to the expiration of the interim approval. See 40 CFR 70.4(f)(2).

On August 29, 1994 (59 FR 44460) and August 31, 1995 (60 FR 45530), EPA proposed revisions to its part 70 operating permits program regulations. Primarily, the proposals addressed changes to the system for revising permits, but a number of other proposed changes were also included. The preamble to the August 31, 1995 proposal noted the concern of many permitting authorities over having to revise their operating permits programs twice; once to correct interim approval deficiencies, and again to address the revisions to part 70. In the August 1995 preamble, the Agency proposed that States with interim approval “* * * should be allowed to delay the submittal of any program revisions to address program deficiencies previously listed in their notice of interim approval until the deadline to submit other changes required by the proposed revisions to part 70” (60 FR 45552).

On October 31, 1996 (61 FR 56368), EPA amended 40 CFR 70.4(d)(2) to permit the Administrator to grant extensions to interim approval expiration dates to allow permitting authorities the opportunity to combine program revisions directed at the correction of interim approval deficiencies as well as the adoption of the part 70 revisions. In this rulemaking, all interim approvals granted prior to the date of issuance of a memorandum announcing EPA's position on this issue (memorandum from Lydia N. Wegman to Regional Division Directors, “Extension of Interim Approvals of Operating Permits Programs,” June 13, 1996) were granted 10 month extensions from their different respective expiration dates.

The EPA then extended interim approval expiration dates for certain State and local permitting programs a second time, on August 29, 1997 (62 FR 45732). On July 27, 1998, EPA published a direct final rulemaking extending interim approval expiration dates a third time, this time covering all interim approved programs, until June 1, 2000. In each of these instances, delays in the expected promulgation of the final part 70 revisions past the previous interim approval expiration dates led EPA to grant the further extensions of the expiration deadlines. The Agency intended these extensions to provide State and local agencies time to apply to combine their program revisions and to allow EPA to take action on those requests.

Following discussions with various stakeholders and further deliberations concerning the revisions to the part 70 regulations, EPA is in the process of preparing a supplemental proposal to take comment on a series of possible part 70 revisions that arose out of those discussions and deliberations. The Agency anticipates publishing this supplemental proposal in the Federal Register in late summer or early fall of 2000. The EPA now projects promulgation of the entire final package of part 70 revisions for late 2001.

To prevent interim approvals from expiring on June 1, 2000, and to enable permitting authorities to defer correction of interim approval deficiencies until their adoption of the expected part 70 revisions, EPA published a direct final rule on February 14, 2000 to extend all interim approval expiration dates until June 1, 2002 (65 FR 7290). Simultaneously, EPA published an accompanying proposal, also to extend interim approval expiration dates until June 1, 2002 (65 FR 7333).

II. Comments Received on the Proposal

The comment period for the February 14, 2000 proposal expired on March 15, 2000. During the comment period, EPA received two comment letters addressing that proposal.

The first commenter apparently misunderstood the mechanisms for allowing permitting authorities to combine program revisions. The comment addressed the fact that an interim approval expiration date of June 1, 2002 did not allow enough time to prepare program changes to address the expected revisions to part 70, which was projected for promulgation in late 2001.

The preamble of the direct final rulemaking on February 14, 2000 explained that after part 70 was revised, another interim approval expiration date extension of either 18 months or 2 years from the date of rulemaking revising part 70 would be available to allow time for preparation of the combined program revisions. The Agency intended the interim approval expiration date extension until June 1, 2002 to be a measure to prevent interim approvals from expiring on June 1, 2000, before the part 70 revisions were promulgated. The commenter's concern, therefore, would have been addressed by the provisions explained in the February 2000 direct final rulemaking.

Prior extensions and the June 13, 1996 memorandum referenced above have been predicated upon the understanding that permitting authorities wishing to combine program revisions to meet the revised part 70 with program revisions to correct remaining interim approval deficiencies, were to request, within 30 days of promulgation of the part 70 revisions, an additional 18 month or 2 year extension of their interim approval deadline (65 FR 7291-7292). Accordingly, neither the direct final rule nor the proposal was intended to grant across-the-board extensions to interim approval deadlines sufficiently past the expected promulgation date of the part 70 revisions to allow the full cycle of State and local program revisions, submissions, and EPA approvals to occur.

The second commenter asserted that EPA's proposed action is contrary to the express terms of the Act and must be withdrawn. The commenter referred to Section 502(g) of the Act, which provides that “[a]n interim approval under [Section 502(g)] shall expire on a date set by the Administrator not later than 2 years after such approval, and may not be renewed.”

This commenter further argued that the existing 40 CFR 70.4(d)(2) does not justify an extension of interim approval deadlines until June 1, 2002. The commenter stated that to the extent that § 70.4(d)(2) allowed an extension of interim approvals by up to 10 months on an individual basis, EPA had already granted this 10-month extension in the October 31, 1996 rulemaking and that, at any rate, the proposed extension to June 1, 2002 was longer than 10 months.

This commenter also asserted that to the extent § 70.4(d)(2) allowed longer interim approval periods for States to combine program changes, this provision did not justify the proposed extension to June 1, 2002 because § 70.4(d)(2) contemplated such extensions only after the promulgation of part 70 revisions, which has not occurred. Moreover, the commenter noted that this provision authorized additional time “only once per State” and that EPA had already granted multiple extensions in the past.

Finally, the commenter argued that the continuing extension of interim approvals does not represent sound policy. That commenter stated that the deficiencies in State programs that warranted EPA granting interim, rather than full, approval often involved important substantive issues. Moreover, the commenter argued that no real hardship would be suffered by States required to undertake more than one program revision, noting that States regularly revise their regulations and statutes as part of the State implementation plan process. Finally, the commenter argued that any pursuit of administrative convenience could not override statutory requirements and the purpose of the permit program.

In consideration of these comments, and taking into account the further delays in promulgating the revisions to part 70 and the need for a supplemental part 70 proposal, EPA is abandoning the concept of allowing program revisions to correct interim approval deficiencies to be combined with program revisions necessary to conform to the provisions of expected future revisions to part 70. The Agency concludes that it is no longer appropriate to continue extending interim approval expiration dates in furtherance of this combination approach.

Notwithstanding the repeated extensions of interim approvals, EPA has, in the preambles to those previous extensions, consistently encouraged permitting authorities to correct their remaining interim approval deficiencies and not await promulgation of the part 70 revisions. Indeed, a number of State and local permitting authorities have corrected their deficiencies and have either received full approval or submitted corrections to EPA to gain full approval. Most permitting authorities with interim approved programs, however, have not corrected all remaining deficiencies.

The EPA also is aware of programs that have undertaken rulemakings during their interim approval period to correct some but not all outstanding deficiencies, with some deficiencies remaining that are unrelated to the expected part 70 revisions. Moreover, further inquiry has demonstrated that the significant majority of remaining interim approval deficiencies are unrelated to the issues addressed by the revisions proposed to part 70, with most deficiencies not being altered or affected by expected revisions to part 70. Accordingly, EPA believes it is appropriate to require correction of all interim approval deficiencies without regard to the possible future promulgation of the part 70 revisions.

At the same time, for State and local programs to have the opportunity to correct all interim approval deficiencies, and to provide EPA the opportunity to act on these submittals, this rulemaking extends the interim approval expiration deadline until December 1, 2001. Under part 70, State and local permitting authorities must submit corrections of all remaining interim approval deficiencies by no later than 6 months prior to this deadline, namely by no later than June 1, 2001, for EPA to treat these submissions as timely.

The Agency believes it is necessary to extend interim approval expiration deadlines until December 1, 2001 both to ensure that permitting authorities have the opportunity to correct remaining deficiencies, and to ensure that title V permit programs continue to be implemented effectively by State and local permitting authorities. The Agency believes that State and local agencies are well equipped to continue effective administration and enforcement of operating permits programs, and to ensure the issuance of permits designed to serve the important compliance benefits of the Act.

In the absence of the extension granted in this rulemaking, interim approved programs would expire on June 1, 2000, automatically placing into effect the part 71 Federal operating permits program for 88 State and local permitting authorities. This outcome would only hinder the effort to issue operating permits and bring about the important benefits of permits, since sources without already issued part 70 permits in those jurisdictions newly subject to the part 71 Federal operating permits program would need to re-apply for part 71 permits within 1 year after the June 1, 2000 effective date. Consequently, those sources would not be issued operating permits until well after the time they would have been under a preserved part 70 program.

Finally, EPA is well aware that many permitting authorities with interim approved programs have not undertaken program revisions to correct their remaining deficiencies under the expectation that an extension past the June 1, 2000 deadline would be granted to allow the opportunity to combine their program revisions as previously discussed. Accordingly, today's action prevents the disruption that would occur from imposing the Federal permitting program on affected State and local agencies on relatively short notice. At the same time, EPA is hereby providing clear notice that to avoid having their programs expire and be replaced by the Federal permitting program, permitting authorities must correct all remaining deficiencies and submit those corrections by the deadlines discussed above, with further notice that no additional extensions of interim approval deadlines will be granted. The EPA believes that all permitting authorities with currently identified interim approval deficiencies will be able to make any necessary revisions to their rules or statutes, and to submit any needed corrections, by no later than June 1, 2002.

III. Effective Date

Section 553(d) of the Administrative Procedure Act (5 U.S.C.A., 551-59, 701-06) requires that EPA allow at least 30 days from the publication of a substantive rule before it becomes effective unless EPA determines there is good cause for a shorter deadline. The primary purpose of the delayed effective date is to give citizens a reasonable time to prepare to comply with, or take other action regarding, a rule. The Agency has determined that good cause exists for making this rulemaking effective on May 31, 2000 since delaying the effective date of the rulemaking would be impracticable and contrary to the public interest, and lead to serious dislocation in government programs.

The compelling argument for making this rulemaking effective on May 31, 2000 is that it must take effect before June 1, 2000 or it will fail to fulfill its intended function to prevent interim approval programs from expiring and being replaced by the Federal permitting program. On June 1, 2000, all interim approvals will expire and cannot be re-established after that date. As discussed above, expiration of State and local interim approved programs would frustrate the ongoing implementation of the title V permits program by permitting authorities and be contrary to the public interest. It would also force currently un-permitted sources to resubmit permit applications at the Federal level, even though they would have otherwise soon obtained State-issued permits. In light of the scale of such a disruption to State programs, it would be impracticable for EPA to be able to undertake substitute permitting responsibilities on such an expeditious basis to make up for the lost time. Finally, having to assume permitting responsibilities would also divert EPA resources from efforts to assist State and local agencies in correcting their programs, and from EPA's recent commencement of the Federal permitting program for sources located in Indian country.

IV. Administrative Requirements

A. Docket

The docket for this regulatory action is A-93-50. The docket is an organized and complete file of all the information submitted to, or otherwise considered by, EPA in the development of this rulemaking. The principal purposes of the docket are: (1) To allow interested parties a means to identify and locate documents so that the parties can effectively participate in the rulemaking process and (2) to serve as the record in case of judicial review (except for interagency review materials). The docket is available for public inspection at EPA's Air Docket, which is listed under the ADDRESSES section of this document.

B. Executive Order 12866

Under Executive Order 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 programs 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 Executive Order 12866.

Pursuant to the terms of Executive Order 12866, it has been determined that this action 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 action only extends an existing deferral of those requirements. As such, this action is exempted from OMB review.

C. Regulatory Flexibility Act Compliance

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), I certify that this action will not have a significant economic impact on a substantial number of small entities. In developing the original part 70 regulations, the Agency determined that they would not have a significant economic impact on a substantial number of small entities. Similarly, the same conclusion was reached in an initial regulatory flexibility analysis performed in support of the proposed part 70 revisions (a subset of which constitutes the action in this rulemaking). This action does not substantially alter the part 70 regulations as they pertain to small entities and accordingly will not have a significant economic impact on a substantial number of small entities. Rather, it leaves existing State and local permitting programs in place, whereas absence of EPA action would cause them to expire and be replaced by a new Federal permitting program.

D. Paperwork Reduction Act

The OMB has approved the information collection requirements contained in part 70 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0243. The Information Collection Request (ICR) prepared for part 70 is not affected by the action in this rulemaking notice 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. The action in this rulemaking notice, which simply provides for an extension of the interim approval of certain programs, does not alter the assumptions of the approved part 70 ICR used in determining the burden estimate. Furthermore, this action does not impose any additional requirements which would add to the information collection requirements for sources or permitting authorities.

E. Unfunded Mandates Reform Act.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 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 one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The EPA has determined that the action in this rulemaking 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 one year. Although the part 70 regulations governing State operating permit programs impose significant Federal mandates, this 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.

F. Submission to Congress and the General Accounting Office

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. The 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).

G. Applicability of Executive Order 13045

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1977), applies to any rule that EPA determines (1) Is “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This final rule is not subject to Executive Order 13045 because it is not an economically significant regulatory action as defined by Executive Order 12866, and it does not address an environmental health or safety risk that would have a disproportionate effect on children.

H. Executive Order 13132 (Federalism)

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

If EPA complies by consulting, Executive Order 13132 requires EPA to provide to OMB, in a separately identified section of the preamble to the rule, a federalism summary impact statement (FSIS). The FSIS must include a description of the extent of EPA's prior consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met. Also, when EPA transmits a draft final rule with federalism implications to OMB for review pursuant to Executive Order 12866, EPA must include a certification from the agency's Federalism Official stating that EPA has met the requirements of Executive Order 13132 in a meaningful and timely manner.

This rule change 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. This rule change will not create new requirements but will only extend an existing deferral to allow permitting authorities to more efficiently revise their operating permits programs. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

I. Executive Order 13084: Consultation and Coordination with Indian Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

This rule does not significantly or uniquely affect the communities of Indian tribal governments because it applies only to State and local permitting programs. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

J. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by one or more voluntary consensus standard bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This rule does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

List of Subjects in 40 CFR Part 70

• Environmental protection
• Air pollution control
• Operating permits

For the reasons set out in the preamble, title 40, chapter I, of the Code of Federal Regulations is amended as set forth below.

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 of part 70 is amended by the following:

a. Revising the date at the end of the third sentence in paragraph (a) under Texas to read “December 1, 2001”; and

b. Revising the date at the end of the following paragraphs to read “December 1, 2001”: Paragraph (a) under Alaska, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New York, North Carolina, Oklahoma, Rhode Island, Vermont, Virgin Islands, Virginia, West Virginia, and Wisconsin; paragraphs (a), (b), and (c) under Alabama and Nevada; paragraphs (a), (b), (c)(1), (c)(2), (d)(1), and (d)(2) under Arizona; paragraphs (a) through (hh) under California; paragraphs (a) and (e) under Tennessee; and paragraphs (a) through (i) under Washington.