[Federal Register Volume 62, Number 168 (Friday, August 29, 1997)]
[Rules and Regulations]
[Pages 45732-45735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23033]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[FRL-5884-6]


Extension of Operating Permits Program Interim Approvals

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is promulgating revisions to Appendix A of the 
operating permits regulations codified in part 70 of chapter I of title 
40 of the Code of Federal Regulations. Those regulations were 
originally promulgated on July 21, 1992. These revisions to Appendix A 
extend up to October 1, 1998 all operating permits program interim 
approvals that expire before that date. This action will allow the 
program revisions necessary to correct interim approval deficiencies to 
be combined with program revisions necessary to implement the revisions 
to part 70 that are anticipated to promulgated mid-summer of 1998.

DATES: The regulatory amendments announced herein take effect on 
September 29, 1997. For those programs whose interim approval dates are 
amended by today's action, interim approval will expire on October 1, 
1998.

ADDRESSES: 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 3:30 p.m., Monday through Friday, at the address listed below. A 
reasonable fee may be charged for copying. The address of the EPA air 
docket is: EPA Air Docket, Mail Code 2311, Attention: Docket Number A-
93-50, Room M-1500, Waterside Mall, 401 M Street SW, Washington, DC 
20460.

FOR FURTHER INFORMATION CONTACT: Roger Powell (telephone 919-541-5331), 
Mail Drop 12, United States Environmental Protection Agency, Office of 
Air Quality Planning and Standards, Information Transfer and Program 
Integration Division, Research Triangle Park, North Carolina 27711.

SUPPLEMENTARY INFORMATION:

I. Background

    On August 29, 1994 (59 FR 44460) and August 31, 1995 (60 FR 45530), 
EPA proposed revisions to the part 70 operating permits regulations. 
Primarily, the notices proposed changes to the system for revising 
permits. A number of other less detailed proposed changes were included 
in the notices. Altogether, State and local permitting authorities will 
have a complicated package of program revisions to prepare in response 
to these changes once promulgated. The part 70 revisions are 
anticipated to take place in mid-summer of 1998.
    Contemporaneous with permitting authorities revising their programs 
to meet the revised part 70, many programs have been granted interim 
approval which will require permitting authorities to prepare program 
revisions to correct those deficiencies identified in the interim 
approval notice. The preamble to the August 31, 1995 proposal noted the 
concern of many permitting authorities over having to revise their 
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). Comment was solicited on 
this action and on a legal rationale. The Agency also proposed ``* * * 
to exercise its discretion under proposed section 70.4(i)(1)(iv) to 
provide States 2 years to submit program revisions in response to the 
proposed part 70 revisions * * *'' (60 FR 45551).
    In combination, these actions could extend all interim approvals 
such that permitting authorities would not have to submit program 
revisions addressing interim approval deficiencies until up to 2 years 
after part 70 is revised. Six comments were received on this subject 
during the public comment period on the August 1995 proposal. Five of 
these commenters supported either the extension or efforts to minimize 
the burden on permitting authorities, but none provided a reasonable 
legal rationale. One of the commenters indicated the action is not 
consistent with title V.

II. Discussion

    On October 31, 1996 (61 FR 56368), EPA amended section 70.4(d)(2) 
to allow the Administrator to grant the proposed additional extension 
to interim approvals. The Agency does not believe, however, that the 
August 31, 1995 blanket proposal to extend all interim approval program 
revision submittal dates until up to 2 years after part 70 is revised 
is appropriate. Program deficiencies that caused granting of interim 
approval of permitting programs vary from a few problems that can be 
easily corrected to complex problems that will require regulatory 
changes and, in some cases, legislative action. Where an undue burden 
will be encountered by developing two program revisions, combining 
program revisions and thus granting a longer time period for submission 
of the program revision to correct interim approval deficiencies is 
warranted. Where no such burden will occur, the Agency encourages 
permitting authorities to proceed with correcting their interim 
approval program deficiencies and not wait for the revised part 70.
    To encourage permitting authorities to proceed with program 
revisions within their interim approval timeframes, rather than wait 
for the revised part 70, 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 extended in the October 1996 notice by 10 months. The 
June 1996 memorandum is in the docket for this action.
    The reason for this automatic extension was that permitting 
authorities, upon reading the August 1995 proposed action, may have 
delayed their efforts to develop program revisions to address interim 
approval deficiencies because they believed the

[[Page 45733]]

proposed policy to extend interim approvals until revised part 70 
program revisions are due would be adopted for all programs. The EPA 
has been informed that this was the case in many States. Approximately 
10 months passed since the August 1995 proposal until issuance of the 
memorandum previously noted. The additional 10-month extension to all 
interim approvals offset any time lost in permitting authority efforts 
to develop program revisions addressing interim approval deficiencies. 
This 10-month extension was not applicable to application submittal 
dates for the second group of sources covered by a source-category 
limited interim approval.<SUP>1</SUP>
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    \1\ Several States have been granted source-category limited 
interim approvals. Under that type approval, a subset of the part 70 
source population is to submit permit applications during the first 
year of the program. The application submittal period for the 
remaining sources begins upon full approval of the program. The 
Agency concludes this second group of sources should still submit 
permit applications during a period beginning on the original 
expiration date of a State's interim approval as opposed to that 
date extended by 10 months. The other interim approval program 
deficiencies, however, will be eligible for the 10-month extension.
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    As noted in the June 1996 memorandum, where the permitting 
authority applies for it after part 70 is revised, EPA may grant a 
longer extension to an interim approval so that the program revision to 
correct interim approval program deficiencies may be combined with the 
program revision to meet the revised part 70. Such extensions will only 
be granted once per State and will not be of a duration which exceeds 2 
years after promulgation of revisions to part 70. Such a request must 
be made within 30 days of promulgation of the part 70 revisions. This 
will make it possible for EPA to take a single rulemaking action (if 
such action is warranted) to adopt new interim approval deadlines. All 
programs with interim approval are eligible for this longer extension, 
even if interim approval was granted after the June 1996 memorandum.
    As required by section 70.4(f)(2), program revisions addressing 
interim approval deficiencies must be submitted to EPA no later than 6 
months prior to the expiration of the interim approval. The dates for 
permitting authorities to submit their combined program revisions to 
address the revised part 70 and the interim approval deficiencies will 
be 6 months prior to the interim approval expiration dates which will 
be set through a future rulemaking.
    Any longer extension allowing combining of program revisions to 
meet both the revised part 70 and interim approval deficiencies will 
occur only once for a permitting authority and will be based on the 
promulgation date of the revisions to part 70. If only regulatory 
changes to a program are needed to meet the revised part 70, the 
extension may be for up to 18 months after the part 70 revisions. If 
legislative changes are needed to a program to meet the revised part 
70, the extension may be for up to 2 years. As previously noted, the 
program revision submittal date will be 6 months prior to expiration of 
the extended interim approval.

III. Rulemaking Action

    The June 13, 1996 memorandum and the October 31, 1996 notice 
anticipated promulgation of the part 70 revisions no later than early 
1997. The EPA believes that the action in this rulemaking notice is 
necessary because of further delays in promulgation of the part 70 
revisions. Due to these delays, a number of interim approvals will 
expire before part 70 is revised, thus denying these agencies the 
opportunity to combine program revisions. The EPA has been informed 
that States were relying on the October 31, 1996 notice, which 
anticipated a promulgation date of early 1997 for part 70 revisions, 
and expected to be able to combine their interim approval deficiencies 
with the program revisions to address the revised part 70. However, now 
that the EPA anticipates a mid-summer 1998 promulgation date for the 
part 70 revisions, the Agency estimates that it may take until October 
1, 1998 to receive all State requests for combining program revisions 
and to take the necessary rulemaking action to grant the final 
extension to those interim approvals. The action in this notice, 
therefore, moves all interim approvals that expire before October 1, 
1998 up to that date. All agencies with interim approvals prior to 
October 1, 1998 will, therefore, be granted interim approval extensions 
until that date to have the opportunity to submit requests to combine 
program revisions.

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 proposed 
rulemaking. The principal purposes of the docket are: (1) To allow 
interested parties a means to identify and locate documents so that 
they 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 
notice.

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 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 
E.O. 12866.
    Pursuant to the terms of E.O. 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 mechanism. 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), the Administrator certifies 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 notice). This action does not 
substantially alter the part 70 regulations as they pertain to small 
entities and accordingly will not have a

[[Page 45734]]

significant economic impact on a substantial number of small entities.

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.
    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.
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.

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 1 
year.
    The EPA has determined that the action in this rulemaking notice 
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, 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.

    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 this Federal Register. This 
rule is not a ``major rule'' as defined by section 804(2) of the APA as 
amended.

List of Subjects in 40 CFR Part 70

    Environmental protection, air pollution control, prevention of 
significant deterioration, new source review, fugitive emissions, 
particulate matter, volatile organic compounds, nitrogen dioxide, 
carbon monoxide, hydrocarbons, lead, operating permits.

    Dated: August 22, 1997.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, title 40, chapter I, of 
the Code of Federal Regulations is amended as set forth below.
    Appendix A of part 70 is amended by the following:
    a. Adding a sentence to the end of paragraph (a) under Virgin 
Islands;
    b. Revising the third sentence of paragraph (a) under Texas; and
    c. Replacing the end date of each paragraph with ``October 1, 
1998'' as follows: Paragraph (a) of Arkansas, Colorado, District of 
Columbia, Florida, Hawaii, Illinois, Iowa, Maryland, Minnesota, 
Montana, North Dakota, Wisconsin, and Wyoming; Paragraphs (a) through 
(m), (o), (p), (r) through (w), (bb), (cc), (ee), (ff), and (hh) of 
California; paragraphs (b) and (c) of Nevada; paragraphs (a) and (e) of 
Tennessee; and paragraphs (a) through (i) of Washington.

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

Arkansas

    (a) * * * October 1, 1998.

California * * *

    (a) * * * October 1, 1998.
    (b) * * * October 1, 1998.
    (c) * * * October 1, 1998.
    (d) * * * October 1, 1998.
    (e) * * * October 1, 1998.
    (f) * * * October 1, 1998.
    (g) * * * October 1, 1998.
    (h) * * * October 1, 1998.
    (i) * * * October 1, 1998.
    (j) * * * October 1, 1998.
    (k) * * * October 1, 1998.
    (l) * * * October 1, 1998.
    (m) * * * October 1, 1998.
* * * * *
    (o) * * * October 1, 1998.
    (p) * * * October 1, 1998.
* * * * *
    (r) * * * October 1, 1998.
    (s) * * * October 1, 1998.
    (t) * * * October 1, 1998.
    (u) * * * October 1, 1998.
    (v) * * * October 1, 1998.
    (w) * * * October 1, 1998.
* * * * *
    (bb) * * * October 1, 1998.
    (cc) * * * October 1, 1998.
* * * * *
    (ee) * * * October 1, 1998.
    (ff) * * * October 1, 1998.
* * * * *
    (hh) * * * October 1, 1998.

Colorado

    (a) * * * October 1, 1998.
* * * * *

District of Columbia

    (a) * * * October 1, 1998.
* * * * *

Florida

    (a) * * * October 1, 1998.
* * * * *

Hawaii

    (a) * * * October 1, 1998.
* * * * *

Illinois

    (a) * * * October 1, 1998.
* * * * *

Iowa

    (a) * * * October 1, 1998.
* * * * *

Maryland

    (a) * * * October 1, 1998.
* * * * *

Minnesota

    (a) * * * October 1, 1998.
* * * * *

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Montana

    (a) * * * October 1, 1998.
* * * * *

Nevada

    (a) * * *
    (b) * * * October 1, 1998.
    (c) * * * October 1, 1998.
* * * * *

North Dakota

    (a) * * * October 1, 1998.
* * * * *

Tennessee

    (a) * * * October 1, 1998.
* * * * *
    (e) * * * October 1, 1998.

Texas

    (a) * * * Interim approval will expire October 1, 1998. * * *
* * * * *

Virgin Islands

    (a) * * * Interim approval will expire October 1, 1998.
* * * * *

Washington

    (a) * * * October 1, 1998.
    (b) * * * October 1, 1998.
    (c) * * * October 1, 1998.
    (d) * * * October 1, 1998.
    (e) * * * October 1, 1998.
    (f) * * * October 1, 1998.
    (g) * * * October 1, 1998.
    (h) * * * October 1, 1998.
    (i) * * * October 1, 1998.
* * * * *

Wisconsin

    (a) * * * October 1, 1998.
* * * * *

Wyoming

    (a) * * * October 1, 1998.

[FR Doc. 97-23033 Filed 8-28-97; 8:45 am]
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