27008 Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 70

[FRL–6980–6]

Revision to Interim Approval

Requirements

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: This action amends EPA’s

regulations governing the interim

approval of State and local operating

permits programs. This action removes

the provisions that allow the Agency to

extend expiration dates of interim

approvals beyond 2 years from the date

the interim approval is originally

granted.

DATES: The regulatory amendments

announced herein take effect on June

14, 2001.

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 5:30

p.m., Monday through Friday. The

address of the Air Docket is: Air and

Radiation Docket and Information

Center (6102), U.S. Environmental

Protection Agency, 401 M Street, SW.,

Washington, DC 20460. The Docket is

located in Room M–1500 of 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:

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’’ (see

section 70.4(d)(1)). Permits issued under

an interim approval are fully effective

and expire at the end of their fixed term,

unless renewed under a part 70 program

(see section 70.4(d)(2)). To obtain full

approval, a permitting authority must

submit to EPA program revisions

correcting all deficiencies that caused

the operating permits program to receive

interim instead of full approval as

identified by EPA in the notice granting

interim approval. Such submittal must

be made no later than 6 months prior to

the expiration of the interim approval

(see section 70.4(f)(2)). Originally, 99

State and local permitting programs

were granted interim approval. For 15 of

the original interim approved programs,

permitting authorities have corrected

the deficiencies identified in their

interim approvals, and we have granted

all of these programs full approval (see

part 70, Appendix A).

On August 29, 1994 (59 FR 44460),

and August 31, 1995 (60 FR 45530), we

proposed revisions to our 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, we 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).

II. Extension of Interim Approval

Expiration Dates

On October 31, 1996 (61 FR 56368),

we amended section 70.4(d)(2) to permit

the Administrator to grant extensions to

interim approval expiration dates to

allow permitting authorities the

opportunity to combine their program

revisions correcting interim approval

deficiencies with their program

revisions that will conform to the part

70 revisions. In this rulemaking, we

granted a 10-month extension to all

interim approved programs for which

the interim approval was granted prior

to the date of issuance of a

memorandum announcing our position

on this issue (memorandum from Lydia

N. Wegman to Regional Division

Directors, ‘‘Extension of Interim

Approvals of Operating Permits

Programs,’’ June 13, 1996).

We then extended the interim

approval expiration dates for State and

local permitting programs three more

times, the last time being May 22, 2000

(65 FR 32035).

The Sierra Club and New York Public

Interest Research Group (NYPIRG)

challenged our May 22, 2000, final

action in the Court of Appeals for the

District of Columbia Circuit [Sierra Club

et al. v. EPA (D.C. Cir. No. 00–1262)]. As

a result of that litigation, we entered

into a settlement agreement with the

litigants that holds that case in

abeyance, pending implementation of

the settlement agreement.

III. Regulatory Revision

One of the terms of the settlement

agreement is that we will remove from

§ 70.4(d)(2) the language added on

October 31, 1996, that allows granting

extensions to interim approval

expiration dates. On December 20, 2000,

we proposed to remove that language

and restore § 70.4 to the original

language that was in that section when

part 70 was promulgated. This

rulemaking makes that proposed

revision final. This revision to § 70.4 is

consistent with our intent not to extend

further interim approvals of operating

permits programs. This action has no

effect on the current expiration date of

December 1, 2001, for programs that

received an extension of their interim

approvals in the May 22, 2000, action.

IV. Public Comments

Only one comment letter was received

on the proposal to amend § 70.4. That

commenter was the litigant with which

we entered into the settlement

agreement. The commenter supported

this action.

V. 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

notice.

B. Executive Order (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:

Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations 27009

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.

This action is not a ‘‘significant’’

regulatory action pursuant to Executive

Order 12866 because it does not

substantially change the existing part 70

requirements for States or sources—

requirements which have already

undergone OMB review. 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

the regulations 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.

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 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 1 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 costeffective 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 amended 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 Order to include regulations that

have ‘‘substantial direct effects on the

27010 Federal Register / Vol. 66, No. 94 / Tuesday, May 15, 2001 / Rules and Regulations

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. The 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. Thus, the

requirements of section 6 of the Order

do not apply to this rule.

I. Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governments

Executive Order 13175, entitled

‘‘Consultation and Coordination with

Indian Tribal Governments’’ (65 FR

67249, November 6, 2000), requires EPA

to develop an accountable process to

ensure ‘‘meaningful and timely input by

tribal officials in the development of

regulatory policies that have tribal

implications.’’ ‘‘Policies that have tribal

implications’’ is defined in the Order to

include regulations that have

‘‘substantial direct effects on one or

more Indian tribes, on the relationship

between the Federal government and

the Indian tribes, or on the distribution

of power and responsibilities between

the Federal government and Indian

tribes.’’

This final rule does not have tribal

implications. It will not have substantial

direct effects on tribal governments, on

the relationship between the Federal

government and Indian tribes, or on the

distribution of power and

responsibilities between the Federal

government and Indian tribes, as

specified in Executive Order 13175.

This final rule is related only to interim

approvals of State or local operating

permits programs, not Tribal operating

permits programs. Thus, Executive

Order 13175 does not apply to this rule.

J. National Technology Transfer and

Advancement Act (NTTAA)

Section 12(d) of the 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,

Administrative practice and procedure,

Air pollution control, Intergovernmental

relations, Reporting and recordkeeping

requirements.

Dated: May 9, 2001.

Christine Todd Whitman,

Administrator.

For the reasons set out in the

preamble, title 40, chapter I, of the Code

of Federal Regulations is amended as

follows:

PART 70—STATE OPERATING PERMIT

PROGRAMS

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

paragraph (d)(2) to read as follows:

§ 70.4 State program submittals and

transition.

* * * * *

(d) * * *

(2) Interim approval shall expire on a

date set by the Administrator (but not

later than 2 years after such approval),

and may not be renewed. Sources shall

become subject to the program

according to the schedule approved in

the State program. Permits granted

under an interim approval shall expire

at the end of their fixed term, unless

renewed under a part 70 program.

* * * * *

[FR Doc. 01–12207 Filed 5–14–01; 8:45 am]

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