Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31443

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 to part 70 is amended

by revising the entry for Massachusetts

to read as follows:

Appendix A to Part 70—Approval Status of

State and Local Operating Permits Programs

* * * * *

Massachusetts

(a) Department of Environmental

Protection: submitted on April 28, 1995;

interim approval effective on May 15, 1996;

interim approval expires May 15, 1998.

(b) (Reserved).

* * * * *

[FR Doc. 96–15621 Filed 6–19–96; 8:45 am]

BILLING CODE 6560–50–P

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. Today’s action

finalizes one of those changes; the other

will be finalized in a subsequent action.

As a result of today’s revision to part

70, certain State operating permit

programs will become eligible for

interim program approval. Without

today’s 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: July 22, 1996.

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 FOR FURTHER

INFORMATION CONTACT section.

Docket

Supporting information used in

developing the part 70 rules, including

today’s 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

‘‘substantially meets’’ 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 ‘‘minor new

source review’’ (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

today’s rulemaking.

The second proposed change to the

interim approval criteria addresses

programs that do not incorporate terms

and conditions into a source’s part 70

permit which are established through an

EPA-approved minor NSR program.
31444 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

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 ‘‘applicable requirement’’ 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 today’s 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 ‘‘applicable requirements’’

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 Texas’ 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. Texas’ demonstration of

compelling reasons included the

following arguments: (1) Texas’ 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 crossreferencing 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

Texas’ 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 source’s

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 federallyenforceable NSR permits, any terms

which are not subject to title V’s

compliance measures during the interim

period. This helps strengthen the

proposal’s position that programs which

exclude minor NSR terms could

‘‘substantially meet’’ 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 Today’s 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,

today’s 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 today’s preamble its

position that minor NSR is an

applicable requirement for part 70

purposes. Additional discussion is also

provided on the proposed ‘‘compelling

reasons’’ 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 today’s action is contained in the

technical support document for this

rule, which is included in the docket for

today’s rulemaking. Comments on other

proposed changes to the interim

approval criteria not addressed by

today’s 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
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31445

disagrees with the commenters’

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 federallyenforceable 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 ‘‘White Paper for Streamlined

Development of Part 70 Permit

Applications, July 10, 1995’’ (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

‘‘parallel process’’ 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 ‘‘applicable requirement’’ for part 70

purposes.

The EPA notes that programs which

exclude minor NSR as an applicable

requirement under today’s 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 ‘‘Compelling

Reasons’’

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

‘‘compelling reasons’’ 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 ‘‘applicable requirement.’’ 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 ‘‘compelling reasons’’ requirement.

The ‘‘compelling reasons’’

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
31446 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

the type of demonstration that could be

considered for interim approval under

today’s 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 crossreference 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

Texas’ 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 Texas’ 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

today’s notice is not intended to present

the Agency’s position as to whether

Texas’ compelling reasons

demonstration (together with the rest of

its program) warrants interim approval

under the revised criteria. Rather,

today’s 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

program’s exclusion of minor NSR terms

will diminish the effectiveness of the

State’s 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 than 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
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31447

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 facility’s 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 crossreferencing is required, the

corresponding rule language is

ambiguous with respect to this

requirement. Another commenter felt

that if EPA does require such crossreferencing, specific criteria regarding

what constitutes adequate crossreferencing should also be provided.

The EPA agrees that there is a need to

clarify the rule language regarding crossreferencing. Therefore, EPA is adding a

sentence to the proposed rule language

in § 70.4(d)(3)(ii) to clarify that a

facility’s 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 crossreferencing 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

today’s 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
31448 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

impacts of the proposed part 70

revisions determined that the proposed

revisions (a subset of which constitutes

today’s 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 today’s 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 today’s 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. Today’s 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, today’s 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 today’s

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, today’s 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 State’s
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31449

approved part 70 program for

incorporation of minor NSR permits.

* * * * *

[FR Doc. 96–15617 Filed 6–19–96; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[MM Docket No. 93–314; RM–8396]

Radio Broadcasting Services; Cadiz

and Oak Grove, KY

AGENCY: Federal Communications

Commission.

ACTION: Final rule; petition for

reconsideration.

SUMMARY: The Chief, Policy and Rules

Division, denied the petition for

reconsideration filed by Southern

Broadcasting Corporation of the Chief,

Allocations Branch’s Report and Order,

60 FR 52105, October 5, 1995,

substituting Channel 293C3 for Channel

292A at Cadiz, reallotting Channel

293C3 from Cadiz to Oak Grove,

Kentucky, and modifying Station

WKDZ-FM’s license accordingly. The

Commission denied the petition because

it failed to present new facts or

arguments that were not considered in

the Report and Order that would

warrant a contrary decision. With this

action, this proceeding is terminated.

EFFECTIVE DATE: June 20, 1996.

FOR FURTHER INFORMATION CONTACT:

Bruce Romano, Mass Media Bureau,

(202) 418–2120.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s

Memorandum Opinion and Order, MM

Docket No. 93–314, adopted May 24,

1996 and released June 7, 1996. The full

text of this Commission decision is

available for inspection and copying

during normal business hours in the

FCC Reference Center (Room 239), 1919

M Street, NW., Washington, DC. The

complete text of this decision may also

be purchased from the Commission’s

copy contractors, International

Transcription Service, Inc. (202) 857–

3800, 2100 M Street, NW., Suite 140,

Washington, DC 20037.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Federal Communications Commission.

Douglas W. Webbink,

Chief, Policy and Rules Division, Mass Media

Bureau.

[FR Doc. 96–15671 Filed 6–19–96; 8:45 am]

BILLING CODE 6712–01–F

DEPARTMENT OF TRANSPORTATION

Research and Special Programs

Administration

49 CFR Part 192

[Docket No. PS–118; Amendment 192–79]

RIN 2137–AB97

Excess Flow Valve—Performance

Standards

AGENCY: Research and Special Programs

Administration, (RSPA), DOT.

ACTION: Final rule.

SUMMARY: In the process of routine

excavation activities, excavators often

sever gas service lines causing loss of

life, injury, or property damage by fire

or explosion. Excess flow valves (EFVs)

restrict the flow of gas by closing

automatically when a line is severed,

thus mitigating the consequences of

service line failures. In this final rule,

RSPA has developed standards for the

performance of EFVs used to protect

single-residence service lines. If an EFV

is installed on such a line, it must meet

these performance standards.

DATES: This final rule takes effect July

22, 1996.

FOR FURTHER INFORMATION CONTACT:

Mike Israni (202) 366–4571, regarding

the subject matter of this final rule, or

the Dockets Unit, (202) 366–4453,

regarding copies of this final rule or

other material in the docket that is

referenced in this rule.

SUPPLEMENTARY INFORMATION:

Statutory Mandate

In 49 U.S.C. 60110 Congress directs

the Department of Transportation to

issue regulations prescribing the

circumstances under which operators of

natural gas distribution systems must

install EFVs. If the Department

determines that there are no

circumstances under which EFVs

should be installed, the Department is to

report this determination, and the

reasons for the decision, to Congress.

RSPA, on behalf of the Department, has

determined that there are no

circumstances under which the

Department should require the

installation of EFVs, primarily because

the costs far exceed the benefits of such

installation. RSPA has sent the report of

its reasons for this determination to

Congress. The report to Congress (April

4, 1995) and the cost/benefit analysis of

mandatory EFV installation are

available in the docket. Costs and

benefits are also discussed later in this

document under ‘‘Cost/Benefit

Analysis.’’

49 U.S.C. 60110 further requires the

Department to develop standards for the

performance of EFVs used to protect

service lines in a natural gas

distribution system. The development of

these standards is the subject of this

rulemaking.

The statute also requires the

Department to issue a rule requiring

operators to notify customers about EFV

availability and to offer to install EFVs

that meet the performance standards, if

the customer pays for the installation.

RSPA will initiate a separate notice of

proposed rulemaking for customer

notification.

The Problem

Despite efforts, such as damage

prevention programs, to reduce the

frequency of excavation-related service

line incidents on natural gas

distribution service lines, such

incidents persist and continue to result

in death, injury, fire, or explosion.

During the period from March 1991

through February 1994, 30 incidents

with consequences that might have been

mitigated by an EFV were reported to

RSPA. These incidents, mostly

excavation-related, resulted in 2

fatalities, 16 injuries, and an estimated

$3,249,595 in property damage. Incident

history is explained in the November

1991 and January 1995 cost/benefit

studies evaluating mandatory EFV

installation. Because damage prevention

measures are not foolproof, RSPA has

sought to identify ways to mitigate the

consequences of these incidents. The

National Transportation Safety Board

(NTSB) and others have proposed EFVs

as a means of mitigation.

NTSB Recommendations

NTSB has recommended EFVs as a

means of reducing or preventing injury

or death from incidents resulting from

service line breaks or ruptures. Since

1971, NTSB has issued seven

recommendations regarding the use of

EFVs in service lines. NTSB’s

recommendations are summarized and

discussed in the Notice of Proposed

Rulemaking on this rulemaking (58 FR

21524; April 21, 1993).

The Advance Notice of Proposed

Rulemaking (ANPRM)

RSPA issued an ANPRM (55 FR

52188; December 20, 1990) seeking

information on the desirability of

requiring the installation of EFVs on gas

distribution service lines to reduce the

damage from service line ruptures. The

ANPRM also contained a questionnaire

to collect current operational data on

the use of EFVs by natural gas

distribution operators. The results of the