ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[FRL-5060-3]
Operating Permits Program Interim Approval Criteria
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing revisions to the interim approval
criteria within the regulations in part 70 of chapter I of title 40 of
the Code of Federal Regulations. 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. Today's action proposes to make two changes
to those criteria.
As a result of today's proposed revisions to part 70, the
permitting authority would have a period of time under the interim
approval approach to revise its program with respect to these
provisions to conform to the requirements of part 70 so that full
approval could be granted before expiration of the interim approval
and possible application of sanctions.
DATES: Comments on the proposed regulatory changes must be received
by September 28, 1994.
ADDRESSES: Comments must be mailed (in duplicate if possible) to: EPA
Air Docket (LE-131), Attn: Docket No. A-93-50, room M-1500, Waterside
Mall, 401 M Street SW, Washington, DC 20460.
Docket: Supporting information used in developing the proposed
regulatory revisions is contained in Docket No. 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 preceeding address. A
reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Michael Trutna (telephone
919/541-5345), mail drop 15, United States Environmental Protection
Agency, Office of Air Quality Planning and Standards, Air Quality
Management Division, Research Triangle Park, North Carolina 27711.
SUPPLEMENTARY INFORMATION:
Comments. The EPA is likely to be unable to extend the public
comment period due to the necessity of promulgating these regulatory
revisions in time to take action to grant interim approval to
operating permits programs in late 1994. Two paper copies of each set
of comments are requested. Comments generated on computer should also
be sent on an IBM-compatible, 3 1/2 inch diskette and clearly labeled.
Comments should refer to specific page numbers and regulatory
section numbers whenever possible.
I. Background
Title V of the Clean Air Act (Act) Amendments of 1990, Public Law
101-549, enacted on November 15, 1990, requires EPA to promulgate
regulations establishing the requirements for development and
submittal of State programs and the minimum elements a program must
contain to be approvable. On July 21, 1992, EPA's regulations meeting
the title V requirements were published in the Federal Register
(57 FR 32250).
Title V and the part 70 regulations require States and local
agencies to submit operating permits programs to EPA within 3 years of
enactment of the 1990 Act Amendments. In accordance with title V, EPA
must take action within 1 year of program submittal to approve or
disapprove a program. Section 502(g) of the Act allows EPA to grant
interim approval to a program if it "substantially meets the
requirements" of title V. Interim approval may be granted for a
period of up to 2 years and may not be extended or renewed. The
interim approval provision allows permitting authorities time to
correct the program deficiencies preventing full program approval.
The minimum program elements that a program must contain to be
eligible for interim approval are contained in 70.4(d) of part 70.
The first proposed revision to part 70 addresses programs with
provisions allowing a permit to be revised through the minor permit
modification procedure to reflect a change at a facility which was
subject to EPA-approved minor source preconstruction permit
requirements, commonly referred to as "minor new source review" (minor
NSR). There has been confusion and controversy as to whether part 70
allows such changes to be processed as minor permit modifications (see
70.7(e)(2)(i)(A)(3) and (5)). As discussed below, EPA believes
that the better interpretation of the current rule would be that it
does not allow minor NSR changes to be processed as minor permit
modifications. The purpose of the proposed change to part 70 is to
allow a program to receive interim approval if that interpretation is
correct and the program allows minor NSR changes to be incorporated
into the permit through minor permit modification procedures. Based
on this regulatory revision, EPA intends to propose interim approval
for those State programs that allow minor NSR changes to be
incorporated into part 70 permits using minor permit modification
procedures.
The second proposed revision to part 70 addresses programs that
do not incorporate into a source's part 70 permit changes which are
established through an EPA-approved minor NSR program. Title V and
part 70 require a permit to contain provisions that assure compliance
with all applicable requirements (section 502(b)(5)(A), 70.6(a)).
The definition in part 70 of applicable requirement includes
requirements established through minor NSR permitting procedures
( 70.2, definition of "applicable requirement"). The proposed
revision to part 70 would, for the period of interim approval, allow
permits to be issued and revised without incorporating those source
changes that are applicable requirements solely because they are
established through minor NSR.
A. Interim Approval of Programs
Through the mechanism of interim approval, section 502(g) of the
Act allows EPA to grant permitting authorities limited relief from the
Act's tight timeframe for operating permit program development and
submittal to EPA. The timeframe in section 502(d) of the Act requires
program submittal within 3 years of enactment of the 1990 Act
amendments (i.e., by November 15, 1993). If the permitting authority
is unable to develop, adopt, and submit to EPA a fully approvable
program by the required date, EPA may grant the submitted program
interim approval if it "substantially meets" the requirements of
title V (42 U.S.C. 7661a(g)). In the notice granting interim
approval, EPA must specify the changes that the permitting authority
must make to the program before the program can receive full approval.
The EPA may grant the program interim approval for a period of up to 2
years, and may not renew the interim approval. The effect of this
interim approval provision in title V is to suspend for the period of
interim approval the provisions of section 502(d) of the Act which
require application of sanctions to a permitting authority and the
imposition of a Federal permitting program for failure to submit a
fully approvable program. The sanctions and Federal program would
become immediately effective upon expiration of interim approval if
the interim approval has not been replaced by a full approval by that
expiration date. Part 70 currently allows EPA to grant interim
approval only if the program expressly meets certain minimum criteria
(see 70.4(d)(3)(i-xi)) and substantially meets all other part 70
requirements (see memorandum in the docket for today's action
(A-93-50) from John Seitz to Air Division Director, Regions I-X,
August 2, 1993, "Interim Title V Program Approvals").
B. Provisions for Public Participation
The EPA is concerned that one situation where neither full nor
interim approval may be available under the current part 70 is when
permitting authorities wish to use the minor permit modification
process of part 70 to incorporate the results of minor NSR permit
actions into the part 70 permit. Part 70 prohibits permitting
authorities from processing under minor permit modification procedures
modifications under any provision of title I of the Act (see
70.7(e)(2)(i)(A)(5)) or case-by-case determinations, or changes
thereto, of an emission limitation or other standard (see
70.7(e)(2)(i)(A)(3)). Minor NSR changes occur pursuant to State or
local programs approved under regulations promulgated under
section 110(a)(2) of the Act. Since that section occurs in title I of
the Act, the argument has been made that minor NSR changes are
consequently title I modifications that may not be incorporated into
the part 70 permit through minor permit modification procedures. For
the reasons stated in the notice proposing changes to part 70's permit
revision procedures elsewhere in today's Federal Register, EPA
believes that the better interpretation of "title I modifications"
would include minor NSR changes. The Agency solicits comment on the
proper interpretation of "title I modifications."
In addition, EPA considers to be a case-by-case determination any
requirement imposed on a source-specific basis where the permitting
authority has discretion in setting the requirement for that
particular source. This would include a situation where the
permitting authority imposes a technology-based control requirement on
a source-specific basis in a minor NSR permit. Consequently, the
current rule's limitation on case-by-case determinations would also
limit the ability to use minor permit modification procedures for
minor NSR changes.
Pursuant to the interpretation of "title I modifications" set
forth above, processing minor NSR changes as minor permit
modifications would also violate the currently promulgated interim
approval criteria language of 70.4(d)(3)(iv). These criteria
require adequate public notice of and an opportunity for public
comment and a hearing on draft permits and revisions in a program with
interim approval, except for modifications qualifying for minor permit
modification procedures under 70.7(e). Since, under this
interpretation, minor NSR changes would not qualify for minor permit
modification procedures, 70.4(d)(3)(iv) would require a program
granted interim approval to provide public review and an opportunity
for a hearing for minor NSR changes when they are incorporated into a
part 70 permit. However, if permitting authorities incorporate minor
NSR changes into part 70 permits through minor permit modification
procedures, the changes would not be subject to public review and an
opportunity for a hearing. Thus, under the interpretation of "title I
modifications" discussed above, part 70 would currently prohibit EPA
from granting interim approval to programs that process minor NSR
actions as minor permit modifications. The Agency is therefore
proposing to revise part 70 to allow a program to receive interim
approval if the program allows minor NSR changes to be processed as
minor permit modifications.
C. Provisions for Incorporating Applicable Requirements
Section 502(b)(5)(A) of the Act and 70.6(a)(1) require a
part 70 permit to contain provisions that assure compliance with all
applicable requirements. The definition of "applicable requirements"
in 70.2 includes "any term or condition of any preconstruction
permits issued pursuant to regulations approved or promulgated through
rulemaking under title I, including parts C or D, of the Act." Minor
NSR permit terms and conditions established through State or local
minor NSR programs approved by EPA are therefore clearly title I
applicable requirements and must be incorporated into part 70 permits.
If a State or local agency lacks the authority to issue permits that
include all applicable requirements, including those requirements
established through the State or local minor NSR program, the
underlying part 70 program would not be eligible for full approval.
Moreover, 70.4(d)(3)(ii) of the current part 70 requires that,
to be eligible for interim approval, a program must contain adequate
authority to issue permits that assure compliance with all of the
applicable requirements referred to in 70.4(c)(1), which includes
applicable requirements under title I of the Act. If a part 70
program does not provide for incorporating into permits those
requirements established through the EPA-approved State or local minor
NSR program, 70.4(d)(3)(ii) prohibits EPA from granting that part 70
program interim approval.
II. Discussion of Today's Action
A. Proposed Action to Revise Interim Approval Criteria
The EPA in today's notice is proposing to revise the interim
approval criteria in 70.4(d)(3) to allow programs with provisions
corresponding to one or more of the discrepancies with part 70
previously identified to be eligible for interim approval. The EPA
believes that the proposed revisions to the interim approval criteria
are reasonable. The Act, in section 502(g), provides for interim
approval on the basis of whether the submitted program would
"substantially meet" the provisions of title V. The establishment of
"substantially meets" criteria is within the discretion of EPA; it is
also within EPA's authority to revise the criteria if there is
appropriate justification for doing so. As subsequently discussed,
EPA believes the actions in today's proposal are appropriate to
address difficulties in program development that have occurred since
promulgation of part 70 and are within the meaning of section 502(g)
for judging whether programs substantially meet the requirements of
title V of the Act.
B. Proposed Revision to Public Participation Provisions
The EPA is today proposing to revise part 70 to allow interim
approval of a program that is designed to use the current minor permit
modification process to revise part 70 permits to incorporate the
terms and conditions of permits issued under approved State or local
minor NSR programs as well as conditions resulting from review of
changes triggering review under 40 CFR 61.15 (for purposes of National
Emission Standards for Hazardous Air Pollutants). If an operating
permits program allows minor NSR or 61.15 changes to go through the
minor permit modification process, then it could in many cases violate
the section 70.4(d)(3)(iv) requirement for public participation on
those actions since, under the more inclusive interpretation of
"title I modifications" discussed earlier in this notice, they would
not qualify for minor permit modification procedures. A number of
programs that have been submitted to EPA for approval contain this
mechanism and would, under this interpretation of the current part 70,
be ineligible for either full or interim approval.
As previously discussed under the background portion of this
preamble, the provision in part 70 that bears directly upon interim
approval of programs that process minor NSR changes as minor permit
modifications is 70.4(d)(3)(iv). There are no other provisions in
section 70.4(d) that would prevent interim approval of operating
permits programs as long as EPA determines that otherwise the program
substantially meets the requirements of part 70.
The specific revision to part 70 being proposed would modify the
interim approval criteria provision in 70.4(d)(3)(iv) to exclude
from the requirement for public notice and an opportunity for public
comment and a hearing those changes that would not be processed under
minor permit modification procedures because they are changes subject
to minor NSR or 61.15 that implicate 70.7(e)(2)(i)(3) and/or (5).
The criteria for interim approval, as revised, would thus require
public participation for all permit actions except for: (1) those that
qualify as minor permit modifications (as is now stated in
70.4(d)(3)(iv)) and (2) those that incorporate changes subject to
minor NSR or subject to the definition of modification in 61.15
which are processed as minor permit modifications. This proposed
change would allow programs that process minor NSR or 61.15 changes
as minor permit modifications to receive interim approval even under
the more inclusive interpretation of "title I modifications" discussed
above, thereby allowing the permitting authority time to correct any
deficiency in lieu of EPA disapproving those programs.
The EPA acknowledges that the criteria for "substantially meets"
with respect to requirements for public participation and the
interaction with the phrase "modification under any provision of
title I of the Act" may have been confusing to State and local
permitting authorities. The EPA believes the better interpretation of
the term "title I modification" would include any change processed
through either major or minor NSR procedures as well as 61.15. In
the May 10, 1991, Federal Register notice proposing the part 70
regulations (56 FR 21712), footnotes 5 and 6 of the preamble
(56 FR 21746) address the phrase "title I modification." Footnote 6
does not clearly state that any change processed through the minor NSR
procedures would be considered a title I modification, and footnote 5
refers to footnote 6 for what constitutes a title I modification. As
a result, State or local agencies may have interpreted the term
"title I modification" to not include minor NSR changes. The Agency
also realizes that permitting authorities may have believed that
incorporation of minor NSR changes into part 70 permits did not
constitute establishing case-by-case emission limitations within the
meaning of 70.7(e)(2)(i)(A)(3). Permitting authorities could have
interpreted this provision to only apply to case-by-case
determinations made during the permitting process rather than to those
having been made through other mechanisms prior to issuance of the
operating permit.
Another approach that could allow interim approval would be to
interpret the public participation provisions of minor NSR programs to
suffice for meeting the public participation provisions of
70.4(d)(3)(iv). However, several operating permit programs that
have been submitted to EPA for approval do not now guarantee adequate
public participation in their minor NSR programs. This approach would
thus not suffice to resolve the problem for all programs.
The EPA does not wish to initially disapprove operating permits
programs that allow minor NSR changes to be processed under minor
permit modification procedures in view of the confusion that has
surrounded the interpretation of title I modifications and the fact
that EPA is taking comment on that interpretation in this proposal.
Such disapprovals would have neither programmatic nor environmental
benefits. For that reason EPA is proposing to change the interim
approval criteria and intends to propose granting interim approval to
State or local programs that allow minor NSR changes to be processed
as minor permit modifications.
C. Proposed Revisions to Applicable Requirements Provisions
The EPA is aware of at least one part 70 program (submitted by
the State of Texas) that currently defines "applicable requirements"
to exclude requirements established exclusively through an
EPA-approved State or local minor NSR program. Along with its part 70
program, Texas submitted a written demonstration of program
sufficiency to EPA in which the State cited what it believes are
compelling reasons supporting its decision not to include minor NSR
requirements as applicable requirements. Nevertheless, EPA reads
70.2 and 70.6(a)(1) to clearly and unequivocally require that minor
NSR requirements are applicable requirements which must be included in
part 70 permits. Therefore, EPA has evaluated Texas's demonstration
only in terms of arguments which could at best support a potential
interim approval for Texas, not in terms of arguments that the Texas
program would, as presently constituted, be eligible for full
approval.
Texas has argued, for example, that the State's existing minor
NSR program is so stringent as to make the integration of minor NSR
permits into part 70 permits infeasible, and, from the standpoint of
environmental protection, unnecessary. The EPA acknowledges that
Texas's minor NSR program is a very stringent one. The Texas program
requires authorization prior to the construction of any new facility
or the modification of an existing facility. The term "facility" is
broadly defined to include any "point of origin" of air contaminants,
so there is no opportunity for a source to "net out" of minor NSR.
Moreover, Texas mandates best available control technology (BACT) as
the emission control technology which applies to all minor NSR
changes. Texas further subjects each minor NSR permit and permit
amendment to a health effects evaluation which considers the
cumulative effect of the proposed action, together with other air
contaminant sources, on ambient air quality. Finally, where the Texas
minor NSR program provides for public notice of a permit action, the
program provides citizens the right to request a full evidentiary
hearing on the action (as opposed to the more limited opportunities
for public participation typically provided by State or local agencies
under NSR programs).
Similarly, Texas has pointed to the exceptionally large number of
part 70 sources which are located in the State and which are
candidates for minor NSR. Texas estimates that it has over 3,000
part 70 sources, including the nation's largest concentration of
chemical manufacturing and petroleum refining facilities. Many of
these sources have large numbers of emission units, making part 70
permitting difficult and time-consuming. In addition to this part 70
responsibility, the State anticipates that it will have to process
between 8,000 and 10,000 minor NSR actions each year. While Texas's
burden of processing part 70 applications will be heavy in any event,
Texas contends that the added burden of integrating minor NSR into
part 70 permits will completely overwhelm the State's processing
system in the initial years of program implementation. Texas has
informed EPA that it is currently developing a computerized
information management system which is designed to ease the task of
integrating minor NSR and part 70 permitting requirements. This
system is not yet operational, however, and is not expected to be
available for database integration for several months.
Finally, Texas argues that because its minor NSR permits would be
cross- referenced within part 70 permits so that the public and EPA
could easily locate and review the minor NSR applicable requirements,
inclusion of the minor NSR requirements themselves is unnecessary.
While EPA is not persuaded that merely cross-referencing minor NSR
permits in a part 70 permit is in any way equivalent to setting forth
in permit terms minor NSR requirements themselves as applicable
requirements, EPA believes that this argument militates in favor of
potentially granting interim approval to the Texas program.
On the basis of the type of showing of compelling reasons
described above, EPA believes that a State or local permitting
authority with minor NSR/part 70 integration difficulties such as
Texas should be given the opportunity, if otherwise appropriate under
the 70.4(d) criteria, to receive interim approval and to correct its
program deficiency during the interim period. Therefore, EPA is
proposing today to revise its interim approval criteria to allow for
interim approval of programs that do not currently have authority to
assure compliance with applicable requirements that are developed
exclusively through an EPA-approved minor NSR program. The proposed
revision also provides that each part 70 permit issued by such a
program during the interim approval period must state that applicable
minor NSR requirements are not included in that part 70 permit, and
shall cross-reference any excluded minor NSR permits so that citizens
may access and review those permits. Moreover, minor NSR requirements
excluded from part 70 permits would not be eligible for the permit
shield under 70.6(f). The EPA wishes to emphasize that it is only
proposing a revision to part 70 to make possible the evaluation of a
program like that submitted by Texas. The EPA takes no position at
this time as to the approvability of the State of Texas's request for
interim approval. The EPA will evaluate the adequacy of Texas's
demonstration of compelling reasons and whether it otherwise
"substantially meets" part 70 as part of the Agency's ongoing review
of the Texas part 70 program. Comment is solicited on whether this
interim relief is appropriate in situations other than that described
for the Texas program.
The EPA also wishes to make it clear that excluding minor NSR
requirements from part 70 permits does not fulfill the objectives of
title V and the Act. First, a part 70 permit that does not contain
minor NSR requirements is not an accurate compendium of the Act
requirements applicable to the permitted source. Second, as a result
of exclusion from the part 70 permit, minor NSR requirements may not
be subject to the same issuance and revision procedures, or include
the same compliance terms, as would be the case if they were included
in the part 70 permit.
Texas has argued, however, that it will be able to effectively
implement its approved minor NSR program during the interim period
without specifically including the details of the minor NSR permits
issued under that program in issued part 70 permits. The minor NSR
requirements are for the most part applied on a source-specific basis,
and are federally enforceable independent of their inclusion in a
part 70 permit. In addition, because Texas has also requested interim
approval as a source category limited program, which would provide for
issuance of part 70 permits over a 5-year period, this exclusion
should affect significantly less than half the permits that will be
issued in Texas during the (at most) 2-year period in which the
interim approval would be in effect. The EPA notes that as a
condition of being granted interim approval, Texas would have to
submit a corrective program at least 6 months prior to the end of the
interim approval period, and permits and permit revisions issued after
EPA approves this corrective submittal would have to contain the
requirements of minor NSR permits issued after that time. Moreover,
minor NSR requirements excluded from part 70 permits would not be
eligible for the permit shield under 70.6(f) and the excluded
requirements would be cross-referenced in the part 70 permit as
discussed above.
The EPA believes that these considerations would considerably
mitigate the consequences of excluding minor NSR from permits issued
during the interim period. The EPA will consider these and similar
factors in determining whether programs from Texas or other permitting
authorities meeting the revised criteria otherwise "substantially
meet" the requirements of part 70. Two specific factors EPA will
consider in evaluating a request for interim approval under the
revised criteria are (1) whether a program's exclusion of minor NSR as
an applicable requirement will diminish the effectiveness of the State
or local agency's minor NSR program during the interim period, and (2)
whether the State or local permitting authority had previously
submitted a part 70 program to EPA that included minor NSR as an
applicable requirement. The EPA believes that State and local
permitting authorities should be discouraged from revising their
part 70 programs to exclude minor NSR as an applicable requirement,
especially when this revision would necessitate EPA's interim approval
(at best) of a program that would otherwise qualify for full approval.
The EPA also emphasizes that if an interim approval is later granted
to an operating permits program under the revised criteria, EPA
expects that the permitting authority will address and fully correct
its deficient authority no later than 6 months before expiration of
any interim approval. Full approval of such a program would not be
possible at the end of the interim approval period if the problem with
the applicable requirements authority were not corrected.
If and when EPA grants full approval to a program that had
received interim approval under the revised criteria, each part 70
permit issued during the interim period that excluded minor NSR
requirements would have to be reopened to incorporate the excluded
requirements. Moreover, the terms and conditions of minor NSR permits
issued or revised after the end of the interim period would have to be
included as applicable requirements in part 70 permits, even if the
part 70 permit was originally issued during the interim approval
period.
D. Proposed Revision Regarding Effectiveness of Permits
The EPA proposes to clarify the description in 70.4(d)(2)
concerning the effect of EPA's interim approval of a part 70 program
to explicitly state that permits issued under a program granted
interim approval are fully effective for all title V purposes.
Because permitting authorities operating under interim approval are
able to issue fully effective part 70 permits to sources, EPA
considers those permitting authorities eligible to charge all required
permit fees to sources in accordance with 70.9.
III. Impacts of Proposal
Consideration of anticipated impacts supports today's proposed
revisions to the interim approval criteria. The impacts of not
providing these opportunities could include disapproval of several
operating permits programs, imposition of sanctions on permitting
authorities, the promulgation of Federal programs, delay in the
effective date of permitting programs, and undue disruption in
permitting authority efforts to conform to part 70. Conversely, the
EPA does not feel there are significant adverse effects of the actions
proposed in today's notice.
The interim approval period during which a minor NSR change could
be processed under minor permit modification procedures or would not
be included in the permit as an applicable requirement would last for
no more than the first 2 years of the permit issuance transition
period. This period could even be less than 2 years in that program
modifications needed to qualify for full program approval must be
fully adopted by the permitting authority and submitted to EPA no
later that 6 months prior to the end of the interim approval period.
Permit applications for all sources subject to the program are
due during the first year, and one-third of the permits must be issued
during each of the 3 years of the transition period. These factors
will reduce the number of permits being issued and also the number of
permit modifications occurring during this transition period when
permits are initially being issued; therefore, the effect of the
changes being proposed today will be less significant. Up to one-half
of the permits may not even be issued during the interim approval
period. In addition, the permitting actions covered by today's
proposal would only be those that are first processed through EPA-
approved minor NSR programs. These factors limit any programmatically
adverse impacts of today's proposed revisions to the interim approval
criteria regarding minor NSR changes, while at the same time ensuring
that permitting authorities will not be delayed in administering and
implementing their programs and issuing federally-enforceable
operating permits.
With respect to proposed part 70 revisions concerning public
participation, EPA is proposing elsewhere in today's Federal Register
to take regulatory action to revise the part 70 permit revision
process. State and local programs will be required generally to
submit revised programs to meet the new requirements no later than 2
years after EPA promulgates the revisions to part 70. There appears,
therefore, to be little to gain by forcing a State or local agency
whose program does not conform to the existing interim approval
requirements regarding public participation to adopt program revisions
that will shortly thereafter have to again be revised to conform to
revised permit revision provisions.
In light of the proposal to revise the permit revision provisions
of part 70, the disruption and difficulties that would be caused by
disapproving submitted State and local programs, the short duration
and apparent minimal impact of today's action, and the apparent
widespread misunderstanding of the requirements of the current rule,
the EPA believes these proposed revisions to interim approval criteria
of part 70 are reasonable and necessary.
IV. Action on Submitted Programs
The EPA realizes that there are also significant transitional
issues to address in implementing these changes. Many of the current
part 70 program submittals have been evaluated against the current
part 70 requirements and EPA has proposed an action as to their
approvability. In these notices, EPA has proposed interim approval of
those submitted programs with the described minor permit modification
problem upon the condition that EPA revise the interim approval
criteria to address the problem. While these notices may assume a
positive result to today's proposal, they avoid the need to
subsequently re-propose interim approval if today's proposed relief
were promulgated. Implementation of part 70 would be unduly delayed
by the need for a second rulemaking process. If today's proposal is
not promulgated, EPA may subsequently be required to take alternative
action.
The EPA can grant an interim approval for a period of up to 2
years and the interim approval cannot be renewed. The EPA would
indicate in the interim approval notice the discrepancy of the program
with full approval requirements of part 70 and would indicate that the
program would have to be revised to conform with part 70 within the
interim approval period for full program approval subsequently to be
granted. Note that if part 70 is revised before the end of the period
granted for interim approval, the program granted interim approval
would most likely be revised to meet the revised part 70.
Permitting authorities would have to complete their program
revision and submit revised programs to EPA at least 6 months prior to
expiration of the interim approval to allow EPA time to process the
change and grant the program full approval before the expiration of
the interim approval. If the permitting authority fails to take
proper action to revise its program within the timeframe allowed under
interim approval, the interim approval will expire and the provisions
of section 502(d) of the Act regarding sanctions and EPA imposition of
a Federal operating permits program would take effect.
The revisions to the interim approval criteria in part 70 being
proposed today would allow permitting authorities to proceed with
their programs expeditiously, rather than requiring EPA to disapprove
the programs and begin promulgation of Federal programs. The EPA
solicits comment on this approach and how best to address the concerns
associated with its implementation.
VI. Administrative Requirements
A. Public Hearing
No public hearing will be held to discuss the proposed regulatory
revisions unless a hearing is requested in writing and sufficient
reason for a hearing is included in the written request. If a public
hearing is held, it will take place on the last day of the public
comment period. Persons wishing to attend a hearing, if held, should
call (919) 541-5586 to determine if a hearing will be held and to
obtain the time and location. Persons wishing to request a public
hearing must submit a written request to EPA during the public comment
period at the address given in the ADDRESSES section of this preamble.
B. 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) (307(d)(7)(A)). The docket is available for public
inspection at EPA's Air Docket, which is listed under the ADDRESSES
section of this notice.
C. Office of Management and Budget (OMB) Review
Under Executive Order 12866 (E.O. 12866) (58 FR 51735, October 4,
1993), section 4(c), EPA must judge whether a regulation is a
significant regulatory action which would precipitate the requirement
to prepare an assessment of the potential costs and benefits (referred
to as a Regulatory Impact Analysis (RIA)) of the regulatory action.
Sections 3(f)(1-4) of E.O. 12866 define "significant" regulatory
actions as those that may:
(1) Have an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, 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 obligations of
recipients thereof; or
(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.
Today's proposed revisions to part 70 would simply remove
obstructions to the implementation of part 70 and State and local
operating permits programs. However, the Agency has determined that
this rule is a "significant" regulatory action under the terms of
E.O. 12866, sections 3(f)(1-4), since it is closely linked to the
notice published elsewhere in today's Federal Register proposing
regulatory revisions involving several novel legal and policy issues.
The EPA has submitted this action to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record.
D. 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). That analysis is not
necessary, however, if an Agency's Administrator certifies that the
rule will not have a significant economic impact on a substantial
number of small entities.
The EPA has established guidelines for determining whether an RFA
is required to accompany a rulemaking package. The guidelines state
the criteria for determining when the number of affected small
entities is "substantial" and whether there is a significant impact.
The determination of significant impact for small businesses
essentially depends upon compliance costs, production costs, and
predicted closures. For small governments, the determination of
significant impact depends upon compliance costs, operating costs, and
recordkeeping costs.
A regulatory flexibility screening analysis was prepared to
examine the potential for significant adverse impacts on small
entities associated with specific permitting provisions of the current
part 70 and is in the docket for the part 70 rulemaking action (Docket
No. A-90-33). The effect of today's proposal allows permitting
authorities to proceed with implementation of their programs and would
not create any additional impacts on small businesses.
E. Paperwork Reduction Act
The information collection requirements (ICR) for the part 70
regulations were submitted for approval to OMB under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. An ICR document was prepared by
EPA in association with the promulgation of part 70 and a copy may be
obtained from Sandy Farmer, Information Policy Branch (mail code
2136), U.S. Environmental Protection Agency, 401 M Street, S.W.,
Washington, D.C. 20460, (202) 260-2740.
Today's proposed regulatory revisions do not significantly alter
the estimates in the original ICR.
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: July 8, 1994.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, part 70 of title 40,
chapter I of the Code of Federal Regulations is proposed to be 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)(2), (d)(3)
introductory text, (d)(3)(ii), and (d)(3)(iv) 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
issued under an interim approved program shall be fully effective and
expire at the end of their fixed term, unless renewed under a part 70
program.
(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. 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. Notwithstanding the preceding
sentence, 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 and that the program
otherwise substantially meets the requirements of this part. Any
part 70 permit issued during this interim period that does not
incorporate minor NSR requirements shall note this fact in the permit,
and shall indicate how citizens may obtain access to excluded minor
NSR permits.
* * * * *
(iv) Public participation. The program must provide for adequate
public notice of and an opportunity for public participation on draft
permits, reopenings for cause, and revisions as required by 70.7 of
this part, except for:
(A) Modifications qualifying for minor permit modification
procedures under 70.7(e) of this part as promulgated July 21, 1992;
and
(B) Permit revisions to incorporate changes subject to minor NSR
or 61.15 of part 61 of this chapter processed as minor permit
modifications under 70.7(e) of this part as promulgated July 21,
1992.
* * * * *
[FR Doc. 94-21254 Filed 8-26-94; 8:45 am]
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