![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Clean Air Act Full Approval of Operating Permits Program; State of Oklahoma
Related Material
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: December 5, 2001 (Volume 66, Number 234)]
[Rules and Regulations]
[Page 63170-63175]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de01-12]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[OK-FRL-7113-7]
Clean Air Act Full Approval of Operating Permits Program; State
of Oklahoma
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final full approval.
-----------------------------------------------------------------------
SUMMARY: The EPA is promulgating full approval of the Operating Permit
[[Page 63171]]
Program of the State of Oklahoma. Oklahoma's Operating Permit Program
was submitted in response to the directive in the 1990 Clean Air Act
(CAA) Amendments that States develop, and submit to EPA, programs for
issuing operating permits to all major stationary sources and to
certain other sources within the States' jurisdiction. The EPA granted
interim approval to Oklahoma's Operating Permit Program on February 5,
1996 (61 FR 4220). Oklahoma revised its program to satisfy the
conditions of the interim approval, and EPA proposed full approval in
the Federal Register on October 16, 2001.
EFFECTIVE DATE: November 30, 2001.
ADDRESSES: Copies of the State's submittal and other supporting
documentation relevant to this action are available for inspection
during normal business hours at the U.S. EPA, Region 6, Air Permitting
Section (6PD-R), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733,
and the Oklahoma Department of Environmental Quality, 707 North
Robinson, Oklahoma City, Oklahoma 73102. Anyone wanting to examine
these documents should make an appointment with the appropriate office
at least two working days in advance.
FOR FURTHER INFORMATION CONTACT: Ms. Mary Stanton, Regional Title V Air
Operating Permits Projects Manager, Air Permitting Section (6PD-R),
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202-2733, at (214) 665-8377.
SUPPLEMENTARY INFORMATION: This section provides additional information
by addressing the following questions:
What is the Operating Permit Program?
Why is EPA Taking this Action?
What is Involved in this Final Action?
What is the Effective Date of EPA's Full Approval of the Oklahoma
Title V program?
What is the Scope of EPA's Full Approval?
What Is the Operating Permit Program?
The CAA Amendments of 1990 required all States to develop Operating
Permit Programs that met certain Federal criteria. In implementing the
Operating Permit Programs, the permitting authorities require certain
sources of air pollution to obtain permits that contain all applicable
requirements under the CAA. The focus of the Operating Permit Program
is to improve enforcement by issuing each source a permit that
consolidates all of the applicable CAA requirements into a federally
enforceable document. By consolidating all of the applicable
requirements for a facility into a single document, the source, the
public, and the regulators can more easily determine what CAA
requirements apply and how compliance with those requirements is
determined.
Sources required to obtain an operating permit under this program
include ``major'' sources of air pollution and certain other sources
specified in the CAA or in EPA's implementing regulations. For example,
all sources regulated under the acid rain program, regardless of size,
must obtain operating permits. Examples of major sources include those
that have the potential to emit 100 tons per year or more of volatile
organic compounds (VOCs), carbon monoxide, lead, sulfur dioxide,
nitrogen oxides, or particulate matter; those that emit 10 tons per
year of any single hazardous air pollutant (HAP) (specifically listed
under the CAA); or those that emit 25 tons per year or more of a
combination of HAPs. In areas that are not meeting the National Ambient
Air Quality Standards for ozone, carbon monoxide, or particulate
matter, major sources are defined by the gravity of the nonattainment
classification. For example, in ozone nonattainment areas classified as
serious, major sources include those with the potential of emitting 50
tons per year or more of VOCs.
Why Is EPA Taking This Action?
Where an Operating Permit Program substantially, but not fully met
the criteria outlined in the implementing regulations codified at 40
CFR part 70, EPA granted interim approval contingent on the State
revising its program to correct the deficiencies. Because Oklahoma's
Operating Permit Program substantially, but not fully met the
requirements of part 70, EPA granted interim approval to the program in
a rulemaking published on February 5, 1996 (61 FR 4220). Interim
approval of Oklahoma's program expires on December 1, 2001.
What Is Involved in This Final Action?
The Oklahoma Department of Environmental Quality (ODEQ) has
fulfilled the conditions of interim approval granted on February 5,
1996. On October 16, 2001, EPA published a document in the Federal
Register (66 FR 52562) proposing full approval of Oklahoma's title V
Operating Permits Program, and proposing approval of certain other
program revisions. The EPA received comments from one person during the
comment period that ran from October 16, 2001, until November 15, 2001.
Two of the comments agreed with EPA that the deficiencies for the
first, second, and fourth conditions (transition schedule for permit
issuance, major source definition, and permit language content) for
full approval have been corrected. The remainder of the comments
disagreed with EPA's position, and are set forth below.
1. Oklahoma Administrative Code/Tracking Part 70 Language
The first adverse comment was a general comment that Oklahoma
should amend its operating permits regulations so that the language
tracks the language in 40 CFR part 70. The commenter contends that
Oklahoma's regulations must track the language of 40 CFR part 70 to
retain the effect and intent of the Clean Air Act. Otherwise, according
to the commenter, EPA is put in the position of trying to renegotiate
the Clean Air Act.
EPA does not concur with the comment. Part 70 provides for the
establishment of a comprehensive State air quality permitting program
consistent with the requirements of title V of the Clean Air Act. 40
CFR 70.1(a). The state's program does not have to exactly track the
language in part 70, but it must be consistent with it. 40 CFR 70.1(c).
This allows for flexibility by the State to adopt the regulations to
fit its needs while maintaining national consistency. The EPA has
determined that Oklahoma's program is consistent with part 70 with the
exception of the minor issues outlined in the Notice of Deficiency
located elsewhere in this Federal Register.
2. Insignificant Activities List
The second adverse comment questioned why the insignificant
activities definition in Oklahoma's rule and the approved list of
insignificant activities in Appendix I of Subchapter 8 remain as a part
of the Oklahoma Administrative Code if the EPA is not approving the
list. The commenter questioned whether EPA has the authority to approve
the list and whether the regulation tracks the language of 40 CFR part
70.
The authority to approve an insignificant activities list is found
at 40 CFR 70.5(c), which states that ``the Administrator may approve as
a part of the State program a list of insignificant activities and
emissions levels which need not be included in permit applications.''
As EPA stated in the Federal Register when it granted final interim
approval to Oklahoma, ``even though insignificant activities are not a
required element of a part 70 program, a State that opts to establish
such activities must nevertheless meet certain requirements, including
prior approval
[[Page 63172]]
by EPA.'' 61 FR 4220, 4221. As EPA stated when it proposed granting
full approval, the emission levels in the definition are consistent
with the levels in other approved State Operating Permit Programs. Even
though EPA did not approve the list of insignificant activities, the
list remains a part of Oklahoma's regulations as a matter of state law.
However, it is not part of Oklahoma's approved title V program.
Therefore, EPA does not concur with this comment.
3. Judicial Review
The third adverse comment involved what the commenter characterized
as the ``judicial review'' process, but was not related to the
deficiency as outlined by EPA when we granted Oklahoma interim
approval. The comment dealt with whether certain construction permits
are classified as a Tier II or Tier III permit and how this affects
``judicial review.'' If a permit is characterized as Tier II, the
commenter claims that ``judicial review'' is avoided because of the
lack of an administrative hearing. If it is classified as a Tier III
permit and a hearing is held, the commenter contends that certain
regulations governing administrative hearings such as employment of the
administrative law judge, declaratory ruling procedures, restricting
attendance at administrative hearings in appropriate cases, and burden
of proof restrict judicial review.
EPA does not agree with this comment. Judicial review in this
instance refers to the ability of an individual to appeal a decision
from an administrative agency to state court, not how (or whether) the
state conducts an administrative hearing. Thus, the comments are not
related to judicial review but instead are related to the Tier II and
Tier III permit process as outlined in Oklahoma Administrative Code
(OAC) Title 252, Chapter 4. The EPA is not approving this entire
Chapter as a part of this action. As previously stated, EPA is not
approving any provision of Subchapter 8 which relates to construction
permits, or any other provision contained in the submittal which does
not pertain to Title V. 66 FR at 52564. The EPA found only one issue
with judicial review as it relates to the state's Operating Permit
program (no judicial review for persons who made oral comments), and
that deficiency has been corrected. The EPA does not believe that these
comments are relevant to any interim approval issue or to the action
that EPA is taking today.
4. Enhanced New Source Review (NSR) Procedures
The fourth adverse comment states that by not defining the term
``Enhanced New Source Review (NSR) procedures'', Oklahoma has
effectively avoided the NSR procedures in the Clean Air Act. The
commenter believes that permits which should have been subject to 40
CFR part 70 will be shielded from the NSR procedures. The commenter
feels that the state should use the exact language of 40 CFR part 70 in
regards to ``Enhanced NSR procedures'' and that Oklahoma is allowed to
approve permits without using NSR procedures.
The commenter appears to believe that because Oklahoma used the
undefined term ``enhanced NSR procedures'' in the Title V context,
certain sources that would have otherwise been subject to NSR
procedures will no longer be subject to those procedures. However, this
is not the case. The title V program and the NSR program have different
procedures and requirements. As noted in the October 16, 2001 proposed
full approval, Oklahoma has deleted the term ``enhanced NSR
procedures'' from its regulations and has instead made the commitments
detailed in the proposal and discussed in paragraph 6. Thus, we will
describe the issue in more general terms. Under certain conditions, a
state may allow the incorporation into a part 70 permit, the
requirements from preconstruction review permits authorized under an
EPA-approved program through the use of the administrative permit
amendment process. As provided in 70.7(d)(1)(v), the EPA approved NSR
permitting program must meet procedural requirements substantially
equivalent to the requirements of part 70 that would be applicable to
the change if the change were subject to review as a permit
modification. Thus, the procedures required by 40 CFR 70.7(d)(1)(v) for
use of the administrative amendment process are in addition to the
Clean Air Act's New Source Review requirements and do not abrogate
those requirements. These procedures are not related to the
installation of pollution controls as stated by the commenter. The EPA
does not concur with these comments.
5. Options To Address Use of Administrative Amendment Process To
Incorporate Requirements From Preconstruction Permits Into the Title V
Permit
In the Federal Register, EPA stated that it had given Oklahoma four
options to address outstanding issues from the sixth and seventh
interim approval deficiencies. These options included Oklahoma either
including provisions in the title V permit that meet the requirements
of 40 CFR 70.7 and 70.8 (the option ultimately chosen by Oklahoma) or
amending the regulation to track the language in 40 CFR 70.7(d)(1)(v).
The commenter contends that the regulation should be amended so that
the language tracks the language in part 70. Otherwise, according to
the commenter, it opens the door to renegotiate the language of the
Clean Air Act.
As set forth in response to the first comment, a State does not
have to use the exact language of part 70 when promulgating its
operating permits program. Therefore, we do not agree with this
comment.
6. Permit Language
As stated in the Federal Register, EPA and Oklahoma agreed on nine
conditions it would include in its permits to implement its desire to
use the administrative amendment process to incorporate requirements
from preconstruction permits into a title V permit. 66 FR at 52564. The
commenter had several objections to these provisions. Three of these
comments related to the 30 day public notice and comment period,
contending that 30 days is insufficient to analyze the permit and that
the public will not have another 30 day comment period when the
construction permit is incorporated in the title V permit. However,
this permit condition is consistent with the federal requirements
outlined in 40 CFR 70.7(h)(4) which requires the permitting authority
to provide at least 30 days for public comment.
The commenter also objected to the requirement that the public
notice state that EPA review, EPA objection, and petitions to EPA will
not be available when the preconstruction requirements are incorporated
into a title V permit. However, EPA review, EPA objection, and the EPA
petition process is available during the construction permit process.
The purpose of requiring this language in the public notice is to put
the public on notice that the time to object to the permit is during
the construction permit process, not when it is incorporated into the
title V permit. This procedure is authorized by 40 CFR 70.7(d)(1)(v),
and thus we do not agree with this comment.
Two comments related to the criteria for determining what States
are affected (i.e., affected states). The federal definition of
``affected states'' is found at 40 CFR 70.2. Oklahoma's definition (OAC
252:100-8-2) is consistent with the federal definition.
[[Page 63173]]
The commenter states that EPA review, objections, and petitions
should be posted on the ODEQ and EPA web sites. There is no legal
requirement to post EPA review, objections, or petitions on Oklahoma's
or EPA's website. However, EPA does post title V petitions and its
response to the petition on a website. These documents can be found at
http://www.epa.gov/region07/programs/artd/air/title5/petitiondb/
petitiondb.htm.
Finally, the commenter asserts that the language of 40 CFR 70.7(f)
and (g) should be a part of the Oklahoma Administrative Code (OAC) and
not be modified by OAC 252:100-8-7.3(a), (b), and (c). The language of
40 CFR 70.7(f) and (g) is not modified by OAC 252:100-8-7.3(a), (b),
and (c). The citations to the Oklahoma Administrative Code are to the
procedures for reopening permits that EPA has approved as meeting the
part 70 requirements. They do not modify 40 CFR 70.7(f) and (g). If EPA
reopens a permit for cause, it will use the procedures in 40 CFR
70.7(f) and (g).
7. Approval by the Governor
There were two comments relating to the Governor's approval of
Oklahoma's proposed revisions to OAC 252:100-8-8, which corrected the
deficiencies relating to permit review by EPA and affected states. EPA
noted that the Governor must approve this regulation before it becomes
effective. The commenter was concerned that the Governor would not
approve these revisions. However, the Governor has approved these
revisions, and Oklahoma submitted these revisions to EPA by letter
dated October 19, 2001.
8. Program Deficiencies
The commenter also asserted that the issues identified as
additional program deficiencies were not minor and that they should be
corrected prior to full approval. The EPA stated in the October 16,
2001 notice that it would publish a notice of deficiency concerning
revisions Oklahoma made to its Operating Permits Program that did not
meet the requirements of part 70. These deficiencies relate to public
participation, Tier I air quality applications, definitions, permit
content, administrative permit amendments, minor permit modification
procedures, and permit review by EPA and affected States.\1\ These
deficiencies were identified in a June 12, 2001 letter to Oklahoma.
However, for the reasons discussed below, we disagree that these
deficiencies prohibit us from granting Oklahoma full program approval
at this time.
---------------------------------------------------------------------------
\1\ The deficiencies relating to permit review by EPA and
affected states has been corrected. See Item 7 above.
---------------------------------------------------------------------------
In 1990, Congress amended the CAA, 42 U.S.C. 7401 et seq., by
adding title V, 42 U.S.C. 7661 to 7661f, which requires certain air
pollutant emitting facilities, including ``major source[s]'' and
``affected source[s],'' to obtain and comply with operating permits.
See 42 U.S.C. 7661a(a). Title V is intended to be administered by
local, state or interstate air pollution control agencies, through
permitting programs that have been approved by EPA. See 42 U.S.C.
7661a(a). EPA is charged with overseeing the State's efforts to
implement an approved program, including reviewing proposed permits and
vetoing improper permits. See 42 U.S.C. 7661a(i) and 7661d(b).
Accordingly, title V of the CAA provides a framework for the
development, submission and approval of state operating permit
programs. Following the development and submission of a state program,
the CAA provides two different approval options that EPA may utilize in
acting on state submittals. See 42 U.S.C. 7661a(d) and (g). Pursuant to
section 502(d), EPA ``may approve a program to the extent that the
program meets the requirements of the Act * * *''. EPA may act on such
program submittals by approving or disapproving, in whole or in part,
the state program. An alternative option for acting on state programs
is provided by the interim approval provision of section 502(g). This
section states: ``[i]f a program * * * substantially meets the
requirements of this title, but is not fully approvable, the
Administrator may by rule grant the program interim approval.'' This
provision provides EPA with the authority to act on State programs that
substantially, but do not fully, meet the requirements of title V and
part 70. Only those program submittals that meet the requirements of
eleven key program areas are eligible to receive interim approval. See
40 CFR 70.4(d)(3)(i)-(xi). Finally, section 502(g) directs EPA to
``specify the changes that must be made before the program can receive
full approval.'' 42 U.S.C. 7661a(g); 40 CFR 70.4(e)(3). This explicit
directive encompasses another, implicit one: once a state corrects the
specified deficiencies, then it will be eligible for full program
approval. EPA believes this is so even if deficiencies have been
identified sometime after final interim approval, either because the
deficiencies arose after EPA granted interim approval or, if the
deficiencies existed at that time, EPA failed to identify them as such
in proposing to grant interim approval.
Thus, an apparent tension exists between these two statutory
provisions. Standing alone, section 502(d) appears to prevent EPA from
granting a state operating permit program full approval until the state
has corrected all deficiencies in its program no matter how
insignificant, and without consideration as to when such deficiency was
identified. Alternatively, section 502(g) appears to require that EPA
grant a state program full approval if the state has corrected those
issues that the EPA identified in the final interim approval. The
central question, therefore, is whether by virtue of correcting the
deficiencies identified in the final interim approval Oklahoma is
eligible at this time for full approval or whether Oklahoma must also
correct any new or recently identified deficiencies as a prerequisite
to receiving full program approval.
According to settled principles of statutory construction,
statutory provisions should be interpreted so that they are consistent
with one another. See Citizens to Save Spencer County v. EPA, 600 F.2d
844, 870 (D.C. Cir. 1979). Where an agency encounters inconsistent
statutory provisions, it must give maximum possible effect to all of
the provisions, while remaining within the bounds of its statutory
authority. Id. at 870-71. Whenever possible, the agency's
interpretation should not render any of the provisions null or void Id.
Courts have recognized that agencies are often delegated the
responsibility to interpret ambiguous statutory terms in such a
fashion. See Chevron U.S.A, Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 845 (1984). Harmonious construction is not always
possible, however, and furthermore should not be sought if it requires
distorting the language in a fashion never imagined by Congress.
Citizens to Save Spencer County, 600 F.2d at 870.
In this situation, in order to give effect to the principles
embodied in title V that major stationary sources of air pollution be
required to have an operating permit that conforms to certain statutory
and regulatory requirements, and that operating permit programs be
administered and enforced by state permitting authorities, the
appropriate and more cohesive reading of the statute recognizes EPA's
authority to grant Oklahoma full approval in this situation while
working simultaneously with the state, in its oversight capacity, on
any additional problems that were recently identified. To conclude
[[Page 63174]]
otherwise would disrupt the current administration of the state program
and cause further delay in Oklahoma's ability to issue operating
permits to major stationary sources. A smooth transition from interim
approval to full approval is in the best interest of the public and the
regulated community and best reconciles the statutory directives of
title V.
Furthermore, requiring the State to fix all of the deficiencies
that were identified in the June 12, 2001 letter to receive full
approval runs counter to the established regulatory process that is
already in place to deal with newly identified program deficiencies.
Section 502(i)(4) of the CAA and 40 CFR 70.4(i) and 70.10 provides EPA
with the authority to issue notices of deficiency (``NOD'') whenever
EPA makes a determination that a permitting authority is not adequately
administering or enforcing a part 70 program, or that the State's
permit program is inadequate in any other way. The Oklahoma title V
interim approval expires on December 1, 2001. This deadline does not
provide adequate time for the State to correct newly identified issues
prior to the expiration of interim approval. Allowing the State's
program to expire because of issues identified as recently as June 12,
2001 would cause disruption and further delay in the issuance of
permits to major stationary sources in Oklahoma. As explained above, we
do not believe that title V requires such a result. Rather, the
appropriate mechanism for dealing with additional deficiencies that are
identified sometime after a program received interim approval, but
prior to being granted full approval is a NOD as discussed above. This
process provides the State an adequate amount of time after such
findings to implement any necessary changes without unduly disrupting
the entire state operating permit program. As a result, addressing
newly identified problems separately from the full approval process
will not cause these issues to go unaddressed. Therefore, the
deficiencies EPA identified are not a barrier to granting full approval
to States.
9. Comments on Pre-Construction Permit
The commenter also made several comments regarding a
preconstruction permit. Since these comments do not pertain to the
action proposed in the Federal Register notice or to Oklahoma's
Operating Permits Program, EPA is not providing a response.
What Is the Effective Date of EPA's Full Approval of the Oklahoma
Title V Program?
The EPA is using the good cause exception under the Administrative
Procedure Act (APA) to make the full approval of the State's program
effective on November 30, 2001. In relevant part, the APA provides that
publication of ``a substantive rule shall be made not less than 30 days
before its effective date, except--* * * (3) as otherwise provided by
the agency for good cause found and published with the rule.'' 5 U.S.C.
553(d)(3). Good cause may be supported by an agency determination that
a delay in the effective date is ``impracticable, unnecessary, or
contrary to the public interest.'' 5 U.S.C. 553(b)(3)(B). The EPA finds
that it is necessary and in the public interest to make this action
effective sooner than 30 days following publication. In this case, EPA
believes that it is in the public interest for the program to take
effect before December 1, 2001. The EPA's interim approval of
Oklahoma's program expires on December 1, 2001. In the absence of the
full approval of Oklahoma's program taking effect on November 30, the
federal program under 40 CFR part 71 would automatically take effect in
Oklahoma and would remain in place until the effective date of the
fully-approved state program. EPA believes it is in the public interest
for sources, the public, and the State of Oklahoma to avoid any gap in
coverage of the State program, as such a gap could cause confusion
regarding permitting obligations. Furthermore, a delay in the effective
date is unnecessary because Oklahoma has been administering the title V
permit program for over five years under an interim approval. Through
this action, EPA is approving a few revisions to the existing and
currently operational program. The change from the interim approved
program, which substantially but not fully met the part 70
requirements, to the fully approved program is relatively minor, in
particular if compared to the changes between a state-approved program
and the Federal program.
What Is the Scope of EPA's Full Approval?
In its program submission, Oklahoma did not assert jurisdiction
over Indian country. To date, no tribal government in Oklahoma has
applied to EPA for approval to administer a title V program in Indian
country within the state. EPA regulations at 40 CFR part 49 govern how
eligible Indian tribes may be approved by EPA to implement a title V
program on Indian reservations and in non-reservation areas over which
the tribe has jurisdiction. EPA's part 71 regulations govern the
issuance of federal operating permits in Indian country. EPA's
authority to issue permits in Indian country was challenged in Michigan
v. EPA, (D.C. Cir. No. 99-1151). On October 30, 2001, the court issued
its decision in the case, vacating a provision that would have allowed
EPA to treat areas over which EPA determines there is a question
regarding the area's status as if it is Indian country, and remanding
to EPA for further proceedings. EPA will respond to the court's remand
and explain EPA's approach for further implementation of part 71 in
Indian country in a future action.
Administrative Requirements
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this final approval is not a ``significant
regulatory action'' and therefore is not subject to review by the
Office of Management and Budget. Under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), the Administrator certifies that this final
approval will not have a significant economic impact on a substantial
number of small entities because it merely approves State law as
meeting Federal requirements and imposes no additional requirements
beyond those imposed by State law. This rule does not contain any
unfunded mandates and does not significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Public Law 104-4) because it approves pre-existing requirements under
state law and does not impose any additional enforceable duties beyond
that required by state law. This rule also does not have tribal
implications because it will not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes, as
specified by Executive Order 13175, ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 9, 2000). This
rule also does not have Federalism implications because it will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132, ``Federalism'' (64 FR 43255,
August 10, 1999). The
[[Page 63175]]
rule merely approves existing requirements under state law, and does
not alter the relationship or the distribution of power and
responsibilities between the State and the Federal government
established in the Clean Air Act. This final approval also is not
subject to Executive Order 13045, ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997) or Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001), because it is not a significantly regulatory
action under Executive Order 12866. This action will not impose any
collection of information subject to the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq., other than those previously
approved and assigned OMB control number 2060-0243. For additional
information concerning these requirements, see 40 CFR part 70. An
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
In reviewing State operating permit programs submitted pursuant to
title V of the Clean Air Act, EPA will approve State programs provided
that they meet the requirements of the Clean Air Act and EPA's
regulations codified at 40 CFR part 70. In this context, in the absence
of a prior existing requirement for the State to use voluntary
consensus standards (VCS), EPA has no authority to disapprove a State
operating permit program for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews an operating
permit program, to use VCS in place of a State program that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective on November 30, 2001.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by February 4, 2002. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated November 29, 2001.
Lawrence E. Starfield,
Acting Deputy Regional Administrator, Region 6.
For the reasons set out in the preamble, Appendix A of 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. Appendix A to part 70 is amended under the entry for Oklahoma by
adding paragraph (b) to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Oklahoma
* * * * *
(b) The Oklahoma Department of Environmental Quality submitted
program revisions on July 27, 1998. The rule revisions adequately
addressed the conditions of the interim approval effective on March
6, 1996, and which will expire on December 1, 2001. The State is
hereby granted final full approval effective on November 30, 2001.
* * * * *
[FR Doc. 01-30149 Filed 12-4-01; 8:45 am]
BILLING CODE 6560-50-P