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Clean Air Act Proposed Full Approval of Operating Permit Program; San Luis Obispo County Air Pollution Control District
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[Federal Register: October 19, 2001 (Volume 66, Number 203)]
[Proposed Rules]
[Page 53159-53163]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19oc01-32]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[CA 044-OPP; FRL-7087-8]
Clean Air Act Proposed Full Approval of Operating Permit Program;
San Luis Obispo County Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to fully approve the operating permit program of
the San Luis Obispo County Air Pollution Control District (District).
The program was submitted in response to the directive in the 1990
Clean Air Act (CAA) Amendments that permitting authorities develop, and
submit to EPA, programs for issuing operating permits to all major
stationary sources and to certain other sources within the permitting
authorities' jurisdiction.
On November 1, 1995, EPA granted interim approval to the District's
operating permit program (60 FR 55460). The District has revised its
operating permit program (Rule 216) to satisfy the conditions of the
interim approval and this action proposes approval of these revisions
made since the interim approval was granted. In addition, EPA proposes
to approve two other changes that were made by the District but were
not required to correct an interim approval issue.
DATES: Written comments must be received by November 19, 2001.
ADDRESSES: Written comments on this action should be addressed to
Gerardo Rios, Acting Chief, Permits Office, Air Division (AIR-3), EPA
Region IX, 75 Hawthorne Street, San Francisco, California, 94105. You
can inspect copies of the District's submittals, and other supporting
documentation relevant to this action, during normal business hours at
Air Division, EPA Region IX, 75 Hawthorne Street, San Francisco,
California, 94105. You may also see copies of the submitted Title V
program at the following locations:
California Air Resources Board, Stationary Source
Division, Rule Evaluation Section, 1001 ``I'' Street, Sacramento, CA
95814.
San Luis Obispo County Air Pollution Control District:
3433 Roberto Court, San Luis Obispo, CA 93401.
You may review all the District rules by retrieving them from the
California Air Resources Board (ARB) Web site. The location of the
District rules on the ARB Web site is http://www.arb.ca.gov/drdb/slo/
cur.htm. 
FOR FURTHER INFORMATION CONTACT: Gerardo Rios, EPA Region IX, at (415)
744-1259 (rios.gerardo@epa.gov) or Nahid Zoueshtiagh at (415) 744-1261.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
Table of Contents
I. District's Operating Permit Program
A. What Is the Operating Permit Program?
B. What Is Being Addressed in this Document?
C. Are There Other Issues with the Program?
D. What Are the Program Changes That EPA Is Proposing to
Approve?
E. What Is Involved in this Action?
II. Request For Public Comment
I. District's Operating Permit Program
A. What Is the Operating Permit Program?
Title V of the Clean Air Act Amendments of 1990 required all State
and local permitting authorities 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 Clean Air Act (CAA). One goal of the operating permit program
is to improve compliance 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, the source, the public, and the permitting
authorities 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 permits. Examples of major sources include those that have
the potential to emit 100 tons per year or more of volatile organic
compounds, carbon monoxide, lead, sulfur dioxide, nitrogen oxides (
NOX), or particulate matter (PM10 ); those that
emit 10 tons per year or more of any single hazardous air pollutant
(HAP) 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 (NAAQS) for ozone, carbon monoxide, or
particulate matter, major sources are defined by the gravity of the
non-attainment classification.
San Luis Obispo County is classified as an attainment area for all
NAAQS.
B. What Is Being Addressed in This Document?
Where an operating permit program substantially, but not fully, met
the criteria outlined in the implementing regulations codified at 40
Code of Federal Regulations (CFR) part 70, EPA granted interim approval
contingent on the State revising its program to correct any
deficiencies. Because the District's operating permit program
substantially, but not fully, met the requirements of part 70, EPA
granted interim approval to the District's program on November 1, 1995
(60 FR 55460).
This Federal Register notice describes the changes that the
District has made to its Rule 216 (District's Operating Permit Program)
since interim approval was granted. The District also revised its Rule
201 (Equipment Not Requiring a Permit) to correct one of the deficiency
issues. Our notice also describes the change to this rule.
C. Are There Other Issues With the Program?
On May 22, 2000, EPA promulgated a rulemaking that extended the
interim approval period of 86 operating permits programs until December
1, 2001, (65 FR 32035). The action was subsequently challenged by the
Sierra Club and the
[[Page 53160]]
New York Public Interest Research Group (NYPIRG). In settling the
litigation, EPA agreed to publish a notice in the Federal Register that
would alert the public that they may identify and bring to EPA's
attention alleged programmatic and/or implementation deficiencies in
Title V programs and that EPA would respond to their allegations within
specified time periods if the comments were made within 90 days of
publication of the Federal Register notice.
EPA received a letter from one organization who commented on what
they believe to be deficiencies with respect to Title V programs in
California. We are not taking any actions on those comments in today's
action and will respond to them by December 1, 2001. As stated in the
Federal Register notice published on December 11, 2000, (65 FR 77376)
EPA will respond by December 1, 2001 to timely public comments on
programs that have obtained interim approval; and EPA will respond by
April 1, 2002 to timely comments on fully approved programs. We will
publish a notice of deficiency (NOD) when we determine that a
deficiency exists, or we will notify the commenter in writing to
explain our reasons for not making a finding of deficiency. A NOD will
not necessarily be limited to deficiencies identified by citizens and
may include any deficiencies that we have identified through our
program oversight.
D. What Are the Program Changes That EPA Is Proposing To Approve?
As discussed above, EPA granted final interim approval on November
1, 1995 (60 FR 55460) to the San Luis Obispo County Air Pollution
Control District's (``District'') Title V program. As stipulated in
that rulemakings, full approval of the District operating permit
program was made contingent upon satisfaction of certain conditions. In
response to EPA's interim approval action, the District made major
revisions to its Rule 216 (Operating Permit Program), and some
revisions to its Rule 201 (Equipment not Requiring a Permit) to remove
the deficiencies identified by EPA. The District made its revised rule
available to public review and comment, and held a hearing on its
proposed action on March 28, 2001. After adoption on March 28, 2001,
these revised rules were submitted to EPA via the California Air
Resources Board (CARB) on May 18, 2001. We have included below a
discussion of each interim approval deficiency issue (as enumerated and
explained in our 1995 proposed and final actions on the District's
operating permits program (see 60 FR 45685 and 60 FR 55460)), our
conditions for correction, followed by a summary of how the District
has corrected the deficiency. The Technical Support Document (TSD) for
this action includes the District's submittal and details on the
revisions made.
Issue 1. In our 1995 action, we identified two problematic items
related to dealing with insignificant activities in the District's
Operating Permits Program. These identified items were in the
District's Rule 201 (Equipment not Requiring a Permit). The District
was required to remove any activities from the District's list of
insignificant activities that are subject to a unit-specific applicable
requirement. (Reference 40 CFR 70.4(b)(2) and 70.5(c)).
District's Response to Issue 1. The District corrected this
deficiency by amending its Rule 201.M to require a permit for any
comfort air conditioning and refrigerant unit that contains more than
50 pounds of refrigerant. The District also added a new section to Rule
201.A about agricultural equipment. The revised rule now states that a
Federal Title V Permit shall always be required for any source that is
subject to District Rule 216, Federal Part 70 Permits, including
agricultural sources as allowed for in the California Health and Safety
Code. With this addition, the District will not need to revise its
operating permit rule should California law change on exempting
agricultural equipment.
Issue 2. The District was required to revise the definitions of
``Minor Part 70 Permit Modification'' in Rule 216 C.13, to ensure that
significant changes to existing monitoring permit terms or conditions,
rather than just relaxations of existing monitoring terms, are
processed as significant permit modifications. (Reference: 40 CFR
70.7(e)(4)).
District's Response to Issue 2. The District revised Rule
216.C.15.d. to state that minor modifications do not involve any
significant change to any existing federally-enforceable monitoring
term or condition or involve any relaxation of reporting or
recordkeeping requirements in the Part 70 Permit.
Issue 3. The District was required to revise Rule 216 J.1.b. to
include notice ``by other means if necessary to assure adequate notice
to the affected public.''(Reference 40 CFR 70.7(h)(1)).
District's Response to Issue 3. The District added 216.J.1.b.3 to
address EPA's concerns. The revised rule now requires that any notice
of a preliminary decision shall be provided by other means if necessary
to assure adequate notice to the affected public.
Issue 4. San Luis Obispo County was required revise Rule 216
H.1.a.4. and L.1.e. to further limit the types of significant permit
modifications that may be operated prior to receiving a final part 70
permit revision to only those modifications that are subject to section
112(g) or required to have a permit under Title I, parts C and D of the
CAA and that are not otherwise prohibited by an existing part 70
permit. (Reference 40 CFR 70.5(a)(1)(ii)).
District's Response to Issue 4. The District made several changes
to correct the deficiency issues. Several parts of Section H of Rule
216 were revised to clarify the timing for implementing various types
of modification requests. These changes are as follows.
Significant Part 70 Permit Actions--APCO must take final
action to approve the application before the source may be operated
pursuant to the modification (Rule 216.H.1.a.4).
Minor Part 70 Permit Modifications--APCO must take final
action to approve the application before the source may be operated
pursuant to the modification (Rule 216.H.3.a).
Non-Federal Minor Changes--a source requesting a non-
federal minor change to its Part 70 Permit must submit an application
for a modified Part 70 Permit to the District, with a copy to the EPA
(Rule 216.H.4.a).
In addition Section L was revised as follows:
Rule 216.L requires that when a complete application to
modify a Part 70 Permit has been submitted, the stationary source must
be operated in compliance with all applicable conditions on its Part 70
Permit, except as allowed under ``Administrative Part 70 Permit
Amendment'', and all applicable conditions on an Authority to Construct
for the modification issued pursuant to Rule 202 (Permits), and Rule
218 (Federal Requirements for Hazardous Air Pollutants), until the Part
70 Permit is revised or the modification is denied.
Section 216.L.1.e. clarifies the requirements by stating
that the protection granted by Subsections L.1.a through c for a
significant Part 70 Permit modification shall not be applicable where a
federally-enforceable condition of an existing Part 70 Permit would
prohibit the modification of a source corresponding to the significant
Part 70 Permit modification. In this case, the source shall obtain such
modification to the source's Part 70 Permit prior to commencing
operation of the modified portion of the source.
Issue 5. The District was required to revise Rule 216 to establish
a binding requirement that the Part 70 Permit
[[Page 53161]]
Format will be included in all part 70 permits or revise Rule 216 to
fully address all part 70 permit content requirements within the Rule.
(Reference 40 CFR 70.6).
District's Response to Issue 5. The District significantly revised
its Rule 216.F to ensure that each Part 70 Permit conforms to an EPA
approved format and includes EPA's required elements. The revised Rule
216.F now requires more specific information instead of referencing to
an approved format. For example it requires that Part 70 permit include
the following elements:
Monitoring requirements that assure use of terms, test
methods, units, averaging periods, and other statistical conventions
consistent with the applicable requirement.
Requirements concerning the use, maintenance, and, where
appropriate, installation of monitoring equipment or methods.
Detailed records of required monitoring information.
Other revisions to Rule 216.F include:
A new provision stating that no permit revision shall be
required, under any approved economic incentives, marketable permits,
emissions trading and other similar programs or processes for changes
that are provided for in the permit.
Specifying ``prompt'' reporting requirements as a verbal
report as soon as reasonably possible, but in any case within four (4)
hours after the deviation's detection, followed by a written report
within 10 calendar days of having corrected the deviation.
Clarify requirements for inspection and entry to
facilities.
In addition the District revised its Rule 216.G to:
Require applicants to include EPA in their notification
when they are permitted to operate under an emissions cap that allows
them to trade emissions within the emissions cap with 30 calendar days
written notification. If the District objects to the emissions trade,
the source, the District, and the EPA shall attach each such notice to
their copy of the relevant permit.
Include EPA in notification requirements under operational
flexibility.
Issue 6. The District was required to revise Rule 216 to define and
provide for giving notice to and responding to comments from affected
States. Alternatively, San Luis Obispo could have made a commitment to:
(1) Initiate rule revisions upon being notified by EPA of an
application by a tribe for State status, and (2) provide affected State
notice to tribes upon their filing for State status (i.e., prior to
revising Rule 216 to incorporate affected State notice procedures).
(Reference 40 CFR 70.2, 70.7(e)(2)(iii), and 70.8(b)).
District's Response to Issue 6. The District revised Rule 216.C.3
to define ``Affected State'' as:
(a) Whose air quality may be affected by the issuance,
modification, or re-issuance of a Part 70 permit and that is contiguous
to the State of California; or
(b) That is within 50 miles of the permitted source.
The District also revised Rule Section 2 of 216.J.2.b (Minor Part
70 Permit Modifications) and 216.J.2.c (Significant Part 70 Permit
Actions) to provide that the APCO shall provide, to the EPA and any
affected State, written notification of any refusal by the District to
accept all recommendations that an ``affected'' State submitted for the
Part 70 permit. The notice shall include the District's reasons for not
accepting such recommendations.
Issue 7. The District was required to revise the rule to limit the
exemption in Rule 216 D.4 for solid waste incineration units required
to obtain a permit pursuant to section 3005 of the Solid Waste Disposal
Act to those units that are not a major source. Section 70.3(b) states
that all major sources, affected sources (acid rain sources), and solid
waste incinerators regulated pursuant to section 129(e) of the CAA may
not be exempted from Title V permitting. Although section 129(g)(1) of
the CAA exempts solid waste incineration units subject to section 3005
of the Solid Waste Disposal Act from regulation under section 129,
these units are still subject to Title V and part 70 if they are also
major sources. (Reference: 40 CFR 70.3(a)(1)).
District's Response to Issue 7. The District deleted its Rule
216.D.4, therefore removing any exemptions from permitting of solid
waste incineration units subject to Section 3005 of the Solid Waste
Disposal Act.
Issue 8. San Luis Obispo County was required to revise Rule 216
H.4. to require that the permittee keep records describing non-federal
minor changes (e.g., off-permit changes) and the emissions resulting
from these changes. (Reference: 40 CFR 70.4(b)(14)(iv)).
District's Response to Issue 8. The District responded that while
the District's original program submittal envisioned allowing off-
permit non-federal minor changes, such actions were not allowed under
the actual program that was implemented. In fact, any source subject to
an applicable requirement in the District must first notify the
District. For example, the District Rule 202 requires that an
application be filed and approved before a non-federal minor change can
be made, and failing to do so is a misdemeanor under California law and
subject to fines and penalties. In sum, the District does not and will
not allow off-permit changes. We agree with the District that the issue
is moot because the District's revised Rule 216 has now clarified its
procedure for various types of permit modification requests. In
correcting our deficiency issue 4, the District has also responded to
issue 8 and addressed our concerns resulting from the description of
off-permit changes in the original program submittal.
Issue 9. One of EPA's conditions for full title V program approval
was the California Legislature's revision of the Health and Safety Code
to eliminate the provision that exempts ``any equipment used in
agricultural operations in the growing of crops or the raising of fowl
or animals' from the requirement to obtain a permit. See California
Health and Safety Code section 42310(e). Even though the local
Districts have, in many cases, removed the title V exemption for
agricultural sources from their own rules, the Health and Safety Code
has not been revised to eliminate this provision.
In evaluating the impact of the Health and Safety Code exemption,
EPA believes there are a couple of key factors to consider. First, many
post-harvest activities are not covered by the exemption and, thus, are
still subject to title V permitting. For example, according to the
California Air Resources Board (CARB), the Health and Safety Code
exemption does not include activities such as milling and crushing, or
canning or cotton ginning operations. Activities such as these are
subject to review under the State's title V programs. See letter from
Michael P. Kenny, Executive Officer, California Air Resources Board, to
Jack Broadbent, Director, Air Division, U.S. EPA Region 9, dated
September 19, 2001. In addition, since the granting of interim
approval, the EPA has discovered that, in general, there is not a
reliable or complete inventory of emissions associated with
agricultural operations in California that are subject to the
exemption. Although further research on this issue is needed, many
sources with activities covered by the exemption may not have emission
levels that would subject them to title V, and the State and/or
individual Districts may be able to demonstrate that none of the
sources that are exempt under the State law are subject to title V.
Based, in part, on these factors, EPA has tentatively concluded
that requiring the immediate commencement of title V
[[Page 53162]]
permitting of the limited types of agricultural activities presently
subject to the exemption, without a better understanding of the sources
and their emissions, would not be an appropriate utilization of limited
local, state and federal resources. As a result, despite the State of
California's failure to eliminate the agricultural permitting
exemption, EPA is proposing to grant full approval to local Air
District operating permit programs and allow a deferral of title V
permitting of agricultural operations involved in the growing of crops
or the raising of fowl or animals for a further brief period, not to
exceed three years. During the deferral period, we expect to develop
the program infrastructure and experience necessary for effective
implementation of the title V permitting program to this limited
category of sources.
EPA believes it is appropriate to defer permitting for this limited
category of agricultural sources because the currently available
techniques for determining emissions inventories and for monitoring
emissions (e.g., from irrigation pumps and feeding operations) are
problematic and will be dramatically enhanced by several efforts
currently being undertaken with the cooperation and participation of
the operators and agricultural organizations, as well as EPA, other
federal agencies, and the State and local air pollution agencies. For
example, the National Academy of Sciences is undertaking a study
addressing emissions from animal feeding operations. Their report is
due next year. In addition, EPA's Office of Air and Radiation is
working with the U.S. Department of Agriculture to better address the
impact of agricultural operations on air quality. We consider the
effort to evaluate the existing science, improve on assessment tools,
collect additional data, remove any remaining legal obstacles, and
issue any necessary guidance within the three year deferral time frame
to be ambitious. We welcome comments on other areas that might also
warrant study, as well as ways that this work might be done more
quickly.
During the interim deferral period, EPA will continue to work with
the agricultural industry and our state and federal regulatory partners
to pursue, wherever possible, voluntary emission reduction strategies.
At the end of this period, EPA will, taking into consideration the
results of these studies, make a determination as to how the title V
operating permit program will be implemented for any potential major
agricultural stationary sources.
Other District Revisions
In addition to the changes necessary to correct interim approval
issues, the District made two other changes to its rule that we propose
to approve as part of today's action. First, the District expanded
Section A of its Rule 216 to allow the District's program to be
suspended during any time period in which a 40 CFR Part 71 operating
permit program is being administered. The two exceptions to this are
when EPA objects to a permit or when EPA and the District agree, via a
delegation agreement, to not suspend all or part of the District's
rules. In the latter case, the delegation agreement would describe the
terms, conditions and scope of the District's authority for
implementing Part 71. This is approvable because it clarifies how the
District's program will be administered during time periods where Part
71 is in place.
Second, the District added a statement to its definition of
potential to emit (``PTE'') at Rule 216.C.18 to state that limiting
conditions must be legally and practicably enforceable by EPA and
citizens or by the District. The last paragraph of Rule 216.C.18
(previously Rule 216.C.6) now reads as follows:
The potential to emit for an emissions unit is the maximum
quantity of each air pollutant that may be emitted by the emissions
unit, based on the emissions unit's physical and operational design.
Physical and operational design shall include limitations that
restrict emissions, such as hours of operation and type or amount of
material combusted, stored or processed, provided such limitations
are legally and practicably enforceable by EPA and citizens or by
the District.
We propose to approve this revision because even though the new
definition is not consistent with Part 70, it is consistent with the
new meaning of potential to emit at 40 CFR Sec. 70.2 as established by
a 1996 court decision. In Clean Air Implementation Project v. EPA, No.
96-1224 (D.C. Cir. June 28, 1996), the court remanded and vacated the
requirement for federal enforceability for potential to emit limits
under part 70. Therefore, even though part 70 has not been revised, it
should be read to mean, ``federally enforceable or legally and
practicably enforceable by a state or local air pollution control
agency.''\1\
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\1\ See also, National Mining Association (NMA) v. EPA, 59 F.3d
1351 (D.C. Cir. July 21, 1995) (Title III) and Chemical
Manufacturing Ass'n (CMA) v. EPA, No. 89-1514 (D.C. Cir. Sept. 15
1995) (Title I).
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EPA has issued several guidance memoranda that discuss how the
court rulings affect the definition of potential to emit under CAA
Sec. 112, New Source Review (NSR) and Prevention of Significant
Deterioration (PSD) programs, and title V.\2\ In particular, the
memoranda reiterate the Agency's earlier requirements for practicable
enforceability for purposes of effectively limiting a source's
potential to emit.\3\ For example, practicable enforceability for a
source-specific permit means that the permit's provisions must, at a
minimum: (1) Be technically accurate and identify which portions of the
source are subject to the limitation; (2) specify the time period for
the limitation (hourly, daily, monthly, and annual limits such as
rolling annual limits); (3) be independently enforceable and describe
the method to determine compliance including appropriate monitoring,
recordkeeping and reporting; (4) be permanent; and (5) include a legal
obligation to comply with the limit. EPA will rely on San Luis Obispo
County implementing this new definition in a manner that is consistent
with the court's decisions and EPA policies. In addition, EPA wants to
be certain that absent federal and citizen's enforceability, San Luis
Obispo County's enforcement program still provides sufficient incentive
for sources to comply with permit limits. This proposed rulemaking
serves as notice to San Luis Obispo County about our expectations for
ensuring the permit limits they impose are enforceable as a practical
matter (i.e., practicably enforceable) and that its enforcement program
will still provide sufficient compliance incentive. In the future, if
San Luis Obispo County does not implement the new definition consistent
with our guidance, and/or
[[Page 53163]]
has not established a sufficient compliance incentive absent Federal
and citizen's enforceability, EPA could find that the District has
failed to administer or enforce its program and may take action to
notify the District of such a finding as authorized by 40 CFR
70.10(b)(1).
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\2\ See, e.g., January 22, 1996, Memorandum entitled, ``Release
of Interim Policy on Federal Enforceability of Limitations on
Potential to Emit'' from John Seitz, Director, OAQPS and Robert I.
Van Heuvelen, Director, Office of Regulatory Enforcement to EPA
Regional Offices; January 31, 1996 paper to the Members of the
Subcommittee on Permit, New Source Review and Toxics Integration
from Steve Herman, OECA, and Mary Nichols, Assistant Administrator
of Air and Radiation; and the August 27, 1996 Memorandum entitled,
``Extension of January 25, 1995 Potential to Emit Transition
Policy'' from John Seitz, Director, OAQPS and Robert Van Heuvelen,
Director, Office of Regulatory Enforcement.
\3\ See, e.g., June 13, 1989 Memorandum entitled, ``Guidance on
Limiting Potential to Emit in new Source Permitting, from Terrell F.
Hunt, Associate Enforcement Counsel, OECA, and John Seitz, Director,
OAQPS, to EPA Regional Offices. This guidance is still the most
comprehensive statement from EPA on this subject. Further guidance
was provided on January 25, 1995 in a memorandum entitled ``Options
for Limiting the Potential to Emit (PTE) of a Stationary Source
Under Section 112 and Title V of the Clean Air Act (Act),'' from
John Seitz, Director, OAQPS and Robert I. Van Heuvelen, Director,
ORE to Regional Air Directors. Also please refer to the EPA Region 7
database at http://www.epa.gov/region07/programs/artd/air/policy/
policy.htm for more information.
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E. What Is Involved in This Action?
We have determined that the District has addressed our specific
concerns identified as interim approval issues. Therefore, we are now
proposing to fully approve the District's Operating Permit Program. We
are also proposing to approve two additional changes that were made
beyond those necessary to correct interim approval issues.
II. Request for Public Comment
EPA requests comments on the program revisions discussed in this
proposed action. Copies of the District submittal and other supporting
documentation used in developing the proposed full approval are
contained in docket files maintained at the EPA Region 9 office. 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 full approval. The primary 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 approval
process, and (2) to serve as the record in case of judicial review. EPA
will consider any comments received in writing by November 19, 2001.
Administrative Requirements
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this proposed action 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 proposed
rule 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 proposes to approve 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'' (65 FR
67249, 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 rule merely proposes
to approve 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 proposed rule 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.
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.
Dated: October 11, 2001.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. 01-26419 Filed 10-18-01; 8:45 am]
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