[Federal Register: June 27, 2003 (Volume 68, Number 124)]
[Rules and Regulations]
[Page 38517-38523]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jn03-26]
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Part IV
Environmental Protection Agency
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40 CFR Parts 70 and 71
State and Federal Operating Permits Program: Amendments to Compliance
Certification Requirements; Final Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 70 and 71
[AL-FRL-7519-5]
RIN 2060-AK11
State and Federal Operating Permits Program: Amendments to
Compliance Certification Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is taking final action on a March 2001 proposal to
amend the State Operating Permits Program and the Federal Operating
Permits Program. The amendments respond to a decision of the United
States Court of Appeals for the District of Columbia Circuit (October
29, 1999) remanding to us those revisions to the compliance
certification requirements that accompanied promulgation of the
compliance assurance monitoring (CAM) rule (October 22, 1997) and that
tailored the ongoing compliance certification content to the monitoring
imposed by CAM. In particular, the Court ruled that the compliance
certification must include whether the facility or source has been in
continuous or intermittent compliance. We are removing the language in
the 1997 revisions that addressed this requirement implicitly and
replacing it with an express requirement tracking the statute.
EFFECTIVE DATE: The final rule amending parts 70 and 71 announced
herein is effective on June 27, 2003.
ADDRESSES: We are not seeking comments on this final rule. A public
version of the record for this action is available for public
inspection in person and electronically. See SUPPLEMENTARY INFORMATION
section.
FOR FURTHER INFORMATION CONTACT: Grecia Castro, U.S. Environmental
Protection Agency, Office Air Quality Planning and Standards, at (919)
541-1351. Facsimile: (919) 541-5509. e-mail: castro.grecia@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Regulated Entities
These regulations may apply to you if you own or operate any
facility subject to the compliance certification requirements of part
70 or 71. These regulations apply to, but are not limited to, owners or
operators of all sources who must have operating permits under either
of these programs. State, local, and tribal governments that are
implementing the part 70 and 71 operating permits program are
potentially affected to the extent that those governments must revise
existing compliance certification requirements to make them consistent
with these revisions.
B. How Can I Get Copies of Related Information?
1. Docket
The EPA has established an official public docket for this action
under Docket Number OAR-2002-0062. The official public docket consists
of the documents specifically referenced in this action, any public
comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include confidential business information or other information whose
disclosure is restricted by statute. The official public docket for
this action is available for public viewing at the Air and Radiation
Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301
Constitution Avenue, NW., Washington, DC. The EPA Docket Center Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Reading
Room is (202) 566-1742, and the telephone number for the Air and
Radiation Docket is (202) 566-1742. The Docket Office may charge a
reasonable fee for copying docket materials.
2. Electronic Access
You may access this Federal Register document electronically
through the EPA Internet under the ``Federal Register'' listings at
http://www.epa.gov/fedrgstr/. An electronic version of the public
docket is available through EPA's electronic public docket and comment
system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/
to view public comments, access the index listing of the
contents of the official public docket, and to access those documents
in the public docket that are available electronically. Although not
all docket materials may be available electronically, you may still
access any of the publicly available docket materials through the
docket facility identified in Unit I.B. Once in the system, select
``search,'' then key in the appropriate docket identification number.
Contents of Today's Preamble
The information in this preamble is organized as follows:
I. Authority
II. Background
A. Regulatory and litigation background
B. Summary of Issues Raised by the Proposal
III. Description of the Final Rule
A. How is EPA responding to comments on the proposal?
B. What are the regulatory revisions to the proposal?
IV. Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act Compliance as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5
U.S.C. 601 et seq.
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution, or Use (Energy Effects)
I. National Technology Transfer and Advancement Act
J. Congressional Review Act
V. Judicial Review
I. Authority
The statutory authority for this final rule is provided by sections
114 and 501 through 507 of the Clean Air Act (CAA or the Act or the
Statute), as amended (42 U.S.C. 7414a and 7661-7661f).
II. Background
A. Regulatory and Litigation Background
On October 22, 1997 (62 FR 54900), we promulgated part 64, the CAM
rule, and revisions to parts 70 and 71, the State and Federal Operating
Permits Programs. In particular, the 1997 revisions to parts 70 and 71
revised the rule language requiring responsible officials to indicate
in the annual compliance certification whether the source's compliance
certification was continuous or intermittent and replaced it with a
requirement to indicate whether the certification was based on methods
that provide continuous or intermittent data and whether deviations,
excursions, or exceedances occurred. Subsequently, the Natural
Resources Defense Council, Inc. (NRDC) and the Appalachian Power
Company et al. (Industry) filed petitions with the United States Court
of Appeals for the District of Columbia Circuit (Court) challenging
several aspects of the parts 70 and 71 revisions. Among other issues,
NRDC argued that the part 70 and 71 revisions were inconsistent with
the Act's explicit requirement in section 114(a)(3) that compliance
certifications identify whether compliance is
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continuous or intermittent. On October 29, 1999, the Court issued a
decision (see docket A-91-52, item VIII-A-1) Natural Resources Defense
Council v. EPA, 194 F.3d 130 (D.C. Cir. 1999), on these challenges. The
Court agreed with NRDC that EPA's removal from parts 70 and 71 of the
explicit requirement that compliance certifications address whether
compliance is continuous or intermittent revisions was contrary to the
Statute. See section 114(a)(3)(D), 42 U.S.C. 7414(a)(3)(D). The Court
wrote: ``While [section] 114(a)(3) clearly states that a major source's
``compliance certification shall include * * * whether compliance is
continuous or intermittent[,]'' EPA only requires that a major source's
compliance certification include ``[t]he identification of the
method(s) * * * used by the owner for determining the compliance status
* * * and whether such methods * * * provide continuous or intermittent
data'' (40 CFR 70.6(c)(5)(iii)(B), 71.6(c)(5)(iii)(B)). The statute
requires that certification include whether ``compliance''--not just
``data''--is continuous or intermittent'' (194 F.3d at 137). The Court
thus remanded the regulations to EPA for the Agency to revise them in
accordance with the Court's opinion (Id. at 138). In response to the
Court's remand, we issued a direct final rule for ``Amendments to Part
70 and Part 71 Compliance Certification Requirements.'' These revisions
to parts 70 and 71 inserted language into sections 70.6(c)(5)(iii)(C)
and 71.6(c)(5)(iii)(C) to require that the responsible official for
each subject facility include in the annual (or more frequent)
compliance certification whether compliance during the period was
continuous or intermittent. The original direct final rule notice,
published March 1, 2001 (66 FR 12872), was accompanied by a proposal
with the same revisions. In the March 1 notice, we indicated that we
would withdraw the direct final rule if we received adverse comments
and would respond to any adverse comments on the direct final rule as
comments on the proposal. We subsequently received adverse comments on
the direct final rule; however, through an inadvertent administrative
error, we did not publish the withdrawal prior to the rule's April 30
effective date. To correct this oversight, we issued an amendment
notice withdrawing the direct final rule, effective on November 5, 2001
(66 FR 55883).
B. Summary of Issues Raised by the Proposal
We received five letters from commenters, three of which were from
industry groups, one from an environmental interest group and one from
a local permitting agency. All comments are discussed in detail in the
response to comments document that is part of the docket documents;
those that are pertinent to the March 1, 2001, proposal are summarized
below.
On the whole, the primary issue raised by the commenters on the
March 1, 2001, proposal for this final rule is that neither the
proposed rule nor the preamble provides clear guidance for responsible
officials to know how to comply with the requirement to certify whether
compliance with the permit terms and conditions was continuous or
intermittent. Neither does the proposed rule or the preamble enable
regulatory authorities and the public to understand the meaning of such
statement in a certification, commenters asserted. Commenters urged us
to clarify in the final rule when responsible officials must certify
continuous compliance and when responsible officials must certify
intermittent compliance.
Commenters stated that the explanation of our interpretation of
continuous versus intermittent compliance certification, contained in
the preamble for the March 1, 2001, proposal, was unclear. In general,
commenters stated that our explanation of the meaning of continuous or
intermittent compliance certification in the March 1, 2001, proposal is
indirect, ambiguous, and would lead to inconsistent implementation
rendering the compliance certifications meaningless. Commenters also
pointed out that, according to our explanation, responsible officials
under the same compliance conditions could arrive at different
conclusions regarding their compliance status. Additionally, commenters
noted that the March 1, 2001, proposal equates the compliance status of
responsible officials collecting periodic data with that of responsible
officials experiencing periods of noncompliance. Commenters also argued
that substantive portions of the discussion referenced in the preamble
of the March 1, 2001, proposal as guidance are no longer valid because
this guidance was developed for the rules that the court in NRDC held
were inconsistent with the Act.
Additionally, commenters expressed concern with our approach for
revising the rule in the March 1, 2001, proposal and disagreed that it
fully addressed the Court's direction expressed in the remand. One
commenter representing environmental interests and two industry
commenters noted that the proposal retained the requirement for
responsible officials to identify in the compliance certification
whether their monitoring methods provide continuous or intermittent
data. Industry commenters urged us to remove this requirement in the
final rule arguing that this requirement was originally in the rule due
to the approach invalidated by the Court in NRDC. These commenters
further argued that the Statute does not provide for this requirement
and it only adds an unnecessary burden. One industry commenter
suggested that if we would find that such requirement is necessary for
implementing the amendments, we should impose it on permitting
authorities to avoid mistakes in the classification of methods.
One industry commenter disagreed with our explanation, in section
III.B. of the March 1, 2001, proposal's preamble, that permit terms and
conditions that are the basis of the certification include applicable
recordkeeping, monitoring and reporting provisions. The commenter also
objected to the procedure for completing the compliance certification,
suggested by this explanation, finding it confusing and impractical.
The commenter argued that according to this procedure monitoring,
recordkeeping and reporting requirements would need to be identified
first as ``methods'' and then again as ``permit terms and conditions.''
Although, the commenter added, it would be unclear what ``methods'' to
use to verify compliance with monitoring, recordkeeping and reporting
requirements. This commenter further argued that a better reading of
the regulations is that ``permit terms and conditions'' include only
substantive terms such as emission limits, standards and work practice
requirements and exclude monitoring, recordkeeping and reporting. The
compliance certification would then address only ``permit terms and
conditions,'' and that monitoring, recordkeeping, and reporting
requirements would be handled in semiannual monitoring reports. This
commenter asked that the discussion of the compliance certification
obligations in the final rule should be revised accordingly.
III. Description of the Final Rule
A. How Is EPA Responding to Comments on the Proposal?
Consistent with the March 1, 2001, proposal, today's final rule
requires responsible officials to identify in the certification whether
compliance with each permit term and condition that is the basis of the
certification was continuous or intermittent, during the period covered
by the ongoing
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certification. The final rule differs from its March 1, 2001, proposal
in that responsible officials are no longer required to certify whether
the methods used for determining compliance provide continuous or
intermittent data. Although the requirement to identify whether the
methods used provide continuous or intermittent data was derived for
the 1997 amendments to parts 70 and 71, we kept this requirement and
the corresponding preamble explanation, in the March 1, 2001, proposal
because we sought to address the direction of the Court in a manner
that we believed was both simple and direct and we did not believe at
that time that this requirement would impose additional burden on
sources; therefore, we simply added, to the language already in the
rule, regulatory language directing responsible officials to identify,
in the certification, whether compliance was continuous or
intermittent. In concurring with comments stating that the Court
disagreed with us that the requirement to identify whether the methods
provide continuous or intermittent data derives from a correct
interpretation of the Statutory provision and that this requirement
adds unnecessary burden upon sources, we removed the requirement in the
final rule.
The Agency is withdrawing section III. B. of the March 1, 2001,
proposal's preamble, which would have explained what must be included
in the compliance certification, to address comments that the section's
depiction of how the certification must be completed is confusing and
that this explanation is also ambiguous because it references an
invalidated discussion from the preamble of another rule (see section
II. B. for comments). In addition, we provide the following
clarification in regard to the comment on the discussion of the
elements of the certification. While agreeing that periodic reporting
of monitoring deviations is covered under a separate requirement, the
Agency disagrees that compliance with permit terms and conditions that
are the basis of the certification can be addressed separately from
monitoring deviations or that identifying permit deviations in the
compliance certification duplicates other reporting. See Sec.
70.6(c)(5)(iii). In regard to the permit terms and conditions that
constitute the ``basis of the certification,'' we agree that these are
the substantive regulatory requirements of the Act (such as standards,
emission limits or work practices) referred to in Section 114 (a)(3) as
``applicable requirements.'' This conclusion, however, does not in any
way alter the sources' compliance certification obligations. First,
Sec. 70.6(c)(5)(iii) clearly requires that permit terms that are the
basis of the certification as well as permit terms that are the methods
be identified in the certification. Second, in order to establish
whether the compliance status was continuous or intermittent, for any
permit term that is the basis of the certification, responsible
officials must first determine whether there were instances of
deviations for each of the corresponding monitoring, recordkeeping and
reporting permit terms, during periods when compliance was required.
Finally, we agree that our explanation of a certification of
``continuous'' or ``intermittent'' compliance contained in the preamble
to the March 1, 2001, is unclear since core portions of the explanation
adopted by reference are invalidated by the Court's decision. Following
is our explanation of when a source may certify ``continuous'' or
``intermittent'' compliance, according to the final rule, which
includes background information. Sections 504(c) and 114(a)(3) of the
Act require that each permit contain conditions establishing compliance
certification requirements with permit terms and conditions including a
requirement for responsible officials to identify the status of
compliance and whether compliance, for the covered period, is
continuous or intermittent. Additionally, section 504(f) provides that
compliance with the permit may be deemed compliance with the underlying
applicable requirements. Within this statutory scheme we believe that
the determination of the compliance status made by the responsible
official, for the purpose of the compliance certification, is simply an
evaluation of whether or not the source is, at the time of the
certification, and was, during the covered period, in compliance with
those permit terms and conditions that establish practically
enforceable obligations on the part of the source. Absent evidence to
the contrary, the responsible official for a source that is in
compliance according to the monitoring results in the permit may
certify ``continuous'' compliance, provided that the responsible
official did not fail to monitor, or report, or collect the minimum
data required by the permit; if there were any deviations, these should
have been excused by the permit. If any possible exceptions to
compliance occurred, the permit would have provided for additional
action that shows the underlying requirement was not violated. Any
failure to meet the permit terms or conditions during a period when the
permit required compliance would mean that compliance was not
continuous, and the responsible official must identify the permit
deviation (or possible exception to compliance in the context of part
64) in the certification and certify that compliance for the permit
term or condition (that is the basis of the certification) was
intermittent. If the source's circumstances are such that the status of
compliance with a particular term or condition is undetermined at the
time the compliance certification is submitted (such as when the source
is awaiting for test results), the responsible official may indicate so
in the certification together with the reason, and the date when the
source was last found in continuous compliance with the permit term. A
responsible official is always free to include any written explanation
and other material information that helps clarify the responsible
official's conclusion regarding the compliance status.
Responsible officials that used any monitoring method not specified
in the permit (regardless of whether the monitoring was performed
voluntarily, to comply with a State only requirement, or to track
compliance with an applicable requirement that is not yet addressed by
the permit), would need to identify the method(s), and take the
monitoring results into account when determining the compliance status
of the term or condition that is the basis of the certification
(applicable requirement).
The final rule takes effect today, June 27, 2003. State permitting
authorities who did not revise their operating program rules to conform
to the 1997 part 70 revisions, need to take no action, to the extent
their rules are consistent with this final rule. Except as described in
the following paragraph, other permitting authorities must revise their
programs by June 28, 2004 to add a requirement for compliance
certifications to identify whether compliance with each permit term and
condition that is the basis of the certification was continuous or
intermittent during the covered period. The Administrator specifies a
deadline of 12 months for submittal of program revisions in light of
the narrow scope of the revision required of State programs. Authority
for this deadline is provided in 40 CFR 70.4(i)(1), which specifies
that the deadline for submittal of revisions to State part 70 programs
following revision of relevant Federal regulations is 180 days or
``such other period as the Administrator may
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specify, following notification* * *'' Today's action is the
notification that triggers the 12-month deadline.
If a State can demonstrate that additional legal authority is
needed, the deadline for submittal of a revised program to add a
requirement for compliance certifications to identify whether
compliance with each permit term and condition during the covered
period was continuous or intermittent is June 27, 2005. Authority for
this deadline is the same provision in 40 CFR 70.4(i)(1) described in
the preceding paragraph for the 12-month deadline.
We believe that this final rule amending the 1997 revisions to part
70 and part 71 rules adequately address the Court's direction expressed
in the remand.
B. What Are the Regulatory Revisions to the Proposal?
In response to the comments, we have deleted the second clause
after the comma in the first sentence from Sec. Sec.
70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B). This removes the requirement
that the responsible official for the affected facility identify in the
annual (or more frequent) compliance certification whether the methods
provide continuous or intermittent data. The current language in
paragraph (5)(iii)(B) for both sections states: ``The identification of
the method(s) or other means used by the owner or operator for
determining the compliance status with each term and condition during
the certification period, and weather such methods or other means
provide continuous or intermittent data.'' The revised text for both
sections reads: ``The identification of the method(s) or other means
used by the owner or operator for determining the compliance status
with each term and condition during the certification period.'' Other
text within Sec. Sec. 70.6(c)(5)(iii)(B), 71.6(c)(5)(iii)(B),
70.6(c)(5)(iii)(C), and 71.6(c)(5)(iii)(C) remains as proposed in March
2001. The language in this final rule requires responsible officials to
identify in the compliance certification whether compliance during the
covered period was continuous or intermittent, but responsible
officials do not need to state whether the methods used for determining
compliance provide continuous or intermittent data. We believe these
revisions respond directly and adequately to the Court's decision to
remand the compliance certification requirements to us and are
consistent with the requirements of the Act.
IV. Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must
determine whether this final rule is ``significant'' and therefore
subject to Office of Management and Budget (OMB) review and the
requirements of the Executive Order. The Order defines ``significant
regulatory action'' as one that is likely to result in a rule 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 in 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 entitlement, grants,
user fees, or loan programs of 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
the Executive Order.
Because the annualized cost of this final rule amendment would be
significantly less than $100 million and would not meet any of the
other criteria specified in the Executive Order, we have determined
that this final rule is not a ``significant regulatory action'' under
the terms of Executive Order 12866, and is therefore not subject to OMB
review.
B. Paperwork Reduction Act
This amendment does not include or create any information
collection activities subject to the Paperwork Reduction Act, and
therefore we will submit no information collection request (ICR) to OMB
for review in compliance with the Paperwork Reduction Act, 44 U.S.C.
3501, et seq.
C. Regulatory Flexibility Act Compliance as Amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq.
The Regulatory Flexibility Act generally requires an Agency to
conduct a regulatory flexibility analysis of any rule subject to notice
and comment requirements unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and small governmental jurisdictions. For purposes of
assessing the impacts of today's rule on small entities, small entity
is defined as (1) a small business that meets the Small Business
Administration size standards for small businesses found in 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, country, town, school district, or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field. We determined and hereby certify that
these revisions to parts 70 and 71 will not have a significant economic
impact on a substantial number of small entities. The 1992 part 70 and
the 1996 part 71 rules imposed the requirement to submit periodic
compliance certification reports identifying the compliance status with
permit terms and conditions, including a statement of whether
compliance was continuous or intermittent. The 1997 part 70 and 71
revisions interpreted that the requirement to address, in the
certification, whether the status of compliance was continuous or
intermittent could be met implicitly. Although this interpretation did
not change the substance of the requirement, it would have adjusted the
existing way to comply with the requirement. However, in NRDC the court
held that the compliance certification must address explicitly whether
compliance was continuous or intermittent. The amendments to parts 70
and 71 in this final rule merely revert the implementation of this
requirement according to EPA's original position under the 1992 part 70
and the 1996 part 71 rules; therefore, today's amendments add no burden
on responsible officials for any small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, we
must prepare a written statement, including a cost-benefit analysis,
for proposed and final rules with ``Federal mandates'' that may result
in expenditures to State, local, and tribal governments, in the
aggregate, or to the private sector, of $100 million or more in any one
year. Before we promulgate a rule for which a written statement is
needed, section 205 of the UMRA requires us to identify and consider a
reasonable number of regulatory
[[Page 38522]]
alternatives and adopt the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. The
provisions of section 205 do not apply when they are inconsistent with
applicable law. Moreover, section 205 allows us to adopt an alternative
other than the least costly, most cost-effective or least burdensome
alternative if the Administrator publishes with the final rule an
explanation of why that alternative was not adopted. Before we
establish any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments, we
must have developed under section 203 of the UMRA a small government
agency plan. That plan must provide for notifying potentially affected
small governments, enabling officials of affected small governments to
have meaningful and timely input in the development of regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
As noted above, this amendment is of very narrow scope, and
provides a compliance alternative very similar to one already required
under the promulgated part 70 and 71 compliance certification
regulations. We have determined that this final rule contains no new
regulatory requirements that might significantly or uniquely affect
small governments. We have also determined that this final rule does
not contain a Federal mandate that may result in expenditures of $100
million or more for State, local, and tribal governments, in the
aggregate, or the private sector in any one year. Thus, today's final
rule is not subject to the requirements of sections 202 and 205 of the
UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires us to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
Under section 6 of Executive Order 13132, we may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or we consult
with State and local officials early in the process of developing the
proposed regulation. We also may not issue a regulation that has
federalism implications and that preempts State law, unless we consult
with State and local officials early in the process of developing the
proposed regulation.
This final rule does not have federalism implications. This final
rule 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. This action would
not alter the overall relationship or distribution of powers between
governments for the part 70 program. Thus, the requirements of section
6 of the Executive Order do not apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Tribal
Governments
This final rule does 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 (65 FR 67249, November 9, 2000), because it does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Accordingly, this
rule is not subject to Executive Order 13175.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that the EPA determines is (1) ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risk, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This final rule amending the
State and Federal operating permit programs is not subject to Executive
Order 13045 because it is not ``economically significant'' under
Executive Order 12866 and it does not establish an environmental
standard intended to mitigate health and safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not a ``significant energy action,'' as
defined in Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy. This
action simply clarifies the implementation of an existing requirement
and does not impose any new requirements that may affect the supply
distribution or use of energy.
I. National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act, Public Law 104-113 (March 7, 1996), we are required to
use voluntary consensus standards in its regulatory and procurement
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, business practices, etc.) which are adopted by voluntary
consensus standard bodies. Where we do not use available and
potentially applicable voluntary consensus standards, the NTTA requires
us to provide Congress, through OMB, an explanation of the reasons for
not using such standards. This final rule does not involve technical
standards. Therefore, we did not consider the use of any voluntary
consensus standards.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., 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
[[Page 38523]]
Congress and to the Comptroller General of the United States. We will
submit a report containing this rule and other required information to
the United States Senate, the United States House of Representatives,
and the Comptroller General of the United States prior to publication
of the rule in the Federal Register. This final rule is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
V. Judicial Review
Section 307(b)(1) of the Act indicates which Federal Courts of
Appeals have venue for petitions for review of final actions by EPA.
This section provides, in part, that petitions for review must be filed
in the D.C. Circuit: (i) When the agency action consists of ``national
applicable regulations promulgated, or final actions taken, by the
Administrator,'' or (ii) when such action is locally or regionally
applicable, if ``such action is based on a determination of nationwide
scope or effect and if in taking such action the Administrator finds
and publishes that such action is based on such a determination.''
This final rule revises part 70 and 71 operating permits programs
regulations that are nationally applicable for purposes of section
307(b)(1). Thus, any petitions for review of this interim final rule
must be filed in the D.C. Circuit within 60 days from June 27, 2003.
List of Subjects in 40 CFR Parts 70 and 71
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.
Dated: June 20, 2003.
Christine Todd Whitman,
Administrator.
0
For the reasons stated in the preamble, we amend title 40, chapter I,
parts 70 and 71 of the Code of Federal Regulations to read as follows:
PART 70--STATE OPERATING PERMIT PROGRAMS
0
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
2. Section 70.6 is amended by revising paragraphs (c)(5)(iii)(B) and
(c)(5)(iii)(C) to read as follows:
Sec. 70.6 Permit content
* * * * *
(c) * * *
(5) * * *
(iii) * * *
(B) The identification of the method(s) or other means used by the
owner or operator for determining the compliance status with each term
and condition during the certification period. Such methods and other
means shall include, at a minimum, the methods and means required under
paragraph (a)(3) of this section;
(C) The status of compliance with the terms and conditions of the
permit for the period covered by the certification, including whether
compliance during the period was continuous or intermittent. The
certification shall be based on the method or means designated in
paragraph (c)(5)(iii)(B) of this section. The certification shall
identify each deviation and take it into account in the compliance
certification. The certification shall also identify as possible
exceptions to compliance any periods during which compliance is
required and in which an excursion or exceedance as defined under part
64 of this chapter occurred; and
* * * * *
PART 71--FEDERAL OPERATING PERMITS PROGRAMS
0
3. The authority citation for part 71 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
4. Section 71.6 is amended by revising paragraphs (c)(5)(iii)(B) and
(c)(5)(iii)(C) to read as follows:
Sec. 71.6 Permit content.
* * * * *
(c) * * *
(5) * * *
(iii) * * *
(B) The identification of the method(s) or other means used by the
owner or operator for determining the compliance status with each term
and condition during the certification period. Such methods and other
means shall include, at a minimum, the methods and means required under
paragraph (a)(3) of this section;
(C) The status of compliance with the terms and conditions of the
permit for the period covered by the certification, including whether
compliance during the period was continuous or intermittent. The
certification shall be based on the method or means designated in
paragraph (c)(5)(iii)(B) of this section. The certification shall
identify each deviation and take it into account in the compliance
certification; and
* * * * *
[FR Doc. 03-16235 Filed 6-26-03; 8:45 am]
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