[Federal Register: April 16, 2003 (Volume 68, Number 73)]
[Rules and Regulations]
[Page 18548-18550]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap03-8]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[DC-T5-2003-01a; FRL-7483-6]
Clean Air Act Approval of Operating Permits Program Revision;
District of Columbia
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to approve a revision to the
District of Columbia's Clean Air Act title V operating permit program,
pertaining to requirements for public notification of permit actions.
In a notice of deficiency (NOD) published in the Federal Register on
December 21, 2001, EPA notified the District of Columbia of EPA's
finding that the District's provisions for providing public
notification of permitting actions did not fully comply with the
requirements of the Clean Air Act (CAA) and its implementing
regulations. Direct final approval of this program revision resolves
the deficiency identified in the NOD and the District of Columbia
maintains final full approval of the Clean Air Act title V operating
permits program.
EFFECTIVE DATE: This rule is effective on June 2, 2003 without further
notice, unless EPA receives adverse written comment by May 16, 2003. If
EPA receives such comments, it will publish a timely withdrawal of the
direct final rule in the Federal Register and inform the public that
the rule will not take effect.
ADDRESSES: Written comments may be mailed to Kristeen Gaffney, Acting
Chief, Permits and Technical Assessment Branch, Mailcode 3AP11, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103. Copies of the documents relevant to
this action are available for public inspection during normal business
hours at the Air Protection Division, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103
and District of Columbia Department of Health, Air Quality Division, 51
N Street, NE., Washington, DC 20002.
FOR FURTHER INFORMATION CONTACT: Paresh R. Pandya, U.S. Environmental
Protection Agency, Region III (3AP11), 1650 Arch Street, Philadelphia,
PA 19103 at (215) 814-2167, or by e-mail at pandya.perry@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The EPA granted final interim approval of the District of
Columbia's operating permit program on August 7, 1995 (60 FR 40101).
The District amended its operating permit program to address
deficiencies identified in the interim approval action. The EPA
proposed full approval of the District of Columbia's operating permit
program in the Federal Register on October 16,
[[Page 18549]]
2001 (66 FR 52538). Adverse comments were received and EPA withdrew
that approval. A final rulemaking action was published in the Federal
Register on December 4, 2001 (66 FR 62954) which summarized the adverse
comments, provided EPA's responses, and promulgated final full approval
of the District of Columbia's operating permit program. Subsequently,
in reevaluating the commenter's concerns, EPA agreed that the commenter
had identified a deficiency in the District of Columbia's title V
operating permit program relating to the District of Columbia's public
notification requirements. The EPA published a notice of deficiency
(NOD) in the Federal Register (pursuant to 40 CFR 70.4(i) and 70.10(b))
on December 21, 2001 (66 FR 65947) to notify the District of Columbia
and the public that EPA found a deficiency in the District of
Columbia's title V operating permit program. The deficiency relates to
the District of Columbia's regulatory authority to provide public
notification of permit actions.
II. Description of Action
The EPA's regulations at 40 CFR 70.7(h) and 70.7(d)(3)(i) provide
that public notice shall be provided for all permit proceedings, except
those qualifying as administrative permit amendments or minor permit
modifications. Such public notification shall be provided by a number
of means, including ``by publication in a newspaper of general
circulation in the area where the source is located or in a State
publication designed to give general public notice; to persons on a
mailing list developed by the permitting authority, including those who
request in writing to be on the list; and by other means if necessary
to assure adequate notice to the affected public.'' See, 40 CFR
70.7(h)(1). EPA's regulations at 40 CFR 70.4(b)(16) require that State
part 70 program submittals contain provisions requiring the permitting
authority to implement the requirements of 40 CFR 70.7. The District of
Columbia's operating permit program regulations at 20 DCMR 303.10
required that public notice of draft initial permits, significant
modifications and permit renewals be published in the District of
Columbia Register and that copies of such notice be sent to persons on
a permit mailing list. However, the regulations did not expressly
require that ``other means'' be employed if necessary to assure
adequate public notice. Because the District of Columbia's operating
permit program regulations did not require the District to provide
public notice by other means if necessary to assure adequate notice to
the affected public, the District of Columbia's operating permit
program did not fully comply with the requirements of the Clean Air Act
and 40 CFR part 70.
Title V provides for the approval of State programs for the
issuance of operating permits that incorporate the applicable
requirements of the Clean Air Act. To receive title V program approval,
a State permitting authority must submit a program to EPA that meets
certain minimum criteria, and EPA must disapprove a program that fails,
or withdraw an approved program that subsequently fails, to meet these
criteria. These criteria include requirements for proper public
participation procedures (40 CFR 70.7(h)).
The EPA's title V implementing regulations at 40 CFR 70.4 and
70.10(b) and (c) provide that EPA may withdraw a part 70 program
approval, in whole or in part, whenever the approved program no longer
complies with the requirements of part 70 and the permitting authority
fails to take corrective action. A list of potential bases for program
withdrawal is provided at 40 CFR 70.10(c)(1)(i), and includes the case
where the permitting authority's legal authority does not meet the
requirements of 40 CFR part 70.
III. Final Action
On April 4, 2003, the District of Columbia submitted revisions to
20 DCMR 303.10(a)(1)(B) which require that a notice be published in the
District of Columbia Register and using any ``other means'' necessary
to assure adequate notice to the affected public of the application,
the preliminary determination, the location of the public file and the
procedures for submitting written comments and requesting a hearing.
With this amendment to 20 DCMR 303.10(a)(1)(B), the District of
Columbia has adequately resolved the deficiency EPA identified in its
December 21, 2001 notice of deficiency and maintains final full
approval of the Clean Air Act title V operating permits program.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comment. However, in the ``Proposed Rules'' section of today's
Federal Register, EPA is publishing a separate document that will serve
as the proposal to approve the operating permit program revisions if
adverse comments are filed relevant to the issues discussed in this
action. This rule will be effective on June 2, 2003 without further
notice unless EPA receives adverse comments by May 16, 2003. If EPA
receives adverse comment, EPA will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect. EPA will address all public comments in a subsequent final rule
based on the proposed rule. EPA will not institute a second comment
period on this action. Any parties interested in commenting must do so
at this time.
IV. Statutory and Executive Order Reviews
A. General Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4). 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 (65 FR 67249, November 9, 2000).
This action also does not have Federalism implications because it does
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 (64 FR 43255, August 10, 1999).
This action merely approves a state rule implementing a Federal
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the
[[Page 18550]]
Clean Air Act. This 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), because it is not economically
significant.
In reviewing state operating permit program submissions, EPA's role
is to approve state choices, provided that they meet the criteria of
the Clean Air Act. 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 an operating permits program
submission for failure to use VCS. It would thus be inconsistent with
applicable law for EPA, when it reviews an operating permit program
submission, to use VCS in place of an operating permit program
submission 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.
This rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
B. Submission to Congress and the Comptroller General
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. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
C. Petitions for Judicial Review
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 June 16, 2003. 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 approving revisions to the District of Columbia
operating permit program 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, Reporting and
recordkeeping requirements.
Dated: April 9, 2003.
James W. Newsom,
Acting Regional Administrator, Region III.
0
Appendix A of part 70 of title 40, chapter I, of the Code of Federal
Regulations is amended as follows:
PART 70--[AMENDED]
0
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Appendix A to part 70 is amended by adding paragraph (c) in the
entry for the District of Columbia to read as follows:
Appendix A to part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
District of Columbia
* * * * *
(c) The District of Columbia Department of Health submitted
program amendments on April 4, 2003. The rule amendments contained
in the April 4, 2003 submittal adequately addressed the deficiency
identified in the Notice of Deficiency effective on December 13,
2001. The District of Columbia hereby maintains final full approval
effective on June 2, 2003.
* * * * *
[FR Doc. 03-9343 Filed 4-15-03; 8:45 am]
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