Clean Air Act Interim Approval of Operating Permits Program; Delegation of Section 112 Standards; State of Massachusetts

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5461-6]

Clean Air Act Interim Approval of Operating Permits Program;

Delegation of Section 112 Standards; State of Massachusetts

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On February 2, 1996, the Environmental Protection Agency

published a proposed and direct final rule promulgating interim

approval of the Operating Permits Program submitted by the Commonwealth

of Massachusetts for the purpose of complying with the Federal

requirements of an approved program to issue operating permits to all

major stationary sources, and to certain other sources, with the

exception of Indian Lands. This submittal for the operating permits

program was made by the Commonwealth of Massachusetts on April 28,

1995. The 30-day comment period for these documents concluded on March

4, 1996. Also in this document, EPA is correcting the date for the

interim approval of the Operating Permits Program for the Commonwealth

of Massachusetts.

EFFECTIVE DATE: This final rule is effective on May 15, 1996.

FOR FURTHER INFORMATION CONTACT: Ida E. Gagnon, Air Permits Program,

CAP, U.S. Environmental Protection Agency, Region 1, JFK Federal

Building, Boston, MA 02203-2211, (617) 565-3500.

SUPPLEMENTARY INFORMATION: On February 2, 1996, EPA published a direct

final rule (61 FR 3827) which announced that this rule would take

effect in 60 days, or April 2, 1996, unless EPA received adverse

comment on the rule within 30 days of publication in response to a

notice of proposed rulemaking published on the same day (61 FR 3893).

EPA also committed to withdraw the direct final rule in the event it

received adverse comment, and to respond to any adverse comments in a

subsequent final rulemaking action. EPA did receive a timely adverse

comment on this rule. EPA failed, however, to withdraw the final rule

within the 60 days given in the direct final rule, and the rule took

effect on April 2, 1996.

In this document, EPA is responding to the comment it received, but

for the reasons stated below, EPA is not changing the final rule in

response to that comment. For reasons unrelated to the comment, EPA is

correcting a clerical error in the effective date of the rule, as

explained below. Had EPA withdrawn the direct final rule prior to its

going into effect, EPA would have taken final action based on the

proposal to promulgate a rule identical to the direct final rule that

went into effect. Rather than now take the action of withdrawing the

direct final rule only to repromulgate simultaneously an identical

rule, however, EPA in this action is deciding to maintain the rule

unchanged. EPA believes that withdrawal and repromulgation are

unnecessary since the results would be identical to that obtained

simply by leaving the rule unchanged and responding to the comments in

this document. This document provides interested parties an opportunity

to review how EPA addressed the comment, and to petition for review of

EPA's action in this final rulemaking within 60 days of publication of

this document, as provided in section 307(b)(1) of the Act.

I. Summary of Comments and Responses

EPA received two comments from the National Environmental

Development Association's Clean Air Regulatory Project (NEDA/CARP).

First, NEDA/CARP disagrees with EPA's statement that ``prompt reporting

[of deviations] must be more frequent than the semi-annual reporting

requirement, given this is a distinct reporting obligation under

Section 70.6(a)(3)(iii)(A).'' NEDA/CARP believes there is no legal

basis for such a statement. Therefore, NEDA/CARP asserts EPA has no

basis for expecting deviations to be reported more often than every 6

months.

EPA disagrees that there is no legal basis for this statement.

Section 503(b)(2) of the Act requires a permittee ``to promptly report

any deviations from permit requirements to the permitting authority.''

This requirement to report deviations promptly is distinct from section

504(a) of the Act which requires the results of all monitoring to be

submitted no less often than every six months. The Act clearly

distinguishes between the routine semi-annual reporting of all

monitoring, whether or not deviations have occurred, from the

requirements to report deviations that may be violations of the Act and

that at least provide an indication of potential compliance problems.

It makes sense that Congress would expect permittees to report

potential Act violations more quickly than routine monitoring that

confirms compliance. Additionally, the statute has a clear requirement

for prompt reporting of deviations and EPA believes that six months is

not prompt when dealing with information that may document a violation

of the Clean Air Act.

Second, in the February 2, 1996 rulemaking, EPA proposes interim

approval of the program regulation unless the Commonwealth changes its

rule to ensure that all ``significant'' monitoring changes, not just

``relaxations'' are processed as significant changes. NEDA/CARP points

out that this change may not be required when the proposed changes to

Part 70 are finalized and requests EPA take this issue into

consideration before the state revises its procedures.

EPA understands the concerns of NEDA/CARP, but EPA is obligated to

evaluate the Commonwealth's program based on Part 70 rules promulgated

on July 21, 1992. Once the proposed changes to Part 70 are finalized,

EPA and the Commonwealth will revisit this matter and address it

consistent with the program transition provisions of the revised Part

70 regulations.

II. Final Rulemaking Action

Except for the effective date, as explained below, EPA is not

modifying the interim approval to the operating permits program

associated with the February 2, 1996 direct final rulemaking in

response to the comments EPA received. The State must make the changes

specified in the proposed rulemaking, under II.A.2., Regulations and

Program Implementation, in order to be granted full approval.

This interim approval, which may not be renewed, extends for a

period of up to 2 years. During the interim approval period, the

Commonwealth is protected from sanctions for failure to have a

[[Page 24461]]

program, and EPA is not obligated to promulgate a Federal permits

program in the Commonwealth. Permits issued under a program with

interim approval have full standing with respect to Part 70, and the 1-

year time period under the Act for submittal of permit applications by

subject sources begins upon interim approval, as does the 3-year time

period for processing the initial permit applications.

The scope of the Commonwealth of Massachusetts' part 70 program

applies to all part 70 sources (as defined in the approved program)

within the Commonwealth of Massachusetts, except any sources of air

pollution over which an Indian Tribe has jurisdiction. See, e.g., 59 FR

55813, 55815-18 (Nov. 9, 1994). The term ``Indian Tribe'' is defined

under the Act as ``any Indian tribe, band, nation, or other organized

group or community, including any Alaska Native village, which is

Federally recognized as eligible for the special programs and services

provided by the United States to Indians because of their status as

Indians.'' See section 302(r) of the CAA; see also 59 FR 43956, 43962

(Aug. 25, 1994); 58 FR 54364 (Oct. 21, 1993).

EPA is also not modifying its approval of DEP's authority to

implement and enforce section 112 standards at Part 70 sources.

Requirements for operating permit program approval, specified in 40 CFR

70.4(b), encompass section 112(l)(5) requirements for approval of a

program for delegation of section 112 standards as promulgated by EPA

as they apply to Part 70 sources. Section 112(l)(5) requires that the

State's program contain adequate authorities, adequate resources for

implementation, and an expeditious compliance schedule, which are also

requirements under Part 70. Therefore, the EPA has also granted

approval under section 112(l)(5) and 40 CFR 63.91 of the State's

program for receiving delegation of section 112 standards that are

unchanged from Federal standards as promulgated. This program for

delegations only applies to sources covered by the Part 70 program.

EPA is hereby correcting a mistaken effective date for our interim

approval. The prior document indicated an effective date of March 4,

1996, 30 days from the date of publication of the document rather than

the correct date of April 2, 1996, 60 days from the date of publication

of the document. In light of the Small Business Regulatory Enforcement

Act (SBREFA) which became effective on March 29, 1996 prior to the

April 2, 1996 corrected date, the rule will take effect on the latter

of the rule's submission to Congress or the date of publication. The

rule has been submitted to Congress, therefore, this final rulemaking

will be effective May 15, 1996.

III. Administrative Requirements

A. Docket

Copies of the Commonwealth's submittal and other information relied

upon for the final interim approval, including public comments received

and reviewed by EPA on the proposal, are maintained in a docket at the

EPA Regional 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 final interim approval. The docket is available

for public inspection at the location under the ADDRESSES section of

this document.

B. Opportunity 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 July 15, 1996. 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).)

C. Executive Order 12866

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

D. Regulatory Flexibility Act

The EPA's actions under section 502 of the Act do not create any

new requirements, but simply address operating permits programs

submitted to satisfy the requirements of 40 CFR Part 70. Because this

action does not impose any new requirements, it does not have a

significant impact on a substantial number of small entities.

E. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the action promulgated today does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves

preexisting requirements under State or local law, and imposes no new

Federal requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

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: April 2, 1996.

John P. DeVillars,

Regional Administrator, Region I.

Part 70, title 40 of the Code of Federal Regulations 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 by revising the entry for

Massachusetts to reflect the dates of the final rulemaking to read as

follows:

Appendix A to Part 70--Approval Status of State and Local Operating

Permits Programs

* * * * *

Massachusetts

(a) Department of Environmental Protection: submitted on April

28, 1995; interim approval effective on April 2, 1996; interim

approval expires April 2, 1998.

(b) (Reserved)

* * * * *

[FR Doc. 96-12077 Filed 5-14-96; 8:45 am]

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