[Federal Register Volume 61, Number 117 (Monday, June 17, 1996)]
[Proposed Rules]
[Pages 30570-30575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15281]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5521-3 ]
Clean Air Act Proposed Interim Approval and in the Alternative
Disapproval of Operating Permits Program, State of Idaho; Clean Air Act
Proposed Delegation of National Emission Standards for Hazardous Air
Pollutants as They Apply to Part 70 Sources and Approval of Streamlined
Mechanism for Future Delegations, State of Idaho
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed action.
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SUMMARY: The EPA is reproposing action on two limited aspects of the
Operating Permits Program submitted by the Idaho Division of
Environmental Quality for the purpose of complying with Federal
requirements for an approvable State program to issue operating permits
to all major stationary sources and to certain other sources. The first
element involves the changes EPA believes are necessary as a condition
of full approval to the State's regulations dealing with general
permits. The second element involves the effect of the State's
environmental audit statute on the State's enforcement obligations
under title V of the Clean Air Act.
In addition, if EPA grants interim approval of Idaho's title V
operating permits program, EPA proposes to delegate the National
Emission Standards for Hazardous Air Pollutants (NESHAP) as adopted by
the State and as they apply to part 70 sources. EPA also proposes to
approve a streamlined mechanism for future NESHAP delegations.
DATES: Comments must be submitted by July 17, 1996.
ADDRESSES: Comments must be submitted to Elizabeth Waddell, at EPA
Region 10, 1200 Sixth Avenue, M/D-108, Seattle, WA 98101. Copies of the
State's submittal and other supporting information used in developing
this proposed action are available for inspection during normal
business hours at the following location: U.S. Environmental Protection
Agency, Region 10, 1200 Sixth Avenue, Docket # 10V100, Seattle,
Washington.
FOR FURTHER INFORMATION CONTACT: Elizabeth Waddell, 1200 Sixth Avenue,
M/D-108, Seattle, WA 98101, (206) 553-4303.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
1. Title V
Title V of the 1990 Clean Air Act Amendments (sections 501-507 of
the Clean Air Act (``the Act'')), and implementing regulations at 40
Code of Federal Regulations (CFR) Part 70 require that States develop
and submit operating permits programs to EPA by November 15, 1993, and
that EPA act to approve or disapprove each program within 1 year after
receiving the submittal. The EPA's program review occurs pursuant to
section 502 of the Act and the part 70 regulations, which together
outline criteria for approval or disapproval. Where a program
substantially, but not fully, meets the requirements of part 70, EPA
may grant the program interim approval for a
[[Page 30571]]
period of up to 2 years. If EPA has not fully approved a program by 2
years after the November 15, 1993 date, or by the end of an interim
program, it must establish and implement a Federal program.
2. Section 112
Section 112(l) of the Act established new, more stringent
requirements upon a State or local agency that wishes to implement and
enforce an air toxics program pursuant to section 112 of the Act. Prior
to November 15, 1990, delegation of NESHAP regulations to the State and
local agencies could occur without formal rulemaking by EPA. However,
the new section 112(l) of the Act requires EPA to approve State and
local toxics rules and programs under section 112 through formal notice
and comment rulemaking. State and local air agencies that wish to
implement and enforce a Federally-approved air toxic program must make
a showing to EPA that they have adequate authorities and resources.
Approval is granted by EPA through the authority contained in section
112(l), and implemented through the Federal rule found in 40 CFR part
63, subpart E if the Agency finds that: (1) the State or local program
or rule is ``no less stringent'' than the corresponding Federal rule or
program, (2) adequate authority and resources exist to implement the
State or local program or rule, (3) the schedule for implementation and
compliance is sufficiently expeditious, and (4) the State or local
program or rule is otherwise in compliance with Federal guidance.
3. Prior Action on Idaho's Title V Submittal
On October 27, 1995, EPA proposed disapproval of Idaho's operating
permits program because of deficiencies in the State's provisions for
excess emissions and administrative amendments. In the alternative, EPA
proposed interim approval of Idaho's program provided Idaho revised its
regulations to address these deficiencies and submitted the revisions
to EPA before final action on Idaho's submittal. See 60 FR 54990. EPA
also proposed to grant interim approval under section 112(l)(5) of the
Act and 40 CFR 63.91 of Idaho's program for receiving delegation of
section 112 standards that are unchanged from Federal standards as
promulgated, but only as they apply to part 70 sources, if EPA granted
interim approval to Idaho's title V program. The EPA received a single
letter of public comment on the proposal. The commenter disagreed with
EPA's proposal to approve Idaho's program only for sources located
outside the exterior boundaries of Indian Reservations and with EPA's
failure to grant full approval to Idaho's insignificant activities
list. In addition, Idaho has submitted program revisions addressing
EPA's two proposed grounds for disapproving Idaho's program. Neither
the comments submitted in response to the October 25, 1995, proposal
nor the program revisions submitted by the State involve the two issues
on which EPA is reproposing action in this notice. Accordingly, EPA
will address the comment, any additional comments it receives in
response to this reproposal and the effect of the State's program
revisions when EPA takes final action after the close of the public
comment period on this notice.
II. Discussion
A. Reconsideration of General Permit Requirements
In the October 27, 1995, Federal Register notice proposing action
on Idaho's title V submission, EPA identified four deficiencies in
Idaho's general permitting regulations which EPA believed must be
addressed as a condition of full approval. See 60 FR 54990 (October 27,
1995). One such deficiency identified by EPA was that the Idaho
Administrative Procedures Act (IDAPA) 16.01.01.335.05 states that
issuance of authorization to operate under a general operating permit
is a final agency action for purposes of administrative and judicial
review of the authorization. EPA stated that this provision was in
conflict with the requirements of 40 CFR 70.6(d)(2), which allows a
permitting authority to grant a source's request for authorization to
operate under a general permit without repeating the public
participation procedures, but provides that such grant shall not be
final agency action for purposes of judicial review. Upon further
reflection, EPA believes that part 70 does not prevent a permitting
authority from subjecting a decision to grant or deny a general permit
to judicial review, but instead merely states that a permitting
authority is not required to make such a decision subject to judicial
review. In this respect, the Idaho program does not conflict with the
requirements of part 70, but instead merely requires more public
participation than required by part 70. Accordingly, EPA believes the
Idaho program does not conflict with the requirements of part 70 by
subjecting to administrative and judicial review the State's decision
that a particular source meets or fails to meet the applicability
requirements for a general permit. EPA therefore proposes that Idaho
not be required to eliminate this provision as a condition of full
approval.
B. Idaho's Environmental Audit Statute
The Clean Air Act sets forth the minimum elements required for
approval of a State operating permits program, including the
requirement that the permitting authority has adequate authority to
assure that sources comply with all applicable CAA requirements as well
as authority to enforce permits through recovery of minimum civil
penalties and appropriate criminal penalties. Section 502(b)(5) (A) and
(E) of the CAA. EPA's implementing regulations, which further specify
the required minimum elements of State operating permits programs (40
CFR part 70), explicitly require States to have certain enforcement
authorities, including authority to seek injunctive relief to enjoin a
violation, to bring suit to restrain violations imposing an imminent
and substantial endangerment to public health or welfare, and to
recover appropriate criminal and civil penalties. 40 CFR 70.11. In
addition, section 113(e) of the Clean Air Act sets forth penalty
factors for EPA or a court to consider for assessing penalties for
civil and criminal violations of title V permits. EPA is concerned
about the potential impact of some State privilege and immunity laws on
the ability of such States to enforce federal requirements, including
those under title V of the Clean Air Act. Based on review and
consideration of the statutory and regulatory provisions discussed
above, EPA issued guidance on April 5, 1996, entitled, ``Effect of
Audit Immunity/Privilege Laws on States' Ability to Enforce Title V
Requirements'' to address these concerns. This guidance outlines
certain elements of State audit immunity and privilege laws which, in
EPA's view, may so hamper the State's ability to enforce as to preclude
approval the State's title V operating permits program.
In the October 27, 1995, Federal Register notice proposing action
on Idaho's title V submission, which was published prior to issuance of
the April 5, 1996, guidance, EPA discussed the impact of Idaho's
environmental audit statute, Idaho Code Title 9, Chapter 8, on the
approvability of Idaho's title V operating permits program. EPA
expressed concern with two aspects of Idaho's environmental audit
statute. See 60 FR 55000. First, EPA was concerned with the provision
prohibiting the State from compelling a source, with certain limited
exceptions, to provide the State
[[Page 30572]]
a report that meets the definition of an ``environmental audit report''
(referred to here as the ``audit privilege''). See Idaho Code 9-804 to
-807. Although EPA was concerned that the audit privilege could be used
to shield bad actors and frustrate access to crucial factual
information, however, EPA stated it did not believe that Idaho's audit
privilege posed a bar to full title V approval. Second, EPA was
concerned with the provision which grants a source immunity from civil
or criminal liability for any violations voluntarily disclosed by the
source to the State in an environmental audit report (referred to here
as the ``audit immunity provision''). See Idaho Code 9-809. EPA stated
that the audit immunity provision of the Idaho environmental audit
statute appeared to impermissibly interfere with the requirement that
States have authority to collect a penalty for each day of violation.
Therefore, EPA proposed to require, as a condition of full approval,
that Idaho eliminate the audit immunity provision of Idaho Code 9-809
or demonstrate to EPA's satisfaction that the provision does not
impermissibly interfere with the enforcement requirements of title V.
Since publishing the October 27, 1995, proposal acting on Idaho's
title V program, EPA has reviewed the audit immunity and audit
privilege provisions of Idaho's audit immunity statute in light of the
April 5, 1996, guidance. After further consideration of the enforcement
requirements of title V and the Idaho environmental audit statute in
light of this guidance, EPA believes that both the immunity and
privilege provisions of the Idaho environmental audit statute deprive
the State of Idaho of adequate authority to enforce the requirements of
title V of the Clean Air Act. Accordingly, EPA proposes that Idaho be
required to revise both the audit immunity and audit privilege
provisions of its environmental audit statute or demonstrate to EPA's
satisfaction that these provisions do not impermissibly impair the
enforcement authorities required for full title V approval.
1. Audit Immunity Provision
EPA continues to believe that the Idaho immunity statute (Idaho
Code 9-809) impermissibly interferes with the enforcement requirements
of title V and part 70. In addition, EPA has identified additional ways
in which the Idaho audit immunity provision appears problematic. The
Idaho statute provides that any person who makes a voluntary disclosure
of an environmental audit report identifying circumstances that may
constitute a violation of State environmental laws to the appropriate
agency shall be immune from civil or criminal penalties or
incarceration for the underlying associated acts. Idaho Code 9-809(1).
This provision does contain some restrictions. First, the immunity does
not apply to the extent the disclosure is required by law or a specific
permit condition or order because such a disclosure is not considered
``voluntary'' under the Idaho statute. Idaho Code 9-809(5). Because of
the recordkeeping, reporting and compliance certification requirements
of 40 CFR 70.6, which Idaho has adopted as part of its title V program
(see IDAPA 16.01.01.322), the scope of the audit immunity should be
greatly restricted with respect to title V sources in Idaho. Second,
the immunity is not available if the person has committed ``serious
violations that constitute a pattern of continuous or repeated
violations of environmental laws, regulations, permit conditions,
settlement agreements, consent orders, and were due to separate and
distinct events giving rise to the violations within the three (3) year
period prior to the date of the disclosure.'' Idaho Code 9-809(6).
These restrictions do diminish the scope of the immunity to some
extent. Nevertheless, the Idaho statute appears to bar prosecution of
``knowing'' violations of title V requirements unless the source has
previously and repeatedly violated the same requirements within the
past three years. EPA believes, such a restriction on criminal penalty
authority deprives the State of authority to recover ``appropriate''
penalties for criminal conduct, as required by section 502(b)(5)(E) of
the Act and 40 CFR 70.11(a)(3)(ii), 70.11(a)(3)(iii) and 70.11(c).
Moreover, the Idaho statute would preclude the assessment of civil
penalties for violations voluntarily disclosed in an environmental
audit even if the violations resulted in serious harm or risk of harm
to the public or the environment or resulted in substantial economic
benefit to the violator. Section 113(e) of the Clean Air Act requires
EPA or the court to consider these factors in assessing penalties. To
the extent the Idaho statute prevents consideration of these factors,
EPA believes that Idaho does not have adequate authority to assess
appropriate penalties as required by section 502(b)(5)(E) of the Clean
Air Act and 40 CFR 70.11(c).
In addition to the impermissible restrictions on criminal and civil
penalties, EPA also believes that the Idaho immunity statute unduly
interferes with the State's authority to issue emergency orders and
seek injunctive relief. Title V requires a State to have clear
authority to restrain or enjoin immediately activities that present an
imminent and substantial endangerment to public health or welfare or
the environment and to seek injunctive relief where necessary to stop a
violation, correct noncompliance and prevent its recurrence. See
section 502(b)(5)(E); 40 CFR 70.11(a) (1) and (2). The Idaho audit
immunity provision could be interpreted to interfere with these
requirements in two respects. First, Idaho Code 9-809(7) states that
the audit immunity does not affect the authority of the State to
require remedial action through a consent order or action in district
court or to abate an imminent hazard ``[e]xcept as specifically
provided,'' but the exception to the immunity provision also states
that ``[a] person may, but is not required, to enter into a voluntary
consent order with the environmental regulatory agency to achieve
compliance.'' Idaho Code 9-809(5). This provision suggests that the
State may be precluded from issuing a unilateral order or seeking a
court order requiring a source to correct a violation on a specified
schedule, at least where the violation does not involve an imminent
hazard.
Second, Idaho Code 9-809(3) states that ``where audit evidence
shows the noncompliance to be the failure to obtain a permit or other
governmental permission, appropriate efforts to correct the
noncompliance may be demonstrated by the submittal of a permit
application or equivalent document within a reasonable time.'' A source
must generally demonstrate that it has achieved compliance within a
reasonable period in order to demonstrate that an audit was voluntary
and thus a basis for seeking immunity. See Idaho Code 9-809(2)(c). It
is unclear, however, whether Idaho Code 9-809(3) was intended to allow
a source to continue the unlawful activity for which a permit was
required (for example, construction of a new major source without a
permit) without being subject to penalty or other enforcement action or
whether it was merely intended to give the source immunity for its past
activities of constructing without a permit. As noted above, EPA
believes that the Idaho audit immunity provision does not comport with
the title V requirements for penalty authority to the extent it grants
immunity for criminal violations and for civil violations resulting in
serious harm or risk of harm or a substantial economic benefit. If
Idaho Code 9-809(3) would also prevent the State from issuing or
seeking an order
[[Page 30573]]
enjoining the violation (for example, an order halting construction),
EPA believes that the Idaho law would also impermissibly interfere with
the enforcement requirements of title V and part 70. In short, EPA
believes that the effect of Idaho's audit immunity provision on the
requirements of 40 CFR 70.11(a) (1) and (2) for emergency orders and
injunctive relief is unclear and must be clarified by the State as a
condition of full approval.
2. Audit Privilege
The part 70 regulations governing program approval do not
specifically address the scope of privileges available in State
enforcement actions. Nonetheless, EPA believes that where a State
adopts a very broad privilege law specifically directed at evidence
related to environmental violations, that privilege could go so far as
to render the overall State enforcement program inadequate even if
other authorities are nominally available (such as injunctive relief
and penalty authority). An excessively broad privilege could so
interfere with the exercise of these nominal enforcement authorities as
to render them meaningless by depriving the State of the ability to
gather evidence needed to establish a violation.
The Idaho audit privilege (Idaho Code 9-804 to -807) broadly
prohibits the State from requiring a source to disclose an
``environmental audit report,'' thus depriving the State of potentially
important information for determining whether a source is in violation,
whether a violation was knowing and whether the source took prompt
action to correct the violation. The Idaho legislation does contain
some restrictions on the scope of this privilege. Importantly, the law
makes clear that ``[d]ocuments, data and other information which must
be collected, developed and reported pursuant to federal and state law,
rule and regulation must be disclosed in accordance with the applicable
law, rule or regulation.'' Idaho Code 9-805; See also Idaho Code 9-807.
Because of the recordkeeping, reporting and compliance certification
requirements of 40 CFR 70.6, which Idaho has adopted as part of their
title V program (see IDAPA 16.01.01.322), the scope of the audit
privilege should be greatly restricted with respect to title V sources
in Idaho. In addition, the audit privilege does not apply if an
environmental agency or a court, after in camera review, determines
that the environmental audit privilege is asserted for a fraudulent
purpose or that the material sought to be withheld is not an
appropriate subject for an environmental audit. Idaho Code 9-806(2).
Nonetheless, where an audit produces evidence of noncompliance, the
Idaho privilege would prevent the State from reviewing that evidence to
determine whether the violation will be corrected and compliance
assured. Similarly, where an audit reveals evidence of prior criminal
conduct on the part of managers and employees, Idaho would be barred
from obtaining and using such information. As a result, the State would
be prevented from obtaining appropriate criminal penalties. In these
respects, EPA believes that the Idaho audit privilege set forth in
Idaho Code 9-804 to -807 is so broad so as to deprive the State of its
ability to obtain appropriate criminal penalties and assure compliance,
as required by section 502(b)(5)(E) of the Clean Air Act and 40 CFR
70.11.
C. Proposed Action on Section 112(l) Submittal
As stated above, the requirements for title V approval, specified
in 40 CFR 70.4(b), encompass section 112(l)(5) requirements for
approval of a State 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. On October 27,
1995, EPA proposed to grant interim approval under Section 112(l)(5) of
the Act and 40 CFR 63.91 of the State of Idaho's program for receiving
delegation of 112 standards that are unchanged from Federal standards
as promulgated but only as they apply to Part 70 sources, if EPA
granted interim approval to Idaho's operating permits program.
By letter dated December 14, 1995, Idaho also requested that EPA
approve its use of the automatic delegation mechanism for delegation of
future section 112 standards unchanged from the Federal standards as
described in section 5.1.2.a of EPA's ``Interim Enabling Guidance for
the Implementation of 40 CFR Part 63'', Subpart E, EPA-453/R-93-040,
November 1993 (Subpart E Enabling Guidance). After reviewing Idaho's
legal authorities, EPA has determined that Idaho does not meet the
criteria set forth in the Subpart E Enabling Guidance to receive
automatic delegation of future section 112 standards because it cannot
immediately implement and enforce future section 112 standards without
additional rulemaking at the State level.
Although Idaho has the authority to include Federal standards in
part 70 permits without adopting such standards by reference, the
section 112 requirements for some part 70 sources will take effect (or
already have taken effect) prior to the issuance of their part 70
permits. To obtain approval of the delegation of section 112 standards,
Idaho must be able to implement and enforce those standards upon
approval and assure compliance by all sources within the State with
each applicable regulation promulgated under section 112. EPA is
therefore denying Idaho's request for automatic delegation as described
by the State's December 14, 1995 letter.
However, in IDAPA 16.01.107, Idaho has adopted by reference all
Federal standards contained in 40 CFR part 61 and part 63 as in effect
on April 1, 1994. In addition, Idaho has the authority to implement and
enforce those 112 standards that it has adopted by reference.
Therefore, if EPA grants interim approval to Idaho's operating permits
program, EPA proposes to interimly delegate the section 112 standards
contained in 40 CFR parts 61 and 63 which were in effect on April 1,
1994, and as those rules apply to part 70 sources. Those standards
consist of 40 CFR part 61, subparts A through F, H through R, V, W, Y,
BB, and FF; and 40 CFR part 63, subparts A, D, L, and M. EPA would
retain implementation and enforcement authority for these rules as they
apply to non-part 70 sources. EPA recommends that by the time of final
interim approval of this submittal, Idaho should adopt by reference 40
CFR part 61 and 63 at least as in effect June 1, 1996, and continue to
update its incorporation by reference as the federal 112 standards are
revised and new Federal standards are issued.
In addition, EPA proposes to approve the mechanism described in
Section 5.1.2.b of the Subpart E Enabling Guidance for those Federal
standards that Idaho adopts by reference unchanged, if EPA grants
interim approval to Idaho's operating permits program. Using this
streamlined approach, upon adoption of a NESHAP(s) by reference, Idaho
will only need to send a letter of request to EPA. EPA would in turn
respond to this request by sending a letter back to the State
delegating the appropriate NESHAP(s) as requested. No further formal
response from the State would be necessary at this point, and if a
negative response from the State is not received within 10 days of this
letter of delegation from EPA, the delegation would then become final.
Although EPA is proposing to delegate authority to Idaho to enforce
the NESHAP regulations as they apply
[[Page 30574]]
to part 70 sources, it is important to note that EPA will retain
oversight authority for all sources subject to these federal CAA
requirements. EPA has the authority and responsibility to enforce the
Federal regulations in those situations where the State is unable to do
so or fails to do so.
III. Proposed Action and Implications
EPA is reopening the public comment on two conditions EPA proposed
in the October 27, 1995, Federal Register notice (60 FR 54990) as
conditions that Idaho must meet to obtain full approval of its
operating permits program. First, upon further reflection, EPA believes
that IDAPA 16.01.01.335.05, which states that issuance of authorization
to operate under a general operating permit is a final agency action
for purposes of administrative and judicial review of the
authorization, does not conflict with the requirements of 40 CFR
70.6(d)(2), but instead merely requires more public participation than
required by part 70. If EPA takes final action on this proposal,
condition ``n. General Permits'' of Section II.B.2 of the October 27,
1995 Federal Register notice (60 FR 54997) would be revised to read as
follows:
n. General Permits
Idaho must revise its regulations authorizing general permits to
be consistent with 40 CFR 70.6(d), including provisions requiring:
(a) that if a permitting authority has issued a general permit, the
authority must grant the conditions and terms of the general permit
to sources that qualify; (b) specialized general permit applications
meet the requirements of title V; and (c) that the State may take
enforcement action for operation without a permit if the source is
later determined not to qualify for the conditions and terms of the
general permit.
Second, EPA believes that Idaho's environmental audit privilege, as
well as Idaho's environmental audit immunity provision, interfere with
the enforcement requirements of title V and part 70 and must be revised
or otherwise shown to be consistent with title V and part 70
requirements. If EPA takes final action on this proposal, condition
``aa. Environmental Audit Statute'' of Section II.B.2 of the October
27, 1995 Federal Register notice (60 FR 54997) would be revised to read
as follows:
aa. Environmental Audit Statute
Idaho must revise both the immunity and audit provisions of the
Idaho environmental audit statute, Idaho Code title 9, chapter 8, to
ensure that it does not interfere with the requirements of section
502(b)(E)(5) of the Clean Air Act and 40 CFR 70.11 for adequate
authority to pursue appropriate criminal and civil penalties, issue
emergency orders, obtain injunctive relief and otherwise assure
compliance. In the alternative, Idaho must demonstrate to EPA's
satisfaction that these required enforcement authorities are not
impaired by Idaho's environmental audit statute.
Also, if EPA grants interim approval of Idaho's operating permits
program, in addition to approving the program submitted by the State of
Idaho for the purpose of implementing and enforcing the hazardous air
pollutant requirements under section 112 of the Clean Air Act, EPA
proposes to delegate all federal NESHAPs adopted by the State, as they
apply to part 70 sources and to approve the streamlined mechanism for
delegation described in Section 5.1.2.b of the Subpart E Enabling
Guidance.
IV. Administrative Requirements
A. Request for Public Comments
EPA is requesting comments on the three issues addressed in this
notice, namely, (1) conditioning full approval of the Idaho title V
operating permits program on specified changes to Idaho's regulations
addressing general permits (IDAPA 16.01.01.335); (2) conditioning full
approval of the Idaho title V operating permits program on specified
changes to Idaho's environmental audit statute (Idaho Code title 9,
chapter 8) or a satisfactory explanation of why the statute does not
interfere with title V enforcement requirements; and (3) EPA's proposal
to delegate all federal NESHAPs adopted by the State, as they apply to
part 70 sources and to approve the streamlined mechanism for delegation
described in Section 5.1.2.b of the Subpart E Enabling Guidance. All
other aspects of EPA's October 27, 1996 Federal Register notice (60 FR
54990), including all other conditions on interim and full approval of
Idaho's operating permits program, remain unchanged by this reproposal
and are no longer open for public comment. Copies of the State's
submittal and other information relied upon for this proposed action
and notice are contained in a docket maintained 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 proposed action. The principal 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.
The EPA will consider any comments received by July 17, 1996.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. Sec. 600 et. seq.,
EPA must prepare a regulatory flexibility analysis assessing the impact
of any proposed or final rule on small entities. 5 U.S.C. Secs. 603 and
604. Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
EPA 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. NESHAP rule or program
delegations approved under the authority of section 112(l) of the Act
also do not create any new requirements, but simply confer Federal
authority for those requirements that the State of Idaho is already
imposing. Because this action does not impose any new requirements, it
does not have a significant impact on a substantial number of small
entities.
D. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995,
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 proposed approval 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 pre-existing requirements under State or local, 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.
[[Page 30575]]
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, Hazardous substances.
Authority: 42 U.S.C. 7401-7671q.
Dated: June 6, 1996.
Phil Millam,
Acting Regional Administrator.
[FR Doc. 96-15281 Filed 6-14-96; 8:45 am]
BILLING CODE 6560-50-P
