01-24707. Clean Air Act Full Approval of Operating Permit Program; Delaware

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to fully approve the operating permit program of the State of Delaware. Delaware's operating permit program was submitted in response to the Clean Air Act (CAA) Amendments of 1990 that required States to develop, and submit to EPA, programs for issuing operating permits to all major stationary sources and to certain other sources within the States' jurisdiction. The EPA granted final interim approval of Delaware's operating permit program on December 4, 1995. Delaware amended its operating permit program to address deficiencies identified in the interim approval action and this action approves those amendments. Any parties interested in commenting on this action granting full approval of Delaware's title V operating permit program should do so at this time. A more detailed description of Delaware's submittals and EPA's evaluation are included in a Technical Support Document (TSD) in support of this rulemaking action. A copy of the TSD is available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document.

DATES:

This rule is effective on November 19, 2001 without further notice, unless EPA receives adverse written comment by November 2, 2001. 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 Makeba Morris, 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 Delaware Department of Natural Resources & Environmental Control, 89 Kings Highway, PO Box 1401, Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT:

David Campbell, Permits and Technical Assessment Branch at [phone] or by e-mail at campbell.dave@.epa.gov.

SUPPLEMENTARY INFORMATION:

On November 14, 2000 and November 20, 2000, the State of Delaware submitted amendments to its State operating permit program. These amendments are the subject of this document and this section provides additional information on the amendments by addressing the following questions:

What is the State operating permit program?

What are the State operating permit program requirements?

What is being addressed in this document?

What is not being addressed in this document?

What changes to Delaware's operating permit program is EPA approving?

What action is being taken by EPA?

What Is the State Operating Permit Program?

The Clean Air Act Amendments of 1990 required all States to develop operating permit programs that meet certain federal criteria. When implementing the operating permit programs, the States require certain sources of air pollution to obtain permits that contain all of their applicable requirements under the Clean Air Act (CAA). The focus of the operating permit program is to improve enforcement by issuing each source a permit that consolidates all of its applicable CAA requirements into a federally-enforceable document. By consolidating all of the applicable requirements for a given air pollution source into an operating permit, the source, the public, and the State environmental agency can more easily understand what CAA requirements apply and how compliance with those requirements is determined.

Sources required to obtain an operating permit under this program include “major” sources of air pollution and certain other sources specified in the CAA or in EPA's implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain operating permits. Examples of “major” sources include those that have the potential to emit 100 tons per year or more of volatile organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen oxides, or particulate matter (PM10); those that emit 10 tons per year of any single hazardous air pollutant (HAP) specifically listed under the CAA; or those that emit 25 tons per year or more of a combination of HAPs. In areas that are not meeting the national ambient air quality standards (NAAQS) for ozone, carbon monoxide, or particulate matter, major sources are defined by the gravity of the nonattainment classification.

What Are the State Operating Permit Program Requirements?

The minimum program elements for an approvable operating permit program are those mandated by title V of the Clean Air Act Amendments of 1990 and established by EPA's implementing regulations at title 40, part 70—“State Operating Permit Programs” in the Code of Federal Regulations (40 CFR part 70). Title V required state and local air pollution control agencies to develop operating permit programs and submit them to EPA for approval by November 15, 1993. Under title V, State and local air pollution control agencies that implement operating permit programs are called “permitting authorities”.

Where an operating permit program substantially, but not fully, met the program approval criteria outlined at 40 CFR part 70, EPA granted interim approval contingent on the permit authority revising its program to correct those programmatic deficiencies that prevented full approval. Delaware's original operating permit program substantially, but not fully, met the requirements of 40 CFR part 70. Therefore, EPA granted final interim approval of the program in a rulemaking published on December 4, 1995. [See 60 FR 62032.] The interim approval notice identified five outstanding deficiencies that had to be corrected in order for Delaware's program to receive full approval. On November 14, 2000 and November 20, 2000, the State of Delaware submitted amendments to its operating permit program to EPA to address its outstanding program deficiencies.

Delaware's November 14, 2000 and November 20, 2000 submittals satisfy the State's requirement to submit program amendments to EPA by June 1, 2001. This deadline was established by EPA in order to allow for time for EPA review and action on program amendments such that operating permit programs with interim approval status could be considered for full approval by December 1, 2001. After December 1, 2001, those jurisdictions lacking fully-approved operating permit programs will, by operation of law, be subject to a federal operating permit program implemented by EPA under 40 CFR part 71. [See 65 FR 32035.]

What Is Being Addressed in This Document?

On November 14, 2000 and November 20, 2000, Delaware submitted amendments to its currently EPA-approved title V operating permit program. In general, Delaware amended its operating permit program regulations to address deficiencies identified by EPA when it granted final interim approval of Delaware's program in 1995.

What Is Not Being Addressed in This Document?

On December 11, 2000, EPA announced a 90-day comment period for members of the public to identify deficiencies they perceive exist in State and local agency operating permits programs. [See 65 FR 77376.] The public was able to comment on all currently-approved operating permit programs, regardless of whether they have been granted full or interim approval. The December 11, 2000 notice instructed the public to not include in their comments any program deficiencies that were previously identified by EPA when the subject program was granted interim approval. Since those program deficiencies have already been identified and permitting authorities have been working to correct them, EPA will solicit comments when taking action on those corrective measures.

The EPA stated that it will consider information received from the public pursuant to the December 11, 2000 notice and determine whether it agrees or disagrees with the purported deficiencies. Where EPA agrees there is a deficiency, it will publish a notice of deficiency consistent with 40 CFR 70.4(i) and 40 CFR 70.10(b). The Agency will at the same time publish a notice identifying any alleged problems that we do not agree are deficiencies. For programs that have not yet received full approval, such as Delaware's program, EPA will publish these notices by December 1, 2001.

The EPA received numerous comments in response to the December 11, 2000 notice announcing the start of the 90-day public comment period. As part of those comments, EPA Region III received comments germane to Delaware's currently-approved operating permit program. The Agency will respond to those comments in a separate notice(s) by December 1, 2001 as required by the December 11, 2000 notice.

The EPA is not addressing any comments received pursuant to the December 11, 2000 notice in this document. As mentioned above, comments provided in accordance with the December 11, 2000 notice were to address shortcomings that had not previously been identified by EPA as deficiencies necessitating interim, rather than full, approval of a state's operating permit program. This action granting full approval of Delaware's operating permit program only addresses program deficiencies identified when EPA granted interim approval to Delaware's program in 1995. Therefore, any persons wishing to comment on this action should do so at this time.

What Changes to Delaware's Program Is EPA Approving?

The EPA has reviewed Delaware's November 14, 2000 and November 20, 2000 program amendments in conjunction with the portion of Delaware's program that was earlier approved on an interim basis. Based on this review, EPA is granting full approval of Delaware's amended operating permit program. The EPA has determined that the amendments to Delaware's operating permit program adequately address the five deficiencies identified by EPA in its December 4, 1995 rulemaking granting interim approval. Delaware's operating permit program, including the amendments submitted on November 14, 2000 and November 20, 2000, fully meets the minimum requirements of 40 CFR part 70.

Changes to Delaware's Program that Correct Interim Approval Deficiencies

1. Revise Regulation 30, Section 6(f) To Be Consistent With the Scope of the Permit Shield Provision of 40 CFR 70(f)(1)

The extent of Delaware's permit shield was originally too broad and allowed the permit shield to apply to any air contaminant specifically identified in the permit application as well as to any requirement of a State regulation, the Delaware Water and Air Resources Act, rather than any applicable requirement of the final permit as required by 40 CFR 70(f)(1). Delaware revised Regulation 30, Section 6(f) to delete applicability of the permit shield to the permit application and the Delaware Water and Air Resources Act. In lieu thereof, Delaware included a provision for the permit shield to apply to any applicable requirement specifically identified in the permit as of the day of permit issuance. With this amendment, Delaware's program is consistent with 40 CFR 70.6(f)(1) with regard to the permit shield.

2. Revise Regulation 30, Section 7(d)(1)(v) To Ensure That Any Preconstruction Review Permit Requirements That Are Incorporated Into a Title V Permit Through the Administrative Permit Amendment Procedure Meet the Provisions of 40 CFR 70.7(d)(1)(v)

Delaware's Regulation 30, Section 7(d)(1)(v) allowed the requirements from preconstruction review permits to be incorporated into the title V permit as an administrative permit amendment, when such permits were issued meeting only the public participation requirements of Regulation 30. It did not require that a preconstruction permit meet the other procedural requirements set forth in 40 CFR 70.7(d)(5) in order to be incorporated as an administrative amendment. In addition to public participation requirements, 40 CFR 70.7(d) requires procedures substantially equivalent to those in 40 CFR 70.7 and 70.8 which would apply if the preconstruction review permit were subject to review as a permit modification, and compliance requirements substantially equivalent to those in 40 CFR 70.6. Delaware revised Regulation 30 Section 7(d)(1)(v) to require that preconstruction review permits meet Sections 11.2(j), 11.5, 12.4, 12.5, and 12.6 of Regulation No. 2, Delaware's program for minor new source review. Regulation 2 was previously revised and updated on June 1, 1997. Regulation 2, Sections 11.2(j), and 11.5 set forth the requirements for a permit which is desired by an applicant to have its terms or conditions transferred into a Regulation 30 permit. These requirements for compliance certifications, information to be provided in a permit application, and information regarding the compliance status and compliance schedule for all applicable requirements, allow the permit to substantially meet the compliance requirements of 40 CFR 70.6. Sections 12.4, 12.5, and 12.6 set forth the procedural requirements for public participation and EPA and affected state review, which are substantially equivalent to the procedural requirements of 40 CFR 70.7 and 70.8.

3. Revise Regulation 30, Section 7(f)(4) To Require That Permits for Major Sources With a Permit Term of Three Years or More Shall Be Reopened For Cause Within 18 Months After a New Applicable Requirement Is Promulgated, Consistent With 40 CFR 70.7(f)

Regulation 30, Section 7(f)(4) originally required reopening for cause upon new applicable requirements for affected sources only under the acid rain program. It has been revised to apply to all major sources having a remaining permit term of more than three years. With this amendment, Delaware's program is consistent with 40 CFR 70.7(f).

4. Revise Regulation 30, Section 7(j)(4) To Require That The Department Shall Give Notice of any Public Hearing at Least 30 Days in Advance of the Hearing, Consistent With 40 CFR 70.7(h)(4)

Regulation 30, Section 7(j)(4) has been revised to require that a public hearing will be held no earlier than the 31st day following publication of a public notice for that hearing. This amendment make Delaware's program consistent with 40 CFR 70.7(h)(4) with regard to public notification.

5. Revise the Delaware Water and Air Resources Act, 7 Del. C., Chapter 60, Section 6013(b) To Provide That Each Day of Violation Shall Be Considered as a Separate Violation, Consistent With 40 CFR 70.11

The Delaware Water and Air Resources Act, 7 Del. C., section 6013(b), Criminal Penalties, did not include the requirement that each day of violation also be considered a separate violation. Effective July 3, 1997, Delaware amended 7 Del. C., section 6013(b) to include that each day of violation shall constitute a separate offense. The slight variance in language, that is, the term “offense” in lieu of “violation”, does not change its meaning, and requires that each day of violation be considered separately. This amendment to Delaware's statute is consistent with the penalty requirements of 40 CFR 70.11.

What Action Is Being Taken By EPA?

The State of Delaware has satisfactorily addressed the program deficiencies identified when EPA granted final interim approval of its operating permit program on December 4, 1995. The operating permit program amendments that are the subject of this document considered together with that portion of Delaware's operating permit program that was earlier approved on an interim basis fully satisfy the minimum requirements of 40 CFR part 70 and the Clean Air Act. Therefore, EPA is taking direct final action to fully approve the Delaware title V operating permit program in accordance with 40 CFR 70.4(e).

The 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 approval if adverse comments are filed relevant to the issues discussed in this action. This rule will be effective on November 19, 2001 without further notice unless EPA receives adverse comment by November 2, 2001. 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. The EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Administrative Requirements

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 (Public Law 104-4). This rule also 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), nor will it 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), because it 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 Clean Air Act. This rule also is not subject to Executive Order 13045 (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 permit program 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. 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 December 3, 2001. 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 fully approving Delaware's title V 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
• Operating permits
• Reporting and recordkeeping requirements

Dated: September 25, 2001.

Donald S. Welsh,

Regional Administrator, Region III.

Appendix A of part 70 of title 40, chapter I, 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 adding paragraph (b) in the entry for Delaware to read as follows:

Appendix A to Part 70—Approval Status of State and Local Operating Permits Programs

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Delaware

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(b) The Delaware Department of Natural Resources and Environmental Control submitted program amendments on November 14, 2000 and November 20, 2000. The rule amendments contained in the November 14, 2000 and November 20, 2000 submittals adequately addressed the conditions of the interim approval effective on January 3, 1996. The State is hereby granted final full approval effective on November 19, 2001.

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