[Federal Register Volume 59, Number 232 (Monday, December 5, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29849]
[[Page Unknown]]
[Federal Register: December 5, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5116-6]
Clean Air Act Final Disapproval of Operating Permits Program;
Commonwealth of Virginia
AGENCY: U.S. Environmental Protection Agency (EPA).
ACTION: Final disapproval.
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SUMMARY: EPA is taking final action to disapprove the Clean Air Act
operating permits program under title V of the Clean Air Act Amendments
of 1990 submitted to EPA by the Commonwealth of Virginia. The reasons
for this disapproval action were fully described in EPA's notice of
proposed disapproval (see the June 17, 1994 Federal Register) and can
be summarized as follows: (1) Virginia's program submittal does not
contain the necessary legal authority to allow persons who have
participated in the permit program's public comment process to obtain
review of the final permit decision in State court; (2) the program
does not contain the necessary legal authority to prevent the default
issuance of permits; (3) the submitted regulations expired on June 28,
1994 and cannot be applied or enforced after that date; (4) the
regulatory portion of the program submittal does not include the proper
universe of sources required to be subject to a State operating permits
program; and (5) the program does not ensure that permits contain all
applicable Clean Air Act requirements and does not correctly delineate
permit provisions enforceable only by the Commonwealth.
DATES: This action will become effective on January 4, 1995.
ADDRESSES: A copy of Virginia's submittal and other supporting
information relevant to this action, including all public comment
letters, are available for public inspection during normal business
hours at the following location: U.S. Environmental Protection Agency,
Region III, Air, Radiation & Toxics Division, 841 Chestnut Building,
Philadelphia, PA 19107.
FOR FURTHER INFORMATION CONTACT: Mr. David J. Campbell, Air and
Radiation Programs Branch (3AT10), U.S. Environmental Protection
Agency, Region III, 841 Chestnut Building, Philadelphia, PA 19107,
Telephone: 215 597-9781.
SUPPLEMENTARY INFORMATION:
I. Background
Title V of the 1990 Clean Air Act Amendments (sections 501-507 of
the Clean Air Act (``CAA'')) and implementing regulations at 40 CFR
part 70 (see 57 FR 32250 (July 21, 1992)) 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 one (1) year
after receiving the submittal. EPA's program review occurs pursuant to
section 502 of the CAA and the part 70 regulations, which together
outline the criteria for approval or disapproval. If EPA has not
approved a program by November 15, 1995 for a State, it must establish
and implement a Federal program in that State.
On June 17, 1994, EPA proposed disapproval of the operating permits
program for the Commonwealth of Virginia. (See 59 FR 31183.) EPA
received public comment on the proposal and will address those comments
in this notice. EPA is taking final action to disapprove the operating
permits program for the Commonwealth of Virginia. By promulgating this
disapproval action within one (1) year of receipt of Virginia's
November 12, 1993 operating permits program submittal, EPA has
fulfilled its requirements for timely program review under section
502(d).
II. Analysis of State Submittal
On November 12, 1993, as supplemented on January 14, 1994, the
Commonwealth of Virginia submitted an operating permits program to
satisfy the requirements of the CAA and 40 CFR part 70. EPA reviewed
the program against the criteria for approval and disapproval in
section 502 of the CAA and the part 70 regulations. EPA determined, as
fully described in the notice of proposed disapproval of Virginia's
program (see 59 FR 31183 (June 17, 1994)) and the Technical Support
Document for this action, that the Commonwealth's operating permits
program does not substantially meet the requirements of the CAA or part
70. In summary, the deficiencies of the Commonwealth's program which
require disapproval are:
1. Inadequate provisions, pursuant to section 502(b)(6) of the CAA
and 40 CFR 70.4(b)(3)(x) and 70.7(h), for public participation in the
permit process and the opportunity for judicial review in State court.
Specifically, the Commonwealth lacks statutory authority for judicial
review of final permit decisions that meets the CAA's minimum threshold
for judicial standing.
2. Lack of authority, pursuant to section 505(b)(3) of the CAA and
40 CFR 70.8(e), to prevent the default issuance of permits by
Commonwealth.
3. The regulations to implement the program expired on June 28,
1994 and have not been re-promulgated.
4. The Commonwealth's operating permits program does not require
issuance of permits to the proper universe of sources required by 40
CFR part 70.
5. The program does not contain regulations meeting the
requirements of 40 CFR part 70 to ensure issuance of permits that
contain all applicable Federal requirements and to correctly delineate
provisions only enforceable by the Commonwealth.
Pursuant to section 502(d)(1) of the CAA, the Commonwealth of
Virginia must correct these deficiencies, as well as those defined in
the Technical Support Document by June 7, 1995, in order to receive
approval of its operating permits program from EPA.
III. Response to Public Comments
EPA received 32 letters of comment in response to the proposed
disapproval of Virginia's operating permits program submittal. As
mentioned in the June 17, 1994 notice of proposed disapproval, EPA
received a petition from the Environmental Defense Fund, dated December
23, 1993, to disapprove Virginia's operating permits program. That
petition is considered in this action. EPA received a total of 26
comment letters supporting the notice of proposed disapproval of
Virginia's program. EPA received adverse comment letters from the
Virginia Manufacturers Association, Virginia Aggregates Association,
Northeast Maryland Waste Disposal Authority, AES, Ogden Martin Systems
of Montgomery, Inc., Ogden Martin Systems of Fairfax, Inc., Ogden
Martin Systems of Lancaster, Inc., and Ogden Martin Systems of
Alexandria/Arlington, Inc. The Attorney General of Virginia submitted
specific comments on the judicial standing issue. Additionally, the
Commonwealth of Virginia Department of Environmental Quality submitted
a separate letter which describes how it intends to address the
deficiencies as outlined in the notice of proposed disapproval and the
accompanying Technical Support Document, with the notable exception of
the judicial standing issues. Finally, one letter of comment was
received recommending specific changes to Virginia's operating permits
program. The following is in response to comments which do not directly
support EPA's disapproval action.
Comment: The Commonwealth of Virginia's judicial review statute is
legally sufficient to satisfy the requirements of title V and 40 CFR
part 70.
EPA Response: EPA proposed disapproval of Virginia's program
because it, in part, fails to meet the minimum requirements for
standing for judicial review as required by section 502(b)(6) of the
Act and 40 CFR 70.4(b)(3)(x).
Section 502(b)(6) states that every permit program must provide the
applicant and ``any person who participated in the public comment
process'' with the opportunity for judicial review of the final permit
action in State court. The same opportunity must also be afforded to
any other person who could obtain judicial review of the action under
any applicable State law.
The Commonwealth and the other contesting commenters assert that a
reading of the language of section 502(b)(6) and the legislative
history indicates that Congress intended that States be given
discretion to determine who should be allowed to obtain judicial review
of actions under a State's title V program. EPA does not agree with
this interpretation of section 502's judicial review provision.
EPA believes that for a State title V operating permits program to
be approved by EPA, that program must provide access to judicial review
to any party who participated in the public comment process and who at
a minimum meets the threshold standing requirements of Article III of
the U.S. Constitution. This interpretation is consistent with the
language, structure, and legislative history of the Act which provides
affected members of the public an opportunity for judicial review of
permit actions to ensure an adequate and meaningful opportunity for
public participation in the permit process. The Senate managers of the
Clean Air Act Amendments of 1990 stated that:
Several other provisions [in section 502(b)(6)] are included to
ensure fair treatment in the permit process. For example, we make
clear that judicial review of final actions by the permitting
authority to issue or deny permits shall be available in State court
to anyone who could obtain such review under any applicable law.
This provision ensures that existing provisions of law governing the
availability of review of final actions on permit applications are
in no way limited, and that interested parties who arguably are
affected by permit decisions are guaranteed their day in court.
Chafee-Baucus Statement of Senate Managers, S.1630, the Clean Air
Act Amendments of 1990, reprinted in 136 Cong. Rec. S169941 (daily ed.
October 27, 1990). This language, together with the expansive language
of section 502(b)(6), demonstrates the clear intent of the Congress to
provide citizens a broad opportunity for judicial review.
In addition, if EPA were to implement an operating permits program
pursuant to section 502(d)(3) of the Act, citizens would have access to
judicial review of EPA permitting decisions if they met the minimal
standing requirements of Article III. With respect to the nature of the
injury that an ``interested person'' must show to have standing under
Article III, the Supreme Court held in Sierra Club v. Morton, 405 U.S.
727, 734-35 (1972), that harm to an economic interest is not required
to confer standing. Harm to an aesthetic, environmental, or
recreational interest is sufficient, as long as the party seeking
judicial review is among the injured. This holding was reaffirmed by
the Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. ----, 112
S.Ct. 2130, 2136, 119 L.Ed.2d 351, 365-66 (1992). See also, Middlesex
County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1,
16-17 (1981) (citizen suit provision of CWA intended by Congress to
apply to plaintiffs suffering noneconomic and economic injury).
One commenter observed that in addition to the constitutional
requirements for standing, ``prudential'' standing requirements would
apply where a Federal court reviews an EPA-issued permit. The
prudential standing inquiry requires that a court ask whether a would-
be challenger to Agency action is pursuing an ``interest'' arguably
within the zone of interests Congress intended to either regulate or
protect. Hazardous Waste Treatment Council v. EPA (HWTC IV), 885 F.2d
918, 922 (D.C. Cir. 1989). EPA has considered the issue and has
determined that it agrees with the commenter that courts should apply
traditional prudential standing requirements to parties seeking
judicial review pursuant to section 502(b)(6). Id. at 921. However, by
requiring that States provide an opportunity for judicial review to,
inter alia, ``any person who participated in the public comment
process'' on a proposed permit, Congress declared that any such person
is within the zone of interests addressed by title V. Thus, EPA
believes that the Act clearly enables such persons to meet prudential
standing requirements. In Virginia, however, all persons who have
participated in the public comment process are not considered within
the zone of interests protected by title V. Accordingly, the
Commonwealth's standing provision is more restrictive than traditional
prudential standing requirements. Hazardous Waste Treatment Council v.
Thomas (HWTC II), 861 F.2d 277 (D.C. Cir. 1988), cert. denied, 490 U.S.
1106 (1989).
Comment: The CAA, specifically section 502(b)(6), may violate the
Tenth Amendment of the U.S. Constitution. The commenters believe that
Congress cannot preempt a traditional State power with the ambiguous
language of section 502(b)(6) and that Congress cannot coerce State
legislative action. Additionally, these commenters contend that the
sanctions provisions in section 502(d)(2) of the Act unconstitutionally
compel the States to enact and enforce the title V permits program.
EPA Response: The Commonwealth and the contesting commenters assert
that EPA's interpretation of section 502(b)(6) of the Act is an
invasion of State sovereignty in violation of the Tenth Amendment of
the U.S. Constitution. They assert that Congress cannot require States
to regulate. However, EPA does not believe that the Clean Air Act, and
more specifically section 502(b)(6), is an unconstitutional invasion of
State sovereignty.
It is fundamental under the Tenth Amendment to the U.S.
Constitution that Congress lacks the power directly to compel States to
enact and enforce a Federal regulatory program. Equally fundamental,
however, is Congress' authority to establish a program of cooperative
federalism in which States are encouraged to enact a State regulatory
program using Federal standards in a federally preemptible area. When
Congress created the operating permits program in title V of the Clean
Air Act Amendments of 1990, it could have entirely preempted State
regulation by creating a regulatory scheme to be enforced exclusively
by EPA. Instead, Congress created a regulatory scheme where States
could enact permit programs meeting Federal standards or have EPA
promulgate such a program. When Congress chooses to allow the States
such a regulatory role in a federally preemptible area, such as it has
done in title V, the Supreme Court has found no violation of the Tenth
Amendment to the U.S. Constitution and therefore no unconstitutional
invasion of State sovereignty. Hodel v. Virginia Surface Mining &
Reclamation Assn., Inc., 452 U.S. 264, 290 (1981); FERC v. Mississippi,
456 U.S. 742, 764 (1982). The title V operating permits program does
not ``commandeer the legislative processes of the States by directly
compelling them to enact and enforce a Federal regulatory program.''
Hodel, supra, at 288; FERC, supra, at 764-765. Rather, this program is
clearly one of cooperative federalism that encourages the States to
enact and enforce a State program, incorporating title V's standards,
by offering incentives to do so.
Congress can encourage States to regulate in a particular manner by
attaching conditions on the receipt of Federal funds and/or offering
States the choice of regulating an activity in conformance with Federal
standards or having the State law preempted by Federal regulation. New
York v. United States, 112 S. Ct. 2408 (1992). Congress has provided
States with two incentives to encourage them to adopt and implement an
operating permits program consistent with Federal regulations. If a
State fails to submit an approvable program, it is subject to one or
more of the sanctions described under section 179(b) of the Act. Again,
it is well established that Congress is empowered to further Federal
policy objectives by conditioning the receipt of Federal moneys upon
compliance by the recipient State with Federal statutory and
administrative directives. See, e.g., South Dakota v. Dole, 483 U.S.
203 (1987); Fullilove v. Klutznick, 448 U.S. 448 (1980). In addition,
under section 502(d)(3), if a State does not submit a title V operating
permits program or if the State program does not meet the requirements
of title V, EPA is required to promulgate, administer, and enforce an
operating permits program in that State. Thus, if the Commonwealth does
not submit a permanent program that complies with the Act and 40 CFR
part 70, the full regulatory burden will be borne by EPA.
The Commonwealth asserts that EPA's interpretation of section
502(b)(6) is a violation of the Eleventh Amendment of the U.S.
Constitution. Virginia's concern is misplaced because section 502(b)(6)
provides for judicial review of a State's permitting decisions in State
court and therefore does not implicate the Eleventh Amendment.
Comment: The Commonwealth of Virginia should receive interim
approval of its operating permits program. Several commenters believe
that Virginia's program will meet the minimum requirements to be
considered for interim approval as described at 40 CFR 70.4(d) once
proposed modifications to the permits program regulations are adopted.
It has also been stated that the issue of judicial standing is not a
relevant criterion for assessing interim approvability.
EPA Response: Pursuant to Sec. 70.4(d)(1), an operating permits
program submittal that is not fully approvable must first substantially
meet the requirements of part 70 in order to be considered for interim
approval. Once a submittal has been deemed to substantially meet the
requirements of part 70, the criteria established at Sec. 70.4(d)(3)
are applied as a second test for eligibility for interim approval. On
the basis of the five disapproval issues, EPA has determined that
Virginia's operating permits program submittal does not substantially
meet the requirements of part 70 and, therefore, is not eligible for
interim approval. Moreover, the fact that the emergency regulations
establishing the permits program have expired sufficiently indicates
that the program does not substantially meet the requirements of part
70.
Comment: EPA judged the adequacy of the Commonwealth of Virginia's
operating permits program prior to official submittal. Specifically,
EPA notified the Commonwealth of Virginia that it lacked adequate
statutory provisions for standing for judicial review prior to the
receipt of its November 12, 1993 program submittal.
EPA Response: EPA attempted to alert Virginia to potential
impediments to the approval of any operating permits program submitted
by the Commonwealth prior to the November 15, 1993 program submittal
due date. It was EPA's intention to supply constructive comments to
Virginia prior to November 15, 1993 in order to provide the
Commonwealth with adequate time to seek any statutory or regulatory
revisions as needed. EPA has a well-established policy of providing
comments on draft and proposed regulations and programs which will
later come before it for formal rulemaking action. Notwithstanding
EPA's policy of providing timely comment, the Agency's position on the
standing for judicial review issue has been consistent throughout its
correspondence with the relevant parties in Virginia and that position
has been maintained and reflected in the rulemaking actions undertaken
in response to the official submittal of Virginia's operating permits
program.
Comment: EPA may be applying inconsistent approval standards among
the various State and Local jurisdictions seeking approval of operating
permits programs to satisfy the requirements of title V of the CAA. The
commenter indicated that EPA is not providing a consistent level of
review and comment of other States' standing provisions.
EPA Response: EPA has applied consistent standards to other states.
EPA has not proposed approval for any State operating permits program
that does not substantially meet the requirements for standing for
judicial review as required by section 502(b)(6) of the Act and 40 CFR
70.4(b)(3)(x). EPA will evaluate each program separately to determine
if it meets the requirements of 40 CFR part 70.
Comment: The Commonwealth of Virginia Department of Environmental
Quality submitted comments to address the regulatory deficiencies cited
in EPA's notice of proposed disapproval and the Technical Support
Document accompanying that action. The comments specifically exclude
discussion of the standing for judicial review issue. The Department of
Environmental Quality details the regulatory modifications it plans to
make to the previously adopted regulations for its operating permits
program.
EPA Response: EPA is encouraged that the Department of
Environmental Quality is working to address the regulatory deficiencies
of its operating permits program as cited in the proposed disapproval.
At such time that EPA receives an official submittal replacing the
Commonwealth's November 12, 1993 submittal being considered by this
action, the Agency will evaluate the new submittal in an additional
rulemaking action. To comment on the adequacy of proposed modifications
would not be appropriate in this action.
Comment: One commenter provided EPA with letters it had previously
submitted to the Virginia Department of Environmental Quality. The
letters discuss the commenter's concerns regarding Virginia's operating
permits program. The letters also offer suggested modifications to the
program. The commenter suggested that EPA consider these letters when
reviewing Virginia's program.
EPA Response: EPA has considered the comments contained in the
letters provided by the commenter. EPA's final disapproval of the
Virginia operating permits program as submitted on November 12, 1993
sufficiently addresses the concerns of the commenter.
IV. Final Action and Implications
A. Program Modification
EPA is promulgating disapproval of the operating permits program
submitted by the Commonwealth of Virginia on November 12, 1993, as
supplemented on January 14, 1994. This disapproval constitutes a
disapproval under section 502(d) of the CAA (see 57 FR 32253). Pursuant
to section 502(d)(1), the Commonwealth has 180 days from the date of
EPA's notification of the Governor of Virginia to revise and resubmit
the program. EPA will notify the Governor of Virginia by letter that
the Commonwealth has 180 days from the effective date of this final
disapproval in which to make the necessary modifications to its
operating permits program and resubmit it to EPA for review.
Virginia must amend its operating permits program to correct the
deficiencies and resubmit the program, including a revised Attorney
General's opinion, to EPA for review. The notice of proposed
disapproval and the Technical Support Document discuss Virginia's
submittal in detail, and contain specific references to revisions and
modifications necessary to obtain full approval. Once submitted,
Virginia's operating permits program, including revised statutes and
regulations, will undergo an additional notice and comment period
before EPA takes final action on the program submittal.
B. Sanctions
Based on the disapproval of its operating permits program, the
Commonwealth of Virginia may become subject to sanctions under the CAA.
Pursuant to section 502(d)(2)(A), EPA may, at its discretion, apply any
of the sanctions described in section 179(b) at any time subsequent to
the effective date of this disapproval action. Furthermore, EPA is
compelled by the CAA to apply one of the sanctions in section 179(b),
as selected by the Administrator, on July 5, 1996, unless prior to that
date the Commonwealth submits a revised operating permits program for
Virginia and EPA determines that the Commonwealth has corrected the
deficiencies that prompted this disapproval action. If, six (6) months
after EPA applies the first sanction, Virginia has not submitted a
revised program and EPA has not determined that the Commonwealth has
corrected the deficiencies, a second sanction is required. Finally, if
the Commonwealth of Virginia does not have an approved program by
November 15, 1995, EPA must promulgate, administer, and enforce a
Federal operating permits program for Virginia.
Final Action
EPA is disapproving the operating permits program submitted by the
Commonwealth of Virginia on November 12, 1993, as supplemented on
January 14, 1994. This disapproval constitutes a disapproval under
section 502(d) of the CAA (see 57 FR 32253). As provided under section
502(d)(1) of the CAA, the Commonwealth will have up to 180 days from
the date of EPA's notification of disapproval for the Governor of
Virginia to revise and resubmit the program. EPA is disapproving this
program on the basis that Virginia has not met the following five
requirements: provision for adequate judicial standing; prevention of
default permit issuance; reliance on permanent regulations; issuance of
permits to the proper universe of sources; and issuance of permits that
contain all applicable Federal requirements and correctly delineate
provisions only enforceable by the Commonwealth.
The Office of Management and Budget (OMB) has exempted this action
from Executive Order 12866 review.
EPA's actions under section 502 of the CAA do not create any new
requirements, but simply address operating permits programs submitted
to satisfy the requirements of 40 CFR part 70. Because EPA's
disapproval of the Commonwealth of Virginia's request under section 502
of the CAA for approval of its operating permits program does not
impose any new requirements, it does not have a significant impact on a
substantial number of small entities.
List of Subjects in 40 CFR Part 70
Administrative practice and procedure, Air pollution control,
Environmental protection, Intergovernmental relations, Operating
permits, and Reporting and recordkeeping requirements.
Dated: November 15, 1994.
Peter H. Kostmayer,
Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
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 the entry for
Virginia in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Virginia
(a) Department of Environmental Quality: submitted on November
19, 1993; disapproval effective on January 4, 1995.
(b) [Reserved]
* * * * *
[FR Doc. 94-29849 Filed 12-2-94; 8:45 am]
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