02-7775. Notice of Deficiency for Clean Air Operating Permits Program; State of Hawaii

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of deficiency.

SUMMARY:

Pursuant to its authority under section 502(i) of the Clean Air Act and the implementing regulations at 40 CFR 70.10(b)(1), EPA is publishing this notice of deficiency for the State of Hawaii's (Hawaii or State) Clean Air Act title V operating permits program, which is administered by the Hawaii Department of Health. The notice of deficiency is based upon EPA's finding that Hawaii's provisions for insignificant emissions units do not meet minimum Federal requirements for program approval. Publication of this notice is a prerequisite for withdrawal of Hawaii's title V program approval, but does not effect such withdrawal.

EFFECTIVE DATE:

March 22, 2002. Because this Notice of Deficiency is an adjudication and not a final rule, the Administrative Procedure Act's 30-day deferral of the effective date of a rule does not apply.

FOR FURTHER INFORMATION CONTACT:

Robert Baker, EPA, Region 9, Air Division (AIR-3), 75 Hawthorne Street, San Francisco, CA 94105, [phone].

SUPPLEMENTARY INFORMATION:

I. Description of Action

EPA is publishing a notice of deficiency for the Clean Air Act (CAA or Act) title V operating permits program for the State of Hawaii. This document is being published to satisfy 40 CFR 70.10(b)(1), which provides that EPA shall publish in the Federal Register a notice of any determination that a title V permitting authority is not adequately administering or enforcing its title V operating permits program. The deficiency that is the subject of this notice relates to Hawaii's requirements for insignificant emissions units (IEUs) and applies to the State permitting authority that implements Hawaii's title V program.

A. Approval of Hawaii's Title V Program

The CAA requires all State and local permitting authorities to develop operating permits programs that meet the requirements of title V of the Act, 42 U.S.C. 7661-7661f, and its implementing regulations, 40 CFR part 70. Hawaii's operating permits program was submitted in response to this directive. EPA granted interim approval to Hawaii's air operating permits program on December 1, 1994 (59 FR 61549).

After Hawaii revised its program to address the conditions of the interim approval, EPA promulgated final full approval of Hawaii's title V operating permits program on November 26, 2001 (66 FR 62945).

B. Exemption of IEUs From Permit Content Requirements

Part 70 authorizes EPA to approve as part of a state program a list of insignificant activities and emission levels (IEUs) which need not be included in the permit application, provided that an application may not omit information needed to determine the applicability of, or to impose, any applicable requirement, or to evaluate the fee amount required under the EPA-approved schedule. See 40 CFR 70.5(c). Nothing in part 70, however, authorizes a state to exempt IEUs from the testing, monitoring, recordkeeping, reporting, or compliance certification requirements of 40 CFR 70.6.

Hawaii's regulations contain criteria for identifying IEUs. See HAR § 11-60.1-82(f) thru (g). Hawaii's regulations also require that the permit application include identification and description of all points of emissions and all applicable requirements. See HAR § 11-60.1-83. The Hawaii program, however, exempts IEUs from all permitting requirements including testing, monitoring, recordkeeping, reporting, and compliance certification requirements. See HAR § 11-60.1-82(e). Because part 70 does not exempt IEUs from the testing, monitoring, recordkeeping, reporting, and compliance certification requirements of 40 CFR 70.6, EPA has determined that Hawaii must revise its IEU regulations.

The deficiency involving the provisions in the State's program that exempt insignificant activities from part 70 permitting requirements, came to light as a result of the court decision in Western States Petroleum Association (WSPA) v. Environmental Protection Agency, 87 F.3d 280 (9th Cir. 1996).

The court found in the WSPA case that EPA had acted inconsistently in its approval of the insignificant activities provisions in several part 70 programs, including the State of Hawaii's program. In order to address the inconsistencies identified by the Ninth Circuit, EPA is now notifying Hawaii that it must bring its IEU provisions into alignment with the requirements of part 70 and other State and Local title V programs or face withdrawal of its title V operating permits program.

C. Effect of Notice of Deficiency

Part 70 provides that EPA may withdraw a part 70 program approval, in whole or in part, whenever the approved program no longer complies with the requirements of part 70 and the permitting authority fails to take corrective action. 40 CFR 70.10(c)(1). This section goes on to list a number of potential bases for program withdrawal, including the case where the permitting authority's legal authority no longer meets the requirements of part 70. 40 CFR 70.10(b) sets forth the procedures for program withdrawal, and requires as a prerequisite to withdrawal that the permitting authority be notified of any finding of deficiency by the Administrator and that the notice be published in the Federal Register. Today's notice satisfies this requirement and constitutes a finding of program deficiency. If the permitting authority has not taken “significant action to assure adequate administration and enforcement of the program” within 90 days after publication of a notice of deficiency, EPA may withdraw the State program, apply either of the sanctions specified in section 179(b) of the Act, or promulgate, administer, and enforce a Federal title V program. 40 CFR 70.10(b)(2). Section 70.10(b)(3) provides that if a State has not corrected the deficiency within 18 months of the finding of deficiency, EPA will apply the sanctions under section 179(b) of the Act, in accordance with section 179(a) of the Act. Upon EPA action, the sanctions will go into effect unless the State has corrected the deficiencies identified in this notice within 18 months after signature of this notice. In addition, section 70.10(b)(4) provides that, if the State has not corrected the deficiency within 18 months after the date of notice of deficiency, EPA must promulgate, administer, and enforce a whole or partial program within 2 years of the date of the finding.

This document is not a proposal to withdraw Hawaii's title V program. Consistent with 40 CFR 70.10(b)(2), EPA will wait at least 90 days, at which point it will determine whether Hawaii has taken significant action to correct the deficiency.

II. Administrative Requirements

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of today's action may be filed in the United States Court of Appeals for the appropriate circuit within 60 days of April 1, 2002.

Dated: March 22, 2002.

Wayne Nastri,

Regional Administrator, Region 9.