02-13119. Clean Air Act Operating Permit Program; Petition for Objection to State Operating Permit for Caldwell Tanks Alliance, LLC; Newnan (Coweta County), Georgia

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of final order on petition to object to a state operating permit.

SUMMARY:

Pursuant to Clean Air Act section 505(b)(2) and 40 CFR 70.8(d), the EPA Administrator signed an order, dated April 1, 2002, denying a petition to object to a State operating permit issued by the Georgia Environmental Protection Division (Georgia EPD) to Caldwell Tanks Alliance, LLC, for its facility, located in Newnan, Coweta County, Georgia. This order constitutes final action on the petition submitted by Georgia Center for Law in the Public Interest on behalf of the Sierra Club. Pursuant to section 505(b)(2) of the Clean Air Act any person may seek judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of this document under section 307 of the Act.

ADDRESSES:

Copies of the final order, the petition, and all pertinent information relating thereto are on file at the following location: Environmental Protection Agency, Region 4, Air, Pesticides and Toxics Management Division, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The final order is also available electronically at the following address: http://www.epa.gov/​region07/​programs/​artd/​air/​title5/​petitiondb/​petitions/​caldwelltanks_​decision2001.pdf.

FOR FURTHER INFORMATION CONTACT:

Art Hofmeister, Air, Pesticides and Toxics Management Division, EPA, Region 4, telephone [phone], e-mail [e-mail]. Interested parties may also contact the Air Protection Branch, Georgia Environmental Protection Division, 4244 International Parkway, Atlanta, Georgia 30354.

SUPPLEMENTARY INFORMATION:

The Clean Air Act (CAA or the Act) affords EPA a 45-day period to review, as appropriate, operating permits proposed by State permitting authorities under Title V of the CAA, 42 U.S.C. 7661-7661f (Title V). Section 505(b)(2) of the Act and 40 CFR 70.8(d) authorize any person to petition the EPA Administrator to object to a Title V operating permit within 60 days after the expiration of EPA's 45-day review period if EPA has not objected on its own initiative. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the State, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or the grounds for the issues arose after this period.

Section 505(b)(2) provides that the Administrator shall grant or deny such a petition within 60 days after it is filed, and that the Administrator shall object to the permit within that period if the petitioner demonstrates that the permit is not in compliance with the requirements of the CAA. Section 505(b)(2) further provides that the Administrator's duties under that paragraph may not be delegated to another officer. In addition, section 505(e) of the CAA authorizes the Administrator to terminate, modify, or revoke and reissue a permit for cause at any time. In accordance with EPA's regulations at 40 CFR 70.7(f) and 70.7(g), any person may petition EPA to reopen a permit for cause. However, there is no deadline by which EPA is required to respond to such petitions.

Georgia Center for Law in the Public Interest submitted a petition on behalf of the Sierra Club (GCLPI or Petitioner) to the Administrator on May 9, 2001, requesting that EPA object to a state Title V operating permit, issued by the Georgia Environmental Protection Division (Georgia EPD) to Caldwell Tanks Alliance, LLC (Caldwell Tanks) for its facility located in Newnan, Georgia.

GCLPI's petition was not filed within the statutory time period for filing a section 505(b)(2) petition for objection to a Title V permit. Petitioner claims that it relied upon erroneous information provided by the Georgia EPD which indicated that the permit had been re-proposed to EPA. Reproposal of the permit would have re-started EPA's review period and, in turn, extended the time allowed for filing petitions for objection to the permit. Because the petition was untimely, EPA informed Petitioner that EPA intended to treat it as a petition to reopen the permit for cause in accordance with 40 CFR 70.7(f) and 70.7(g) and to respond on the merits.

Accordingly, EPA sent a letter, dated January 28, 2002, from Winston A. Smith, Director of Region 4's Air, Pesticides & Toxics Management Division, to Petitioner's counsel, stating that the petition was not timely filed under section 505(b)(2) and 40 CFR 70.8(d) and that EPA was treating it as a petition to reopen the permit for cause in accordance with 40 CFR 70.7(f) and 70.7(g). EPA also denied the petition to reopen on the merits.

Because EPA had not responded to the petition within the statutory 60-day period for responding to section 505(b)(2) petitions for objection, the Petitioner filed a nondiscretionary duty suit pursuant to section 304(a)(2) of the CAA in the United States District Court for the District of Columbia to compel EPA to grant or deny its petition. Two days after EPA responded to the Petitioner's petition, the court held that the doctrine of equitable tolling applies to that 60-day limitations period generally and applied against EPA in the Caldwell Tanks case to render the Petitioner's petition timely under section 505(b)(2). The court ordered the Administrator to consider the petition pursuant to section 505(b)(2) and to grant or deny the petition within 60 days of the court's order. See Sierra Club v. Whitman, Civil Action No. 01-01991 (ESH) (D.D.C. Jan. 30, 2002) (order and memorandum opinion). In light of the court's holding that the Petitioner's petition was timely under section 505(b)(2), the Administrator responded to the petition pursuant to that statutory provision in an order, dated April 1, 2002.

The Petitioner requested that EPA object to the Caldwell Tanks permit on the grounds that the permit is inconsistent with the Clean Air Act because the permit failed to: (1) Require the submittal of reports of any required monitoring at least every six months, as required under 40 CFR 70.6(a)(3)(iii)(A); (2) allow all persons to enforce violations of the permit; (3) go through proper public notice procedures because it stated only that the permit is enforceable by EPA and the Georgia EPD without also stating that the permit is enforceable by members of the public; and (4) include an emission limit or require monitoring to assure that no visible emissions result from a shot blasting and baghouse operation that the permit classifies as an insignificant activity.

The order denying this petition explains the reasons behind EPA's conclusion that the Petitioner failed to demonstrate that the Caldwell Tanks permit is not in compliance with the requirements of the Clean Air Act on the grounds raised.

Dated: May 13, 2002.

J. I. Palmer, Jr.,

Regional Administrator, Region 4.