[Federal Register Volume 62, Number 111 (Tuesday, June 10, 1997)]
[Rules and Regulations]
[Pages 31516-31520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15090]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5838-6]
Clean Air Act Final Interim Approval of Operating Permits
Program; Commonwealth of Virginia
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval.
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SUMMARY: The EPA is granting final interim approval, pursuant to Title
V of the Clean Air Act, of the Operating Permits Program which the
Commonwealth of Virginia submitted for the purpose of complying with
[[Page 31517]]
Federal requirements for an approvable State program to issue operating
permits to all major stationary sources, and to certain other sources.
EFFECTIVE DATE: July 10, 1997.
ADDRESSES: Copies of the Commonwealth's submittal and other supporting
information used in developing the final interim approval are available
for inspection during normal business hours at the following location:
U.S. EPA Region III; Air, Radiation, & Toxics Division; 841 Chestnut
Building; Philadelphia, PA 19107.
FOR FURTHER INFORMATION CONTACT: Ray Chalmers, 3AT23; U.S. EPA Region
III; Air, Radiation, & Toxics Division; 841 Chestnut Building;
Philadelphia, PA 19107. Phone: (215) 566-2061.
SUPPLEMENTARY INFORMATION:
I. Background
States are directed by the 1990 Clean Air Act (``the Act''), 42
U.S.C. 7401, et seq. to develop and submit operating permits programs
to EPA by November 15, 1993. The requirements for approval of State
operating permits programs are found at sections 501 through 506 of the
Act, and at 40 CFR part 70. These requirements encompass section
112(l)(5) requirements for approval of a program for delegation of
section 112 standards. EPA is required to approve or disapprove each
program within 1 year after receiving the submittal. Where a program
substantially, but not fully, meets the requirements of 40 CFR part 70,
EPA may grant the program interim approval for a period of up to 2
years.
II. EPA Action and Implications
EPA proposed to grant approval of the Commonwealth of Virginia's 40
CFR part 70 operating permits program, and its program for receiving
delegation of 112 standards, in a Federal Register document published
on March 18, 1997. See 62 FR 12778. EPA hereby incorporates by
reference the discussion and rationale contained in the March 18, 1997
proposed interim approval notice. That notice may be consulted for a
detailed description of the Commonwealth's submittals and for an
explanation of why EPA believes interim approval is appropriate, and
why EPA is not able at this time to grant full approval to Virginia's
program. After consideration of public comments received on the
proposal, EPA is granting final interim approval to the Commonwealth's
operating permits program. The Commonwealth's approved program consists
of Title V operating permit and fee program regulations submitted on
September 10, 1996, operating permit regulations for acid rain sources
submitted on September 12, 1996, and the non-regulatory portions of
operating permit program submittals from the Commonwealth dated
November 12, 1993, January 14, 1994, January 9, 1995, May 17, 1995,
February 6, 1997, and February 27, 1997. In addition, the EPA is also
promulgating approval under section 112(l)(5) and 40 CFR 63.91 of the
Commonwealth's program for receiving delegation of section 112
standards that are unchanged from Federal standards as promulgated.
This program for delegations only applies to sources covered by the 40
CFR part 70 program.
The Commonwealth of Virginia's 40 CFR part 70 program approved in
this document applies to all 40 CFR part 70 sources (as defined in the
approved program) within the Commonwealth. This interim approval
extends until July 12, 1999. As described below, during this interim
approval period the Commonwealth of Virginia is protected from
sanctions, and EPA is not obligated to administer and enforce a Federal
operating permits program promulgated at 40 CFR part 71 in the
Commonwealth. Permits issued under a program with interim approval have
full standing with respect to 40 CFR part 70, and the 1-year time
period for submittal of permit applications by subject sources begins
upon the effective date of this interim approval, as does the 3-year
time period for processing the initial permit applications.
On July 1, 1996, EPA promulgated regulations at 40 CFR Part 71
which govern EPA's implementation of a Federal operating permits
program. See 61 FR 34202. On July 31, 1996, EPA published a document at
61 FR 39877 listing states, including Virginia, whose 40 CFR part 70
operating permits programs had not been approved by EPA and where a 40
CFR part 71 Federal operating permits program was effective as of that
date. Today's action cancels the applicability of the 40 CFR part 71
Federal operating permits program in Virginia. Upon the effective date
of today's approval, the 40 CFR part 71 application deadline will be
superseded by Virginia's 40 CFR part 70 application deadlines.
III. Public Comments and EPA's Response
EPA received two comments, both from corporations, in response to
its proposal to grant interim approval to Virginia's Title V operating
permits program. One company supported the proposed interim approval.
The other company, which treats contaminated soil using a thermal
desorption technology, argued that EPA should withdraw the proposed
interim approval of Virginia's Title V program because the company
believes Virginia had shown that it was unable or unwilling to
appropriately permit sources. The evidence the company cited was that
in 1993 Virginia had issued a construction permit to one of the
commenter's competitors (which treats contaminated soil using an
alternative bio-remediation process), and had not required the
competing company to install emission controls which the commenter
considered appropriate.
40 CFR part 70 establishes the criteria that EPA must use to
evaluate the approvability of a State's Title V program. EPA has
determined that Virginia's Title V program meets the requirements for
interim approval set forth at 40 CFR 70.4(d). 40 CFR part 70 also
requires that, upon interim approval of its Title V operating permit
program, Virginia will be obligated to implement and enforce the
program in accordance with the requirements of Title V and 40 CFR part
70 and all agreements between the Commonwealth and EPA concerning the
operation of the program. See 40 CFR 70.10(b). EPA will be reviewing
permits and permit revisions Virginia proposes to issue, pursuant to
its authority under 40 CFR 70.8, and will object to the issuance of any
proposed permit or permit revision that EPA determines does not assure
compliance with all applicable requirements or otherwise conform to the
requirements of Title V and 40 CFR part 70. If EPA should determine,
based on its review of the Commonwealth's proposed permits or permit
revisions, or on other relevant information, that Virginia is not
adequately administering and/or enforcing its Title V program, EPA
could act to: (1) Withdraw approval of the program or portions thereof;
(2) apply the sanctions set forth in section 179(b) of the Act; and/or
(3) administer and enforce the Federal program under Title V of the Act
and 40 CFR part 71. See 40 CFR 70.10(c)(1) (ii) and (iii).
Given that EPA has the authority to take appropriate action should
Virginia fail to adequately administer and enforce its operating
permits program, and that EPA has the authority to review and object to
the issuance of individual Title V operating permits proposed by
Virginia, EPA believes that it is appropriate to grant interim approval
to Virginia's program, based on the Agency's review of Virginia's
submitted program. Consequently, EPA disagrees with the commenter's
assertion that
[[Page 31518]]
Virginia is not eligible for Title V program approval.
IV. Interim Approval Items
EPA cannot fully approve Virginia's Title V operating permits
program until Virginia corrects the six program deficiencies which EPA
discussed in detail in its notice proposing interim approval of
Virginia's program. The required corrections are summarized below:
A. Reduce the Level of CO Emissions Considered Insignificant
Virginia must change its designation of which emission units
emitting carbon monoxide (CO) are insignificant. Virginia defines any
emissions unit emitting less than 100 TPY of carbon CO as
insignificant, and EPA has determined that the 100 TPY emissions level
is unreasonably high. Virginia must significantly reduce this emissions
level to a level consistent with EPA policy and consistent with what
EPA has approved in other State programs. For further discussion of
this issue, see EPA's proposed interim approval notice at 62 FR 12782.
B. Require Sources to Include in Their Permit Applications Sufficient
Information Regarding Insignificant Emission Units To Enable Applicable
Requirements for Those Units To Be Identified
Virginia must, in accordance with 40 CFR 70.5(c), require sources
to include in their Title V permit applications all information for
insignificant emission units which is required to identify any
applicable requirements for those units. Virginia does currently
require sources to submit emissions information for insignificant
emission units, which can be used to identify many applicable
requirements for those units, but it fails to require sources to submit
any additional information which might be required. For further
discussion of this issue, see EPA's proposed interim approval notice at
62 FR 12782.
C. Require Applicable Requirements for Insignificant Emission Units To
Be Included in Permits
Virginia must require all applicable requirements to be included in
permits, with no exceptions for insignificant emissions units, in
accordance with 40 CFR 70.6. Virginia's regulations currently require
all applicable requirements for all emission units in the source to be
included in permits, except for applicable requirements for
insignificant emissions units. Virginia must delete the exception for
insignificant units. For further discussion of this issue, see EPA's
proposed interim approval notice at 62 FR 12782-12783.
D. Correctly Define Which Emergency or Standby Compressors, Pumps, and/
or Generators Are Insignificant
Virginia must clarify its provision designating emergency or
standby compressors, pumps, and/or generators as insignificant
emissions units, and must reduce the horsepower size cut-off levels for
such units sufficiently to exclude any unit which would be likely to
trigger an applicable requirement or to emit air pollutants in major
amounts, in accordance with 40 CFR 70.5(c). For further discussion of
this issue, see EPA's proposed interim approval notice at 62 FR 12783.
E. Prohibit ``Off Permit'' Changes Pertaining to Requirements of the
Acid Rain Provisions of Title IV of the CAA
Virginia must modify its Title V provisions pertaining to ``off
permit'' changes (changes not addressed or prohibited by the permit) to
exclude from eligibility changes involving the requirements of the acid
rain provisions of Title IV of the Act, in accordance with 40 CFR
70.4(b)(15). For further discussion of this issue, see EPA's proposed
interim approval notice at 62 FR 12783.
F. Correct Affirmative Defense Provisions
Virginia must allow the legal defense of malfunction only for those
malfunctions which are timely reported to the Commonwealth, in
accordance with the requirements at 40 CFR 70.6(g). Virginia's current
affirmative defense provision is inadequate in that it allows the
defense of malfunction for malfunctions not timely reported to the
Commonwealth if those malfunctions lasted less than one hour. For
further discussion of this issue, see EPA's proposed interim approval
notice at 62 FR 12783-12784.
V. Sanctions Lifted
In the notice proposing interim approval of the Virginia Title V
operating permits program EPA made an interim final determination that
the Commonwealth had corrected the deficiencies prompting the original
disapproval of the Virginia Title V operating permits program. The
interim final determination stayed and deferred the implementation of
sanctions unless and until either the proposed interim approval was
finalized or withdrawn.
EPA sought comments on this interim final determination as well as
on EPA's proposed approval of the Commonwealth's submittal. EPA
received no comments on its interim final determination. In this notice
EPA is granting final interim approval to Virginia's Title V submittal.
EPA is making a final determination that the Commonwealth has corrected
the deficiencies prompting the original disapproval of the Virginia
Title V operating permits program. EPA was required to apply the first
sanction on July 5, 1996, and the second sanction on January 5, 1997,
unless by those dates EPA had determined that Virginia had corrected
each of the deficiencies that prompted EPA's original disapproval. EPA
interprets the CAA to require the Administrator to select by rulemaking
which sanction to apply first, before mandatory sanctions may actually
be imposed. These sanctions have not been applied in Virginia because
EPA has not yet published such a rule covering deficiencies under Title
V.
Section 502(g) provides that for the period of any interim
approval, the sanctions provisions of section 502(d)(2) of the Act
shall be suspended. See also, Update to Sanctions Policy for State
Title V Operating Permits Programs, John S. Seitz, Director Office of
Air Quality Planning and Standards (March 28, 1995). Therefore, EPA has
determined that sanctions applicable to the Commonwealth as a result of
EPA's December 5, 1994 disapproval of Virginia's Title V operating
permits program are lifted.
VI. Federal Oversight and Potential Sanctions
If the Commonwealth of Virginia fails to submit a complete
corrective program for full approval by January 11, 1999, EPA will
start an 18-month clock for mandatory sanctions. If the Commonwealth
then fails to submit a corrective program that EPA finds complete
before the expiration of that 18-month period, EPA will be required to
apply one of the sanctions in section 179(b) of the Act, which will
remain in effect until EPA determines that the Commonwealth has
corrected the deficiency by submitting a complete corrective program.
Moreover, if the Administrator finds a lack of good faith on the part
of the Commonwealth, both sanctions under section 179(b) will apply
after the expiration of the 18-month period until the Administrator
determined that the Commonwealth had come into compliance. In any case,
if, six months after application of the first sanction, the
Commonwealth still has not submitted a corrective program that EPA has
found complete, a second sanction will be required.
[[Page 31519]]
If EPA disapproves the Commonwealth's complete corrective program,
EPA will be required to apply one of the section 179(b) sanctions on
the date 18 months after the effective date of the disapproval, unless
prior to that date the Commonwealth has submitted a revised program and
EPA has determined that it corrected the deficiencies that prompted the
disapproval. Moreover, if the Administrator finds a lack of good faith
on the part of the Commonwealth, both sanctions under section 179(b)
shall apply after the expiration of the 18-month period until the
Administrator determines that the Commonwealth has come into
compliance. In all cases, if, six months after EPA applies the first
sanction, the Commonwealth has not submitted a revised program that EPA
has determined corrects the deficiencies, a second sanction is
required.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if the
Commonwealth has not timely submitted a complete corrective program or
EPA has disapproved its submitted corrective program. Moreover, if EPA
has not granted full approval to the Commonwealth's program by the
expiration of this interim approval, EPA must administer and enforce
the Federal permits program for the Commonwealth, under 40 CFR part 71,
upon expiration of interim approval.
VII. Administrative Requirements
A. Official File
Copies of the Commonwealth's submittal and other information relied
upon for the final interim approval, including public comments on the
proposal, are contained in the official file maintained at the EPA
Regional Office. The file is an organized and complete file of all the
information submitted to, or otherwise considered by, EPA in the
development of this final interim approval. The official file is
available for public inspection at the location listed under the
ADDRESSES section of this document.
B. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA
must determine whether its regulatory actions are ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Order defines a
significant regulatory action ``as one that is likely to result in a
rule that may: (1) Have an annual effect on the economy of $100 million
or more or adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order. The Office of Management and Budget has exempted this action
from Executive Order 12866 review.
C. Regulatory Flexibility
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small environmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because EPA's 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. Therefore, I certify that this action
will not have a significant economic impact on a substantial number of
small entities.
D. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), 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
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 this interim approval action 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 law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
E. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) of the Administrative Procedure Act, as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, EPA submitted a report containing this rule approving interim
final approval of Virginia's Title V program and other required
information to the U.S. Senate, the U.S. House of Representatives and
the Comptroller General of the General Accounting Office prior to
publication of the rule in today's Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
and Reporting and recordkeeping requirements.
Dated: May 29, 1997.
W. Michael McCabe,
Regional Administrator, Region III.
Part 70, 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 revising paragraph (a) in
the entry for Virginia to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Virginia
(a) The Commonwealth of Virginia's Title V operating permit and
fee program regulations submitted on September 10, 1996, the acid
rain operating permit regulations submitted on September 12, 1996,
and the non-regulatory operating permit program provisions submitted
on November 12, 1993, January 14, 1994, January 9, 1995, May 17,
1995, February 6, 1997, and February 27, 1997; interim
[[Page 31520]]
approval effective on July 10, 1997; interim approval expires July
12, 1999.
* * * * *
[FR Doc. 97-15090 Filed 6-9-97; 8:45 am]
BILLING CODE 6560-50-P
