02-8299. Operating Permits Program; Notice of Location of Response Letters to Citizens Concerning Program Deficiencies in Texas

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of availability.

SUMMARY:

The EPA is adding a letter to its web site which responds to citizens' comments on alleged deficiencies in the Texas air operating permits programs. The citizen comments were submitted to EPA as a result of a 90-day comment period EPA provided for members of the public to identify deficiencies they perceive exist in State and local agency operating permits programs required by title V of the Clean Air Act (Act). The 90-day comment period was from December 11, 2000, until March 12, 2001.

FOR FURTHER INFORMATION CONTACT:

Jeff Herring, C304-04, Information Transfer and Program Integration Division, Environmental Protection Agency, Research Triangle Park, North Carolina, 27711. Telephone: [phone]. Internet address: [e-mail].

SUPPLEMENTARY INFORMATION:

On December 11, 2000 (65 FR 77376), EPA announced a 90-day comment period during which the public could submit comments identifying deficiencies they perceived to exist in State and local agency operating permits programs required by title V of the Act. The 90-day comment period ended on March 12, 2001.

The December 11, 2000 notice solicited comment from the public regarding either deficiencies in the elements of the approved program, such as deficiencies in the States' approved regulations, or deficiencies in how a permitting authority was implementing its program. The Agency indicated that it would consider information received from the public and determine whether it agreed or disagreed with the purported deficiencies and would then publish notices of those findings. Where the Agency agreed that a claimed shortcoming constituted a deficiency, it indicated it would issue a notice of deficiency. Where the Agency disagreed as to the existence of a deficiency, it indicated it would respond to the citizen comments by December 1, 2001, for comments on programs granted interim approval as of December 11, 2000. For programs granted full approval as of December 11, 2000, EPA indicated it would respond to citizen comments by April 1, 2002.

In accordance with the procedures set forth in the December 11, 2000, notice and outlined above, EPA issued a notice of deficiency for Texas in connection with the citizen comment letters submitted pursuant to the December 11, 2000, notice (see 67 FR 732, January 7, 2002). The State of Texas must adopt appropriate corrections to its title V program and submit them to EPA for approval within the timeframes set out in the notice of deficiency or face highway and/or offsets sanctions under section 179(b) of the Act ^[1] and implementation of a whole or partial Federal operating permits program under part 71 if it fails to do so.

Also in accordance with the December 11, 2000, notice, EPA has issued Agency response letters to citizen comments which explain EPA's reasoning in those instances where the Agency disagrees that particular alleged problems constitute deficiencies within the meaning of part 70. The EPA hereby notifies the public that an EPA letter responding to citizen allegations concerning Texas is available at the following web address: (http://www.epa.gov/​air/​oaqps/​permits/​response/​). In a previously published notice (67 FR 6709, January 13, 2002), EPA alerted the public to this same web site as the location for all EPA response letters that had been signed at that time. The EPA also notes that when it signs additional EPA response letters in the future, it will publish additional notices of availability to identify the location of its web site containing those letters.

The EPA notes further that the terms “deficiency” and “notice of deficiency” are terms of art under the operating permits regulations in part 70. Thus, as explained in our letters responding to citizen comments, in some instances where EPA declined to issue a notice of deficiency, it was because the Agency disagreed that there was a problem with the State program or its implementation that requires correction. In other instances, however, EPA agreed in whole or in part with commenters that a program was not being properly implemented but nevertheless did not issue a notice of deficiency. Rather, EPA determined that the alleged deficiency had been corrected because the State had made a firm commitment to correct program implementation shortcomings where that could be accomplished on a timely basis by the State administratively without additional rulemaking or legislation.

Background

Pursuant to section 502(b) of the Act, EPA has promulgated regulations establishing the minimum requirements for State and local air agency operating permits programs. We promulgated these regulations on July 21, 1992 (57 FR 32250), in part 70 of title 40, chapter I, of the Code of Federal Regulations. Section 502(d) of the Act requires each State to develop and submit to EPA an operating permits program meeting the requirements of the part 70 regulations and requires us to approve or disapprove the submitted program. In some cases, States have delegated authority to local city, county, or district air pollution control agencies to administer operating permits programs in their jurisdictions. These operating permits programs must meet the same requirements as the State programs. In accordance with section 502(g) of the Act and 40 CFR section 70.4(d), for 99 State and local operating permits programs, we granted “interim” rather than full approval because the programs substantially met, but did not fully meet, the provisions of part 70. For interim approved programs, we identified in the notice of interim approval those program deficiencies that would have to be corrected before we could grant the program full approval. As of December 11, 2000, some of those 99 programs had since been granted full approval and the remainder still had interim approval status.

After a State or local permitting program is granted full or interim approval, EPA has oversight of the program to insure that the program is implemented correctly and is not changed in an unacceptable manner. Section 70.4(i) of the part 70 regulations requires permitting authorities to keep us apprised of any proposed program modifications and also to submit any program modifications to us for approval. Section 70.10(b) requires any approved operating permits program to be implemented “* * * in accordance with the requirements of this part and of any agreement between the State and the Administrator concerning operation of the program.”

Furthermore, sections 70.4(i) and 70.10(b) provide authority for us to require permitting authorities to correct program or implementation deficiencies. As explained previously, EPA has exercised these authorities by in some instances issuing notices of deficiency and in other instances issuing letters explaining why we do not agree that deficiencies exist.

Administrative Requirements

Under section 307(b)(1) of the Act, petitions for judicial review of EPA's action responding to the citizen letter on Texas' operating permits programs may be filed in the United States Court of Appeals for the appropriate circuit within 60 days of April 5, 2002.

Dated: March 25, 2002.

Robert G. Kella,

Acting Director, Information Transfer and Program Integration Division.

Footnotes

1.  The EPA is in the process of promulgating a rule which will address the order of sanctions.