[Federal Register Volume 60, Number 167 (Tuesday, August 29, 1995)]
[Proposed Rules]
[Pages 44799-44805]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21406]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[AD-FRL-5287-8]


Title V Clean Air Act Proposed Interim Approval of Operating 
Permits Program; West Virginia

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed interim approval.

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SUMMARY: EPA is proposing interim approval of the operating permits 
program submitted by West Virginia. This program was submitted by West 
Virginia for the purpose of complying with federal requirements which 
mandate that states develop, and submit to EPA, programs for issuing 
operating permits to all major stationary sources, and to certain other 
sources. The rationale for proposing interim approval is set forth in 
this notice; additional information is available at the address 
indicated below. This action is being taken in accordance with the 
provisions of the Clean Air Act.

DATES: Comments on this proposed action must be received in writing by 
September 28, 1995.

ADDRESSES: Comments should be addressed to Jennifer M. Abramson 
(3AT23), Air, Radiation and Toxics Division, U.S. Environmental 
Protection Agency, Region III, 841 Chestnut Building, Philadelphia, PA 
19107.
    Copies of West Virginia's submittal and other supporting 
information used in developing the proposed interim approval are 
available for inspection during normal business hours at the following 
location: Air, Radiation, and Toxics Division, U.S. Environmental 
Protection Agency, Region III, 841 Chestnut Building, Philadelphia, PA 
19107.

FOR FURTHER INFORMATION CONTACT: Jennifer M. Abramson (3AT23), Air, 
Radiation and Toxics Division, U.S. Environmental Protection Agency, 
Region III, 841 Chestnut Building, Philadelphia, PA 19107, (215) 597-
2923.

SUPPLEMENTARY INFORMATION:

I. Background

    As required under Title V of the Clean Air Act (CAA) as amended 
(1990), EPA has promulgated rules which define the minimum elements of 
an approvable state operating permits program and the corresponding 
standards and procedures by which EPA will approve, oversee, and 
withdraw approval of state operating permits programs (see 57 FR 32250 
(July 21, 1992)). These rules are codified at 40 Code of Federal 
Regulations (CFR) Part 70 and require states to develop, and submit to 
EPA, programs for issuing these operating permits to all major 
stationary sources and to certain other sources. Due to pending 
litigation over several aspects of the Part 70 rule which was 
promulgated on July 21, 1992, Part 70 is in the process of being 
revised. When the final revisions to Part 70 are promulgated, the 
requirements of the revised Part 70 will define EPA's criteria for the 
minimum elements of an approvable state operating permits program and 
the corresponding standards and procedures by which EPA will approve, 
oversee, and withdraw approval of state operating permits program 
submittals. Until the date which the revisions to Part 70 are 
promulgated, the currently effective July 21, 1992 version of Part 70 
shall be used as the basis for EPA review.
    The CAA requires that states develop and submit these programs to 
EPA by November 15, 1993, and that EPA act to approve or disapprove 
each program within 1 year after receiving the submittal. EPA's program 
review occurs pursuant to section 502 of the CAA and the July 21, 1992 
version of Part 70, which together outline the currently applicable 
criteria for approval or disapproval. Where a program substantially, 
but not fully, meets the requirements of Part 70, EPA may grant the 
program interim approval for a period of up to 2 years. If EPA has not 
fully approved a program by 2 years after the November 15, 1993 date, 
or by the end of an interim program, EPA must establish and implement a 
federal operating permits program.
    Following final interim approval, if West Virginia fails to submit 
a complete corrective program for full approval by 6 months before the 
interim approval 

[[Page 44800]]
period expires, EPA would start an 18-month clock for mandatory 
sanctions. If West Virginia then failed to submit a complete corrective 
program before the expiration of that 18-month period, EPA would be 
required to apply one of the sanctions in section 179(b) of the CAA. 
Such a sanction would remain in effect until EPA determined that West 
Virginia had corrected the deficiency by submitting a complete 
corrective program. Moreover, if the Administrator found a lack of good 
faith on the part of West Virginia, both sanctions under section 179(b) 
would apply after the expiration of the 18-month period until the 
Administrator determined that West Virginia had come into compliance. 
In any case, if, six months after application of the first sanction, 
West Virginia still had not submitted a corrective program that EPA 
found complete, a second sanction would be required.
    If, following final interim approval, EPA disapproved West 
Virginia's complete corrective program, EPA would 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 West 
Virginia had submitted a revised program and EPA had determined that 
this program corrected the deficiencies that prompted the disapproval. 
Moreover, if the Administrator found a lack of good faith on the part 
of West Virginia, both sanctions under section 179(b) would apply after 
the expiration of the 18-month period until the Administrator 
determined that West Virginia had come into compliance. In all cases, 
if, six months after EPA applied the first sanction, West Virginia had 
not submitted a revised program that EPA had determined corrected the 
deficiencies that prompted disapproval, a second sanction would be 
required.
    In addition, discretionary sanctions may be applied where warranted 
any time after the end of an interim approval period if West Virginia 
has not timely submitted a complete corrective program or EPA has 
disapproved a submitted corrective program. Moreover, if EPA has not 
granted full approval to West Virginia's program by the expiration of 
the interim approval period, EPA must promulgate, administer and 
enforce a federal operating permits program for West Virginia upon the 
date the interim approval period expires.
    On November 12, 1993, West Virginia submitted an operating permits 
program for review by EPA. The submittal was supplemented by additional 
materials on August 26, 1994 and September 29, 1994, and was found to 
be administratively complete pursuant to 40 CFR 70.4(e)(1). The 
submittal includes the following components: Transmittal letter; 
description of West Virginia's Title V operating permits program; 
permitting regulations and rule adoption documentation; attorney 
general's legal opinion; permitting program documentation, procedures, 
guidelines, or policies for implementing the operating permits program; 
permit fee demonstration and program resource/organizational 
information; and compliance tracking and enforcement description.
II. Summary and Analysis of the State's Submittal

    The analysis contained in this notice focuses on the major portions 
of West Virginia's operating permits program submittal: regulations and 
program implementation, variances, fees, and provisions implementing 
the requirements of Titles III and IV of the CAA. Specifically, this 
notice addresses the deficiencies in West Virginia's submittal which 
will need to be corrected to fully meet the requirements of the July 
21, 1992 version of Part 70. These deficiencies as well as other issues 
related to West Virginia's operating permits program are discussed in 
detail in the Technical Support Document (TSD). The full program 
submittal and the TSD are available for review as part of the public 
docket. The docket may be viewed during regular business hours at the 
EPA Region III office listed in the ADDRESSES section of this notice.

A. Regulations and Program Implementation

    West Virginia's operating permits program is primarily defined by 
regulations adopted as Series 30 of Title 45, Legislative Rules of the 
Air Pollution Control Commission, or 45CSR30--Requirements for 
Operating Permits. The following analysis of West Virginia's operating 
permits regulations corresponds directly with the format and structure 
of the July 21, 1992 version of Part 70.
    During the review of West Virginia's 45CSR30, EPA identified 
several instances in which regulatory provisions contain vague 
language, misreferences and/or typographical errors. The provisions in 
which these errors occur are identified in the TSD and must be 
interpreted as if written correctly to fully meet the requirements of 
Part 70.
    Section 70.2  Definitions. West Virginia's regulations 
substantially meet the requirements of 40 CFR 70.2 for definitions. 
However, the section 2.18 definition of ``Emissions unit'' does not 
include activities or parts of activities which emit or potentially 
emit pollutants listed under section 112(b) of the CAA. West Virginia 
must revise the section 2.18 definition of ``Emissions unit'' to 
specifically include activities or parts of activities which emit or 
potentially emit pollutants listed under section 112(b) of the CAA in 
order to fully meet the requirements of 40 CFR 70.2.
    Section 70.3  Applicability. West Virginia's regulations fully meet 
the requirements of 40 CFR 70.3 for applicability. The section 2.26 
definition of ``Major source'' allows for research and development 
(R&D) facilities to be treated as separate sources from other 
stationary sources which are part of the same industrial grouping, are 
located on contiguous or adjacent property, and are under common 
control. The term ``Research and development facility'' is defined in 
section 2.37 to preclude activities which contribute to the product 
produced for sale or exchange for commercial profit.
    EPA stated in the preamble to the final part 70 rule that, ``in 
many cases States will have the flexibility to treat an R&D facility * 
* * as though it were a separate source, and [the R&D facility] would 
then be required to have a title V permit only if the R&D facility 
itself would be a major source'' (57 FR 32264 and 32269, July 21, 
1992). Read consistently with the ``major source'' definition in the 
rule, this statement means that separate source treatment would occur 
only in situations where the collocated R&D portion of a source has its 
own two-digit SIC code and is not a support facility. Accordingly, EPA 
had until recently considered separate treatment of R&D facilities to 
be grounds for interim approval.
    As explained in the supplemental proposal to revise Part 70 which 
EPA expects to publish soon, EPA believes that R&D should be treated as 
having its own industrial grouping for purposes of the title I and 
section 302(j) elements of the major source definition.
    Separate treatment will not exempt R&D facilities in all cases. 
Some R&D activities may still be subject to permitting because they are 
either individually major or a support facility making significant 
contributions to the product of a collocated major facility. The 
support facility test dictates that, even where there are two or more 
industrial groupings at a commonly owned facility, these groupings 
should be considered together if the output of one is more than 50 per 
cent devoted to support of another.
    Although West Virginia's program does not specifically reference 
the 

[[Page 44801]]
support facility test, EPA expects that such a test will be applied in 
making major source applicability determinations as established under 
the new source review program and continued under title V. Major source 
applicability determinations made without the support facility test 
would not fully meet the requirements of 40 CFR 70.3.
    Section 70.5  Permit Applications. West Virginia's regulations 
substantially meet the requirements of 40 CFR 70.5 for permit 
applications. However, in section 3.2.d, West Virginia lists several 
types of ``insignificant activities'' which need only to be identified, 
rather than described, in permit applications. Several of the 
activities listed in section 3.2.d are not intrinsically 
``insignificant'' and could potentially prevent the Chief from having 
sufficient emissions information to impose all applicable requirements 
in accordance with Part 70.
    The following section 3.2.d activities must be clarified to ensure 
that emissions from such units will not interfere with the imposition 
of all applicable requirements:

3.2.d.D  ``Indoor or outdoor kerosene heaters'';
3.2.d.E  ``Space heaters operating by direct heat transfer'';

    Section 3.2.d.K (``Portable generators'') must be bounded to 
include size or production rate cutoffs, or other qualifiers, to ensure 
that emissions from these units will not interfere with the imposition 
of all applicable requirements.
    Additionally, unless and until the Administrator determines that 
Title VI requirements need not be contained in Title V permits, West 
Virginia must also modify section 3.2.d.C (``Comfort air conditioning * 
* *'') as necessary to ensure that the Chief will have sufficient 
information to incorporate Title VI requirements into Title V permits.
    Section 3.2.d.M of West Virginia's rule authorizes the Chief to 
determine activities or emissions units to be insignificant in addition 
to those listed in section 3.2.d. For the same reasons stated above, 
the Chief's discretion to consider additional activities to be 
insignificant must be bounded. Bounding of the Chief's discretion is 
necessary since, as section 3.2.d.M is presently structured, EPA will 
not be given the opportunity to review these activities or emissions 
units prior to them being listed in a source's application form. 
Section 70.5(c) requires that insignificant activities be approved by 
EPA as part of a State's approved program. This allows EPA to determine 
whether such insignificant activities are likely to interfere with the 
State's ability to assure compliance with applicable requirements 
through permits.
    In the absence of a specific list of insignificant activities, a 
limitation on size or production rate may serve the same purpose. EPA 
views size or production rate cutoffs in the range of 1-2 tons per year 
for criteria pollutant emissions and the lesser of 1000 pounds per year 
or section 112(g) de minimis levels for hazardous air pollutant 
emissions to be an acceptable range for individual insignificant 
activities. However, EPA may approve different levels that West 
Virginia demonstrates will not interfere with the determination or 
imposition or applicable requirements.
    Notwithstanding the Chief's authority to consider additional 
activities as insignificant on an application by application basis, 
West Virginia must ensure that, consistent with the requirements of 
section 70.5(c), the insignificant activities list approved as part of 
the West Virginia program will not be modified without prior EPA 
approval. West Virginia must also clarify that potential emissions from 
all insignificant activities or emissions units, whether included in 
section 3.2.d or determined by the Chief on an application by 
application basis, will be included in determining whether a source is 
a major source.
    Notwithstanding the 45CSR30 provisions for insignificant 
activities, sections 4.1.b and 4.3 specifically require sources to 
provide all information necessary to evaluate the permit application 
and to determine the applicability of, or to impose, any applicable 
requirement.
    Sections 70.4 and 70.6  Permit Content. West Virginia's regulations 
substantially meet the requirements of 40 CFR 70.4 and 40 CFR 70.6 for 
permit content. The following changes must be made in order to fully 
meet the requirements of 40 CFR 70.4 and 40 CFR 70.6:
    1. For clarity and consistency with Part 70 and section 5.1, 
section 3.3.a must be revised to clarify that permits issued to major 
sources will include all applicable requirements that apply to the 
source, including those applicable requirements which may be later 
found to be applicable to one or more ``insignificant activities''.
    2. Section 5.1.j.D. provides that permit provisions for emissions 
trading ``May include categories of VOC's which in the Chief's 
discretion can be substituted for one another in a production 
process.'' This provision is incorrectly placed in section 5.1.j., 
emissions trading, and should, instead be included in section 5.1.i., 
alternative operating scenarios. West Virginia must revise sections 
5.1. i. and j. to clarify that permit provisions for emissions trading 
may not include categories of VOC's which in the Chief's discretion can 
be substituted for one another in a production process.
    3. Section 5.3.e.A. must be revised to ensure that permits will 
contain provisions requiring compliance certifications to be submitted 
at least annually or such more frequent periods as specified by an 
applicable requirement or by the permitting authority.
    4. Section 5.5 must be revised to clarify that for temporary 
sources that do not obtain a new preconstruction permit prior to each 
change in location, the operating permits shall include a requirement 
that the owner operator notify the Chief at least ten (10) days in 
advance of each change in location.
    Section 70.7  Permit Issuance, Renewal, Reopenings, and Revisions. 
West Virginia's regulations substantially meet the requirements of 40 
CFR 70.7 for permit issuance, renewal, reopenings, and revisions. EPA's 
concern over the ambiguity in section 6.4.a.E as to the procedural and 
compliance requirements necessary to administratively amend 
preconstruction permits into Title V permits was addressed by an 
October 11, 1994 supplemental Attorney General's opinion. In relevant 
part, the opinion states:

    Under 45CSR30.6.4.a.E, West Virginia's Title V administrative 
permit amendment procedure will be used to incorporate only those 
pre-construction permits issued under EPA-approved programs which 
have met procedural requirements substantially equivalent to the 
requirements of sections 6 and 7 of 45CSR30 that would be applicable 
to the change if it were subject to review as a permit modification, 
and which have also met compliance requirements substantially 
equivalent to those contained in section 5.

    EPA's approval of this portion of West Virginia's program is based 
in part on the Attorney General's interpretation stated above. As such, 
EPA expects West Virginia to implement section 6.4.a.E consistent with 
the Attorney General's interpretation to fully meet the requirements of 
40 CFR 70, Sec. 70.7(d)(1)(v). Notwithstanding, the following changes 
must be made in order to fully meet the requirements of 40 CFR 70.7:
    1. West Virginia must modify section 4.1 to require sources which 
become subject to the permitting program after 

[[Page 44802]]
the effective date to submit permit applications within 12 months. 
During the interim, West Virginia must require sources which become 
subject to the permitting program after the effective date to submit 
permit applications within 12 months.
    2. Section 6.5.a.A.(c) allows sources to make changes below 
established ``de minimis'' levels without having to undergo any type of 
permit modification. The July 21, 1992 version of Part 70 does not 
provide ``de minimis'' levels for source changes below which no permit 
modification is required. Accordingly, section 6.5.a.A.(c) must be 
removed. It should be noted that in most cases sources making changes 
below the thresholds established in section 6.5.a.A.(c) will be able to 
make such changes pursuant to the ``off-permit'' provisions of section 
5.9. Additional flexibility for these types of changes may be provided 
in the Part 70 revisions process.
    3. Section 6.8.a.A.(a)(B) must be revised to clarify that public 
notice will be given for all scheduled public hearings, not just those 
public hearings which have been scheduled at the request of an 
interested person.
    4. West Virginia must revise section 6.8.a.C. to clarify that for 
all permit modification proceedings, except those modifications 
qualifying for minor permit modifications or fast-track modifications 
under the Acid Rain Program, public notice will be given by publication 
in a newspaper of general circulation in the area where the source is 
located (or in a state publication designed to give general public 
notice), and to persons on a mailing list developed by the permitting 
authority including those who request in writing to be on the list.
    Section 70.11  Enforcement Authority. West Virginia's regulations 
and code provisions substantially meet the requirements of 40 CFR 70.11 
for enforcement authority. However, W.Va. Code section 22-5-6(b)(1) 
impermissibly limits criminal penalties for knowing misrepresentations 
of material fact to a total of $25,000 without regard to the continuing 
nature of the misrepresentation. West Virginia must modify W.Va. Code 
section 22-5-6(b)(1) to provide for a maximum criminal penalty of not 
less than $10,000 per day per violation for knowing misrepresentations 
of material fact.
B. Variances

    Unless parts of federally approved, promulgated and/or delegated 
applicable requirements, EPA regards the sections 5.7.D. and 6.9.c.D. 
references to variance provisions as wholly external to the program 
submitted for approval under Part 70, and consequently is proposing to 
take no action on such provisions. EPA has no authority to approve 
provisions of West Virginia law, such as the variance provisions 
referred to in this section, which are inconsistent with the CAA. EPA 
does not recognize the ability of a permitting authority to grant 
relief from the duty to comply with a federally enforceable Part 70 
permit, except where such relief is granted through procedures allowed 
by Part 70. EPA reserves the right to enforce the terms of the Part 70 
permit where the permitting authority purports to grant relief from the 
duty to comply with a Part 70 permit in a manner inconsistent with Part 
70 procedures.

C. Permit Fee Demonstration

    West Virginia's fee schedule is substantially less than the annual 
$25 + (1989 Base year) CPI per ton ``presumptive minimum'' established 
in section 502 of the Clean Air Act. Although West Virginia's fee 
demonstration/workload analysis reveals that the existing annual fee 
level, $18 + (1993 Base Year) CPI per ton, may generate adequate 
revenues to fund the direct and indirect projected program costs during 
the first four years of implementation, EPA is concerned about the 
flexibility of the fee structure in its ability to respond to resource 
needs in the future.
    West Virginia's program provides that the Chief of West Virginia's 
Office of Air Quality (WVOAQ) shall, on or before October 1 of each 
fiscal year, prepare an accounting report to the Air Pollution Control 
Commission (APCC) of all Title V fees received from the previous fiscal 
year and the manner in which they were used, together with projected 
expenditures for the upcoming year. Accordingly, on or before May 1 of 
each year, the APCC shall determine whether to adjust the annual $18 + 
(1993 Base Year) CPI per ton fee amount. However, the APCC's ability to 
adjust fees is only authorized up to $2 per ton and is not cumulative, 
regardless of the amount needed.
    EPA recognizes that many of the required permitting activities such 
as case-by-case MACT determinations are difficult to reasonably 
estimate in terms of cost and that revenues may be impacted by 
circumstances such as acid rain Phase II ``active'' substitution units 
which become temporarily exempt from the payment of emissions-based 
permit fees. In order to prevent permitting delays due to lack of 
resources and to maintain the quality of the 45CSR30 permitting 
program, West Virginia should provide the APCC with the authority to 
adjust permitting fees to a level at least equivalent to the 
``presumptive minimum'' for a particular calendar year. As a result, 
the APCC will have greater flexibility in responding to resource needs 
without having to wait for legislative approval. The annual WVOAQ 
accounting of all Title V fees received and the manner used, will serve 
to ensure that revenues from Title V fees are expended solely to cover 
reasonable direct and indirect Title V costs, as required by 45CSR30, 
section 1.1.
    All 45CSR30 fees collected by West Virginia will be deposited in a 
separate special account in the State treasury designated as the ``Air 
Pollution Control Fund''. Although fees collected pursuant to 45CSR22, 
Air Quality Management Fee Program, are also deposited in this account, 
an account tracking system will distinguish between revenues and 
expenditures attributable to 45CSR22 versus 45CSR30. In this way, West 
Virginia will be able to ensure that fees, penalties and interest 
collected for operating permits shall be expended solely to cover costs 
required to administer the operating permits program, as required by W. 
VA Code section 16-20-5(a)(18), and 45CSR30.1.1. Although the Chief's 
ability to spend the money collected from 45CSR30 fees is contingent on 
legislative appropriation, W. Va. Code section 16-20-5(a)(18) and 
45CSR30.1.1 require fees to be sufficient to cover ``all reasonable 
direct and indirect costs required to administer the operating permits 
program''. As with other fee generating programs in the West Virginia, 
the legislature has the authority to transfer excess 45CSR30 monies 
into other accounts.

D. Provisions Implementing the Requirements of Title III

    Implementing Title III Standards through Title V Permits. Under 
45CSR30 (Title 45, Series 30, Legislative Rules, Air Pollution Control 
Commission, Requirements for Operating Permits) and West Virginia Code, 
section 16-20-5 (Air Pollution Control Law of West Virginia), West 
Virginia has demonstrated in its Title V program submittal broad legal 
authority to incorporate into permits and enforce all applicable 
requirements; however, West Virginia has also indicated that additional 
regulatory authority may be necessary to carry out specific CAA section 
112 activities. West Virginia has therefore supplemented its broad 
legal authority with a commitment ``to adopt and submit all regulations 
required to 

[[Page 44803]]
implement the provisions of section 112 of the Clean Air Act necessary 
under the Title V operating permit program.'' This commitment is stated 
in the transmittal letter of the November 12, 1993 operating permits 
program submittal. EPA has determined that this commitment, in 
conjunction with West Virginia's broad statutory authority, adequately 
assures compliance with all the CAA's section 112 requirements. EPA 
regards this commitment as an acknowledgement by West Virginia of its 
obligation to obtain further legal authority as needed to issue permits 
that assure compliance with the CAA's section 112 applicable 
requirements. This commitment does not substitute for compliance with 
Part 70 requirements that must be met at the time of program approval.
    EPA is interpreting the above legal authority and commitment to 
mean that West Virginia is able to carry out all of the CAA's section 
112 activities. For further rationale on this interpretation, please 
refer to the TSD accompanying this rulemaking which is located in the 
public docket and the April 13, 1993 guidance memorandum titled ``Title 
V Program Approval Criteria for Section 112 Activities,'' signed by 
John Seitz, Director, Office of Air Quality Planning and Standards, 
Office of Air and Radiation, USEPA.
    Implementation of 112(g) Upon Program Approval. EPA is proposing to 
approve West Virginia's 45CSR30 operating permits program, 45CSR13 and 
45CSR14 preconstruction permit programs, and authority under W. Va Code 
section 22-5-4(a)(5) to issue administrative orders for the purpose of 
implementing section 112(g) during the transition period between 
federal promulgation of a section 112(g) rule and West Virginia's 
adoption of 112(g) implementing regulations. EPA had until recently 
interpreted the CAA to require sources to comply with section 112(g) 
beginning on the date of approval of the Title V program regardless of 
whether EPA had completed its section 112(g) rulemaking. EPA has since 
revised this interpretation of the CAA as described in a February 14, 
1995 Federal Register notice (see 60 FR 8333). The revised 
interpretation postpones the effective date of section 112(g) until 
after EPA has promulgated a rule addressing that provision. The 
rationale for the revised interpretation is set forth in detail in the 
February 14, 1995 interpretive notice.
    The section 112(g) interpretive notice explains that EPA is still 
considering whether the effective date of section 112(g) should be 
delayed beyond the date of promulgation of the federal rule to allow 
states time to adopt rules implementing the federal rule, and that EPA 
will provide for any such additional delay in the final section 112(g) 
rulemaking. Unless and until EPA provides for such an additional 
postponement of section 112(g), West Virginia must be able to implement 
section 112(g) during the transition period between promulgation of the 
federal section 112(g) rule and adoption of West Virginia's 
implementing regulations.
    EPA believes that, although West Virginia currently lacks a program 
designed specifically to implement section 112(g), West Virginia's 
45CSR30 operating permits program, and 45CSR13 and 45CSR14 
preconstruction permit programs will serve as adequate implementation 
vehicles during a transition period because they will allow West 
Virginia to select control measures that would meet MACT on a case-by-
case basis, as defined in section 112, and incorporate these measures 
into federally enforceable source-specific permits. Section 112(g) 
requirements for case-by-case MACT determinations are governed by the 
provisions of the 45CSR30 operating permits program, sections 1.1, 2.6, 
2.25, 4.1.a.B., and 12.2-12.4. In those situations when the Title V 
process cannot insure the MACT determination is made before the 
construction, reconstruction or modification takes place, West Virginia 
will use its preconstruction permitting procedures of 45CSR13 and 
45CSR14 to the extent applicable to the source. Moreover, for those 
sources for which the Title V process is not suitable or for which 
preconstruction permits are not applicable, West Virginia will issue an 
administrative order pursuant to the authority of W. Va. Code section 
22-5-4(a)(5) and 45CSR30.12 to apply the case-by-case MACT standard.
    This proposed approval clarifies that West Virginia's 45CSR30 
operating permits program, 45CSR13 and 45CSR14 preconstruction permit 
programs, and authority under W. Va. Code section 22-5-4(a)(5) to issue 
administrative orders are available as mechanisms to implement section 
112(g) during the transition period between EPA's promulgation and West 
Virginia's adoption of section 112(g) rules. EPA is proposing to limit 
the duration of this approval to an outer limit of 18 months following 
promulgation by EPA of the section 112(g) rule. Comment is solicited on 
whether 18 months is an appropriate period taking into consideration 
West Virginia's procedures for adoption of regulations.
    However, since this proposed approval is for the single purpose of 
providing a mechanism to implement section 112(g) during the transition 
period, the approval itself will be without effect if EPA decides in 
the final section 112(g) rule that sources are not subject to the 
requirements of the rule until State regulations are adopted.
    Although section 112(l) generally provides the authority for 
approval of state air toxics programs, Title V and section 112(g) 
provide authority for this limited approval because of the direct 
linkage between implementation of section 112(g) and Title V. If West 
Virginia does not wish to implement section 112(g) through the proposed 
mechanisms discussed above and can demonstrate that an alternative 
means of implementing section 112(g) exists during the transition 
period, EPA may, in the final action approving West Virginia's Part 70 
program, approve the alternative instead.
    Program for Straight Delegation of Section 112 Standards. 
Requirements for approval, specified in 40 CFR 70.4(b), encompass 
section 112(l)(5) requirements for approval of a program for delegation 
of section 112 standards promulgated by EPA as they apply to Part 70 
sources. Section 112(l)(5) requires that the state programs contain 
adequate authorities, adequate resources for implementation, and an 
expeditious compliance schedule, which are also requirements under Part 
70. Therefore, EPA is also proposing to grant approval under section 
112(l)(5) and 40 CFR 63.91 of West Virginia's program for receiving 
delegation of section 112 standards that are unchanged from the federal 
standards as promulgated. For EPA-promulgated rules which are 
applicable to sources in West Virginia, West Virginia intends to 
request delegation after adopting the rules at the State level, 
probably by incorporating the federal rules by reference. The details 
of this delegation mechanism will be established prior to delegating 
any section 112 standards under West Virginia's approved section 112(l) 
program for straight delegation. This program applies to both existing 
and future standards but is limited to sources covered by the Part 70 
program.

E. Title IV Provisions/Commitments

    As part of the November 12, 1994 program submittal, West Virginia 
committed to submit all missing portions of the Title IV acid rain 
program necessary to the Title V operating permits program by January 
1, 1995. On December 15, 1994, West Virginia submitted an emergency 
rule to EPA which incorporates EPA's Part 72 

[[Page 44804]]
rule by reference. On June 23, 1995, West Virginia submitted an 
identical permanent legislative rule to EPA, 45CSR33--``Acid Rain 
Provisions and Permits'', which supersedes the emergency rule submitted 
on December 15, 1994, and associated permit application forms. In the 
June 23, 1995 transmittal letter, West Virginia acknowledged that some 
of the provisions of 45CSR33 contain errors whereby the EPA 
Administrator's authorities are incorrectly granted to the Director of 
the Division of Environmental Protection and where conflicts between 
45CSR33 and other state rules are addressed in a manner inconsistent 
with the approach in Part 72. West Virginia committed to seek 
amendments to fix these errors during the 1996 legislative session and 
to interpret 45CSR33 consistent with the requirements of Part 72 until 
the regulatory changes to 45CSR33 are adopted.
III. Request for Public Comments

    EPA is soliciting public comments on the issues discussed in this 
notice or on other relevant matters. These comments will be considered 
before taking final action. Interested parties may participate in this 
federal rulemaking action by submitting written comments to the EPA 
Regional office listed in the ADDRESSES section of this notice.

Propsed Action

    EPA is proposing to grant interim approval to the operating permits 
program submitted by West Virginia on November 12, 1993. The scope of 
West Virginia's Part 70 program applies to all Part 70 sources (as 
defined in the program) within West Virginia. In order to fully meet 
the requirements of the July 21, 1992 version of Part 70, West Virginia 
must make the following changes:
    1. Revise the section 2.18 definition of ``Emissions unit'' to 
specifically include activities or parts of activities which emit or 
potentially emit pollutants listed under section 112(b) of the CAA.
    2. Revise relevant portions of section 3.2.d as described above in 
this notice so as to ensure that permit applications will contain 
sufficient information needed to determine the applicability of, or to 
impose, all applicable requirements. West Virginia must also ensure 
that the insignificant activities list approved as part of the State's 
program will not be modified without prior EPA approval. Moreover, West 
Virginia must clarify that potential emissions from all insignificant 
activities or emissions units, whether included in section 3.2.d. or 
determined by the Chief on an application by application basis, will be 
included in determining whether a source is a major source.
    3. Revise section 3.3.a to clarify that permits issued to major 
sources will include all applicable requirements that apply to the 
source, including those applicable requirements which may be later 
found to be applicable to one or more ``insignificant activities''.
    5. Remove section 5.1.j.D. from section 5.1.j.
    6. Revise section 5.3.e.A. to ensure that permits will contain 
provisions requiring compliance certifications to be submitted at least 
annually or such more frequent periods as specified by an applicable 
requirement or by the permitting authority.
    7. Revise section 5.5 to clarify that for temporary sources that do 
not obtain a new preconstruction permit prior to each change in 
location, the operating permits shall include a requirement that the 
owner operator notify the Chief at least ten (10) days in advance of 
each change in location.
    8. Modify section 4.1 so to require sources which become subject to 
the permitting program after the effective date to submit permit 
applications within 12 months.
    9. Remove section 6.5.a.A.(c).
    10. Revise section 6.8.a.A.(a).(B) to clarify that public notice 
will be given for all scheduled public hearings, not just those public 
hearings which have been scheduled at the request of an interested 
person.
    11. Revise section 6.8.a.C. to clarify that for all permit 
modification proceedings, except those modifications qualifying for 
minor permit modifications or fast-track modifications under the Acid 
Rain Program, public notice will be given by publication in a newspaper 
of general circulation in the area where the source is located (or in a 
state publication designed to give general public notice), and to 
persons on a mailing list developed by the permitting authority 
including those who request in writing to be on the list.
    12. Modify W. Va. Code Sec. 22-5-6(b)(1) to provide for a maximum 
criminal penalty of not less than Sec. 10,000 per day per violation for 
knowing misrepresentations of material fact.
    This interim approval, which may not be renewed, extends for a 
period of up to 2 years. During the interim approval period, West 
Virginia is protected from sanctions for failure to have a fully 
approved Title V, Part 70 program, and EPA is not obligated to 
promulgate a federal permits program in West Virginia. Permits issued 
under a program with interim approval have full standing with respect 
to Part 70, and the 1-year time period for submittal of permit 
applications by subject sources begins upon interim approval, as does 
the 3-year time period for processing the initial permit applications.
    Requirements for approval, specified in 40 CFR 70.4(b), encompass 
the CAA's section 112(l)(5) requirements for approval of a program for 
delegation of section 112 standards applicable to Part 70 sources as 
promulgated by EPA. Section 112(l)(5) requires that the State's program 
contain adequate authorities, adequate resources for implementation, 
and an expeditious compliance schedule, which are also requirements 
under Part 70. Therefore, EPA is also proposing under section 112(l)(5) 
and 40 CFR 63.91 to grant approval of West Virginia'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 Part 70 program.
    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.
    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. Because this action does 
not impose any new requirements, it does not have a significant impact 
on a substantial number of small entities.
    EPA has determined that this proposed 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 to propose 
interim approval of West Virginia's operating permits program pursuant 
to Title V of the CAA and 40 CFR Part 70 approves pre-existing 
requirements under state or local law, and imposes no new federal 
requirements. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector result from this action.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401-7671q.


[[Page 44805]]

    Dated: August 18, 1995.
W. Michael McCabe,
Regional Administrator.
[FR Doc. 95-21406 Filed 8-28-95; 8:45 am]
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