[Federal Register Volume 60, Number 220 (Wednesday, November 15, 1995)]
[Rules and Regulations]
[Pages 57352-57357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28211]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5332-5]
Title V Clean Air Act Final Interim Approval of Operating Permits
Program; West Virginia
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval.
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SUMMARY: EPA is promulgating interim approval of the operating permits
program submitted by West Virginia for the purpose of complying with
federal requirements for an approvable program to issue operating
permits to all major stationary sources, and to certain other sources.
EFFECTIVE DATE: December 15, 1995.
ADDRESSES: Copies of West Virginia'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:
Air, Radiation, and Toxics Division, U.S.
[[Page 57353]]
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
Title V of the 1990 Clean Air Act Amendments (sections 501-507 of
the Clean Air Act (CAA), and implementing regulations at 40 Code of
Federal Regulations (CFR) Part 70 require that states seeking to
administer a Title V operating permits program develop and submit a
program 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 Act and the
Part 70 regulations, which together outline criteria for approval or
disapproval of an operating permits program submittal. 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 November 15, 1995, or by the
expiration of the interim approval period, it must establish and
implement a federal program.
On August 29, 1995, EPA proposed interim approval of the operating
permits program for West Virginia. (See 60 FR 44799). EPA compiled a
technical support document (TSD) associated with the proposal which
contains a detailed analysis of West Virginia's operating permits
program. In this document EPA is taking final action to promulgate
interim approval of the operating permits program for West Virginia.
II. Analysis of State Submission
On November 12, 1993, West Virginia submitted an operating permits
program to satisfy the requirements of the CAA and 40 CFR Part 70 and
was found to be administratively complete pursuant to 40 CFR
70.4(e)(1). The submittal was supplemented by additional materials on
August 26 and September 29, 1994. EPA reviewed the program against the
criteria for approval in section 502 of the CAA and the Part 70
regulations. EPA determined, as fully described in the notice of
proposed interim approval of the state's operating permits program (see
60 FR 44799 (August 29, 1995)) and the TSD for this action, that West
Virginia's operating permits program substantially meets the
requirements of the CAA and Part 70.
III. Response to Public Comments
EPA received several comments from industry representatives during
the public comment period. Additional comments were submitted after the
expiration of the public comment period. These comments and EPA's
responses are grouped into eight (8) categories. All comments are
contained in the docket at the address noted in the ADDRESSES section
above.
1. ``Insignificant Activities''
Comment: The authority of the Chief of West Virginia's Office of
Air Quality (WVOAQ) to make additions to the insignificant activity
list should not be limited as proposed by EPA. EPA should indicate to
the WVOAQ that it is appropriate to recognize ``trivial sources'',
described in EPA's July 10, 1995 ``White Paper for Streamlined
Development of Part 70 Permit Applications'' (herein after the ``White
Paper''), as being exempt from Part 70 permit applications.
EPA Response: Section 70.5(c) specifically requires activities and
emissions levels to be considered as ``insignificant'' to be approved
by EPA as part of a state's operating permits program. EPA's criteria
for approving activities and emissions levels as ``insignificant''
derive from the requirement that permit applications include all
information necessary to determine the applicability of, or to impose,
any applicable requirement, and to evaluate fees.
Section 3.2.d.M of West Virginia's rule authorizes the Chief to
determine activities or emissions units to be insignificant beyond
those approved as part of West Virginia's operating permits program.
The Chief's discretion is not limited to any specific categories of
activities or emission levels. As discussed in the proposed notice,
this broad provision is not approvable because EPA has no way to
evaluate such activities against the criteria discussed above.
Furthermore, this provision allows new exemptions from permit
requirements to be granted without prior EPA approval, an approach
which is inconsistent with the requirements of section 70.5(c).
EPA recognizes the desire and need for state permitting authorities
to have the flexibility to determine additional activities other than
those listed and approved as part of a state's operating permits
program to be insignificant. For this reason, EPA has proposed to allow
the Chief to determine on a permit-by-permit basis and within bounds
approved by EPA as part of West Virginia's program additional
activities to be considered as insignificant. EPA believes that this
approach will provide the needed flexibility in a manner which is
consistent with the requirements of section 70.5(c). West Virginia also
has the option to submit to EPA for approval additional insignificant
activities or emissions levels which are to apply to all permittees.
As discussed in the ``White Paper'', EPA believes that, in addition
to the insignificant activity provisions of section 70.5(c), section
70.5 allows permitting authorities to recognize certain activities as
being clearly trivial (i.e., emissions units and activities which do
not in any way implicate applicable requirements) and that such trivial
activities can be omitted from the permit application even if not
included on a list of insignificant activities approved in a state's
Part 70 program. Permitting authorities may, on a case-by-case basis
and without EPA approval, exempt additional activities which are
clearly trivial. However, additional exemptions, to the extent that the
activities they cover are not clearly trivial, still need to be
approved by EPA before being added to state lists of insignificant
activities.
While section 70.5 has been interpreted to allow flexibility for
the determination of trivial activities, EPA will defer to West
Virginia to determine whether similar flexibility exists under its own
permit application provisions. EPA believes that it is appropriate to
have such determinations made in the first instance at the state level
as the decision of whether any particular item should be on a state's
trivial list may depend on state-specific factors, such as whether the
activity is subject to state-only requirements or specific requirements
of the SIP.
2. Emissions Trading/Volatile Organic Compounds (VOCs)
Comment: EPA should not prohibit the Chief's discretion in
establishing permit provisions which allow emissions trading of
categories of VOCs. There is no reason why emissions trading of this
type should be considered as an alternative operating scenario when
allowed by applicable requirements. EPA's position severely restricts
the Chief's ability to administer permits and reduces operational
flexibility for business and industry.
EPA Response: West Virginia 45CSR30, section 5.1.j.D. provides that
permit provisions for emissions trading ``[m]ay include categories of
VOCs
[[Page 57354]]
which in the Chief's discretion can be substituted for one another in a
production process.'' EPA's primary concern with this provision is
that, as written, it is not clear how substituting categories of VOCs
in a production process could be considered to be emissions trading.
According to the public record of the adoption of West Virginia's
operating permits regulations, this provision was added to clarify that
West Virginia's alternative operating scenario provisions should not be
limited to changes in the hours of production or process configuration,
but should also encompass the use of different chemicals to make slight
changes in the production process if consistent with applicable
requirements. In response to a request for clarification of this
provision, a supplemental Attorney General's opinion submitted to EPA
by West Virginia on September 29, 1994 acknowledged that section
5.1.j.D. was misplaced and instead belonged in section 5.1.i.D.
EPA recognizes that Part 70 allows permits to contain provisions,
if the permit applicant requests them, for emissions trading in
accordance with applicable requirements. In no way is EPA attempting to
limit this authority or reduce operational flexibility for business and
industry by prohibiting categories of VOCs from being traded under
authorized emissions trading provisions.
3. Section 112(g) Implementation
Comment: The immediate implementation of section 112(g) following
promulgation of EPA's regulations is not workable. An appropriate
amount of time must be provided to develop state regulations. An
appropriate time limit for West Virginia to adopt section 112(g) rules
is 24 months.
EPA response: As discussed in the proposed rulemaking, EPA had
until recently interpreted the CAA to require sources to comply with
section 112(g) beginning on the date of approval of the state's
operating permits program regardless of whether EPA had completed its
section 112(g) rulemaking. EPA's current interpretation of the CAA
postpones the requirement for sources to comply with section 112(g)
until after the time EPA has promulgated a rule addressing that
provision (see 60 FR 8333).
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.
This decision, however, will be made in the context of the final 112(g)
rulemaking. Consequently, EPA will not respond to the comment related
to the effective date of section 112(g) in this document.
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. West Virginia will be required to adopt state rules in a
time frame consistent with the requirements of the federal section
112(g) rule. To the extent that the federal section 112(g) rule does
not establish a timeframe for the adoption of state rules, West
Virginia will be allowed up to 24 months to implement its ``transition
mechanisms'' in place of state 112(g) regulations. EPA believes twenty-
four (24) months to be an appropriate timeframe since West Virginia's
rulemaking procedures require regulations to be approved by the state
legislature prior to adoption.
4. Fees
Comment: West Virginia's fee structure is adequate to maintain the
quality of the program. No additional flexibility to adjust permitting
fees is required.
EPA Response: EPA is not requiring West Virginia to adjust its fee
structure in any way. EPA's fee discussion in the proposed notice
merely mentioned that by having additional flexibility to adjust fee
levels, West Virginia would be in a better position to respond to
resource needs without having to wait for legislative approval.
5. Effective Date
Comment: West Virginia's electronic permit application forms have
not been completed and are not available to the regulated community.
Therefore, West Virginia has not fulfilled the requirements of
70.4(b)(4)(i) for permit application forms. The interim approval should
be provided with an effective date of April 1, 1996 so that West
Virginia will have ample time to complete the electronic forms.
EPA Response: West Virginia's electronic permit application forms
are completed and available to the regulated community. These forms
were submitted to EPA on October 18, 1995 to replace the hard copy
permit application forms submitted on November 12, 1993 as part of the
original operating permits program to satisfy the requirements of
section 70.4(b)(4)(i). No postponement of the effective date is
warranted.
6. ``De Minimis'' Changes
Comment A: EPA's requirement for removal of section 6.5.a.A.(c) is
not mandated under Part 70 in light of the other ``gatekeeper''
provisions of section 6.5 which serve to prevent Title I modifications
or constructions from being exempt from permit modification procedures.
EPA Response: EPA agrees that the ``gatekeeper'' provisions of
section 6.5.a.A. do serve to prevent Title I modifications or
constructions from being exempt from permit modification procedures.
However, section 6.5.a.A.(c) allows changes which are below certain
``de minimis'' emissions levels which would otherwise be required to be
processed as minor permit modifications to be completely exempt from
such procedures. While Part 70 may allow certain of these changes to
instead be processed ``off-permit'', sources making ``off-permit''
changes must provide contemporaneous written notice of the change to
the permitting authority and to EPA. As written, section 6.5.a.A.(c)
does not require any reporting requirements for changes defined to be
``de minimis''.
Comment B: Section 6.5.a.A.(c) should not be removed as described
by EPA. This section, authorizing certain ``de minimis'' changes to
occur without a permit modification is consistent with the provisions
of the ``White Paper''.
EPA Response: EPA disagrees. The ``White Paper'' clarifies EPA's
expectations for permit application information only. These
clarifications were necessary to streamline and simplify the
development of Part 70 permit applications and did not address the
topic of permit revisions. Part 70 does not provide ``de minimis''
levels for source changes below which no permit modification is
required.
7. Definition of ``Emissions Unit''/112(b) Pollutants
Comment: EPA considers West Virginia's section 2.18 definition of
the term ``Emissions unit'' to be deficient since it does not expressly
include activities or parts of activities which emit or potentially
emit pollutants listed under section 112(b) of the Clean Air Act in
addition to pollutants considered to be ``regulated air pollutants''.
As a practical matter, are there any pollutants listed under section
112(b) of the CAA that are not now ``regulated air pollutants''?
EPA Response: The population of regulated air pollutants (RAPs), as
described in an April 26, 1993 guidance document entitled ``Definition
of Regulated Air Pollutant for Purposes of
[[Page 57355]]
Title V'', is composed of the following categories of pollutants: (1)
Nitrogen oxides (NOX) and volatile organic compounds (VOCs); (2)
any pollutants for which an ambient air quality standard has been
promulgated; (3) any pollutant that is subject to a new source
performance standard under section 111 of the CAA; (4) any Class I or
Class II ozone-depleting substance specified under Title VI of the CAA;
and (5) any pollutant subject to a standard promulgated under section
112 or other requirements established under section 112 of the CAA.
While it is true that section 112(b) pollutants are ``regulated air
pollutants'' if they fall under any one of the five (5) categories of
pollutants listed above, EPA has not determined that each of the 189
pollutants listed under section 112(b) of the CAA are ``regulated air
pollutants'' at this time. Such a determination would entail an
analysis of each of the 189 pollutants listed in section 112(b) of the
CAA with respect to the five categories of RAPs, an effort which EPA
has not undertaken to date. If a determination is made that all of the
section 112(b) pollutants are RAPs then the scope of pollutants defined
under West Virginia's definition of ``Emissions unit'' would be broad
enough to fully meet the section 70.2 definition of ``Emissions unit''.
Until such a determination is made, West Virginia must define the term
``Emissions unit'' to specifically include pollutants listed under
section 112(b) of the CAA consistent with the section 70.2 definition.
West Virginia may chose to submit such a determination instead of
modifying its definition of ``Emissions unit'' to satisfy the condition
for interim approval.
8. Criminal Penalties for Knowing Misrepresentations of Fact
Comment: In its proposed interim approval of West Virginia's Title
V operating permit Program, EPA requires West Virginia to modify W. Va.
Code Sec. 22-5-6(b)(1) of the enabling statute for the program to
provide for a maximum criminal penalty of not less than $10,000 per day
per violation for knowing misrepresentations of fact. One commenter
questions whether the knowing misrepresentation of material fact is
truly amenable to the ``continuing violation'' position EPA has taken
in 40 CFR 70.11(a)(3)(iii). The commenter does not further articulate
an argument on this point, but goes on to note that, while Section
502(b)(5)(E) of the CAA, as amended, 42 U.S.C. 7661a(b)(5)(E), provides
that state operating permit programs include the authority to recover
civil penalties in a maximum amount of not less than $10,000 per day
for each violation, the same subsection, ``vests discretion with the
States to establish `appropriate criminal penalties' in their
respective Title V programs.'' Finally, the commenter argues that, in
light of the recent decision in U.S. v. Telluride Company, 884 F. Supp.
404 (D. Colorado, May 2, 1995), EPA's ``efforts to apply the
`continuing violation' theory to this particular type of violation
seems misdirected. Just as in the Telluride case, where the discharge
of fill materials into wetlands was held not to be a `continuing
violation,' the misrepresentation of material fact on an application or
other report is a discrete action which a reviewing court will most
certainly find not to be continuing in nature.''
EPA Response: EPA's clear requirement at 40 CFR 70.11(a)(3)(iii)
that state operating permit programs include the authority to recover
criminal penalties in an amount of not less than $10,000 per day per
violation against any person who knowingly makes any false material
statement, representation or certification in any forms, in any notice
or report required by a permit, or who knowingly renders inaccurate any
required monitoring device or method, is grounded in legitimate
concerns that the environmental risks engendered by such conduct
continue until the false information is corrected. In fact, in many
circumstances, as where a required monitoring device is tampered with,
it is impossible to obtain correct information after the fact, and in
any such circumstance, continuing environmental contamination can go
uncorrected where required information is falsified. The ``continuing
violation'' theory at 40 CFR 70.11(a)(3)(iii) is consistent with EPA's
position elsewhere in the CAA and under other statutes.
The commenter is misguided in its view that the statutory language
at Section 502(b)(5)(E) which provides that state operating permit
programs must include, ``appropriate criminal penalties,'' amounts to a
Congressional grant of discretion to the states to determine what
constitutes appropriate criminal penalties. There is nothing to suggest
that Congress viewed the matter in this way, and it is counter-
intuitive to assume that Congress, while concerned enough about civil
violations to require maximum civil penalties to be assessed at at
least $10,000 per day per violation, at the same time felt it would be
appropriate for states to set significantly less stringent penalties
for criminal behavior, which is what West Virginia has done here. In
fact, as is the normal course, EPA was charged with interpreting
Section 502, and did so with the promulgation of 40 CFR part 70. In
doing so, EPA made the clear determination that appropriate criminal
penalties include, at a minimum, those penalties specified at 40 CFR
70.11(a)(3)(iii). This proposed action on the West Virginia operating
permit program is consistent with that interpretation.
Finally, notwithstanding the view of the U.S. District Court for
the District of Colorado on the continuing nature of discharges to
wetlands under the Clean Water Act, the Telluride decision has not
warranted a reversal of EPA's position under Section 502 of the Clean
Air Act, as set forth above, on the continuing nature of knowingly
false material statements, representations or certifications in forms,
notices or reports required by a permit, or the knowing tampering to
render inaccurate any required monitoring device or method.
In addition to the eight (8) categories of comments discussed
above, one general comment raised with respect to several of the
proposed interim approval issues questions why such program
deficiencies warrant interim approval status. Although this same
comment was submitted with respect to several of the proposed interim
approval issues, EPA will respond to this comment generally in this
notice.
The Part 70 regulations define the minimum elements required by the
CAA for approval of state operating permit programs. Section 70.4(d)
authorizes EPA to grant interim approval in situations where a state's
program substantially meets the requirements of Part 70, but is not
fully approvable. In reviewing West Virginia's operating permit
regulations, the impact of seemingly ``small'' deficiencies such as
vague or awkward language, misplaced, misreferenced or mislabeled
provisions, and omissions prevents EPA from being able to determine
that the requirements of Part 70 are fully met. EPA identified such
deficiencies as ``interim approval issues'' which West Virginia must
revise, modify or otherwise clarify to fully meet Part 70's
requirements. To the extent that EPA's concerns can be satisfied
through other mechanisms, regulatory revisions may not be necessary.
Specific responses to each comment submitted can be found in a response
to comments document located in the public docket at the address noted
in the ADDRESSES section above.
[[Page 57356]]
Final Action
EPA is promulgating interim approval of the operating permits
program submitted by West Virginia on November 12, 1993, and
supplemented on August 26 and September 29, 1994. West Virginia must
make the following changes to the operating permits program to fully
meet the requirements of the July 21, 1992 version of Part 70. (See 60
FR 44799):
1. Clarify that the section 2.18 definition of ``Emissions unit''
includes activities or parts of activities which emit or potentially
emit pollutants listed under section 112(b) of the CAA.
2. Clarify in section 3.2.d 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. Clarify in section 3.3.a 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''.
4. Either remove the section 5.1.j.D. provision for VOC category
substitution or clarify how it will be implemented within the context
of emissions trading.
5. Clarify in section 5.3.e.A. 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.
6. Clarify in section 5.5 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.
7. Clarify in section 4.1 that sources which become subject to the
permitting program after the effective date are required to submit
permit applications within 12 months.
8. Remove section 6.5.a.A.(c).
9. Clarify in section 6.8.a.A.(a).(B) 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.
10. Clarify in section 6.8.a.C. 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.
11. Clarify W. Va. Code section 22-5-6(b)(1) as necessary to
provide for a maximum criminal penalty in an amount of not less than
Sec. 10,000 per day per violation against any person who knowingly
makes any false material statement, representation or certification in
any forms, in any notice or report required by a permit, or who
knowingly renders inaccurate any required monitoring device or method.
West Virginia must also seek amendments to fix errors in 45CSR33--
``Acid Rain Provisions and Permits'' and, until such regulatory changes
are adopted, interpret 45CSR33 consistent with the requirements of part
72 in accordance with commitments made in a June 23, 1995 letter to
EPA.
The scope of West Virginia's part 70 program approved in this
notice applies to all part 70 sources (as defined in the approved
program) within West Virginia, except any sources of air pollution over
which an Indian Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-
18 (Nov. 9, 1994). The term ``Indian Tribe'' is defined under the Act
as ``any Indian tribe, band, nation, or other organized group or
community, including any Alaska Native village, which is federally
recognized as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians.''
See section 302(r) of the CAA; see also 59 FR 43956, 43962 (Aug. 25,
1994); 58 FR 54364 (Oct. 21, 1993).
This interim approval, which may not be renewed, extends until
December 15, 1997. During this interim approval period, West Virginia
is protected from sanctions, and EPA is not obligated to promulgate,
administer and enforce a federal operating 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 the
effective date of this interim approval, as does the 3-year time period
for processing the initial permit applications.
If West Virginia fails to submit a complete corrective program for
full approval by June 16, 1997, EPA will start an 18-month clock for
mandatory sanctions. If West Virginia 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 West Virginia has corrected the deficiency by submitting a
complete corrective program. Moreover, if the Administrator finds a
lack of good faith on the part of West Virginia, both sanctions under
section 179(b) will 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 has not submitted a corrective program
that EPA has found complete, a second sanction will be required.
If EPA disapproves West Virginia'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 West Virginia 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 West Virginia, both sanctions under section 179(b) shall
apply after the expiration of the 18-month period until the
Administrator determines that West Virginia has come into compliance.
In all cases, if, six months after EPA applies the first sanction, West
Virginia 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 West
Virginia 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 West Virginia's program by the expiration
of this interim approval and that expiration occurs after November 15,
1995, EPA must promulgate, administer and enforce a federal permits
program for West Virginia upon interim approval expiration.
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section
[[Page 57357]]
112(l)(5) requirements for approval of a program for delegation of
section 112 standards as promulgated by EPA as they apply to Part 70
sources. 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 promulgating 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 federal
standards as promulgated. This program for delegations only applies to
sources covered by the Part 70 program.
Additionally, EPA is promulgating approval of West Virginia's
45CSR30 operating permits program, 45CSR13 and 45CSR14 preconstruction
permit programs, and authority under W. Va Code Sec. 22-5-4(a)(5) to
issue administrative orders, under the authority of Title V and Part 70
for the purpose of implementing section 112(g) if necessary during the
transition period between promulgation of the federal section 112(g)
rule and adoption of state rules to implement EPA's section 112(g)
regulations. However, since this approval is for the purpose of
providing a mechanism to implement section 112(g) during the transition
period, the approval of these mechanisms for this purpose 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. Unless the federal section 112(g) rule establishes a specific
timeframe for the adoption of state rules, the duration of this
approval is limited to 24 months following promulgation by EPA of
section 112(g) regulations, to provide West Virginia with adequate time
to adopt regulations consistent with federal requirements.
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 final 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, promulgating
interim approval of West Virginia's operating permits program, 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.
Dated: November 8, 1995.
Stanley L. Laskowski,
Acting Regional Administrator.
Part 70, title 40 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 adding the entry for West
Virginia in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
West Virginia
(a) Department of Commerce, Labor and Environmental Resources:
submitted on November 12, 1993, and supplemented by the Division of
Environmental Protection on August 26 and September 29, 1994; interim
approval effective on December 15, 1995; interim approval expires
December 15, 1997.
(b) (Reserved)
* * * * *
[FR Doc. 95-28211 Filed 11-14-95; 8:45 am]
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