[Federal Register Volume 61, Number 192 (Wednesday, October 2, 1996)]
[Rules and Regulations]
[Pages 51368-51370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25233]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5612-6]
Clean Air Act Final Interim Approval of Operating Permits
Program; Delegation of Section 112 Standards; State of Vermont
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval.
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SUMMARY: The EPA is promulgating interim approval of the Operating
Permits Program submitted by the State of Vermont for the purpose of
complying with Federal requirements for an approvable State program to
issue operating permits to all major stationary sources, and to certain
other sources.
EFFECTIVE DATE: November 1, 1996.
ADDRESSES: Copies of the State'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:
Office of Ecosystem Protection, U.S. Environmental Protection Agency,
Region I, One Congress Street, 11th floor, Boston, MA.
FOR FURTHER INFORMATION CONTACT: Ida Gagnon, (617) 565-3500.
SUPPLEMENTARY INFORMATION:
I. Background
Title V of the 1990 Clean Air Act Amendments (sections 501-507 of
the Clean Air Act (``the Act'')), and implementing regulations at 40
Code of Federal Regulations (CFR) Part 70 require that States develop
and submit operating permits programs to EPA by November 15, 1993, and
that EPA act to approve or disapprove each program within 1 year after
receiving the submittal. The 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. 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, it must establish
and implement a Federal program.
On May 24, 1996, EPA proposed interim approval of the operating
permits program for the State of Vermont. See 61 FR 26145. The EPA
received comments from the State of Vermont on the proposal. In this
document EPA is taking final action to promulgate interim approval of
the operating permits program for the State of Vermont.
II. Response to Comments
The comments received on the May 24, 1996 proposed rulemaking in
the Federal Register proposing interim approval of the Vermont Program
and EPA's response to those comments are as follows:
Comment: Vermont believes that EPA should grant Vermont ``full
approval until, at a minimum, all relevant litigation pertaining to
Part 70 is finalized and a static set of requirements to judge the
approvability of Vermont's program is in place.'' Specifically, Vermont
comments that ``EPA's interpretation of Section 502(b)(10) is currently
the subject of litigation and is likely to change.'' In addition,
Vermont asserts that its emissions trading requirements are more
stringent than the requirements of the Act and therefore, are not
preempted by federal law.
Response: Vermont's rule currently provides the State with the
authority to prohibit emissions trades under an emissions cap and does
not require that emissions be quantifiable as a precondition to
allowing such trades when a permit does contain an emissions cap. In
addition, Vermont's rule does not provide for ``Section 502(b)(10)
changes.''
To address the emissions trading issue, EPA is requiring Vermont to
adopt regulatory language requiring the State to include, upon request
by a source, emission trading provisions in a title V permit for the
purpose of complying with an emissions cap established in the permit,
provided that the emissions involved in such trades are quantifiable.
Vermont retains the option to include language in its regulation that
would require all such trades to be consistent with State requirements
as well as applicable requirements, and therefore EPA is not attempting
to supersede more stringent State law. EPA is also requiring Vermont to
adopt regulatory provisions to implement ``Section 502(b)(10) changes''
as defined in Part 70 so that both aspects of Part 70's operational
flexibility requirement are met.
EPA understands Vermont's concerns about the pending litigation,
but EPA is obligated to evaluate the State's program based on the Part
70 rules promulgated on July 21, 1992. Specifically, Part 70 currently
requires both ``Section 502(b)(10) changes'' and emissions trading
under emission caps established in a title V permit as mechanisms to
implement operational flexibility. In an August 29, 1994 (FR 44572)
rulemaking
[[Page 51369]]
proposal, EPA proposed to eliminate Section 502(b)(10) changes as a
mechanism for implementing operational flexibility. When the proposed
changes to Part 70 are finalized, EPA and the State will revisit this
matter and address it consistent with the program transition provisions
of the revised Part 70 regulations.
Comment: Vermont does not agree that it must include language in
its regulations requiring it to reopen and reissue operating permits
``for cause'' as defined by Part 70. Vermont feels that by mandating
such actions in its regulations, it imposes a regulatory burden on
itself that could be interpreted to limit its ability to reopen a
permit for reasons not specifically enumerated in its regulation.
Response: It is not EPA's intent to limit Vermont's ability to
reopen a permit for any reason the State believes is appropriate. EPA's
interim approval condition is intended to ensure that Vermont's
regulation requires permit reopening under the conditions required by
40 CFR 70.7(f)(1). Vermont is free to add to the list of conditions in
40 CFR 70.7(f)(1) requiring reopening, or to provide the Commissioner
with the discretion to reopen permits for reasons in addition to those
specified in 40 CFR 70.7(f)(1).
Comment: Vermont objects to EPA's position that Vermont's
regulations must list the terms and conditions that must appear in
every permit. Vermont believes the intent of the Act is for Vermont to
demonstrate that it has legal authority to include the necessary terms
and conditions, ``not to unnecessarily clutter its regulations with a
detailed list of all permit terms and conditions.'' Furthermore,
Vermont objects to promulgating regulations which it claims impose
requirements upon itself rather than the regulated community.
Response: Forty CFR 70.6 requires that a permitting authority
commit in the program regulations to incorporate critical permit
elements including prompt reporting of deviations, recordkeeping of
different operating scenarios, and separating permit terms which are
enforceable only by the State from those that are enforceable by both
the State and EPA. The State must also indicate the origin and
authority of all permit terms and conditions as well as identify any
difference in form as compared to the applicable requirement. It is
this regulatory commitment that makes the permitting authority
accountable not only to EPA but also to citizens and the regulated
community.
III. Final Action
The EPA is promulgating interim approval of the operating permits
program submitted by the State of Vermont on April 28, 1995. The State
must make the changes specified in the proposed rulemaking, under
II.B., Proposed Action, in order to be granted full approval.
The scope of the State of Vermont's Part 70 program approved in
this document applies to all Part 70 sources (as defined in the
approved program) within the State of Vermont, 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 extends until November 2, 1998. During this
interim approval period, the State of Vermont is protected from
sanctions, and EPA is not obligated to promulgate, administer and
enforce a Federal operating permits program in the State of Vermont.
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 the State of Vermont fails to submit a complete corrective
program for full approval by May 4, 1998, EPA will start an 18-month
clock for mandatory sanctions. If the State of Vermont 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 State of Vermont has corrected the
deficiency by submitting a complete corrective program. If, six months
after application of the first sanction, the State of Vermont still has
not submitted a corrective program that EPA has found complete, a
second sanction will be required.
If EPA disapproves the State of Vermont'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 State of Vermont has
submitted a revised program and EPA has determined that it corrected
the deficiencies that prompted the disapproval. If, six months after
EPA applies the first sanction, the State of Vermont 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
State of Vermont 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 State of Vermont program by
the expiration of this interim approval, since the expiration would
occur after November 15, 1995, EPA would be required to promulgate,
administer and enforce a Federal permits program for the State of
Vermont upon interim approval expiration.
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 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. Vermont submitted a supplemental letter dated March 6, 1996
addressing the 112(l)(5) requirements for area/minor sources.
Therefore, the EPA is also promulgating approval under section
112(l)(5) and 40 CFR 63.91 of the State's program for receiving
delegation of section 112 standards that are unchanged from Federal
standards as promulgated. This program for delegations applies to
sources covered by the Part 70 program as well as area/minor sources.
See 61 FR 26145 for a fuller discussion of Section 112(l)(5)
delegations.
IV. Administrative Requirements
A. Docket
Copies of the State's submittal and other information relied upon
for the final interim approval, including comments received by the
State of Vermont and reviewed by EPA on the proposal, are contained in
the docket maintained at the EPA Regional Office. The docket is an
organized and complete file of all the information
[[Page 51370]]
submitted to, or otherwise considered by, EPA in the development of
this final interim approval. The docket is available for public
inspection at the location listed under the ADDRESSES section of this
document.
B. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 2, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
C. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
D. Regulatory Flexibility Act
The 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.
E. Unfunded Mandates
Under Sections 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
the 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 the approval action promulgated 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
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
F. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule 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, Environmental Protection, Intergovernmental
relations, Operating permits, Reporting and recordkeeping requirements.
Dated: September 8, 1996.
John P. DeVillars,
Regional Administrator, Region I.
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 Vermont
in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Vermont
(a) Department of Environmental Conservation: submitted on April
28, 1995; interim approval effective on November 1, 1996; interim
approval expires November 2, 1998.
(b) (Reserved)
* * * * *
[FR Doc. 96-25233 Filed 10-1-96; 8:45 am]
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