[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)
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[FR Doc. 96-25233 Filed 10-1-96; 8:45 am]
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