[Federal Register Volume 62, Number 111 (Tuesday, June 10, 1997)]
[Rules and Regulations]
[Pages 31516-31520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15090]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5838-6]


Clean Air Act Final Interim Approval of Operating Permits 
Program; Commonwealth of Virginia

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final interim approval.

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SUMMARY: The EPA is granting final interim approval, pursuant to Title 
V of the Clean Air Act, of the Operating Permits Program which the 
Commonwealth of Virginia submitted for the purpose of complying with

[[Page 31517]]

Federal requirements for an approvable State program to issue operating 
permits to all major stationary sources, and to certain other sources.

EFFECTIVE DATE: July 10, 1997.

ADDRESSES: Copies of the Commonwealth'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: 
U.S. EPA Region III; Air, Radiation, & Toxics Division; 841 Chestnut 
Building; Philadelphia, PA 19107.

FOR FURTHER INFORMATION CONTACT: Ray Chalmers, 3AT23; U.S. EPA Region 
III; Air, Radiation, & Toxics Division; 841 Chestnut Building; 
Philadelphia, PA 19107. Phone: (215) 566-2061.

SUPPLEMENTARY INFORMATION:

I. Background

    States are directed by the 1990 Clean Air Act (``the Act''), 42 
U.S.C. 7401, et seq. to develop and submit operating permits programs 
to EPA by November 15, 1993. The requirements for approval of State 
operating permits programs are found at sections 501 through 506 of the 
Act, and at 40 CFR part 70. These requirements encompass section 
112(l)(5) requirements for approval of a program for delegation of 
section 112 standards. EPA is required to approve or disapprove each 
program within 1 year after receiving the submittal. Where a program 
substantially, but not fully, meets the requirements of 40 CFR part 70, 
EPA may grant the program interim approval for a period of up to 2 
years.

II. EPA Action and Implications

    EPA proposed to grant approval of the Commonwealth of Virginia's 40 
CFR part 70 operating permits program, and its program for receiving 
delegation of 112 standards, in a Federal Register document published 
on March 18, 1997. See 62 FR 12778. EPA hereby incorporates by 
reference the discussion and rationale contained in the March 18, 1997 
proposed interim approval notice. That notice may be consulted for a 
detailed description of the Commonwealth's submittals and for an 
explanation of why EPA believes interim approval is appropriate, and 
why EPA is not able at this time to grant full approval to Virginia's 
program. After consideration of public comments received on the 
proposal, EPA is granting final interim approval to the Commonwealth's 
operating permits program. The Commonwealth's approved program consists 
of Title V operating permit and fee program regulations submitted on 
September 10, 1996, operating permit regulations for acid rain sources 
submitted on September 12, 1996, and the non-regulatory portions of 
operating permit program submittals from the Commonwealth dated 
November 12, 1993, January 14, 1994, January 9, 1995, May 17, 1995, 
February 6, 1997, and February 27, 1997. In addition, the EPA is also 
promulgating approval under section 112(l)(5) and 40 CFR 63.91 of the 
Commonwealth'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 40 
CFR part 70 program.
    The Commonwealth of Virginia's 40 CFR part 70 program approved in 
this document applies to all 40 CFR part 70 sources (as defined in the 
approved program) within the Commonwealth. This interim approval 
extends until July 12, 1999. As described below, during this interim 
approval period the Commonwealth of Virginia is protected from 
sanctions, and EPA is not obligated to administer and enforce a Federal 
operating permits program promulgated at 40 CFR part 71 in the 
Commonwealth. Permits issued under a program with interim approval have 
full standing with respect to 40 CFR 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.
    On July 1, 1996, EPA promulgated regulations at 40 CFR Part 71 
which govern EPA's implementation of a Federal operating permits 
program. See 61 FR 34202. On July 31, 1996, EPA published a document at 
61 FR 39877 listing states, including Virginia, whose 40 CFR part 70 
operating permits programs had not been approved by EPA and where a 40 
CFR part 71 Federal operating permits program was effective as of that 
date. Today's action cancels the applicability of the 40 CFR part 71 
Federal operating permits program in Virginia. Upon the effective date 
of today's approval, the 40 CFR part 71 application deadline will be 
superseded by Virginia's 40 CFR part 70 application deadlines.

III. Public Comments and EPA's Response

    EPA received two comments, both from corporations, in response to 
its proposal to grant interim approval to Virginia's Title V operating 
permits program. One company supported the proposed interim approval. 
The other company, which treats contaminated soil using a thermal 
desorption technology, argued that EPA should withdraw the proposed 
interim approval of Virginia's Title V program because the company 
believes Virginia had shown that it was unable or unwilling to 
appropriately permit sources. The evidence the company cited was that 
in 1993 Virginia had issued a construction permit to one of the 
commenter's competitors (which treats contaminated soil using an 
alternative bio-remediation process), and had not required the 
competing company to install emission controls which the commenter 
considered appropriate.
    40 CFR part 70 establishes the criteria that EPA must use to 
evaluate the approvability of a State's Title V program. EPA has 
determined that Virginia's Title V program meets the requirements for 
interim approval set forth at 40 CFR 70.4(d). 40 CFR part 70 also 
requires that, upon interim approval of its Title V operating permit 
program, Virginia will be obligated to implement and enforce the 
program in accordance with the requirements of Title V and 40 CFR part 
70 and all agreements between the Commonwealth and EPA concerning the 
operation of the program. See 40 CFR 70.10(b). EPA will be reviewing 
permits and permit revisions Virginia proposes to issue, pursuant to 
its authority under 40 CFR 70.8, and will object to the issuance of any 
proposed permit or permit revision that EPA determines does not assure 
compliance with all applicable requirements or otherwise conform to the 
requirements of Title V and 40 CFR part 70. If EPA should determine, 
based on its review of the Commonwealth's proposed permits or permit 
revisions, or on other relevant information, that Virginia is not 
adequately administering and/or enforcing its Title V program, EPA 
could act to: (1) Withdraw approval of the program or portions thereof; 
(2) apply the sanctions set forth in section 179(b) of the Act; and/or 
(3) administer and enforce the Federal program under Title V of the Act 
and 40 CFR part 71. See 40 CFR 70.10(c)(1) (ii) and (iii).
    Given that EPA has the authority to take appropriate action should 
Virginia fail to adequately administer and enforce its operating 
permits program, and that EPA has the authority to review and object to 
the issuance of individual Title V operating permits proposed by 
Virginia, EPA believes that it is appropriate to grant interim approval 
to Virginia's program, based on the Agency's review of Virginia's 
submitted program. Consequently, EPA disagrees with the commenter's 
assertion that

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Virginia is not eligible for Title V program approval.

IV. Interim Approval Items

    EPA cannot fully approve Virginia's Title V operating permits 
program until Virginia corrects the six program deficiencies which EPA 
discussed in detail in its notice proposing interim approval of 
Virginia's program. The required corrections are summarized below:

A. Reduce the Level of CO Emissions Considered Insignificant

    Virginia must change its designation of which emission units 
emitting carbon monoxide (CO) are insignificant. Virginia defines any 
emissions unit emitting less than 100 TPY of carbon CO as 
insignificant, and EPA has determined that the 100 TPY emissions level 
is unreasonably high. Virginia must significantly reduce this emissions 
level to a level consistent with EPA policy and consistent with what 
EPA has approved in other State programs. For further discussion of 
this issue, see EPA's proposed interim approval notice at 62 FR 12782.

B. Require Sources to Include in Their Permit Applications Sufficient 
Information Regarding Insignificant Emission Units To Enable Applicable 
Requirements for Those Units To Be Identified

    Virginia must, in accordance with 40 CFR 70.5(c), require sources 
to include in their Title V permit applications all information for 
insignificant emission units which is required to identify any 
applicable requirements for those units. Virginia does currently 
require sources to submit emissions information for insignificant 
emission units, which can be used to identify many applicable 
requirements for those units, but it fails to require sources to submit 
any additional information which might be required. For further 
discussion of this issue, see EPA's proposed interim approval notice at 
62 FR 12782.

C. Require Applicable Requirements for Insignificant Emission Units To 
Be Included in Permits

    Virginia must require all applicable requirements to be included in 
permits, with no exceptions for insignificant emissions units, in 
accordance with 40 CFR 70.6. Virginia's regulations currently require 
all applicable requirements for all emission units in the source to be 
included in permits, except for applicable requirements for 
insignificant emissions units. Virginia must delete the exception for 
insignificant units. For further discussion of this issue, see EPA's 
proposed interim approval notice at 62 FR 12782-12783.

D. Correctly Define Which Emergency or Standby Compressors, Pumps, and/
or Generators Are Insignificant

    Virginia must clarify its provision designating emergency or 
standby compressors, pumps, and/or generators as insignificant 
emissions units, and must reduce the horsepower size cut-off levels for 
such units sufficiently to exclude any unit which would be likely to 
trigger an applicable requirement or to emit air pollutants in major 
amounts, in accordance with 40 CFR 70.5(c). For further discussion of 
this issue, see EPA's proposed interim approval notice at 62 FR 12783.

E. Prohibit ``Off Permit'' Changes Pertaining to Requirements of the 
Acid Rain Provisions of Title IV of the CAA

    Virginia must modify its Title V provisions pertaining to ``off 
permit'' changes (changes not addressed or prohibited by the permit) to 
exclude from eligibility changes involving the requirements of the acid 
rain provisions of Title IV of the Act, in accordance with 40 CFR 
70.4(b)(15). For further discussion of this issue, see EPA's proposed 
interim approval notice at 62 FR 12783.

F. Correct Affirmative Defense Provisions

    Virginia must allow the legal defense of malfunction only for those 
malfunctions which are timely reported to the Commonwealth, in 
accordance with the requirements at 40 CFR 70.6(g). Virginia's current 
affirmative defense provision is inadequate in that it allows the 
defense of malfunction for malfunctions not timely reported to the 
Commonwealth if those malfunctions lasted less than one hour. For 
further discussion of this issue, see EPA's proposed interim approval 
notice at 62 FR 12783-12784.

V. Sanctions Lifted

    In the notice proposing interim approval of the Virginia Title V 
operating permits program EPA made an interim final determination that 
the Commonwealth had corrected the deficiencies prompting the original 
disapproval of the Virginia Title V operating permits program. The 
interim final determination stayed and deferred the implementation of 
sanctions unless and until either the proposed interim approval was 
finalized or withdrawn.
    EPA sought comments on this interim final determination as well as 
on EPA's proposed approval of the Commonwealth's submittal. EPA 
received no comments on its interim final determination. In this notice 
EPA is granting final interim approval to Virginia's Title V submittal. 
EPA is making a final determination that the Commonwealth has corrected 
the deficiencies prompting the original disapproval of the Virginia 
Title V operating permits program. EPA was required to apply the first 
sanction on July 5, 1996, and the second sanction on January 5, 1997, 
unless by those dates EPA had determined that Virginia had corrected 
each of the deficiencies that prompted EPA's original disapproval. EPA 
interprets the CAA to require the Administrator to select by rulemaking 
which sanction to apply first, before mandatory sanctions may actually 
be imposed. These sanctions have not been applied in Virginia because 
EPA has not yet published such a rule covering deficiencies under Title 
V.
    Section 502(g) provides that for the period of any interim 
approval, the sanctions provisions of section 502(d)(2) of the Act 
shall be suspended. See also, Update to Sanctions Policy for State 
Title V Operating Permits Programs, John S. Seitz, Director Office of 
Air Quality Planning and Standards (March 28, 1995). Therefore, EPA has 
determined that sanctions applicable to the Commonwealth as a result of 
EPA's December 5, 1994 disapproval of Virginia's Title V operating 
permits program are lifted.

VI. Federal Oversight and Potential Sanctions

    If the Commonwealth of Virginia fails to submit a complete 
corrective program for full approval by January 11, 1999, EPA will 
start an 18-month clock for mandatory sanctions. If the Commonwealth 
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 Commonwealth has 
corrected the deficiency by submitting a complete corrective program. 
Moreover, if the Administrator finds a lack of good faith on the part 
of the Commonwealth, both sanctions under section 179(b) will apply 
after the expiration of the 18-month period until the Administrator 
determined that the Commonwealth had come into compliance. In any case, 
if, six months after application of the first sanction, the 
Commonwealth still has not submitted a corrective program that EPA has 
found complete, a second sanction will be required.

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    If EPA disapproves the Commonwealth'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 Commonwealth 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 the Commonwealth, both sanctions under section 179(b) 
shall apply after the expiration of the 18-month period until the 
Administrator determines that the Commonwealth has come into 
compliance. In all cases, if, six months after EPA applies the first 
sanction, the Commonwealth 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 
Commonwealth 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 Commonwealth's program by the 
expiration of this interim approval, EPA must administer and enforce 
the Federal permits program for the Commonwealth, under 40 CFR part 71, 
upon expiration of interim approval.

VII. Administrative Requirements

A. Official File

    Copies of the Commonwealth's submittal and other information relied 
upon for the final interim approval, including public comments on the 
proposal, are contained in the official file maintained at the EPA 
Regional Office. The file is an organized and complete file of all the 
information submitted to, or otherwise considered by, EPA in the 
development of this final interim approval. The official file is 
available for public inspection at the location listed under the 
ADDRESSES section of this document.

B. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA 
must determine whether its regulatory actions are ``significant'' and 
therefore subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. The Order defines a 
significant regulatory action ``as one that is likely to result in a 
rule that may: (1) Have an annual effect on the economy of $100 million 
or more or adversely affect in a material way the economy, a sector of 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order. The Office of Management and Budget has exempted this action 
from Executive Order 12866 review.

C. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small environmental 
jurisdictions. This final rule will not have a significant impact on a 
substantial number of small entities because 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. Therefore, I certify that this action 
will not have a significant economic impact on a substantial number of 
small entities.

D. Unfunded Mandates

    Under Section 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 
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 this 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 approves pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

E. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) of the Administrative Procedure Act, as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, EPA submitted a report containing this rule approving interim 
final approval of Virginia's Title V program 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, Intergovernmental relations, Operating permits, 
and Reporting and recordkeeping requirements.

    Dated: May 29, 1997.
W. Michael McCabe,
Regional Administrator, Region III.

    Part 70, Title 40, Chapter I 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 revising paragraph (a) in 
the entry for Virginia to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

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Virginia

    (a) The Commonwealth of Virginia's Title V operating permit and 
fee program regulations submitted on September 10, 1996, the acid 
rain operating permit regulations submitted on September 12, 1996, 
and the non-regulatory operating permit program provisions submitted 
on November 12, 1993, January 14, 1994, January 9, 1995, May 17, 
1995, February 6, 1997, and February 27, 1997; interim

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approval effective on July 10, 1997; interim approval expires July 
12, 1999.
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[FR Doc. 97-15090 Filed 6-9-97; 8:45 am]
BILLING CODE 6560-50-P