[Federal Register Volume 66, Number 189 (Friday, September 28, 2001)]
[Proposed Rules]
[Pages 49577-49579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24381]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[VT-021-1224; A-1-FRL-7069-6]


Full Approval of Clean Air Act Operating Permit Program; State of 
Vermont

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is proposing to fully approve the operating permit 
program for the State of Vermont. Vermont's operating permit program 
was created to meet the federal Clean Air Act (Act) directive that 
states develop, and submit to EPA, programs for issuing operating 
permits to all major stationary sources of air pollution and to certain 
other sources within the states' jurisdiction. EPA is proposing to 
approve Vermont's program at the same time Vermont is proposing changes 
to its state regulations to address EPA's interim approval issues. The 
public comment period for Vermont's program regulations (Air Pollution 
Control Regulations, Subchapter X) is open for comment from September 
13, 2001 until October 15, 2001.

DATES: Comments on this federal proposed rule must be received on or 
before October 29, 2001.

ADDRESSES: Comments may be mailed to Donald Dahl, Air Permits Program 
Unit, Office of Ecosystem Protection (mail code CAP) U.S. Environmental 
Protection Agency, EPA--New England, One Congress Street, Suite 1100, 
Boston, MA 02114-2023. EPA strongly recommends that any comments should 
also be sent to Conrad W. Smith of the Air Pollution Control Division, 
Department of Environmental Conservation, 2nd floor, South Building, 
Waterbury, Vermont, 05671-0402. Copies of the State submittal and other 
supporting documentation relevant to this action, are available for 
public inspection during normal business hours, by appointment at the 
above addresses.

FOR FURTHER INFORMATION CONTACT: Donald Dahl at (617) 918-1657.

SUPPLEMENTARY INFORMATION:

I. Why Was Vermont Required To Develop an Operating Permit Program?

    Title V of the Clean Air Act as amended (42 U.S.C. 7401 and 7661, 
et seq.), requires all states to develop an operating permit program 
and submit it to EPA for approval. EPA has promulgated rules that 
define the minimum elements of an approvable state operating permit 
program and the corresponding standards and procedures by which EPA 
will approve, oversee, and withdraw approval of state operating permit 
programs. See 57 FR 32250 (July 21, 1992). These rules are codified at 
40 Code of Federal Regulations (CFR) part 70. Title V directs states to 
develop programs for issuing operating permits to all major stationary 
sources and to certain other sources. The Act directs states to submit 
their operating permit programs to EPA by November 15, 1993, and 
requires that EPA act to approve or disapprove each program within one 
year after receiving the submittal. The EPA's program review occurs 
pursuant to section 502 of the Act (42 U.S.C. 7661a) 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. 
EPA granted the State of Vermont final interim approval of its program 
on October 2, 1996 (see 61 FR 51368) and the program became effective 
on November 1, 1996.

II. What Did Vermont Submit to Meet the Title V Requirements?

    Vermont submitted its Title V operating permit program on April 28, 
1995. In addition to regulations (Environmental Protection Regulations, 
Air Pollution Control Chapter V, Definitions and Subchapter X), the 
program submittal included a legal opinion from the Attorney General of 
Vermont stating that the laws of the State provide adequate legal 
authority to carry out all aspects of the program, and a description of 
how the State would implement the program. The submittal additionally 
contained evidence of proper adoption of the program regulations, 
application and permit forms, and a permit fee demonstration. This 
program, including the operating permit regulations, substantially met 
the requirements of part 70.

III. What Was EPA's Action on Vermont's 1995 Submittal?

    EPA deemed the program administratively complete in a letter to the 
state dated June 12, 1995. On May 24, 1996, EPA proposed to grant 
interim approval to Vermont's submittal. After responding to comments, 
EPA granted interim approval to Vermont's submittal on October 2, 1996. 
In the document granting interim approval, EPA stated that there were 
several areas of Vermont's program regulations that would need to be 
amended in order for EPA to fully approve the state's program. EPA has 
been working closely with the state and has determined that the state 
is proposing to make all of the necessary rule changes for full 
approval. The following section contains details regarding the areas of 
Vermont's regulations where the state is proposing to address EPA's 
interim approval issues.

IV. What Were EPA's Interim Approval Issues and How Has Vermont 
Proposed To Amend Its Regulation To Address the Interim Approval 
Issues?

    1. 40 CFR 70.4(b)(12)(i) requires states to allow for facilities to 
make changes as required by section 502(b)(10) of the Act, ``Section 
502(b)(10) changes'' as defined in part 70, with just a seven day 
notice. Subchapter X, section 5-1014 of the state's proposed rule has 
been amended to allow a facility to make changes that are equivalent to 
``502(b)(10) changes'' after a fifteen-day notice. Vermont's 
regulations satisfy the requirements of Title V regarding ``section 
502(b)(10) changes.''
    2. 40 CFR 70.4(b)(12)(iii) requires states to allow facilities to 
trade emissions under an emission cap

[[Page 49578]]

established solely within a permit, provided the emissions are 
quantifiable and there are replicable procedures to enforce the 
emission trades. Subchapter X, sections 5-1014 and 5-1015(a)(15) of the 
state's proposed rule have been amended to require the state to grant 
emission trades that meet these requirements. Any emissions involved in 
such a trade are now required to be quantifiable, with replicable 
procedures to enforce the trade.
    3. 40 CFR 70.6(a)(3)(iii)(B) requires a state to write a source's 
obligation in every permit to promptly report all permit deviations. 
The state's permitting rule or each permit itself must also define what 
is ``prompt reporting.'' Subchapter X, section 5-1015(a)(6) of the 
state's proposed rule requires Vermont to include a permit condition 
that mandates sources to promptly report all permit deviations. This 
proposed section of the rule also requires Vermont to define ``prompt'' 
in each permit and provides that such reporting shall be at least as 
stringent as required by EPA in permits issued under 40 CFR part 71.
    4. 40 CFR 70.6(a)(9)(i) requires all permits to contain a condition 
that a source maintain a record when switching between operating 
scenarios. Subchapter X, section 5-1015(a)(8) of the state's proposed 
rule requires Vermont to include a permit condition that specifies a 
source must maintain records of switches between operating scenarios.
    5. 40 CFR 70.6(b)(2) requires a state to designate those permit 
terms which are enforceable only by the State and are not enforceable 
under federal law. Subchapter X, section 5-1015(a)(9) of the state's 
proposed rule requires Vermont to designate in the Findings of Fact 
section of each permit all terms and conditions of a permit that are 
not federally enforceable. The Findings of Fact section accompanies 
each permit and makes the distinction required under section 70.6(b)(2) 
available to the public and the permittee.
    6. 40 CFR 70.6(a)(1)(i) requires a state to indicate in a Title V 
permit the origin and authority of all permit terms and conditions, and 
identify any difference in form as compared to the applicable 
requirement upon which a permit term or condition is based. Subchapter 
X, section 5-1015(a)(2) of the state's proposed rule requires Vermont 
to list ``[a] reference, but not necessarily all references of the 
origin and authority for each term or condition.'' The state's proposed 
language, although it does appear to anticipate less than all 
references will be included in some circumstances, is adequate to meet 
this program element. Vermont has bound itself to provide a sufficient 
identification of the origin and authority of permit terms.
    7. 40 CFR 70.7(f) requires each permit to contain provisions 
specifying the conditions when a permit must be reopened and revised. 
Subchapter X, section 5-1015(a)(13) of the state's proposed rule 
requires the state to write a permit condition stating when a permit 
may be reopened and reissued in accordance with section 5-1008 of the 
proposed rule. Subchapter X, section 5-1008(e)(1) of the proposed rule 
requires that the state must reopen and reissue permits under certain 
circumstances. EPA understands that the combination of these provisions 
has the effect of requiring the reopening of any permit for which cause 
to reopen exists under section 5-1008(e)(1). The permissive language 
used in section 5-1015(a)(13) simply incorporates and does not change 
the mandate in section 5-1008(e)(1) to reopen a permit for cause when 
necessary. Provided Vermont does not disagree with this interpretation, 
these two provision of the state's rule are now consistent with federal 
requirements.
    8. 40 CFR 70.7(f)(1)(i) requires a state to reopen and reissues a 
permit within 18 months of a source's becoming subject to an additional 
applicable requirement if there are 3 or more years remaining in the 
permit term. Subchapter X, section 5-1008(e)(1)(i) of the state's 
proposed rule requires the state to reopen and reissue a permit under 
such circumstances.

V. Proposed Action

    EPA proposes to fully approve Vermont's Title V program, provided 
the state finalizes its regulations consistent with the terms and 
interpretations of this proposed rule and submits its regulations to 
EPA for approval.

VI. Administrative Requirements

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this proposed action is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. Under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) the Administrator certifies that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities because it merely approves state law as 
meeting federal requirements and imposes no additional requirements 
beyond those imposed by state law. This rule does not contain any 
unfunded mandates and does not significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4) because it proposes to approve pre-existing 
requirements under state law and does not impose any additional 
enforceable duties beyond that required by state law. This rule also 
does not have tribal implications because it will not have a 
substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249, November 9, 2000). This rule also does not have Federalism 
implications because it will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132, 
``Federalism'' (64 FR 43255, August 10, 1999). The rule merely proposes 
to approve existing requirements under state law, and does not alter 
the relationship or the distribution of power and responsibilities 
between the State and the Federal government established in the Clean 
Air Act. This proposed rule also is not subject to Executive Order 
13045, ``Protection of Children from Environmental Health Risks and 
Safety Risks'' (62 FR 19885, April 23, 1997) or Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001), because it 
is not a significant regulatory action under Executive Order 12866. 
This action will not impose any collection of information subject to 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
other than those previously approved and assigned OMB control number 
2060-0243. For additional information concerning these requirements, 
see 40 CFR part 70. An agency may not conduct or sponsor, and a person 
is not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.
    In reviewing State operating permit programs submitted pursuant to 
Title V of the Clean Air Act, EPA will approve State programs, provided 
that they meet the requirements of the Clean Air Act and EPA's 
regulations codified at 40 CFR part 70. In this context, in the

[[Page 49579]]

absence of a prior existing requirement for the State to use voluntary 
consensus standards (VCS), EPA has no authority to disapprove a State 
operating permit program for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews an operating 
permit program, to use VCS in place of a State program that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply.

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: September 19, 2001.
Robert W. Varney,
Regional Administrator, EPA-New England.
[FR Doc. 01-24381 Filed 9-27-01; 8:45 am]
BILLING CODE 6560-50-P