[Federal Register Volume 66, Number 192 (Wednesday, October 3, 2001)]
[Rules and Regulations]
[Pages 50321-50325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24707]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[DE-T5-2001-01a; FRL-7072-7]


Clean Air Act Full Approval of Operating Permit Program; Delaware

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to fully approve the 
operating permit program of the State of Delaware. Delaware's operating 
permit program was submitted in response to the Clean Air Act (CAA) 
Amendments of 1990 that required States to develop, and submit to EPA, 
programs for issuing operating permits to all major stationary sources 
and to certain other sources within the States' jurisdiction. The EPA 
granted final interim approval of Delaware's operating permit program 
on December 4, 1995. Delaware amended its operating permit program to 
address deficiencies identified in the interim approval action and this 
action approves those amendments. Any parties interested in commenting 
on this action granting full approval of Delaware's title V operating 
permit program should do so at this time. A more detailed description 
of Delaware's submittals and EPA's evaluation are included in a 
Technical Support

[[Page 50322]]

Document (TSD) in support of this rulemaking action. A copy of the TSD 
is available, upon request, from the EPA Regional Office listed in the 
ADDRESSES section of this document.

DATES: This rule is effective on November 19, 2001 without further 
notice, unless EPA receives adverse written comment by November 2, 
2001. If EPA receives such comments, it will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Written comments may be mailed to Makeba Morris, Chief, 
Permits and Technical Assessment Branch, Mailcode 3AP11, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. Copies of the documents relevant to 
this action are available for public inspection during normal business 
hours at the Air Protection Division, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103 
and Delaware Department of Natural Resources & Environmental Control, 
89 Kings Highway, PO Box 1401, Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT: David Campbell, Permits and Technical 
Assessment Branch at (215) 814-2196 or by e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION: On November 14, 2000 and November 20, 2000, 
the State of Delaware submitted amendments to its State operating 
permit program. These amendments are the subject of this document and 
this section provides additional information on the amendments by 
addressing the following questions:

    What is the State operating permit program?
    What are the State operating permit program requirements?
    What is being addressed in this document? 
    What is not being addressed in this document?
    What changes to Delaware's operating permit program is EPA 
approving?
    What action is being taken by EPA?

What Is the State Operating Permit Program?

    The Clean Air Act Amendments of 1990 required all States to develop 
operating permit programs that meet certain federal criteria. When 
implementing the operating permit programs, the States require certain 
sources of air pollution to obtain permits that contain all of their 
applicable requirements under the Clean Air Act (CAA). The focus of the 
operating permit program is to improve enforcement by issuing each 
source a permit that consolidates all of its applicable CAA 
requirements into a federally-enforceable document. By consolidating 
all of the applicable requirements for a given air pollution source 
into an operating permit, the source, the public, and the State 
environmental agency can more easily understand what CAA requirements 
apply and how compliance with those requirements is determined.
    Sources required to obtain an operating permit under this program 
include ``major'' sources of air pollution and certain other sources 
specified in the CAA or in EPA's implementing regulations. For example, 
all sources regulated under the acid rain program, regardless of size, 
must obtain operating permits. Examples of ``major'' sources include 
those that have the potential to emit 100 tons per year or more of 
volatile organic compounds, carbon monoxide, lead, sulfur dioxide, 
nitrogen oxides, or particulate matter (PM10); those that emit 10 tons 
per year of any single hazardous air pollutant (HAP) specifically 
listed under the CAA; or those that emit 25 tons per year or more of a 
combination of HAPs. In areas that are not meeting the national ambient 
air quality standards (NAAQS) for ozone, carbon monoxide, or 
particulate matter, major sources are defined by the gravity of the 
nonattainment classification.

What Are the State Operating Permit Program Requirements?

    The minimum program elements for an approvable operating permit 
program are those mandated by title V of the Clean Air Act Amendments 
of 1990 and established by EPA's implementing regulations at title 40, 
part 70--``State Operating Permit Programs'' in the Code of Federal 
Regulations (40 CFR part 70). Title V required state and local air 
pollution control agencies to develop operating permit programs and 
submit them to EPA for approval by November 15, 1993. Under title V, 
State and local air pollution control agencies that implement operating 
permit programs are called ``permitting authorities''.
    Where an operating permit program substantially, but not fully, met 
the program approval criteria outlined at 40 CFR part 70, EPA granted 
interim approval contingent on the permit authority revising its 
program to correct those programmatic deficiencies that prevented full 
approval. Delaware's original operating permit program substantially, 
but not fully, met the requirements of 40 CFR part 70. Therefore, EPA 
granted final interim approval of the program in a rulemaking published 
on December 4, 1995. [See 60 FR 62032.] The interim approval notice 
identified five outstanding deficiencies that had to be corrected in 
order for Delaware's program to receive full approval. On November 14, 
2000 and November 20, 2000, the State of Delaware submitted amendments 
to its operating permit program to EPA to address its outstanding 
program deficiencies.
    Delaware's November 14, 2000 and November 20, 2000 submittals 
satisfy the State's requirement to submit program amendments to EPA by 
June 1, 2001. This deadline was established by EPA in order to allow 
for time for EPA review and action on program amendments such that 
operating permit programs with interim approval status could be 
considered for full approval by December 1, 2001. After December 1, 
2001, those jurisdictions lacking fully-approved operating permit 
programs will, by operation of law, be subject to a federal operating 
permit program implemented by EPA under 40 CFR part 71. [See 65 FR 
32035.]

What Is Being Addressed in This Document?

    On November 14, 2000 and November 20, 2000, Delaware submitted 
amendments to its currently EPA-approved title V operating permit 
program. In general, Delaware amended its operating permit program 
regulations to address deficiencies identified by EPA when it granted 
final interim approval of Delaware's program in 1995.

What Is Not Being Addressed in This Document?

    On December 11, 2000, EPA announced a 90-day comment period for 
members of the public to identify deficiencies they perceive exist in 
State and local agency operating permits programs. [See 65 FR 77376.] 
The public was able to comment on all currently-approved operating 
permit programs, regardless of whether they have been granted full or 
interim approval. The December 11, 2000 notice instructed the public to 
not include in their comments any program deficiencies that were 
previously identified by EPA when the subject program was granted 
interim approval. Since those program deficiencies have already been 
identified and permitting authorities have been working to correct 
them, EPA will solicit comments when taking action on those corrective 
measures.
    The EPA stated that it will consider information received from the 
public pursuant to the December 11, 2000 notice and determine whether 
it agrees or disagrees with the purported deficiencies. Where EPA 
agrees there is a deficiency, it will publish a notice of

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deficiency consistent with 40 CFR 70.4(i) and 40 CFR 70.10(b). The 
Agency will at the same time publish a notice identifying any alleged 
problems that we do not agree are deficiencies. For programs that have 
not yet received full approval, such as Delaware's program, EPA will 
publish these notices by December 1, 2001.
    The EPA received numerous comments in response to the December 11, 
2000 notice announcing the start of the 90-day public comment period. 
As part of those comments, EPA Region III received comments germane to 
Delaware's currently-approved operating permit program. The Agency will 
respond to those comments in a separate notice(s) by December 1, 2001 
as required by the December 11, 2000 notice.
    The EPA is not addressing any comments received pursuant to the 
December 11, 2000 notice in this document. As mentioned above, comments 
provided in accordance with the December 11, 2000 notice were to 
address shortcomings that had not previously been identified by EPA as 
deficiencies necessitating interim, rather than full, approval of a 
state's operating permit program. This action granting full approval of 
Delaware's operating permit program only addresses program deficiencies 
identified when EPA granted interim approval to Delaware's program in 
1995. Therefore, any persons wishing to comment on this action should 
do so at this time.

What Changes to Delaware's Program Is EPA Approving?

    The EPA has reviewed Delaware's November 14, 2000 and November 20, 
2000 program amendments in conjunction with the portion of Delaware's 
program that was earlier approved on an interim basis. Based on this 
review, EPA is granting full approval of Delaware's amended operating 
permit program. The EPA has determined that the amendments to 
Delaware's operating permit program adequately address the five 
deficiencies identified by EPA in its December 4, 1995 rulemaking 
granting interim approval. Delaware's operating permit program, 
including the amendments submitted on November 14, 2000 and November 
20, 2000, fully meets the minimum requirements of 40 CFR part 70.

Changes to Delaware's Program that Correct Interim Approval 
Deficiencies

1. Revise Regulation 30, Section 6(f) To Be Consistent With the Scope 
of the Permit Shield Provision of 40 CFR 70(f)(1)

    The extent of Delaware's permit shield was originally too broad and 
allowed the permit shield to apply to any air contaminant specifically 
identified in the permit application as well as to any requirement of a 
State regulation, the Delaware Water and Air Resources Act, rather than 
any applicable requirement of the final permit as required by 40 CFR 
70(f)(1). Delaware revised Regulation 30, Section 6(f) to delete 
applicability of the permit shield to the permit application and the 
Delaware Water and Air Resources Act. In lieu thereof, Delaware 
included a provision for the permit shield to apply to any applicable 
requirement specifically identified in the permit as of the day of 
permit issuance. With this amendment, Delaware's program is consistent 
with 40 CFR 70.6(f)(1) with regard to the permit shield.

2. Revise Regulation 30, Section 7(d)(1)(v) To Ensure That Any 
Preconstruction Review Permit Requirements That Are Incorporated Into a 
Title V Permit Through the Administrative Permit Amendment Procedure 
Meet the Provisions of 40 CFR 70.7(d)(1)(v)

    Delaware's Regulation 30, Section 7(d)(1)(v) allowed the 
requirements from preconstruction review permits to be incorporated 
into the title V permit as an administrative permit amendment, when 
such permits were issued meeting only the public participation 
requirements of Regulation 30. It did not require that a 
preconstruction permit meet the other procedural requirements set forth 
in 40 CFR 70.7(d)(5) in order to be incorporated as an administrative 
amendment. In addition to public participation requirements, 40 CFR 
70.7(d) requires procedures substantially equivalent to those in 40 CFR 
70.7 and 70.8 which would apply if the preconstruction review permit 
were subject to review as a permit modification, and compliance 
requirements substantially equivalent to those in 40 CFR 70.6. Delaware 
revised Regulation 30 Section 7(d)(1)(v) to require that 
preconstruction review permits meet Sections 11.2(j), 11.5, 12.4, 12.5, 
and 12.6 of Regulation No. 2, Delaware's program for minor new source 
review. Regulation 2 was previously revised and updated on June 1, 
1997. Regulation 2, Sections 11.2(j), and 11.5 set forth the 
requirements for a permit which is desired by an applicant to have its 
terms or conditions transferred into a Regulation 30 permit. These 
requirements for compliance certifications, information to be provided 
in a permit application, and information regarding the compliance 
status and compliance schedule for all applicable requirements, allow 
the permit to substantially meet the compliance requirements of 40 CFR 
70.6. Sections 12.4, 12.5, and 12.6 set forth the procedural 
requirements for public participation and EPA and affected state 
review, which are substantially equivalent to the procedural 
requirements of 40 CFR 70.7 and 70.8.

3. Revise Regulation 30, Section 7(f)(4) To Require That Permits for 
Major Sources With a Permit Term of Three Years or More Shall Be 
Reopened For Cause Within 18 Months After a New Applicable Requirement 
Is Promulgated, Consistent With 40 CFR 70.7(f)

    Regulation 30, Section 7(f)(4) originally required reopening for 
cause upon new applicable requirements for affected sources only under 
the acid rain program. It has been revised to apply to all major 
sources having a remaining permit term of more than three years. With 
this amendment, Delaware's program is consistent with 40 CFR 70.7(f).

4. Revise Regulation 30, Section 7(j)(4) To Require That The Department 
Shall Give Notice of any Public Hearing at Least 30 Days in Advance of 
the Hearing, Consistent With 40 CFR 70.7(h)(4)

    Regulation 30, Section 7(j)(4) has been revised to require that a 
public hearing will be held no earlier than the 31st day following 
publication of a public notice for that hearing. This amendment make 
Delaware's program consistent with 40 CFR 70.7(h)(4) with regard to 
public notification.

5. Revise the Delaware Water and Air Resources Act, 7 Del. C., Chapter 
60, Section 6013(b) To Provide That Each Day of Violation Shall Be 
Considered as a Separate Violation, Consistent With 40 CFR 70.11

    The Delaware Water and Air Resources Act, 7 Del. C., section 
6013(b), Criminal Penalties, did not include the requirement that each 
day of violation also be considered a separate violation. Effective 
July 3, 1997, Delaware amended 7 Del. C., section 6013(b) to include 
that each day of violation shall constitute a separate offense. The 
slight variance in language, that is, the term ``offense'' in lieu of

[[Page 50324]]

``violation'', does not change its meaning, and requires that each day 
of violation be considered separately. This amendment to Delaware's 
statute is consistent with the penalty requirements of 40 CFR 70.11.

What Action Is Being Taken By EPA?

    The State of Delaware has satisfactorily addressed the program 
deficiencies identified when EPA granted final interim approval of its 
operating permit program on December 4, 1995. The operating permit 
program amendments that are the subject of this document considered 
together with that portion of Delaware's operating permit program that 
was earlier approved on an interim basis fully satisfy the minimum 
requirements of 40 CFR part 70 and the Clean Air Act. Therefore, EPA is 
taking direct final action to fully approve the Delaware title V 
operating permit program in accordance with 40 CFR 70.4(e).
    The EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comment. However, in the ``Proposed Rules'' section of today's 
Federal Register, EPA is publishing a separate document that will serve 
as the proposal to approve the operating permit program approval if 
adverse comments are filed relevant to the issues discussed in this 
action. This rule will be effective on November 19, 2001 without 
further notice unless EPA receives adverse comment by November 2, 2001. 
If EPA receives adverse comment, EPA will publish a timely withdrawal 
in the Federal Register informing the public that the rule will not 
take effect. The EPA will address all public comments in a subsequent 
final rule based on the proposed rule. The EPA will not institute a 
second comment period on this action. Any parties interested in 
commenting must do so at this time. Please note that if EPA receives 
adverse comment on an amendment, paragraph, or section of this rule and 
if that provision may be severed from the remainder of the rule, EPA 
may adopt as final those provisions of the rule that are not the 
subject of an adverse comment.

Administrative Requirements

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)). This 
action merely approves State law as meeting Federal requirements and 
imposes no additional requirements beyond those imposed by State law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under State law and does 
not impose any additional enforceable duty beyond that required by 
State law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). This rule also does 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 (65 
FR 67249, November 9, 2000), nor will it 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 (64 FR 43255, August 10, 1999), because it 
merely approves a State rule implementing a Federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    In reviewing State operating permit program submissions, EPA's role 
is to approve State choices, provided that they meet the criteria of 
the Clean Air Act. In this context, in the absence of a prior existing 
requirement for the State to use voluntary consensus standards (VCS), 
EPA has no authority to disapprove an 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 submission, to use 
VCS in place of an operating permit program submission 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. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. The EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit 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 United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

C. 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 3, 2001. 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 fully approving Delaware's title V 
operating permit program may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

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.


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    Dated: September 25, 2001.
Donald S. Welsh,
Regional Administrator, Region III.

    Appendix A of part 70 of 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 adding paragraph (b) in the 
entry for Delaware to read as follows:

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

* * * * *

Delaware

* * * * *
    (b) The Delaware Department of Natural Resources and 
Environmental Control submitted program amendments on November 14, 
2000 and November 20, 2000. The rule amendments contained in the 
November 14, 2000 and November 20, 2000 submittals adequately 
addressed the conditions of the interim approval effective on 
January 3, 1996. The State is hereby granted final full approval 
effective on November 19, 2001.
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[FR Doc. 01-24707 Filed 10-2-01; 8:45 am]
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