[Federal Register Volume 66, Number 192 (Wednesday, October 3, 2001)]
[Proposed Rules]
[Pages 50375-50378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24714]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[VA-T5-2001-02a; FRL-7073-4]


Clean Air Act Approval of Operating Permit Program Revisions; 
Virginia

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the operating permit 
program of the Commonwealth of Virginia. Virginia'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 Virginia's operating permit program on June 
10, 1997, as corrected on March 19, 1998. Virginia has revised its 
operating permit program since receiving interim approval and this 
action proposes to approve those revisions. Any parties interested in 
commenting on this action proposing to approve discretionary revisions 
to Virginia's program should do so at this time. A more detailed 
description of Virginia's submittal and EPA's evaluation are included 
in a Technical Support 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: Written comments must be received on or before November 2, 2001.

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 Virginia Department of Environmental Quality, 629 East Main Street, 
Richmond, Virginia, 23219.

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 20, 2000, the Commonwealth of 
Virginia submitted revisions to its State operating permit program. 
These revisions are the subject of this document and this section 
provides additional information on the revisions by addressing the 
following questions:
    What is the State operating permit program?
    What is being addressed in this document?
    What is not being addressed in this document?
    What changes to Virginia's operating permit program is EPA 
approving?
    How does Virginia's Voluntary Environmental Assessment Privilege 
Law affect its operating permit program?
    What action is being taken by EPA?

[[Page 50376]]

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. For example, in the counties and cities 
in northern Virginia that are part of the metropolitan Washington, D.C. 
serious ozone nonattainment area, major sources include those with the 
potential of emitting 50 tons per year or more of volatile organic 
compounds or nitrogen oxides.

What Is Being Addressed in This Document?

    On November 20, 2000, Virginia submitted revisions to its currently 
approved program regulations intended to clarify and improve its 
existing operating permit program. Virginia made revisions to its 
existing program to correct definitions; to incorporate EPA guidance 
and regulatory changes; and, to clarify minor procedural matters. In 
the November 20, 2000 submittal, Virginia also provided amendments to 
its existing program to address deficiencies identified when its 
program received interim approval. These amendments are the subject of 
a separate rulemaking action as more fully discussed below.

What Is Not Being Addressed in This Document?

    As part of its November 20, 2000 submittal, Virginia also provided 
amendments to its operating permit program regulations to address 
deficiencies identified by EPA when it granted final interim approval 
of Virginia's program in 1997. Since these program amendments are not 
directly relevant to this rulemaking action proposing to approve 
revisions to Virginia's operating permit program, they will be 
considered in a separate rulemaking action.
    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 
identify deficiencies in either the substance of the approved program 
or in how a permitting authority is implementing its approved program.
    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 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 Virginia'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 
Virginia'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 the substance or implementation of currently-approved programs. 
This action proposes to approve revisions to Virginia's currently-
approved operating permit program. The program revisions that are the 
subject of this document were not federally approved as part of 
Virginia's operating permit program before the close of the 90-day 
public comment period announced in the December 11, 2000 notice. 
Therefore, any persons wishing to comment on this action proposing to 
approve revisions to Virginia's currently-approved program should do so 
at this time.

What Changes to Virginia's Program is EPA Approving?

    The EPA has reviewed Virginia's November 20, 2000 program revisions 
in conjunction with the portion of Virginia's program that was earlier 
approved by EPA. Based on this review, EPA is proposing to approve 
revisions to Virginia's operating permit program. The EPA has 
determined that the revisions to Virginia's operating permit program 
appropriately clarify and improve the currently approved version of its 
program. The revisions fully meet the minimum requirements of 40 CFR 
part 70.
    In general, Virginia revised its permit program regulations in 
order to support commitments it made to EPA in a February 27, 1997 
letter; to incorporate relevant EPA guidance; to clarify certain 
definitions; to bring its acid rain operating permit program into 
conformity with federal regulations; to incorporate provisions relating 
to EPA's compliance assurance monitoring rule; and, to clarify certain 
other definitions and minor procedural matters. The following describes 
the revisions made to Virginia's operating permit program.

Changes to Virginia's Operating Permit Program

A. Changes To Support Commitments Made by Virginia

    On February 27, 1997, the Commonwealth of Virginia submitted the 
final portions of its original operating permit program for EPA review. 
In its transmittal letter to EPA, Virginia committed to interpret and 
implement certain provisions of its operating permit program in a 
manner consistent with 40 CFR part 70. Such commitments were thought 
necessary at

[[Page 50377]]

the time because Virginia's permit program did not speak directly to 
the matters in question or could be subject to varied interpretation. 
In its November 20, 2000 program revisions, Virginia has clarified 
these matters to EPA's satisfaction.
1. Applicability of Title V to Sources Subject to Standards Promulgated 
under Sections 111 or 112 of the Clean Air Act
    Virginia revised 9 VAC 5-80-50 D 1 b to indicate that where EPA has 
failed to declare whether a given source or source category covered by 
a standard promulgated under sections 111 or 112 of the Clean Air Act 
after July 21, 1992 is subject to the title V program, the source or 
source category is subject to Virginia's title V operating permit 
program.
2. Definition of ``Malfunction''
    Virginia revised the definition of ``malfunction'' at 9 VAC 5-80-60 
C and 9 VAC 5-80-370 to clarify that failures due to improperly 
designed equipment, lack of maintenance, improper maintenance, or 
operator error shall not be considered malfunctions.
3. Definition of ``Research and Development Facility''
    Virginia revised the definition of ``research and development 
facility'' at 9 VAC 5-80-60 C and 9 VAC 5-80-320 C to clarify that such 
facilities shall not be engaged in the manufacture of products for sale 
or exchange for commercial profit in any manner.
4. Permit Applications Must Include Applicable Requirements for 
Insignificant Activities
    Virginia revised 9 VAC 5-80-90 E 1 and 9 VAC 5-80-440 E 1 to 
clarify that permit applications must cite and describe all applicable 
requirements, include those covering insignificant activities at the 
subject source.
5. Criteria for Administrative Amendments
    Virginia revised 5-80-200 A 1 and 9 VAC 5-80-560 A 1 to clarify 
that administrative amendments are limited to typographical errors or 
any other similar error.
6. Notification Requirements for Malfunctions
    Virginia revised 5-80-250 B 4 and 9 VAC 5-80-650 B 4 to clarify 
that notifications of malfunctions, regardless of their mode (e.g. 
telephone, facsimile, etc), shall include a description of the 
malfunction, any steps taken to mitigate emissions, and corrective 
actions taken.

B. Changes To Incorporate EPA Guidance

    Virginia amended 9 VAC 5-80-720 A to expand the list of 
insignificant activities to include activities defined by EPA guidance 
to be ``trivial'' activities.

C. Changes To Clarify State Requirements

    Virginia revised the definitions of ``applicable requirement'' and 
``applicable state requirement'' at 9 VAC 5-80-60 C and 9 VAC 5-80-370 
and other provisions that cite these definitions. Virginia revised 
these definitions to clarify what requirements are only enforceable by 
the Commonwealth.

D. Changes to Acid Rain Operating Permit Program To Conform With 
Federal Regulations

    Virginia revised several sections of its acid rain operating permit 
program regulations to conform with EPA's acid rain program regulations 
at 40 CFR part 72. Virginia added or amended a number of definitions at 
9 VAC 5-80-370 that are derived from 40 CFR 72.2. Virginia also made 
several programmatic modifications to be consistent with the federal 
acid rain program.

E. Changes To Incorporate Compliance Assurance Monitoring Requirements

    Virginia amended 5-80-110 and 9 VAC 5-80-490 to include appropriate 
references to federal compliance assurance monitoring requirements at 
40 CFR part 64 clarifying that its program is consistent with 40 CFR 
70.6(a) and (c).

F. Changes To Clarify Definitions and Minor Procedural Matters

    Virginia made several changes to the program to clarify certain 
definitions and to reflect minor procedural changes: at 9 VAC 5-80-60 C 
and 9 VAC 5-80-370, the definition of ``insignificant activity'' was 
added; at 9 VAC 5-80-60 C, the definition ``State enforceable'' was 
amended to conform to Virginia's general administration regulation; at 
9 VAC 5-80-350 B and C, fee payment provisions were amended to clarify 
these procedures; and, at 9 VAC 5-80-720 B 5 and 6, citations to 
federal regulations were corrected.

How Does Virginia's Voluntary Environmental Assessment Privilege 
Law Affect its State Operating Permit Program?

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information (1) that are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
that are prepared independently of the assessment process; (3) that 
demonstrate a clear, imminent and substantial danger to the public 
health or environment; or (4) that are required by law.
    On January 12, 1997, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
federally authorized environmental programs in a manner that is no less 
stringent than their federal counterparts. . . .'' The opinion 
concludes that ``[r]egarding Sec. 10.1-1198, therefore, documents or 
other information needed for civil or criminal enforcement under one of 
these programs could not be privileged because such documents and 
information are essential to pursuing enforcement in a manner required 
by federal law to maintain program delegation, authorization or 
approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The

[[Page 50378]]

Attorney General's January 12, 1997 opinion states that the quoted 
language renders this statute inapplicable to enforcement of any 
federally authorized programs, since ``no immunity could be afforded 
from administrative, civil, or criminal penalties because granting such 
immunity would not be consistent with federal law, which is one of the 
criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
operating permit program consistent with the federal requirements. In 
any event, because EPA has also determined that a state audit privilege 
and immunity law can affect only state enforcement and cannot have any 
impact on federal enforcement authorities, EPA may at any time invoke 
its authority under the Clean Air Act, including, for example, sections 
113, 167, 205, 211 or 213, to enforce the requirements or prohibitions 
of the state plan, independently of any state enforcement effort. In 
addition, citizen enforcement under section 304 of the Clean Air Act is 
likewise unaffected by this, or any, state audit privilege or immunity 
law.

What Action Is Being Taken By EPA?

    The operating permit program revisions submitted by Virginia on 
November 20, 2000 improve the currently approved program and meet the 
minimum requirements of 40 CFR part 70 and the Clean Air Act. 
Therefore, EPA is proposing to approve revisions to the Commonwealth of 
Virginia's title V operating permit program.
    The EPA is soliciting public comments on the issues discussed in 
this document. These comments will be considered before taking final 
action. Interested parties may participate in the Federal rulemaking 
procedure by submitting written comments to the EPA Regional office 
listed in the ADDRESSES section of this document.

Administrative Requirements

    Under Executive Order 12866 (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. This action merely proposes to approve State law as meeting 
federal requirements and imposes no additional requirements beyond 
those imposed by State law. Accordingly, the Administrator certifies 
that this proposed 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 proposes to approve 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). For the same reason, this proposed rule also 
does not significantly or uniquely affect the communities of tribal 
governments, as specified by Executive Order 13084 (63 FR 27655, May 
10, 1998). This proposed rule 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 
(64 FR 43255, August 10, 1999), because it merely proposes to approve 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 proposed 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 a State operating permit program 
submission for failure to use VCS. It would thus be inconsistent with 
applicable law for EPA, when it reviews a State operating permit 
program submission, to use VCS in place of a State 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 proposed 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. 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 proposed rule to approve revisions to 
Virginia's operating permit program does not impose an information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 70

    Administrative practice and procedure, Air pollution control, 
Environmental protection, Intergovernmental relations, Operating 
permits, Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: September 25, 2001.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 01-24714 Filed 10-2-01; 8:45 am]
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