[Federal Register Volume 66, Number 200 (Tuesday, October 16, 2001)]
[Rules and Regulations]
[Pages 52538-52544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26097]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[DC-T5-2001-01a; FRL-7085-8]


Clean Air Act Full Approval of Operating Permit Program; District 
of Columbia

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 District of Columbia. The District of 
Columbia'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 the District of 
Columbia's operating permit program on August 7, 1995. The District of 
Columbia 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 the District of Columbia's title V operating 
permit program should do so at this time. A more detailed description 
of the District of Columbia's submittals 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: This rule is effective on November 30, 2001 without further 
notice, unless EPA receives adverse written comment by November 15, 
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 District of Columbia Department of Public Health, Air Quality 
Division, 51 N Street, N.E., Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT: Paresh R. Pandya, Permits and 
Technical Assessment Branch at (215) 814-2167 or by e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION: On May 21, 2001, August 30, 2001, and 
September 26, 2001, the District of Columbia 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 the District of Columbia'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

[[Page 52539]]

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 permitting authority revising its 
program to correct those programmatic deficiencies that prevented full 
approval. The District of Columbia'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 August 7, 1995. [See 60 FR 40101.] The interim 
approval notice identified 29 outstanding deficiencies that had to be 
corrected in order for the District of Columbia's program to receive 
full approval. On May 21, 2001, August 30, 2001, and September 26, 
2001, the District of Columbia submitted amendments to its operating 
permit program to EPA to address its outstanding program deficiencies.
    The District of Columbia's May 21, 2001, August 30, 2001, and 
September 26, 2001 submittals satisfy the District's requirement to 
submit program amendments to EPA for action 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, dated May 22, 2000].

What Is Being Addressed in This Document?

    On May 21, 2001, August 30, 2001, and September 26, 2001, the 
District of Columbia submitted amendments to its currently EPA-approved 
title V operating permit program. In general, the District of Columbia 
amended its operating permit program regulations to address 
deficiencies identified by EPA when it granted final interim approval 
of the District of Columbia'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 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 the District of Columbia'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 
the District of Columbia'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 
the District of Columbia's operating permit program only addresses 
program deficiencies identified when EPA granted interim approval to 
the District of Columbia's program in 1995. Therefore, any persons 
wishing to comment on this action should do so at this time.

What Changes to the District of Columbia's Program Is EPA 
Approving?

    The EPA has reviewed the District of Columbia's May 21, 2001, 
August 30, 2001, and September 26, 2001 program amendments in 
conjunction with the portion of the District of Columbia's program that 
was earlier approved on an interim basis. Based on this review, EPA is 
granting full approval of the District of Columbia's amended operating 
permit program. The EPA has determined that the amendments to the 
District of Columbia's operating permit program adequately address the 
29 deficiencies identified by EPA in its August 7, 1995 rulemaking 
granting interim approval. The District of Columbia's operating permit 
program, including the amendments submitted on May 21, 2001, August 30, 
2001, and September 26, 2001, fully meets the minimum requirements of 
40 CFR part 70.

Changes to the District of Columbia's Program That Correct Interim 
Approval Deficiencies

    The interim approval deficiencies identified by EPA in 60 FR 40101 
(August 7, 1995) are listed in each of the 29 headings below.
1. Rename District of Columbia Municipal Regulations 20 DCMR 399.1 
Definition of ``Emissions Emissions'' to ``Fugitive Emissions''
    The District of Columbia revised 20 DCMR 399.1 to properly identify 
the definition of ``fugitive emissions.''

[[Page 52540]]

2. Revise 20 DCMR 399.1 Definition of ``Title I Modification or 
Modification Under Any Provision of Title I of the Act'' To Include 
Changes Reviewed Under Minor New Source Review (if EPA Establishes Such 
a Change in Definition Through Rulemaking)
    Since EPA has yet to revise the definition of a ``Title I 
modification'' to include changes subject to minor new source review, 
the District's current regulations are consistent with 40 CFR part 70. 
Should EPA revise this definition in the future, the District will be 
required to revise its regulations as appropriate.
3. Modify 20 DCMR 301.1(b)(6)(B) To Clarify That Applications for 
Permit Renewal Must Contain Both a Compliance Plan and a Compliance 
Certification
    The District of Columbia has revised 20 DCMR 301.1(b)(6) to add a 
new section 301.1(b)(6)(C) that requires permit renewal applications to 
contain compliance certifications, as specified by section 301.3(i). 
Compliance plans continue to be required by 20 DCMR 301.1(b)(6)(B). 
This amendment makes the District of Columbia's program consistent with 
40 CFR 70.7(c)(1)(i) with regard to permit renewal requirements.
4. Revise 20 DCMR 301.3(c)(1) To Ensure That All Applicable 
Requirements Will Be Described in Permit Applications
    Title 20 DCMR 301.3(c)(1) contained the following exception 
regarding permit application requirements ``* * * except where the 
units are exempted under this subsection or section 300.2''. The 
District of Columbia revised section 301.3(c)(1) to delete this 
language related to exemptions. By removing this statement, all 
applicable requirements must be described in permit applications, 
without exception. This revision makes the District of Columbia's 
program consistent with 40 CFR 70.5(c).
5. Revise 20 DCMR 301.3(g) To Correct Misreferenced Sections of the 
District's Regulations Which Address Alternate Operating Scenarios and 
Emissions Trading
    Title 20 DCMR 301.3(g) contained two misreferenced sections. An 
incorrect reference to section 302.1(i) has been changed to 302.1(j) 
regarding alternative operating scenarios and an incorrect reference to 
section 302.1(j) has been changed to 302.1(k) regarding defining permit 
terms and conditions allowing emissions trading. This amendment makes 
the District of Columbia's program consistent with 40 CFR 70.5(c)(7), 
70.4(b)(12)(iii), and 70.6 (a)(10).
6. Revise 20 DCMR 301.3(h)(3)(C) To Clarify That Any Schedule of 
Compliance Shall Be Supplemental to and Shall Not Sanction 
Noncompliance With the Applicable Requirements on Which It Is Based
    The District of Columbia revised 20 DCMR 301.3(h)(3)(C) to include 
the following language: ``Any schedule of compliance shall be 
supplemental to, and shall not sanction noncompliance with, the 
applicable requirements on which it is based.'' This amendment makes 
the District of Columbia's program consistent with 40 CFR 
70.5(c)(8)(iii)(C).
7. Revise 20 DCMR 302.1(k) To Clarify That Terms and Conditions for the 
Trading or Averaging of Emissions Must Meet All Applicable Requirements 
and the Requirements of the Operating Permits Program
    The District of Columbia revised 20 DCMR 302.1(k) to include the 
following language: ``The terms and conditions for the trading or 
averaging of emissions shall meet all applicable requirements and the 
requirements of the operating permits program.'' This amendment makes 
the District of Columbia's program consistent with 40 CFR 
70.6(a)(10)(iii).
8. Renumber 20 DCMR 302.3(e)(6) to 302.3(f)
    The District of Columbia renumbered 20 DCMR 302.3(e)(6) to 
302.3(f).
9. Revise 20 DCMR 302.4(e) To Clarify That Requests for Coverage Under 
a General Permit Must Meet the Permit Application Requirements of Title 
V of the Clean Air Act, and Include All Information Necessary To Assure 
Compliance With the General Permit
    The District of Columbia revised 20 DCMR 302.4(e) to require 
subject sources to meet the general permit qualification criteria and 
application requirements and that sources covered by the general permit 
must be in compliance with the general permit. This amendment makes the 
District of Columbia's program consistent with 40 CFR 70.6(d)(2).
10. Restructure 20 DCMR 302.8 Pertaining to Operational Flexibility in 
Accordance With the Structure of 40 CFR Part 70 Operational Flexibility 
Provisions
    The EPA indicated that the District should restructure 20 DCMR 
302.8 pertaining to operational flexibility in accordance with the 
structure of 40 CFR part 70 provisions for operational flexibility. The 
District of Columbia provided a legal opinion on the adequacy of its 
air quality regulations regarding operational flexibility dated 
September 26, 2001. In its legal opinion, the District compared each of 
the requirements of 40 CFR 70.4(b)(12) to the requirements in 20 DCMR 
302.8. The District's legal opinion clarifies that the District's 
regulations pertaining to operational flexibility are functionally 
equivalent to the federal requirements. With the clarifying opinion 
from the District, the restructuring of section 302.8 is not necessary. 
The District of Columbia's program is consistent with 40 CFR 70.4 with 
regard to operational flexibility.
11. With Respect to 20 DCMR 302.8, Clarify That Compliance With 
Emissions Trading Provisions in a Permit Will Be Determined According 
to Requirements of the Applicable State Implementation Plan (SIP)/
Federal Implementation Plan (FIP) or Applicable Requirements 
Authorizing the Emissions Trade
    The District of Columbia provided a legal opinion on the adequacy 
of its air quality regulations regarding operational flexibility dated 
September 26, 2001. The District's legal opinion states that 20 DCMR 
302.8 is substantially similar to 40 CFR 70.4(b)(12). One of the 
purposes of 20 DCMR 302.8(b) and 40 CFR 70.4(b)(12)(ii)(B) is to enable 
permitted sources to trade increases and decreases in emissions. 
However, the federal regulations explicitly provide that the trades 
shall be determined according to requirements of the applicable 
implementation plan authorizing the emissions trade. The District's 
regulations refer to compliance with ``applicable requirements'' 
instead of directly referencing the District's SIP. The term 
``applicable requirements,'' however, is a defined term in 20 DCMR 399 
and includes the requirements of the District's approved SIP. The 
District's legal opinion states that the District's regulations, by 
requiring emission trades to comply with ``applicable requirements,'' 
also requires compliance with the District's SIP. Therefore, the 
District interprets its operational flexibility provisions to require 
that a source wishing to trade emissions first have that authority 
under the District's SIP and provide written notice of that authority 
pursuant to the SIP. With this clarification, the District of 
Columbia's program is consistent with 40 CFR 70.4 with regard to 
emissions trading.

[[Page 52541]]

12. Revise 20 DCMR 303.1(f) and 303.1(d)(1) To Ensure That the Part 70 
Permit Issuance Deadlines Will Be Met
    Title 20 DCMR 303.1(f) provides that the Mayor shall transmit a 
proposed permit, permit modification, or renewal to the Administrator 
no later than 45 days before the appropriate deadline for permit 
issuance. Section 303.1(d)(1) provides that the proposed permit, 
modification, or renewal shall be issued no later than 45 days 
preceding the respective deadlines for permit issuance, modifications 
and renewals. The District of Columbia revised 20 DCMR 303.1(f) and 
303.1(d)(1) to ensure that the part 70 permit issuance deadlines will 
be met. This amendment makes the District of Columbia's program 
consistent with 40 CFR 70.4(b)(6).
13. Modify 20 DCMR 303.3(a) To Clarify That Public Participation and 
EPA and Affected State Review Will Apply to the Entire Draft Renewal 
Permit, Including Those Portions Which Are Incorporated by Reference
    The District of Columbia revised 20 DCMR 303.3(a) to clarify that 
applications for permit renewal and renewal permits in their entirety 
must be subject to the same procedural requirements, including those 
for public participation, affected state review and EPA review that 
apply to initial permit issuance. This amendment makes the District of 
Columbia's program consistent with 40 CFR 70.7(c)(1)(i).
14. Revise 20 DCMR 303.5(d)(1) To Require the Use of the Significant 
Permit Modification Procedures for any Type of Change Which Does Not 
Qualify as Either a Minor Permit Modification or an Administrative 
Amendment
    The District of Columbia revised 20 DCMR 303.5(d)(1) by adding 
303.5(d)(1)(E) requiring that significant modification procedures shall 
be used for applications requesting permit modifications that do not 
qualify as administrative permit amendments or minor permit 
modifications. This amendment makes the District of Columbia's program 
consistent with 40 CFR 70.7(e).
15. Revise 20 DCMR 303.10 To Provide for Sending Notice to Persons on a 
Mailing List Developed by the Permitting Authority, Including Those 
People Who Request in Writing To Be on the List
    The District of Columbia revised the public participation 
procedures of 20 DCMR 303.10(a) to require the District to send notices 
of permit actions to persons on a mailing list developed by the Mayor, 
including those who request in writing to be on the list pursuant to 20 
DCMR 303.10(a)(2). This amendment makes the District of Columbia's 
program consistent with 40 CFR 70.7(h)(1).
16. Revise 20 DCMR 303.10(a)(1)(B) to Require the Notice To Include 
Procedures To Request a Hearing in the Event That a Hearing Has Not 
Been Scheduled
    The District of Columbia revised 20 DCMR 303.10(a)(1)(B) to 
establish procedures for the public to request a hearing on a permit 
action if the Mayor has not scheduled a hearing. This amendment makes 
the District of Columbia's program consistent with 40 CFR 70.7(h)(2).
17. Revise 20 DCMR 303.10 To Include a Provision That Requires Notice 
of a Public Hearing at Least 30 Days in Advance of the Hearing
    The District of Columbia revised 20 DCMR 303.10(a)(1) by adding 
303.10(a)(1)(C) requiring that any notice of a public hearing be 
published at least 30 days in advance of the hearing. This amendment 
makes the District of Columbia's program consistent with 40 CFR 
70.7(h)(4).
18. Clarify That the Average 1989 Consumer Price Index (CPI) Value Will 
Be Used for the Purposes of Calculating the CPI Fee Adjustment
    Each title V source in the District of Columbia is provided the 
updated adjusted annual fee calculation each year by the District. The 
District of Columbia adjusts the annual fee based on the CPI-Urban 
Index that represents the12-month average from September through August 
of the following year. The District uses the same presumptive minimum 
fee that is computed by EPA each year. With this clarification, the 
District of Columbia's program is consistent with 40 CFR 
70.9(b)(2)(iv).
19. Revise 20 DCMR 305.1 To Ensure That Provisions for Equivalent Fee 
Schedules Are Enforceable as a Practical Matter or Remove Section 305.1 
Language ``or the Equivalent Over Some Other Period''
    The District of Columbia revised 20 DCMR 305.1 to remove ``or the 
equivalent over some other period.'' The revised 20 DCMR 305.1 now 
reads as follows: ``Owners or operators of Part 70 sources shall pay 
annual fees of twenty-five dollars ($25) per year (as adjusted pursuant 
to the criteria set forth in section 305.2) times the total tons of 
actual emissions of each regulated pollutant (for presumptive fee 
calculation purposes) emitted from Part 70 sources.'' This amendment 
makes the District of Columbia's program consistent with 40 CFR 70.9.
20. Revise the Corporation Counsel's Opinion to Reference Existing 
Provisions in District of Columbia Law Which Satisfy the Requirements 
of 40 CFR 70.11(a)(1) and (2), or Establish Authorities To Restrain or 
Enjoin Immediately Permit Violators Presenting Substantial 
Endangerment, and to Seek Injunctive Relief for Program and Permit 
Violations Without the Need for Prior Revocation of the Permit
    The EPA determined that the provisions cited in the Corporation 
Counsel's opinion of January 13, 1994 did not specifically identify 
authorities to restrain or enjoin immediately permit violators without 
the need for prior revocation of the permit. EPA added that if such 
enforcement authority existed, the District must clearly establish that 
the authority extends to Chapter 3 of Title 20 DCMR. The Corporation 
Counsel in its ``May 2001 Amendment to `Corporation Counsel's (Attorney 
General's) Legal Opinion' submitted to the United States Environmental 
Protection Agency, Region III, by letter dated January 13, 1994'', 
cites to several provisions in the District's Air Pollution Control Act 
implementing regulations and to the Home Rule Act, approved December 
24, 1973 (87 Stat. 813; D.C. section102(a)) that provide the necessary 
authorities. Specifically, the Corporation Counsel identifies the 
following authorities in the implementing regulations of the Air 
Pollution Control Act: (1) 20 DCMR 102.3 provides that the Mayor may 
seek ``enforcement of this subtitle by injunctive relief or other 
appropriate remedy; (2) 20 DCMR 401.10 authorizes the Mayor to issue 
emergency orders forbidding operation where the Mayor finds that a 
situation is causing or contributing to air pollution, or has the 
potential to do so; and, (3) 20 DCMR 401.12 provides that nothing shall 
preclude the Mayor from seeking relief or remedy, other than penalties, 
that is provided for by law. The Corporation Counsel further states 
that 20 DCMR 102.3 extends to all chapters in Subtitle A of the Air 
Pollution Control Act, including Chapter 3. With this clarification, 
the District of Columbia's program is consistent with 40 CFR 70.11.

[[Page 52542]]

21. Amend Subtitle I of 20 DCMR To Specifically Address the Types of 
Violations for Which Civil Fines Are Recoverable, or Otherwise Have the 
Corporation Counsel Demonstrate That 20 DCMR 100.6 Applies to Each of 
the Specific Types of Violations Mentioned in 40 CFR 70.11(a)(3)(i)
    EPA requested that the District of Columbia clarify that civil 
fines are recoverable for the violations enumerated in 40 CFR 
70.11(a)(3)(i). The Corporation Counsel in its ``May 2001 Amendment to 
`Corporation Counsel's (Attorney General's) Legal Opinion' submitted to 
the United States Environmental Protection Agency, Region III, by 
letter dated January 13, 1994'', cites to several provisions in its Air 
Pollution Control Act implementing regulations for the required 
authority. Specifically, the Corporation Counsel indicates that 20 DCMR 
100.6 and 105.1 authorize the imposition of civil fines for each of the 
violations listed in 40 CFR 70.11(a)(3)(i), including a violation of 
any applicable requirement as defined in 20 DCMR 399, any permit 
condition, including any requirement in 20 DCMR 302; any fee or filing 
requirement as provided in 20 DCMR 301 and 305; any duty to allow or 
carry out inspection, entry or monitoring activities as provided in 20 
DCMR 302.3; or, any regulation or orders issued by the Mayor pursuant 
to 20 DCMR 102 and 104.10. In addition, according to the Corporation 
Counsel, 20 DCMR 100.6 and 105.2 authorize the imposition of civil 
fines, penalties and fees as alternative sanctions for violations of 
the Air Pollution Control Act's implementing regulations using the 
process of scheduling and enforcing these fines under the Civil 
Infractions Act. With this clarification, the District of Columbia's 
program is consistent with 40 CFR 70.11(a)(3).
22. Establish Civil Enforcement Authority for the Collection of 
Penalties in a Maximum Amount of Not Less Than $10,000 Per Day Per 
Violation
    EPA requested that the District of Columbia establish civil 
enforcement authority for the collection of penalties in the maximum 
amount of not less than $10,000 per day per violation. The District 
revised 20 DCMR 105.5 to require that ``[i]n the event of any violation 
of, or failure to comply with, the air quality provisions of this title 
[which includes Subtitle A thereof, the Air Pollution Control Act's 
implementing regulations], each and every day of the violation or 
failure shall constitute a separate offense, and the penalties 
described in 20 DCMR 105.1 shall be applicable to each separate 
offense.'' The Corporation Counsel in its ``May 2001 Amendment to 
`Corporation Counsel's (Attorney General's) Legal Opinion' submitted to 
the United States Environmental Protection Agency, Region III, by 
letter dated January 13, 1994'' stated that civil fines are recoverable 
under 20 DCMR 100.6, 105.1, 105.2, and 105.5 in the amount of $10,000 
per day per violation for failure to comply with 20 DCMR including the 
Air Pollution Control Act's implementing regulations in 20 DCMR 
Subtitle A as required by 40 CFR 70.11(a)(3)(i). This amendment makes 
the District of Columbia's program consistent with 40 CFR 70.11(a)(3).
23. Establish Regulatory Provisions for Strict Civil Liability, or 
Provide a Demonstration From the Corporation Counsel That Mental State 
Is Not Allowed as an Element of Proof for Civil Violations
    With respect to the 20 DCMR 100.6 civil enforcement authority, EPA 
requested that the District of Columbia clarify that mental state is 
not allowed as an element of proof for civil violations. The 
Corporation Counsel in its ``May 2001 Amendment to `Corporation 
Counsel's (Attorney General's) Legal Opinion' submitted to the United 
States Environmental Protection Agency, Region III, by letter dated 
January 13, 1994'' states that 20 DCMR 100.6, 105.1 and 105.2 do not 
include mental state as an element of proof of civil violations. 
District laws and regulations enacted to protect the public health and 
safety (among other purposes), including those of 20 DCMR Subtitle A 
are generally construed as strict liability violations for purposes of 
civil proceedings. With this clarification, the District of Columbia's 
program is consistent with 40 CFR part 70.
24. Amend Subtitle I of 20 DCMR to Specifically Address the Types of 
Knowing Violations for Which Criminal Fines Are Recoverable, or Have 
the Corporation Counsel Demonstrate That Section 105.1 Applies to Each 
of the Specific Types of Knowing Violations Mentioned in 40 CFR 
70.11(a)(3)(ii) and (iii)
    The EPA requested that the District of Columbia clarify that 
criminal fines are recoverable for each of the specific types of 
knowing violations mentioned in 40 CFR 70.11(a)(3)(ii) and (iii). The 
Corporation Counsel in its ``May 2001 Amendment to `Corporation 
Counsel's (Attorney General's) Legal Opinion' submitted to the United 
States Environmental Protection Agency, Region III, by letter dated 
January 13, 1994'' states that criminal penalties are recoverable under 
20 DCMR 105.1 for all the violations enumerated in 40 CFR 
70.11(a)(3)(ii), which include any applicable requirement (as defined 
in 20 DCMR 399); any permit condition (including any requirement in 20 
DCMR 302); and, any fee or filing requirement (as provided in 20 DCMR 
301 and 305). The Corporation Counsel further states that 20 DCMR 105.1 
allows for recovery of criminal penalties for all the violations 
enumerated in 40 CFR 70.11(a)(3)(iii), which include making a false 
statement, representation or certification in any form, in any notice 
or report required by a permit (prohibited by 20 DCMR 105.1) or 
knowingly rendering inaccurate any required monitoring device or method 
(prohibited by 20 DCMR 107.1). With this clarification, the District of 
Columbia's program is consistent with 40 CFR 70.11.
25. Revise Criminal Enforcement Provisions To Authorize the Collection 
of Penalties in a Maximum Amount of Not Less Than $10,000 Per Day Per 
Violation
    The EPA requested that the District of Columbia revise 20 DCMR 
105.1 to provide for the recovery of criminal fines at a maximum amount 
of $10,000 per day per violation as required by 40 CFR 70.11(a)(3)(i) 
for the violations enumerated in 40 CFR 70.11(a)(3)(ii) and (iii). The 
District revised 20 DCMR 105 by adding 105.5. The Corporation Counsel 
in its ``May 2001 Amendment to `Corporation Counsel's (Attorney 
General's) Legal Opinion' submitted to the United States Environmental 
Protection Agency, Region III, by letter dated January 13, 1994'' 
states that pursuant to 20 DCMR 105.5, ``[i]n the event of any 
violation of, or failure to comply with, the air quality provisions of 
this title [which includes Subtitle A thereof, the Air Pollution 
Control Act's implementing regulations], each and every day of the 
violation or failure shall constitute a separate offense, and the 
penalties described in 20 DCMR 105.1 shall be applicable to each 
separate offense.'' This amendment makes the District of Columbia's 
program consistent with 40 CFR 70.11(a)(3).

[[Page 52543]]

26. Amend 20 DCMR 303.11 To Clarify That When the Mayor Fails To Issue 
or Deny a Permit Within the Required Deadline, This Failure Can Be 
Challenged Any Time Before the Permitting Authority Denies the Permit 
or Issues the Final Permit
    The District of Columbia revised 20 DCMR 303.11 by deleting 
303.11(c) and restructuring 303.11(a) to clarify that when the Mayor 
fails to issue or deny a permit within the required deadline, this 
failure can be challenged any time before the permitting authority 
denies the permit or issues the final permit. The permit program 
regulations now provide that no application for judicial review may be 
filed more than 90 days following the final action on which the review 
is sought, unless the final action being challenged is the Mayor's 
failure to take final action, in which case an application for judicial 
review may be filed any time before the Mayor denies the permit or 
issues the final permit. This amendment makes the District of 
Columbia's program consistent with 40 CFR 70.4.
27. Clarify the Specific Responsibilities and Procedures for 
Coordination Regarding the Engineering and Planning Branch (EPB) and 
the Compliance and Enforcement Branch (CEB) Involvement in Compliance 
and Enforcement Activities for Part 70 Sources. Such a Clarification 
Must Demonstrate That Compliance and Enforcement Activities Will Be 
Fully Supported by Title V Fees
    The District of Columbia's management of its operating permit 
program is divided between the EPB and the CEB. EPB, under the 
supervision of the branch chief, is responsible for permit issuance; 
modifications and renewals; inventory management; and, the annual fee 
computation. Likewise, under the supervision of the branch chief, CEB 
is responsible for plant inspections; receipt and review of semi-annual 
and annual compliance reports and certifications; review and approval 
of testing protocols; compliance determinations; issuance of citations 
to violators; participation in hearings; and, transmittal of 
enforcement data to EPA. Both branches are supported by the Office of 
the Program Manager (OPM) and the attorney advisor in the Air Quality 
Division (AQD). Staff from EPB, CEB, and OPM who work on title V 
activities, including compliance and enforcement activities charge the 
time expended on such tasks to the title V account to reflect direct 
salary, fringe benefits and indirect costs (to cover overhead, such as 
utilities, rental, telephone and supplies). Other AQD supervisors and 
advisors who provide applicable title V services also charge their time 
appropriately, inclusive of fringe benefits and indirect costs. The 
number of hours worked on title V activities during each pay period are 
submitted on time sheets. With this clarification, the District of 
Columbia's program is consistent with 40 CFR 70.9(c).
28. Submit Additional Information Regarding How the District Will 
Monitor and Track Source Compliance or Reference Any Agreement the 
District Has With EPA That Provides This Information
    The District of Columbia's Compliance & Enforcement Branch (CEB) is 
responsible for ensuring source compliance with the applicable 
requirements of title V permits. This is accomplished through annual 
on-site inspections, review of semi-annual and annual certification 
reports, and pursuit of enforcement actions. Existing EPA and District 
of Columbia agreements require the District to submit a compliance 
monitoring strategy, which includes detailed information about sources 
targeted for inspections. These existing agreements require the 
District to submit semi-annual enforcement reports, to participate in 
quarterly enforcement program reviews, and to report inspection 
compliance and enforcement data. With this clarification, the District 
of Columbia's program is consistent with 40 CFR part 70.
29. Clarify That Information on the District's Enforcement Activities 
Will Be Submitted to EPA at Least Annually
    The District of Columbia reports enforcement activities, including 
specific information required by 70.4(b)(9) to EPA primarily by way of 
the Aerometric Information Retrieval System/AIRS Facility Subsystem 
(AIRS/AFS). With this clarification, the District of Columbia's program 
is consistent with 40 CFR part 70.

What Action Is Being Taken By EPA?

    The District of Columbia has satisfactorily addressed the program 
deficiencies identified when EPA granted final interim approval of its 
operating permit program on August 7, 1995. The operating permit 
program amendments that are the subject of this document considered 
together with that portion of the District of Columbia'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 
District of Columbia 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 30, 2001 without 
further notice unless EPA receives adverse comment by November 30, 
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 Fed. Reg. 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

[[Page 52544]]

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 17, 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 the District of Columbia'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.

    Dated: October 10, 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) to the 
entry for the District of Columbia to read as follows:

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

* * * * *

District of Columbia

* * * * *
    (b) The District of Columbia Department of Health submitted 
program amendments on May 21, 2001, August 30, 2001, and September 
26, 2001. The rule amendments contained in the May 21, 2001, August 
30, 2001, and September 26, 2001 submittals adequately addressed the 
conditions of the interim approval effective on September 6, 1995. 
The District of Columbia is hereby granted final full approval 
effective on November 30, 2001.
* * * * *
[FR Doc. 01-26097 Filed 10-15-01; 8:45 am]
BILLING CODE 6560-50-P