[Federal Register Volume 66, Number 212 (Thursday, November 1, 2001)]
[Rules and Regulations]
[Pages 55112-55115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27281]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[PA-T5-AC2001a; FRL-7093-3]


Clean Air Act Full Approval of Partial Operating Permit Program; 
Allegheny County; Pennsylvania

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: EPA is taking direct final action fully approving a partial 
operating permit program under title V of the Clean Air Act (the Act). 
This program will allow the Allegheny County Health Department (ACHD), 
located in the Commonwealth of Pennsylvania, to issue federally 
enforceable operating permits to all major stationary sources and 
certain other affected minor sources in its jurisdiction. The ACHD's 
operating permits program was submitted to EPA by the Commonwealth of 
Pennsylvania on behalf of Allegheny County. By this same rulemaking, 
EPA is also withdrawing its previously published notice of proposed 
rulemaking dated December 6, 1999. Any parties interested in commenting 
on this rulemaking granting full approval to the ACHD's operating 
permits program should do so at this time.

DATES: This rule is effective on December 17, 2001 without further 
notice, unless EPA receives adverse written comment by December 3, 
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 the Allegheny County Health Department Bureau of Environmental 
Quality, Division of Air Quality, 301 39th Street, Pittsburgh, 
Pennsylvania 15201.

FOR FURTHER INFORMATION CONTACT: Linda Miller, Permits and Technical 
Assessment Branch at (215) 814-2068 or by e-mail at 
[email protected]. Please note that comments on this rule must be 
submitted, in writing, as indicated in the ADDRESSES section of this 
document.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 9, 1998 and March 1, 2001, the Pennsylvania Department 
of Environmental Protection (PADEP) submitted a request on behalf of 
the Allegheny County Health Department (ACHD) for approval of a partial 
operating program pursuant to 40 CFR part 70 for Allegheny County (the 
County). The ACHD will be the permitting authority for the operating 
permit program. On December 6, 1999, EPA proposed approval of the 
County's partial operating permit program (64 FR 68066). The ACHD has 
subsequently revised its regulations. These revisions strengthen the 
ACHD's operating permitting program. In this final rulemaking, EPA is 
both withdrawing its previous proposal (64 FR 68066) and approving the 
County's part 70 operating permit program as submitted on November 9, 
1998 and amended on March 1, 2001.
    This section provides additional information on EPA's approval of 
the partial operating permit program by addressing the following 
questions:

    What is the operating permit program?
    What is a partial program approval?
    What are the operating permit program requirements?
    What is being addressed in this document?
    What is not being addressed in this document?

What Is the Operating Permit Program?

    The Clean Air Act Amendments of 1990 required all States to develop 
operating permit programs that meet established 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 or the Act). 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 Act 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 
in Allegheny County include, but are not limited to, those that have 
the potential to emit 50 tons per year or more of volatile organic 
compounds; 100 tons per year or more of certain other criteria 
pollutants; those that emit 10 tons per year of any single hazardous 
air pollutant (HAP) specifically listed under the Act, or those that 
emit 25 tons per year or more of a combination of HAPs. In an area not 
meeting the national ambient air quality standards (NAAQS) for ozone, 
carbon monoxide,

[[Page 55113]]

or particulate matter, major sources are defined by the area's 
nonattainment classification.

What Is a Partial Program Approval?

    The approved Pennsylvania part 70 operating permit program 
currently applies state-wide. A partial program approval means that a 
geographic region of Pennsylvania, Allegheny County, will have a 
separate program. The term ``partial'' is a geographic reference. It is 
not a reference to the approval status of the ACHD's program.

What Are the Operating Permit Program Requirements?

    The minimum program elements for an approvable operating permit 
program are those mandated by title V of the Act and in EPA's 
implementing regulations at CFR 40, part 70--``State Operating Permit 
Programs.'' Title V required state and provided for 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.'' EPA granted full 
approval of PADEP's operating permit program on August 26, 1996 (61 FR 
39597). That program currently applies in Allegheny County. The ACHD 
has adopted and requested approval of a separate program, referred to 
as a partial program. The PADEP has submitted a formal request to EPA 
for approval of a part 70 operating permit program for Allegheny 
County. EPA is approving this partial program for Allegheny County.
    The regulations for the Allegheny County part 70 permit program are 
found in the County's Air Pollution Control Regulations. Definitions 
for the air pollution control program are found in Part A of the 
regulations (2101.01 et seq.). A list of the County's definitions 
relevant to this rulemaking is included in the Technical Support 
Document (TSD) prepared by EPA in support of this rulemaking. Copies of 
that TSD may be obtained, upon request, from the EPA Regional Office 
listed in the ADDRESSES section of this document. Part C of the 
County's regulations focuses on requirements for operating permits for 
all sources of air pollution. Part C is divided into two subparts. 
Subpart 1 includes requirements for all operating permits, including 
part 70 sources. Subpart 2 includes additional, and in some cases, more 
extensive, requirements for part 70 operating permit sources.
    The County's program meets the minimum requirements of 40 CFR part 
70. Several provisions differ from, but have been determined to be 
consistent with, 40 CFR part 70, in scope and stringency. These areas 
are highlighted below:
A. Legal Opinion
    The legal opinion submitted by the County did not address the time 
frame required for petitions for judicial review and the judicial 
review requirements for failure to issue minor permits. However, as 
described below, the ACHD's regulations contain provisions which 
address the requirements:
    (1) Time frame for judicial review: Although the ACHD's operating 
permit program regulations do not specify the time frame for filing a 
petition for judicial review, the ACHD is generally subject to Article 
XI, Hearings and Appeals. In order to obtain judicial review, section 
1104(a) requires that an appellant must first file a notice of appeal 
to the Director of the ACHD and go through an administrative hearing 
process. The notice of appeal, as described in ACHD regulations, 
section 1104(b), requires the names, addresses, and telephone numbers 
of the appellant and his or her duly authorized attorney or agent, if 
any, and shall describe grounds for appeal. The notice of appeal must 
be filed no later than 10 days after written notice or issuance of the 
action by which the appellant is aggrieved. The remaining requirements 
for submission of information by the appellant is described in the 
procedures set forth in section 1105 of the ACHD's regulations. The 
ACHD regulations meet the requirement for initiating judicial review 
required by 40 CFR part 70.
    (2) Judicial review for failure to act on minor permits: The ACHD's 
program does not specifically address judicial review for failure to 
issue a minor permit modification as a separate appealable action. 
However, section 2103.14(c)(8) clearly requires final action within 60 
days for any proposed minor permit modification. Section 2103.11(f) 
states that the Department's failure to take final action is appealable 
and that the Court of Common Pleas may require action on the 
application without further delay. Therefore, the ACHD's regulations 
contain necessary authority to compel action on minor permit 
modifications.
B. Transition Plan
    The transition plan included in section 2103.01 of the ACHD's 
regulations specified deadlines for permit application submittal and 
permit issuance. These dates have passed. Nonetheless, EPA previously 
approved the Commonwealth of Pennsylvania's part 70 operating permit 
program on August 29, 1996 (see 61 FR 39598) which established 
deadlines for permit applications that applied state-wide. The ACHD's 
request to have partial program approval does not affect, or change in 
any way, the dates established in the Commonwealth's approved program.
C. De Minimis Changes
    The ACHD's program limits changes without a permit revision to de 
minimis levels in section 2103.14. The ACHD regulations allow a permit 
shield for de minimis changes, unless prohibited by the CAA. In this 
final rulemaking, EPA is clarifying that the Act's implementing 
regulations, 40 CFR part 70, do prohibit permit shield for de minimis 
changes to a title V permit.
D. Absence of Part 70 Emergency Defense Provisions
    The ACHD has incorporated most of the recordkeeping and reporting 
requirements required under part 70 for an emergency to be considered 
an affirmative defense. However, consistent with Pennsylvania's 
program, the ACHD program does not allow an emergency to be considered 
an affirmative defense. EPA clarified in its August 31, 1995 (60 FR 
45530) supplemental part 70 document that ``the part 70 rule does not 
require the States to adopt the emergency defense. A State may include 
such a defense in its part 70 program to the extent it finds 
appropriate, although it may not adopt an emergency defense less 
stringent than that set forth at 40 CFR 70.6 (g).'' As the adoption of 
emergency defense provisions under part 70 is discretionary, the ACHD's 
program is not inconsistent with part 70.
    A detailed description of Allegheny County'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.

What is Being Addressed in This Document?

    The November 5, 1998 submittal, as amended March 1, 2001, requested 
approval of numerous revisions of the Pennsylvania State Implementation 
Plan (SIP) as well as approval of the ACHD's operating permit program. 
This final rule addresses only the ACHD's part 70 operating permit 
program approval. The part 70 operating permit program is also referred 
to as the title V program, referencing the CAA citation for part 70 
operating permit programs.

[[Page 55114]]

What is Not Being Addressed in This Document?

    The November 9, 1998, submittal, as amended March 1, 2001, 
contained numerous requests for revisions to the Pennsylvania SIP, 
including a recodification of the regulations in general, amendments to 
major and minor new source review (NSR) and prevention of significant 
deterioration (PSD) programs, as well as requests for approval or 
delegation of programs under 40 CFR parts 52, 63 and part 70 permitting 
programs, and approval for delegation of programs under section 112 of 
the Act. These requests have been or will be the subjects of separate 
rulemakings.

II. Final Action

    EPA is taking direct final action fully approving a partial 
operating permit program to allow ACHD to issue operating permits to 
all major stationary sources in Allegheny County, Pennsylvania. In 
addition, EPA is withdrawing its proposed rule of December 6, 1999(64 
FR 68066). 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 December 17, 2001 
without further notice unless EPA receives adverse comment by December 
3, 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.

III. 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). For the same reason, 
this 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 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 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 programs, 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 submission for failure to use 
VCS. It would thus be inconsistent with applicable law for EPA, when it 
reviews an operating permit program, to use VCS in place of an 
operating permit program that otherwise satisfies the provisions of the 
Clean Air Act. Thus, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. 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. 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 31, 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 approving a partial title V operating 
permit program for the ACHD, Allegheny County, Pennsylvania 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 17, 2001.
James W. Newsom,
Acting 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:


[[Page 55115]]


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

    2. Appendix A to part 70 is amended by revising paragraph (b) in 
the entry for Pennsylvania to read as follows:

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

* * * * *

Pennsylvania

    (a) * * *
    (b) The Pennsylvania Department of Environmental Protection 
submitted a request on behalf of the Allegheny County Health 
Department pertaining to operating permit programs in the 
Commonwealth of Pennsylvania. The submission, dated November 9, 1998 
and amended March 1, 2001, includes a request for approval of a 
partial operating program pursuant to 40 CFR part 70 for Allegheny 
County. The Allegheny County Health Department's partial operating 
permit program is hereby granted full approval effective on December 
17, 2001.
* * * * *
[FR Doc. 01-27281 Filed 10-31-01; 8:45 am]
BILLING CODE 6560-50-P