[Federal Register Volume 66, Number 233 (Tuesday, December 4, 2001)]
[Rules and Regulations]
[Pages 62961-62967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29961]
[[Page 62961]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[VA-T5-2001-01a; FRL-7112-5]
Clean Air Act Full Approval of Operating Permit Program; Virginia
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; final full approval.
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SUMMARY: EPA is taking final action to grant full approval of the
Commonwealth of Virginia's operating permit program. The Commonwealth's
operating permit program was submitted in response to the Clean Air Act
(CAA) Amendments of 1990 that required each States to develop, and
submit to EPA, a programs for issuing operating permits to all major
stationary sources and to certain other sources within the State's
jurisdiction. The EPA granted final interim approval of Virginia's
operating permit program on June 10, 1997, as corrected on March 19,
1998. The Commonwealth of Virginia amended its operating permit program
to address the deficiencies identified in the interim approval, and
this final rulemaking action approves those amendments. The EPA
proposed full approval of Virginia's operating permit program in the
Federal Register on October 10, 2001. This final rulemaking summarizes
the adverse comments EPA received on the October 19, 2001 proposal,
provides EPA's responses, and promulgates final full approval of the
Commonwealth of Virginia's operating permit program.
DATES: This rule is effective on November 30, 2001.
ADDRESSES: 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 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?
Why is EPA taking this action?
What were the concerns raised by the commenters?
What action is being taken by EPA?
What is the effective date of EPA's full approval of the Virginia
operating permit program?
What is the scope of EPA's full approval?
What is the State Operating Permit Program?
The Clean Air Act (CAA) 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 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 the 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 or have the potential to 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, DC 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.
Why Is EPA Taking This Action?
Where a title V operating permit program substantially, but not
fully, met the criteria outlined in the implementing regulations
codified at 40 CFR part 70, EPA granted interim approval contingent
upon the State revising its program to correct the deficiencies.
Because the Virginia operating permit program substantially, but not
fully, met the requirements of part 70, EPA granted interim approval of
Virginia's program in a rulemaking published on June 10, 1997, as
corrected on March 19, 1998 (62 FR 31516 and 63 FR 13346,
respectively). The interim approval notice described the conditions
that had to be met in order for the Virginia operating permit program
to receive full approval. Interim approval of Virginia's operating
permit program expires on December 1, 2001.
EPA tentatively concluded that the Commonwealth of Virginia
fulfilled the conditions of the interim approval. Consequently, EPA
published a direct final rule on October 10, 2001 (66 FR 51581)
granting full approval of Virginia's operating permit program. However,
adverse comments were received in response to the companion proposal
notice that was also published on October 10, 2001 (66 FR 51620). The
direct final rule was withdrawn on November 21, 2001 (66 FR 58400). In
today's notice, EPA is responding to comments and taking final action
on the companion proposal.
On May 22, 2000, EPA promulgated a rulemaking that extended the
interim approval period of 86 operating permits programs until December
1, 2001 (65 FR 32035). The action was subsequently challenged by the
Sierra Club and the New York Public Interest Research Group (NYPIRG).
In settling the litigation, EPA agreed to publish a notice in the
Federal Register that would alert the public that they may identify and
bring to EPA's attention alleged programmatic and/or implementation
deficiencies in title V programs and that EPA would respond to their
allegations within specified time periods if the comments were made
within 90 days of publication of the Federal Register notice. That
notice was published on December 11, 2000 (65 FR 77376).
In response to the December 11, 2000 notice, several citizens
commented on what they believe to be deficiencies with respect to the
Virginia title V program. As stated in the Federal Register notice
published on October 10, 2001 (66 FR 51620) proposing to fully approve
Virginia's operating
[[Page 62962]]
permit program, EPA takes no action on those comments in this final
rulemaking action. Rather, EPA expects to respond by December 14, 2001
to timely public comments on programs that have obtained interim
approval. We will publish a notice of deficiency (NOD) when we
determine that a deficiency exists, or we will notify the commenter, in
writing, to explain our reasons for not making a finding of deficiency.
In addition, we will publish a notice of availability in the Federal
Register notifying the public that we have responded, in writing, to
these comments and how the public may obtain a copy of our response. A
NOD will not necessarily be limited to deficiencies identified by
citizens, and may include any deficiencies that we have identified
through our program oversight. Furthermore, in the future, EPA may
issue an additional NOD if EPA or a citizen identifies other
deficiencies. The process for issuance of NODs is discussed in greater
detail below.
What Were the Concerns Raised by the Commenters?
EPA received two comment letters during the public comment period.
The Virginia Manufacturers Association provided a letter dated November
9, 2001 stating its support of EPA's action to grant full approval of
Virginia's operating permit program. Since this letter did not raise
any concerns with the proposed action, no response is necessary.
EarthJustice provided comments on behalf of the Virginia Chapter of the
Sierra Club dated November 9, 2001. In its November 9, 2001 letter,
EarthJustice incorporated, by reference, its prior comments submitted
to EPA pursuant to other actions taken by the Agency regarding
Virginia's operating permit program. Those comments were submitted in
letters as follows: (a) Letter of March 12, 2001 commenting in response
to EPA's December 11, 2000 Federal Register notice (65 FR 77376) which
announced a 90-day comment period for the public to identify
deficiencies in State and Local agency operating permits programs; and
(b) Letter of November 2, 2001 regarding EPA's October 3, 2001 notice
of proposed rulemaking approving revisions to the Virginia title V
program (66 FR 50375).
Copies of each of these letters are included in the docket file
maintained at the EPA Region III office. The following is a discussion
of the issues raised in EarthJustice's November 9, 2001 letter and
EPA's responses.
Comment: The commenter indicates that EPA cannot grant full
approval of the Virginia title V operating permit program without first
addressing all alleged deficiencies identified by EarthJustice in its
prior comment letters.
Response: EPA is aware that comments have been made regarding
alleged deficiencies other than those listed in Virginia's June 10,
1997 interim approval. EPA agrees that these allegations must be
addressed through appropriate actions by EPA and/or the Commonwealth of
Virginia. For the reasons discussed below, however, we disagree that
newly alleged or formally identified deficiencies prohibit EPA from
granting full approval of Virginia's operating permit program at this
time.
In 1990, Congress amended the Clean Air Act, 42 U.S.C. 7401 to
7671q, by adding title V, 42 U.S.C. subsections 7661 to 7661f, which
requires certain air pollutant emitting facilities, including ``major
source[s]'' and ``affected source[s],'' to obtain and comply with
operating permits. See 42 U.S.C. subsection 7661a(a). Title V is
intended to be administered by local, state or interstate air pollution
control agencies, through permitting programs that have been approved
by EPA. See 42 U.S.C. subsection 7661a(a). EPA is charged with
overseeing the State's efforts to implement an approved program,
including reviewing proposed permits and objecting to improper permits.
See 42 U.S.C. subsections 7661a(i) and 7661d(b). Accordingly, title V
of the CAA provides a framework for the development, submission and
approval of State operating permit programs. Following the development
and submission of a State program, the Act provides two different
approval options that EPA may utilize in acting on State submittals.
See 42 U.S.C. subsection 7661a(d) and (g). Pursuant to section 502(d),
EPA ``may approve a program to the extent that the program meets the
requirements of the Act * * * '' EPA may act on such program submittals
by approving or disapproving, in whole or in part, the State program.
An alternative option for acting on State programs is provided by the
interim approval provision of section 502(g). This section states: ``If
a program * * * substantially meets the requirements of this title, but
is not fully approvable, the Administrator may by rule grant the
program interim approval.'' This provision provides EPA with the
authority to act on State programs that substantially, but do not
fully, meet the requirements of title V and part 70. Only those program
submittals that meet the requirements of eleven key program areas are
eligible to receive interim approval. See 40 CFR subsection
70.4(d)(3)(i)-(xi). Finally, section 502(g) directs EPA to ``specify
the changes that must be made before the program can receive full
approval.'' 42 U.S.C. subsection 7661a(g); 40 CFR subsection
70.4(e)(3). This explicit directive encompasses another, implicit one:
Once a State corrects the specified deficiencies then it will be
eligible for full program approval. EPA believes this is so even if
deficiencies have been identified sometime after final interim
approval, either because the deficiencies arose after EPA granted
interim approval or, if the deficiencies existed at that time, EPA
failed to identify them as such in proposing to grant interim approval.
Thus, an apparent tension exists between these two statutory
provisions. Standing alone, section 502(d) appears to prevent EPA from
granting a State operating permit program full approval until the State
has corrected all deficiencies in its program no matter how
insignificant, and without consideration as to when such deficiency was
identified. Alternatively, section 502(g) appears to require that EPA
grant a State program full approval if the State has corrected those
issues that the EPA identified in the final interim approval. The
central question, therefore, is whether Virginia, by virtue of
correcting the deficiencies identified in the final interim approval,
is eligible at this time for full approval, or whether Virginia must
also addresses any newly alleged or recently identified deficiencies as
a prerequisite to receiving full program approval.
According to settled principles of statutory construction,
statutory provisions should be interpreted so that they are consistent
with one another. See Citizens to Save Spencer County v. EPA, 600 F.2d
844, 870 (D.C. Cir. 1979). Where an agency encounters inconsistent
statutory provisions, it must give maximum possible effect to all of
the provisions, while remaining within the bounds of its statutory
authority. Id. at 870-71. Whenever possible, the agency's
interpretation should not render any of the provisions null or void.
Id. Courts have recognized that agencies are often delegated the
responsibility to interpret ambiguous statutory terms in such a
fashion. See Chevron U.S.A, Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 845 (1984). Harmonious construction is not always
possible, however, and furthermore should not be sought if it requires
distorting the language in a fashion never imagined by Congress.
Citizens to Save Spencer County, 600 F.2d at 870.
In this situation, in order to give effect to the principles
embodied in title V of
[[Page 62963]]
the CAA that major stationary sources of air pollution be required to
have an operating permit that conforms to certain statutory and
regulatory requirements, and that operating permit programs be
administered and enforced by State permitting authorities, the
appropriate and more cohesive reading of the statute recognizes EPA's
authority to grant Virginia full approval in this situation while
working simultaneously with the State, in its oversight capacity, on
any additional problems that have been or may be identified. To
conclude otherwise would disrupt the current administration of the
State program and cause further delay in Virginia's ability to issue
operating permits to major stationary sources. A smooth transition from
interim approval to full approval is in the best interest of the public
and the regulated community and best reconciles the statutory
directives of title V of the CAA.
Furthermore, requiring the Commonwealth of Virginia to fix all of
the deficiencies that have been alleged or formally identified in the
past year in order to receive full approval runs counter to the
established regulatory process that is already in place to deal with
newly identified program deficiencies. Section 502(i)(4) of the Act and
40 CFR subsections 70.4(i) and 70.10 provides EPA with the authority to
issue NODs whenever EPA makes a determination that a permitting
authority is not adequately administering or enforcing an approved part
70 program, or that the State's permit program is inadequate in any
other way. Consistent with these provisions, any NOD issued by EPA will
specify a reasonable time-frame for the permitting authority to correct
the identified deficiency. The interim approval status of Virginia's
title V operating permit program expires on December 1, 2001. This
deadline would not provide adequate time for the Commonwealth to
correct any newly identified issues prior to the expiration of interim
approval. Allowing the Commonwealth's program to expire because of
issues alleged as recently as March 2001 and November 2001 will cause
disruption and further delay in the issuance of permits to major
stationary sources in Virginia. As explained above, we do not believe
that title V of the CAA requires such a result. Rather, the appropriate
mechanism for dealing with additional deficiencies that are identified
sometime after a program received interim approval but prior to being
granted full approval is the notice of program deficiency or
administration deficiency as discussed herein. It should be noted that
NODs may also be issued by EPA after a program has been granted full
approval. Following the defined process for the identification of
program issues and the issuance of NODs will provide the Commonwealth
an adequate amount of time after such findings to implement any
necessary changes without unduly disrupting the entire State operating
permit program. As a result, addressing any newly identified problems
separately from the full approval process will not cause these issues
to go unaddressed. To the contrary, if EPA determines that any of the
alleged deficiencies in Virginia's program are well-founded, it will
issue a NOD and place Virginia on notice that it must promptly correct
the non-interim approval deficiencies within a specified time period or
face CAA sanctions and withdrawal of program approval. At this time,
EPA is still evaluating the deficiencies alleged by the commenter and
others and will, in the very near future, respond to those allegations
in a separate action. The comments EPA received from EarthJustice on
March 12, 2001 mentioned above will be considered as part of that
separate action.
Virginia also made revisions to its operating permit program since
its program received interim approval in 1997. The revisions were not
intended to address any of the identified interim approval
deficiencies. Rather, the intent of these discretionary program changes
was to improve implementation of the existing program. In a rulemaking
action separate from this action granting full approval, EPA, in
accordance with 40 CFR subsection 70.4(i), proposed approval of those
revisions on October 3, 2001 (66 FR 50375). The EPA disagrees with the
commenter's assertion that the amendments Virginia made to its program
to address the identified interim approval deficiencies are
inextricable from the program revisions that are the subject of the
October 3, 2001 notice. The approval of the discretionary program
revisions is not necessary in order for Virginia to adequately address
its interim approval deficiencies, nor must they be approved prior to
Virginia receiving full approval. The EPA will proceed with the
appropriate administrative process to respond to any comments received
pursuant to the October 3, 2001 proposed rulemaking action on the
discretionary program revisions. The comments received from
EarthJustice on November 2, 2001 will be considered as when taking that
separate action.
Therefore, EPA disagrees with the commenter that EPA must consider
all program revisions and alleged deficiencies prior to granting full
approval of Virginia's operating permit program. The proper
administrative procedures have been followed to allow interested
parties an opportunity to identify any concerns they may have with the
various aspects of Virginia's title V operating permit program. The EPA
will address those concerns in the context of the relevant rulemaking
or administrative actions, including this final rule granting full
approval of Virginia operating permit program; the proposed rulemaking
action approving revisions to Virginia's program; and, the process of
responding to public comments pursuant to the December 11, 2000 notice
(65 FR 77376).
Comment: EarthJustice believes Virginia's insignificant activity
provisions for emergency generators are not consistent with title V of
the CAA. Specifically, the commenter believes that the potential
emissions generated by the types of internal combustion powered
generators as defined under 9 VAC 5-80-720 C 4 should not be eligible
to be classified as insignificant activities. Further, the commenter
contends that Virginia's regulations would allow these types of units
to emit pollutants at levels that would trigger title V requirements
and still be classified as insignificant activities because there are
no explicit restrictions on hours of operation or emissions for these
units.
Response: With regard to the emergency generators that are central
to EarthJustice's comment, EPA disagrees that emergency generators of
the size and fuel-use capability as specified by 9 VAC 5-80-720 C 4
have the potential for significant emissions. First, the regulations
specify that in order to be eligible for classification as
insignificant activities these types of emergency generators may only
be used when power is unavailable from the utility. If the facility in
question is not served by a utility, the generators would not qualify
as ``emergency'' generators because they would be the principal means
by which the facility generated electricity. The EPA interprets 9 VAC
5-80-720 C 4 as excluding generators at facilities not served by a
utility. Further, EPA is unaware of any facility in Virginia that is
currently required to obtain a title V operating permit that is not
served by a utility and the likelihood of such a title V source in the
future is negligible. Second, it is unlikely for facilities that are
provided power from a utility to need to use their emergency generators
in excess of 500 hours in any given year. In support of its guidance
document entitled, ``Calculating Potential to Emit (PTE) for
[[Page 62964]]
Emergency Generators'' (September 6, 1995 memorandum from John S.
Seitz, Director, EPA Office of Air Quality Standards and Planning to
Directors, EPA Regional Air Divisions), EPA determined that an
emergency generator would likely operate 500 hours per year or less
under worst case conditions. Therefore, the emergency generators
specified by Virginia's regulations would only be in operation for a
short time each year and the real potential for significant emissions
is minimal. Finally, an analysis of the potential emissions from
emergency generators of the size and fuel-type defined by 9 VAC 5080-
720 C 4 indicates that if any of these generators were to operate 500
hours in a particular year, the worst case potential emissions from any
of the classes of emergency generators would be six tons of nitrogen
oxides per year. For these reasons, EPA believes the classification of
emergency generators as defined in 9 VAC 5-80-720 C 4 as insignificant
activities is appropriate and consistent with title V and part 70. As
will be discussed in greater detail, the construction of Virginia's
insignificant activities regulations provides additional assurances
that emergency generators will not be incorrectly classified as
insignificant activities and that all necessary and relevant
operational and emissions data will be provided by applicants in order
to determine if these types of sources have any title V requirements.
The purpose of insignificant activities lists and designation of
units as insignificant activities is to enable permit applicants to
streamline their applications by allowing them to exclude certain
information and emissions data for individual emission units when such
information or data is not needed to determine whether applicable
requirements may apply to that unit or whether the source is a ``major
source'' according to title V and part 70. The identification of a
particular unit as an insignificant activity in no way relieves any
applicable requirement that may apply to that unit. The EPA disagrees
with the commenter's assertion that Virginia's permit program would
allow certain insignificant activities to operate in excess of levels
that would trigger title V requirements or ``major source''
requirements. While Virginia's operating permit program allows certain
activities to be classified as insignificant, it does not allow these
emission units to circumvent any applicable requirements of title V.
Virginia's program also provides safeguards to prevent the mis-
classification of units as insignificant and the omission of relevant
emission data from title V permit applications.
Virginia's operating permit program regulations address
insignificant activities in three ways. Virginia's regulations, at 9
VAC 5-80-720 A, provide a specific list of activities for which the
permit applicant does not have to include information regarding these
emission units in its title V permit application, including emission
levels. Virginia's program, at 9 VAC 5-80-720 B, also allows permit
applicants to identify emission units which fall below certain emission
thresholds as insignificant activities, but does not require specific
emission data for each of these units in the application. Finally,
under 9 VAC 5-80-720 C, emission units may be listed in the application
as insignificant activities if they fall below certain size or
production rates for specific categories of units. Pursuant to 9 VAC 5-
80-90 D and 9 VAC 5-80-440 D, the permit application must indicate the
size or production rate of each unit that is being classified as an
insignificant activity. The emergency generators that are the subject
of the commenter's concern fall into this last general category.
Virginia's operating permit program regulations at 9 VAC 5-80-90 D
and 9 VAC 5-80-440 D require that applicants must include any emissions
data or other relevant information that is necessary to determine
applicability of title V or of any other applicable requirements. As
part of this full approval action, EPA is approving amendments to
Virginia's regulations that clarify that permit applicants are
obligated to provide this type of information for all emission units,
including those that may be classified as insignificant activities.
Therefore, even if a specific unit may be classified as an
insignificant activity pursuant to 9 VAC 5-80-720, the applicant must
provide emissions data or other information if the omission of such
information would interfere with determining whether that unit has
applicable requirements that must be reflected in a title V permit.
Virginia also amended its regulations to require explicitly that all
applicable requirements for all emission units, including those for
insignificant activities must be contained in the title V permit. These
amendments were made to address interim approval issues and are more
fully discussed in the October 10, 2001 (66 FR 51581) direct final
rulemaking notice.
Virginia's insignificant activity regulations significantly
minimize the potential for inappropriate use of the insignificant
activities list and the other mechanisms for identifying insignificant
activities as provided in 9 VAC 5-80-720, including those for emergency
generators. The purpose of the title V permit application is to provide
all of the information necessary to develop a title V permit that
contains all of a given source's applicable requirements. Virginia's
regulations with regard to insignificant activities provide that all
information necessary to determine applicable requirements for
inclusion in title V permits must be provided by the applicant even if
a given unit can be identified as an insignificant activity. Therefore,
the various mechanisms to identify insignificant activities may be used
by the applicant at their discretion with assumed liability for failure
to provide complete and accurate information to Virginia. Pursuant to 9
VAC 5-80-80 G and 9 VAC 5-20-230, all applicants must certify, subject
to civil and criminal penalty, that all information contained in its
application is complete, accurate and true.
Comment: EarthJustice asserts that the identified interim approval
issue regarding malfunction as an affirmative defense in Virginia's
title V operating permit program has not been fully corrected. The
commenter also believes Virginia's malfunction provisions at 9 VAC 5-
20-180 are not consistent with title V of the CAA. Specifically,
EarthJustice contends that title V sources may claim an affirmative
defense for malfunctions to a degree far broader than provided under
title V and 40 CFR subsection 70.6(g).
Response: Virginia's title V operating permit program regulations
establish the permissible scope of claims for affirmative defense for
noncompliance with title V permits due to emergencies at 9 VAC 5-80-250
and 9 VAC 5-80-650. (Virginia uses the term ``malfunction'' instead of
``emergency'', however, the term as defined at 9 VAC 5-80-60 C and 5-
80-370 is consistent with EPA's definition of ``emergency'.) The
commenter has not asserted that the provisions of 9 VAC 5-80-250 and 5-
80-650 are inconsistent with title V or 40 CFR subsection 70.6(g).
Virginia made amendments to these sections of its regulations to
address interim approval issues. In the proposed and final actions
granting interim approval of Virginia's program (March 18, 1997, 62 FR
12778 and June 10, 1997, 62 FR 31516, respectively), EPA fulfilled its
obligation under section 502(g) of the CAA by specifying the changes
Virginia must make to its program in order to receive full approval. 42
U.S.C. subsection 7661a(g); 40 CFR subsection 70.4(e)(3). EPA directed
Virginia to
[[Page 62965]]
amend 9 VAC 5-80-250 B 4 and 9 VAC 5-80 650 to require permittees to
properly report malfunctions of any duration in order for those
malfunctions to be eligible for consideration as an affirmative
defense. Previously, these regulations did not require permittees to
report malfunctions of less than one hour, yet allowed for an
affirmative defense for these unreported malfunctions. As instructed by
EPA, Virginia amended 9 VAC 5-80-250 B 4 and 9 VAC 5-80-650 to require
the reporting of malfunctions of any duration. These amendments are
more fully discussed in the October 10, 2001 (66 FR 51581) direct final
rulemaking notice granting full approval of Virginia's program.
Therefore, Virginia has met its statutory obligation under section
502(g) of the CAA to make changes to its operating permit program as
specified by EPA and, consequently, its program may now receive full
approval.
EarthJustice's main concern regards Virginia's malfunction
provisions as they exist outside of the operating permit program
regulations. The malfunction defenses provided by 9 VAC 5-20-180 are
codified as part of the general provisions of Virginia's air pollution
control regulations. In its proposed and final rulemaking granting
interim approval of Virginia's program, EPA did not identify any
concerns with these provisions of Virginia's regulations, nor did it
instruct Virginia to make any corrections to 9 VAC 5-20-180. Likewise,
the malfunction provisions of 9 VAC 5-20-180 were not discussed in the
October 10, 2001 proposed rulemaking action regarding full approval of
Virginia's operating permit program. Therefore, in its November 9, 2001
comment letter, EarthJustice is expressing a concern with Virginia's
operating permit program that has heretofore not been identified by EPA
or any other interested party. As discussed more fully above,
Virginia's receipt of full approval of its operating permit program is
contingent upon it successfully correcting its regulations as directed
by EPA in the March 18, 1997 and June 10, 1997 notices granting interim
approval and not the correction of all deficiencies alleged or
identified after interim approval was granted.
The EPA will carefully consider EarthJustice's concerns regarding
the impact of 9 VAC 5-20-180 on Virginia's operating permit program and
determine whether a notice of deficiency is warranted. Any such notice
of deficiency will be issued in an action separate from this full
approval.
Comment: EarthJustice has expressed concern with the discussion of
Virginia's Voluntary Environmental Assessment Privilege Law
(``Privilege Law''), Va. Code Sec. 10.1-1198, and Immunity Against
Administrative or Civil Penalties for Voluntarily Disclosed Violation
Law (``Immunity Law''), Va. Code Sec. 10.1-1199 as contained in the
October 10, 2001 notice. The commenter is not satisfied with EPA's
conclusion that these laws do not preclude Virginia from enforcing its
operating permit program in a manner consistent with the CAA.
EarthJustice further argues that the Virginia Attorney General's
interpretation of these laws that supports EPA's conclusion are not
binding on the courts of Virginia. EarthJustice suggests that the most
appropriate remedies are for Virginia to either repeal the laws in
their entirety or amend them to expressly exclude the title V program
from their scope.
The EPA disagrees with the commenter's assertion that the Agency's
and Virginia Office of Attorney General's interpretation of the
existing Privilege and Immunity Laws may apply to Virginia's operating
permit program. To the contrary, the commenter has not demonstrated
that these laws pose any threat to the enforcement of title V operating
permits in Virginia. EarthJustice has not identified a single instance
where any source has successfully asserted protection under these laws
from the enforcement of their title V operating permits by EPA, the
Commonwealth of Virginia, or the public, in manner that is inconsistent
with the CAA. As to the relevance of the Virginia Office of Attorney
General's opinion on this matter, section 502(d) of the CAA requires as
part of any approvable title V operating permit program a legal opinion
from the State Attorney General, or equivalent, indicating that the
State can enforce its operating permit program in a manner consistent
with federal law. 42 U.S.C. subsection 7661a(d); 40 CFR subsection
70.4(b)(3). The EPA relies on the Attorney General's interpretation of
the law, although the Agency recognizes it is always theoretically
possible for developing case law to eventually overrule certain, or
even all, of the opinions expressed by the Attorney General.
In this instance, the Virginia Office of Attorney General provided
EPA legal opinions on December 29, 1997 and January 12, 1998 that state
that the Commonwealth's Privilege Law does not extend to information
required by federal law and that the Immunity Law does not apply to
federally authorized programs such as the title V operating permit
program. In absence of any rulings by the Virginia courts that further
illuminate the application of these laws, EPA maintains its conclusion
that the Commonwealth of Virginia's Privilege and Immunity Laws do not
apply to enforcement of Virginia's operating permit program, and any
permits issued pursuant to that program. Should the Virginia courts
come to interpret these laws in the future in a manner that conflicts
with the CAA, EPA will consider the full effect of those rulings and
determine the most appropriate response, including the possible
issuance of a NOD. Any such NOD will be issued in an action separate
from this full approval.
What Action Is Being Taken by EPA?
Based on analysis of the comments received, EPA has determined that
the concerns raised do not constitute deficiencies in the Virginia
operating permit program. The Commonwealth of Virginia has
satisfactorily addressed the six program deficiencies identified when
EPA granted final interim approval of its operating permit program on
June 10, 1997, as corrected on March 19, 1998. The operating permit
program amendments submitted by Virginia on November 20, 2000
considered together with that portion of Virginia'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 granting final full approval of the Commonwealth of
Virginia's title V operating permit program.
What Is the Effective Date of EPA's Full Approval of the Virginia
Title V Operating Permit Program?
EPA is using the good cause exception under the Administrative
Procedure Act (APA) to make the full approval of the Virginia's program
effective on November 30, 2001. In relevant part, the APA provides that
publication of ``a substantive rule shall be made not less than 30 days
before its effective date, except--* * * (3) as otherwise provided by
the agency for good cause found and published with the rule.'' 5 U.S.C.
Sec. 553(d)(3). Section 553(b)(3)(B) of the APA provides that good
cause may be supported by an agency determination that a delay in the
effective date is impracticable, unnecessary, or contrary to the public
interest. EPA finds that it is necessary and in the public interest to
make this action effective sooner than 30 days following publication.
In this case, EPA believes that it is in the public interest for the
program to take effect before
[[Page 62966]]
December 1, 2001. EPA's interim approval of Virginia's prior program
expires on December 1, 2001. In the absence of this full approval of
Virginia's amended program taking effect on November 30, the federal
program under 40 CFR part 71 would automatically take effect in
Virginia and would remain in place until the effective date of the
fully approved state program. EPA believes it is in the public interest
for sources, the public and the Commonwealth of Virginia to avoid any
gap in coverage of the State program, as such a gap could cause
confusion regarding permitting obligations. Furthermore, a delay in the
effective date is unnecessary because Virginia has been administering
the title V permit program for four years under an interim approval.
Through this action, EPA is approving a few revisions to the existing
and currently operational program. The change from the interim approved
program which substantially met the part 70 requirements, to the fully
approved program is relatively minor, in particular if compared to the
changes between a state-established and administered program and the
federal program.
What Is the Scope of EPA's Full Approval?
In its program submission, Virginia did not assert jurisdiction
over Indian country. To date, no tribal government in Virginia has
applied to EPA for approval to administer a title V program in Indian
country within the Commonwealth. EPA regulations at 40 CFR part 49
govern how eligible Indian tribes may be approved by EPA to implement a
title V program on Indian reservations and in non-reservation areas
over which the tribe has jurisdiction. EPA's part 71 regulations govern
the issuance of federal operating permits in Indian country. EPA's
authority to issue permits in Indian country was challenged in Michigan
v. EPA, (D.C. Cir. No. 99-1151). On October 30, 2001, the court issued
its decision in the case, vacating a provision that would have allowed
EPA to treat areas over which EPA determines there is a question
regarding the area's status as if it is Indian country, and remanding
to EPA for further proceedings. EPA will respond to the court's remand
and explain EPA's approach for further implementation of part 71 in
Indian country in a future action.
Administrative Requirements
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this final approval is not a ``significant
regulatory action'' and therefore is not subject to review by the
Office of Management and Budget. Under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.) the Administrator certifies that this final
approval will not have a significant economic impact on a substantial
number of small entities because it merely approves state law as
meeting federal requirements and imposes no additional requirements
beyond those imposed by state law. This rule does not contain any
unfunded mandates and does not significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4) because it approves pre-existing requirements under
state law and does not impose any additional enforceable duties beyond
that required by state law. This rule also does not have tribal
implications because it will not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes, as
specified by Executive Order 13175, ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000). This
rule also does not have Federalism implications because it will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132, ``Federalism'' (64 FR 43255,
August 10, 1999). This rule merely approves existing requirements under
state law, and does not alter the relationship or the distribution of
power and responsibilities between the State and the Federal government
established in the Clean Air Act. This final approval also is not
subject to Executive Order 13045, ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997) or Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001), because it is not a significant regulatory action
under Executive Order 12866. This action will not impose any collection
of information subject to the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., other than those previously approved and
assigned OMB control number 2060-0243. For additional information
concerning these requirements, see 40 CFR part 70. An agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
In reviewing State operating permit programs submitted pursuant to
title V of the Clean Air Act, EPA will approve State programs provided
that they meet the requirements of the Clean Air Act and EPA's
regulations codified at 40 CFR part 70. In this context, in the absence
of a prior existing requirement for the State to use voluntary
consensus standards (VCS), EPA has no authority to disapprove a State
operating permit program for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews an operating
permit program, to use VCS in place of a State program that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply.
The Congressional Review Act, 5 U.S.C. section 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. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
section 804(2). This rule will be effective on November 30, 2001.
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 February 4, 2002. 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 granting final full approval of Virginia's
title V operating permit program may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
[[Page 62967]]
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.
Dated: November 27, 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 revising paragraph (b) in
the entry for Virginia to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Virginia
(b) The Virginia Department of Environmental Quality submitted
operating permit program amendments on November 20, 2000. The rule
revisions contained in the November 20, 2000 submittal adequately
addressed the conditions of the interim approval effective on March
12, 1998. The Commonwealth is hereby granted final full approval
effective on November 30, 2001.
[FR Doc. 01-29961 Filed 12-3-01; 8:45 am]
BILLING CODE 6560-50-P