[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]]

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

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.

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

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