[Federal Register Volume 66, Number 233 (Tuesday, December 4, 2001)]
[Rules and Regulations]
[Pages 62954-62960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29967]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[DC-T5-2001-01a; FRL-7112-3]


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

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 
District of Columbia's (the District's) operating permit program. The 
District's operating permit program was submitted in response to the 
Clean Air Act (CAA) Amendments of 1990 that required each State to 
develop, and submit to EPA, a program 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 the 
District of Columbia's operating permit program on August 7, 1995. The 
District amended its operating permit program to address deficiencies 
identified in the interim approval action and this final rule approves 
those amendments. The EPA proposed full approval of the District of 
Columbia's operating permit program in the Federal Register on October 
16, 2001. This final rulemaking action summarizes the adverse comments 
submitted on the October 16, 2001 proposal, provides EPA's responses, 
and promulgates final full approval of the District of Columbia'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 the District of 
Columbia Department of Public Health, Air Quality Division, 51 N 
Street, NE., Washington, DC 20002.

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

SUPPLEMENTARY INFORMATION: On May 21, 2001, August 30, 2001, and 
September 26, 2001, the District of Columbia submitted amendments to 
its 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 District's 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 District's 
operating permit program?
What is the scope of EPA's full approval?

What Is the District's Operating Permit Program?

    The Clean Air Act (CAA or the Act) Amendments of 1990 required all 
States (including the District) 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 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.

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

[[Page 62955]]

CFR part 70, EPA granted interim approval contingent upon the State 
revising its program to correct the deficiencies. Because the 
District's operating permit program substantially, but not fully, met 
the requirements of part 70, EPA granted interim approval of the 
District's program in a rulemaking published on August 7, 1995 (60 FR 
40101). The interim approval notice described the conditions that had 
to be met in order for the District's operating permit program to 
receive full approval. On May 21, 2001,August 30, 2001, and September 
26, 2001, the District of Columbia submitted amendments to its 
operating permit program to EPA to address its outstanding interim 
approval deficiencies.
    The District fulfilled the conditions of the interim approval and 
EPA published a direct final rule on October 16, 2001 (66 FR 52538) 
granting full approval of the District of Columbia's operating permit 
program. However, in a letter dated November 15, 2001, EarthJustice 
submitted adverse comments on behalf of the District of Columbia 
Chapter of the Sierra Club in response to the companion proposal notice 
that was also published on October 16, 2001 (66 FR 52561). The October 
16, 2001 direct final rule has, therefore, been withdrawn.
    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 in the Federal Register on December 11, 2000 (65 
FR 77376).
    The EarthJustice Legal Defense Fund commented on what they believe 
to be deficiencies with respect to the District of Columbia's title V 
program. As stated in the Federal Register notice published on October 
16, 2001 (66 FR 52538) proposing to fully approve the District of 
Columbia's operating permit program, EPA takes no action on those 
comments in this final rule. 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 we or a citizen identifies other 
deficiencies.

What Were the Concerns Raised by the Commenters?

    As previously stated, EPA received one comment letter during the 
public comment period. EarthJustice provided comments on behalf of the 
District of Columbia Chapter of the Sierra Club in a letter dated 
November 15, 2001. In its November 15, 2001 letter, EarthJustice 
incorporated, by reference, prior comments it had provided to EPA 
pursuant to other actions taken by the Agency regarding the District of 
Columbia's operating permit program. Those comments incorporated a 
letter dated March 12, 2001commenting in response to the Federal 
Register notice published by EPA on December 11, 2000 (65 FR 77376). A 
copy of this letter is included in the docket of this final rulemaking 
maintained at the EPA Region III office. The following summarizes the 
comments raised in EarthJustice's November 15, 2001 letter and provides 
EPA's responses.
    Comment: The commenter indicates that EPA cannot grant full 
approval of the District of Columbia title V operating permit program 
unless the program fully complies with all requirements of title V and 
EPA's implementing rules, and without first requiring the District to 
address 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 the District of 
Columbia's August 7, 1995 final interim approval (60 FR 40101) and 
March 21, 1995 proposed interim approval (60 FR 14921). EPA agrees that 
these allegations must be addressed through appropriate actions by both 
the District and EPA. For the reasons discussed below, however, we 
disagree that newly alleged or other identified deficiencies prohibit 
EPA from granting full approval of the District of Columbia's operating 
permit program at this time.
    In 1990, Congress amended the Act, 42 U.S.C. subsections 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

[[Page 62956]]

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 the District of Columbia, by 
virtue of correcting the deficiencies identified in the final interim 
approval, is eligible at this time for full approval, or whether the 
District must also correct 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 envisioned 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 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 the District full approval in this 
situation while working simultaneously with the District, 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 the 
District of Columbia'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 District 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 the District of 
Columbia's title V operating permit program expires on December 1, 
2001. This deadline would not provide adequate time for the District to 
correct any newly identified issues prior to the expiration of interim 
approval. Allowing the District of Columbia'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 the District. As explained previously, we do not 
believe that title V of the Act 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 
notices of deficiency (NODs) may also be issued by EPA after a program 
has been granted full approval. Following the defined process for the 
identification of deficiencies and the issuance of NODs will provide 
the District of Columbia 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 the District of 
Columbia's program are well-founded, it will issue a NOD and place the 
District 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 some of 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 will be considered when taking that separate action. EPA 
may issue NODs for any other deficiencies identified through EPA's 
oversight of the District's operating permits program at any time.
    Therefore, EPA disagrees with the commenter that EPA must consider 
all alleged deficiencies prior to granting full approval of the 
District of Columbia'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 the District's title V operating permit program. EPA 
will address those concerns in the context of the relevant rulemaking 
or administrative actions, including this final rule granting full 
approval of the District of Columbia's operating permit program; the 
proposed rulemaking action approving any revisions to the District of 
Columbia's program; and as part of the process of responding to public 
comments pursuant to the December 11, 2000 notice (65 FR 77376).
    Comment: The commenter indicates that EPA cannot grant full 
approval of the District of Columbia's title V operating permit program 
because the program excludes changes reviewed under minor new source 
review from the definition of Title I modifications.
    Response: EPA, in its proposed interim approval, indicated that a 
revision of the 20 DCMR 399.1 Definition of Title I Modification or 
modification under any provision of Title I of the Act to include 
changes reviewed under minor new source review would be required only 
if EPA established such a change in definition through rulemaking. 
Because EPA has yet to revise the definition of a ``Title I 
modification'' to include changes subject to minor new source review, 
the District's current regulations remain consistent with 40 CFR part 
70. Although EPA believes that the better

[[Page 62957]]

interpretation of ``Title I modifications'' is to include changes 
reviewed under a minor source preconstruction review program, EPA does 
not believe it is appropriate to require the District to change the 
definition until EPA completes its rulemaking on this provision.
    Should EPA revise this definition in the future, the District will 
be required to revise its regulations as appropriate. As stated in 
EPA's proposed interim approval (March 21, 1995, 60 FR 14921), EPA did 
not identify the District's definition of ``Title I modification or 
modification under any provision of Title I of the Act'' as necessary 
grounds for either interim approval or disapproval. Accordingly, EPA 
has not identified the District's definition of this term to be a 
program deficiency.
    Comment: The commenter stated that the District of Columbia's 
regulation 20 DCMR 302.4(e)(1) only required that a request for 
coverage under a general permit ``provide any additional information 
the general permit specifies.''
    Response: The quoted provision is only a portion of 20 DCMR 
302.4(e)(1). Section 302.4(e)(1) also provides, among other things, 
that ``a request for coverage under a general permit shall provide 
information sufficient to demonstrate that the source is in compliance 
with the general permit.'' Title 20 DCMR 302.4(e), read in its 
entirety, satisfies 40 CFR 70.6(d)(2) requiring that the request for 
coverage under a general permit include all information necessary to 
assure compliance with the general permit. 20 DCMR 302.4(e) therefore 
corrects the interim approval deficiency.
    Comment: The commenter asserts that although the District revised 
20 DCMR 303.3(a) regarding the applicability of public participation 
and EPA review to the entire draft renewal permit (including those 
portions which are incorporated by reference), the revised provision 
does not require that public participation and EPA and affected state 
review will extend to anything other than the provisions being revised.
    Response: 20 DCMR 303.3(a) clearly states that ``applications for 
permit renewal shall be subject to the same procedural requirements, 
including those for public participation, affected State comment, and 
Administrator's review, that apply to initial permit issuance under 
section 303.1.'' Section 303.3(a) further provides that an application 
for permit renewal may address only those portions of the permit that 
require revision, supplementing, or deletion, incorporating the 
remaining permit terms by reference from the previous permit. Because 
the ``remaining permit terms'' are to be incorporated by reference, 
they become a part of the permit renewal which is subject to the same 
procedural requirements that apply to initial permit issuance. 
Therefore, public participation and EPA and affected State review will 
apply to the entire renewal permit, including those portions which are 
incorporated by reference. This is consistent with 40 CFR 
70.7(c)(1)(i).
    Comment: The commenter indicates that the District's addition of 20 
DCMR 303.5(d)(1)(E) is inadequate to correct the significant permit 
modification interim approval deficiency. 20 DCMR 303.5(d)(1)(E) 
requires that significant modification procedures shall be used for 
applications requesting permit modifications that do not qualify as 
administrative permit amendments under 303.4(a) or minor permit 
modifications under 303.5(b). The commenter states that 303.5(d)(1)(A), 
(B), (C), (D) and (E) are not listed in the alternative, and therefore 
permittees may argue that significant modification procedures are 
required only where all of the conditions in 303.5(d)(1)(A) through (E) 
are met.
    Response: EPA interprets 20 DCMR 303.5(d)(1)(A), (B), (C), (D) and 
(E) as independent provisions such that if any one of the requirements 
in those provisions are met, the significant permit modification 
procedures would have to be followed. EPA similarly interprets the 
minor permit modification procedures provisions in the Federal 
regulation at 40 CFR 70.7(e)(2)(i)(A). EPA reads 40 CFR 
70.7(e)(2)(i)(A)(1), (2), (3), (4), (5) and (6) as independent 
provisions even though the word ``and'' appears between 
70.7(e)(2)(i)(A)(5) and (6). Therefore, EPA believes that the District 
of Columbia has corrected the interim approval issue relating to 
significant permit modification procedures.
    Comment: The commenter indicates that the District's changes to its 
public notice requirements are deficient as the District had already 
issued all 35 title V permits within its jurisdiction. The commenter 
also asserts that the District's revised public notice rule is still 
deficient because it does not require notice ``by other means if 
necessary to assure adequate notice to the affected public.''
    Response: During the permit issuance process, adequate procedures 
for public notice were followed by the District, including offering an 
opportunity for public comment and a hearing on the draft permits. 
Notice was given in the District of Columbia Register, and public 
hearings were held on each draft title V permit. There is no 
outstanding action on any of the issued title V permits. Although the 
District did not have the requirement to provide for sending notice to 
persons on a mailing list (including those people who request in 
writing to be on the list), this has been corrected with the revision 
of the public participation procedures of 20 DCMR subsection 303.10(a). 
During the process of issuing the 35 title V permits within the 
District, no one from the public requested to be on a mailing list. The 
revisions to 20 DCMR subsection 303.10(a) require notice of all future 
title V permit renewals and significant permit modifications to be sent 
to those individuals who are now on the District's mailing list. 
Moreover, the District has added information to its website, located at 
www.environ.state.dc.us which provides members of the public with an 
opportunity to have their name added to the District's title V 
permitting mailing list. Through these actions, the District has 
adequately addressed the deficiency identified in EPA's proposed 
interim approval.
    With regard to the comment that the District's revised public 
notice rule is still deficient because it does not require notice ``by 
other means if necessary to assure adequate notice to the affected 
public'', the District, in fact, does provide notice by other means as 
it has established online information on dates of public hearings, 
title V permits, contact phone numbers, etc. Furthermore, the District 
of Columbia made amendments to its regulations to address interim 
approval issues identified by EPA. In the proposed and final actions 
granting interim approval of the District of Columbia's program (March 
21, 1995, 60 FR 14921 and August 7, 1995, 60 FR 40101, respectively), 
EPA fulfilled its obligation under section 502(g) of the CAA by 
specifying the changes the District of Columbia 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 the District to 
amend 20 DCMR 303.10(a) to require that notice be sent to persons on a 
mailing list (including those people who request in writing to be on 
the list). As instructed by EPA, the District amended 20 DCMR 303.10(a) 
to include this requirement. Therefore, the District 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.
    EPA did not identify any concerns with respect to requiring that 
the

[[Page 62958]]

District also modify 20 DCMR 303.10(a) to include a requirement for 
notice ``by other means if necessary to assure adequate notice to the 
affected public''. Therefore, in its November 15, 2001 comment letter, 
EarthJustice is expressing a concern with the District's public notice 
rule that was not identified by EPA or any other interested party prior 
to EPA's interim approval in 1995. As discussed previously, the 
District'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 21, 1995 and August 7, 1995 notices granting 
interim approval and not the correction of all deficiencies alleged or 
identified after interim approval was granted. Because the scope of 
today's action is limited to the District's correction of its interim 
approval deficiencies, this comment is not germane and EPA does not 
address it here.
    EPA, however, will carefully consider EarthJustice's concerns 
regarding the impact of 20 DCMR 303.10(a) on the District's operating 
permit program and determine whether or not a NOD is warranted. Any 
such NOD will be issued in an action separate from this full approval.
    Comment: The commenter indicates that the District's regulations 
provide for use of the incorrect value for the Consumer Price Index 
(CPI) in 20 DCMR 305.2(b) to calculate annual permit fees.
    Response: In fact, this is not the case. As stated in 20 DCMR 
305.2(a) ``The Consumer Price Index for any calendar year is the 
average of the Consumer Price Index for all urban consumers published 
by the Department of Labor, as of the close of the twelve (12) month 
period ending on August 31st of each calendar year.'' Then 20 DCMR 
305.2(b) goes on to say ``The revision of the Consumer Price Index 
which is most consistent with the Consumer Price Index for the calendar 
year 1989 shall be used. The Consumer Price Index for all urban 
consumers for the month of August 1989 is one hundred twenty-four and 
six tenths (124.6).'' The statements made in these regulations are 
correct. The commenter's assertion that ``Section 305.2(b) continues to 
show 124.6 as the base year index for calculating fee increases' is 
incorrect. Although, 305.2(b) states that the August 1989 CPI is 124.6, 
this provision requires that the calendar year 1989 CPI shall be used 
as the base year index. As required by 20 DCMR 305.2(a), the District 
adjusts the annual fee based on the CPI-Urban Index that represents the 
12-month average from September through August of the previous year. 
The District uses the same presumptive minimum fee that is computed by 
EPA each year. The commenter's remarks may have been relevant several 
years ago, however, it is highly improbable that a permittee would go 
back 12 years to adjust the CPI, when in practice, each title V source 
in the District is provided the updated adjusted annual fee calculation 
each year by the District's Air Quality Division. With this 
clarification, the District of Columbia's program is consistent with 40 
CFR 70.9(b)(2)(iv).
    Comment: The commenter states that the District of Columbia's 
Corporation Counsel did not cite to legislative authority that the 
Mayor can create a right of action in court and that the power to 
confer judicial jurisdiction and create judicial causes of action is 
traditionally reserved to the legislature (here either the Counsel or 
Congress).
    Response: In the interim approval, EPA had requested that 
Corporation Counsel revise its opinion to reference existing provisions 
in District of Columbia law which satisfy the requirements of 40 CFR 
70.11(a)(1) and (2), or establish authorities to restrain or enjoin 
immediately permit violators presenting substantial endangerment, and 
to seek injunctive relief for program and permit violations without the 
need for prior revocation of the permit. The District satisfied this 
requirement by citing to numerous provisions to establish such 
authority under its regulations. The District's legislative authority 
for these actions already existed in section 4(b) of the District of 
Columbia's Air Pollution Control Act enacted by Congress on July 30, 
1968 (P.L. 90-440) which provides that ``[f]or the purpose of carrying 
out his duties under this act, the Commissioner [now the Mayor] may * * 
* (2) issue such orders as may be necessary to enforce the regulations 
prescribed by the Counsel under this Act and enforce such orders by all 
appropriate administrative and judicial proceedings, including 
injunctive relief; (3) hold hearings relating to the administration of 
this Act;* * * and (6) take any other actions which may be necessary to 
carry out his duties under this Act''. After Congress granted the 
District limited home rule by enacting the District of Columbia Home 
Rule Act on December 24, 1973 (Pub. L. 93-198), the enactments of 
Congress remained in force until amended by the Council. The Council of 
the District of Columbia subsequently re-enacted the same provision in 
D.C. Law 5-165, effective March 15, 1985, among other things, to amend 
it to reflect that the Mayor now serves as the chief executive officer. 
This authority is sufficient to meet the requirements of 70.11(a)(1) 
and (2).
    Comment: The commenter states that criminal offenses and fines can 
only be set by the legislature and that Corporation Counsel has not 
cited any legislative authority for seeking criminal fines for 
violations of the District's operating permit program. The commenter 
also references Corporation Counsel's statement that 20 DCMR section 
105.2 does not provide the Mayor with authority for criminal 
enforcement of the Air Pollution Control Act to support a proposition 
that the District lacks the criminal authority.
    Response: The District, in Corporation Counsel's amended opinion, 
cited numerous provisions to establish such authority under the 
District's regulations. In addition, the authority to seek criminal 
fines already existed in D.C. Law 5-165, section 3, which enacted the 
first 9 chapters of Title 20 of the District of Columbia Municipal 
Regulations as the Air Quality subtitle. The provisions in sections 
105.1 and 105.2 (subsequently renumbered 105.5) establish criminal 
penalties for air quality violations. Section 105.1 of D.C. Law 5-165 
provides, in pertinent part, that each person who fails to comply with 
any of the provisions of this subtitle shall be punished by a fine not 
to exceed ten thousand dollars or imprisonment not to exceed ninety 
days, or both. Section 105.5 of D.C. Law 5-165 provides, in pertinent 
part, that each day of violation shall constitute a separate offence 
and the penalties described shall be applicable to each separate 
offense.
    EPA believes that the commenter incorrectly concludes that 
Corporation Counsel's statement that 20 DCMR Section 105.2 does not 
provide the Mayor with authority for criminal enforcement of the Air 
Pollution Control Act is supportive of its (the commenter's) 
proposition that the District lacks the criminal authority. Corporation 
Counsel was noting that 105.2 is the incorrect provision to reference 
for the criminal authority and that Sections 105.1 and 105.5 are the 
correct provisions that established such authority. The District of 
Columbia has resolved the interim approval issue regarding criminal 
enforcement.
    Comment: The commenter states that the District has not:
    (a) Demonstrated that title V fees are adequate to cover compliance 
and enforcement activities;
    (b) Shown how they will monitor and track source compliance;
    (c) Committed to submission of annual enforcement reports;

[[Page 62959]]

    (d) Reviewed self-monitoring reports; and
    (e) Shown how it will follow up on violations.
    Response: With regard to (a), the District has documented to EPA 
that time spent on title V activities by clerical staff, engineers and 
supervisors (in both the Engineering & Planning Branch (EPB) and the 
Compliance & Enforcement Branch (CEB)) are being tracked and accounted 
for appropriately as title V fees. In addition, the District's title V 
account shows a surplus, which demonstrates that title V fees are more 
than adequate to cover compliance and enforcement activities. Section 
IV of the District's original title V program submittal (dated January 
13, 1994), states that ``District law provides authority for the 
Administrator of the Environmental Regulation Administration to assess 
and collect annual permit fees (or the equivalent amount of fees over 
some other period of time) from sources within the District which are 
subject to the requirements of title V of the CAA and 40 CFR part 70, 
in an amount sufficient to cover all reasonable direct and indirect 
costs required to develop, administer, and enforce the District's title 
V program.'' The District authority's is provided in 20 DCMR Sections 
302.1(h) and 305.
    With regard to (b), the District has committed to monitor and track 
source compliance through the ``Air Quality Inspection/Compliance 
Monitoring Plan'' which it has submitted to EPA. The most recent plan 
submitted to EPA is dated October 1, 2001. The plan identifies 
inspection objectives and targets title V air pollution sources for 
inspection, and sets out criteria for determining which minor sources 
within the District will be inspected.
    With regard to (c), the submission of annual enforcement reports, 
the commenter asserts that the requirement is not satisfied merely by 
submission of information to the Aerometric Information Retrieval 
System/AIRS Facility Subsystem (AIRS/AFS). In addition to AIRS/AFS, the 
District submits enforcement reports to EPA on a semi-annual and annual 
basis. These reports were submitted in April 2001 and October 2001. The 
report entitled, ``Compliance and Enforcement Activities and 
Accomplishments--Year End 2001 Report'' contains information on High 
Priority Violators, as well as the dates that inspections were 
conducted at all title V sources in the District. In addition, the 
District participates in quarterly enforcement program reviews with 
EPA.
    With regard to (d), the review of self-monitoring reports, in the 
``Air Quality Inspection/Compliance Monitoring Plan'', the District has 
committed to review title V self certifications, semi-annual monitoring 
and periodic monitoring reports, and any other reports required by the 
permit.
    In response to item (e), in a section of the ``Air Quality 
Inspection/Compliance Monitoring Plan'' entitled ``Compliance 
Monitoring Evaluation--Section 5.3,'' the District demonstrates how it 
will follow-up on violations. That section of the plan describes three 
compliance categories used by the District. This is taken from EPA's 
Clean Air Act Stationary Source Compliance Monitoring Strategy. In 
addition, another report entitled ``Compliance and Enforcement 
Activities and Accomplishments--Year End 2001 Report'' contains 
information on new ``High Priority Violators''.
    The commenter's statement that the ``above-referenced requirements 
are not satisfied merely by citing existing EPA/DC agreements under 
other programs.'' is incorrect. Title 40 CFR 70.4(b)(5) provides that 
the submission should contain ``a complete description of the State's 
compliance tracking and enforcement program or reference to any 
agreement the State has with EPA that provides this information.'' 
Therefore, the above plans and reports are sufficient to demonstrate 
that compliance and enforcement activities are being properly tracked 
and reported to EPA.

What Action Is Being Taken by EPA?

    Based upon our analysis of the comments received, EPA has 
determined that the concerns raised regarding the interim approval 
deficiencies do not constitute deficiencies in the District of 
Columbia's operating permit program. The District has satisfactorily 
addressed the 29 program deficiencies identified by EPA in its final 
interim approval of the District's operating permit program on August 
7, 1995. The operating permit program amendments submitted by the 
District of Columbia on May 21, 2001, August 30, 2001, and September 
26, 2001, considered together with that portion of the District of 
Columbia's operating permit program that was earlier approved on an 
interim basis, fully satisfies the minimum requirements of 40 CFR part 
70 and the Clean Air Act.
    Therefore, EPA is granting final full approval of the District of 
Columbia's title V operating permit program.

What Is the Effective Date of EPA's Full Approval of the District 
of Columbia 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 District of 
Columbia'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. 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 December 1, 2001. 
EPA's interim approval of the District of Columbia's prior program 
expires on December 1, 2001. In the absence of this full approval of 
the District of Columbia's amended program taking effect on November 
30, 2001, the Federal program under 40 CFR part 71 would automatically 
take effect in the District of Columbia 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 District of 
Columbia 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 the 
District of Columbia has been administering the title V permit program 
for six years under an interim approval.

What Is the Scope of EPA's Full Approval?

    In its program submission, the District of Columbia did not assert 
jurisdiction over Indian country. To date, no tribal government in the 
District of Columbia has applied to EPA for approval to administer a 
title V program in Indian country within the District of Columbia. 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

[[Page 62960]]

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 
(Public Law 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 the 
District of Columbia's title V operating permit program may not be 
challenged later in proceedings to enforce its requirements. (See 
Section 307(b)(2).)

List of Subjects in 40 CFR Part 70

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

    Dated: November 28, 2001.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.

    Appendix A of part 70 of title 40, chapter I, of the Code of 
Federal Regulations is amended as follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

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


    2. Appendix A to part 70 is amended by adding paragraph (b) to the 
entry for the District of Columbia to read as follows:

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

* * * * *

District of Columbia

* * * * *
    (b) The District of Columbia Department of Health submitted 
operating permit program amendments on May 21, 2001, August 30, 2001, 
and September 26, 2001. The rule amendments contained in the May 21, 
2001, August 30, 2001, and September 26, 2001 submittals adequately 
addressed the conditions of the interim approval effective on September 
6, 1995. The District of Columbia is hereby granted final full approval 
effective on November 30, 2001.
* * * * *
[FR Doc. 01-29967 Filed 12-3-01; 8:45 am]
BILLING CODE 6560-50-P