[Federal Register Volume 66, Number 234 (Wednesday, December 5, 2001)]
[Rules and Regulations]
[Pages 63184-63188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30143]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[FRL-7113-9 ]


Clean Air Act Full Approval of Operating Permits Program in 
Alaska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to fully approve the operating 
permits program submitted by the State of Alaska. Alaska's operating 
permits program was submitted in response to the directive in the 1990 
Clean Air Act Amendments that permitting authorities develop, and 
submit to EPA, programs for issuing operating permits to all major 
stationary sources and to certain other sources within the permitting 
authority's jurisdiction.

DATES: Effective November 30, 2001.

ADDRESSES: Copies of the State of Alaska's submittal and other 
supporting

[[Page 63185]]

information used in developing this final, full approval are available 
for inspection during normal business hours at the following location: 
U.S. Environmental Protection Agency, Region 10, 1200 Sixth Avenue, 
Seattle, Washington, 98101. Interested persons wanting to examine these 
documents should make an appointment with the appropriate office at 
least 24 hours before the visiting day. A reasonable fee may be charged 
for copies.

FOR FURTHER INFORMATION CONTACT: Denise Baker, EPA, Region 10, Office 
of Air Quality (OAQ-107), 1200 6th Avenue, Seattle, WA 98101, (206) 
553-8087.

SUPPLEMENTARY INFORMATION:

I. Background

    The Clean Air Act (CAA) Amendments of 1990 require all state and 
local permitting authorities to develop operating permits programs that 
meet certain Federal criteria. The State of Alaska submitted a program 
in response to this directive. EPA granted interim approval to Alaska's 
air operating permits program on December 5, 1996, (61 FR 64463). The 
interim approval notice identified 19 remaining conditions that Alaska 
must meet in order to receive full approval of its Title V operating 
permits program.
    After Alaska revised its operating permits program to address the 
conditions of the interim approval, EPA promulgated a proposal to 
approve Alaska's Title V operating permits program on July 26, 2001, 
(66 FR 38966). At the same time, because EPA viewed the proposal as a 
noncontroversial action and did not anticipate adverse public comment 
on the proposal, EPA also published a direct final rule approving the 
Alaska operating permits program (66 FR 38940). EPA received one 
adverse public comment on the proposal. Therefore, EPA removed the 
direct final approval on September 20, 2001, (66 FR 48357). After 
carefully reviewing and considering the issues raised by the commenter, 
EPA is taking final action to give full approval to the Alaska 
operating permits program.

II. What Is the Effective Date of EPA's Full Approval of Alaska's 
Title V Program?

    EPA is using the good cause exception under the Administrative 
Procedure Act (APA) to make the full approval of the state'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 Alaska's 
prior program expires on December 1, 2001. In the absence of this full 
approval of Alaska's amended program taking effect on November 30, the 
federal program under 40 CFR part 71 would automatically take effect in 
Alaska 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 State of Alaska 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 Alaska has been administering the Title V 
permit program for nearly five 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.

III. Response to Comments

    EPA received one comment letter in response to our July 26, 2001, 
(66 FR 38966) proposed approval notice for the Alaska Title V operating 
permits program. The commenter stated that EPA should withhold approval 
of Alaska's program until two issues were resolved. First, the 
commenter stated that ``Alaska's plan is not yet in compliance with the 
federal Clean Air Act and its implementing regulations (40 CFR part 
70).'' The commenter argued that Alaska had failed to meet several 
Title V requirements, including the requirement to include monitoring, 
recordkeeping and reporting sufficient to assure compliance with and 
enforcement of each applicable requirement. Second, the commenter 
stated that ``there is an ongoing review of Alaska's entire Title V 
program that will not be completed until December 1, 2001.'' The 
comments provided to EPA in response to our July 26, 2001, (66 FR 
38966) proposed approval notice for Alaska were made by the same party 
and raised issues that had previously been discussed in the commenter's 
letter submitted on March 12, 2001, in response to 65 FR 77376 
(December 11, 2000).

A. Response to Issue #1--Assertion That Alaska Is Not Yet in Compliance 
With Certain Requirements of the Title V Program

    On May 22, 2000, EPA promulgated a rulemaking that extended the 
interim approval period of 86 operating permits programs, including 
Alaska, 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 
that had received interim or full approval. This notice was published 
on December 11, 2000 (65 FR 77376). In the notice, EPA committed to 
respond to the merits of any such claims of deficiency on or before 
December 1, 2001, for those states, such as Alaska, that have received 
interim approval and on or before April 1, 2002, for states that have 
received full approval.
    As noted above, one citizen organization commented on what it 
believes to be deficiencies with respect to the Alaska Title V program. 
EPA takes no action on those comments in today's action. Rather, EPA 
expects to respond by December 14, 2001, to timely public comments on 
programs that have obtained interim approval, and by April 1, 2002, to 
timely comments on fully approved programs. 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.

[[Page 63186]]

    For the reasons described below, EPA is not in the context of this 
action responding to the comments submitted after the December 11, 
2000, notice that identify potential new deficiencies.

B. Response to Issue #2--Ongoing Review

    The commenter referred to the ongoing review of Alaska's Title V 
program, and took the position that EPA should not grant full approval 
to Alaska's program until that review is completed. In support of this, 
the commenter asserted that the subject matter of the ongoing review, 
namely, the adequacy of the Alaska Title V program, is essentially the 
same as the subject matter of the proposal to fully approve the Alaska 
program. The commenter stated that EPA must base its decision of 
whether to grant full approval on the adequacy of the Alaska program as 
it currently exists, not as it existed at the time of interim approval. 
The commenter further stated that EPA must take into account any 
deficiency existing in the Alaska program, regardless of whether it had 
been identified in the granting of interim approval. According to the 
commenter, any other position would eviscerate EPA's oversight 
responsibilities.
    For the reasons discussed below, we disagree that any deficiencies 
that may be identified following interim approval would prohibit us 
from granting Alaska full program approval at this time.
    In 1990, Congress amended the Clean Air Act, 42 U.S.C. 7401 to 
7671q (``CAA'' or ``Act''), by adding Title V, 42 U.S.C. 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. 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. 7661a(a). EPA is charged with overseeing the State's 
efforts to implement an approved program, including reviewing proposed 
permits and vetoing improper permits. See 42 U.S.C. 7661a(i) and 
7661d(b). Accordingly, Title V of the CAA provides a framework for the 
development, submission and approval of state operating permits 
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. 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 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. 7661a(g); 40 CFR 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 permits 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 Alaska, by virtue of correcting 
the deficiencies identified in the final interim approval, is eligible 
at this time for full approval, or whether Alaska must also correct any 
new or recently identified deficiencies that may exist, 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 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 permits programs be 
administered and enforced by state permitting authorities, the 
appropriate and more cohesive reading of the statute recognizes EPA's 
authority to grant Alaska full approval in this situation while working 
simultaneously with the state, in its oversight capacity, on any 
additional issues that were recently identified. To conclude otherwise 
would disrupt the current administration of the state program, by 
causing the program to transfer to administration by EPA, and would 
cause further delay in Alaska'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.
    Furthermore, requiring the State to address the deficiencies, if 
there are any, that have been identified in the past year 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 70.4(i) and 70.10 provides EPA 
with the authority to issue notices of deficiency (``NOD'') whenever 
EPA makes a determination that a permitting authority is not adequately 
administering or enforcing a part 70 program, or that the State's 
permit program is inadequate in any other way. Consistent with these 
provisions, in its NOD EPA will specify a reasonable time frame for the 
permitting authority to correct any identified deficiency. The Alaska 
Title V interim approval expires on December 1, 2001. This deadline 
does not provide adequate time for the State to correct newly 
identified issues

[[Page 63187]]

prior to the expiration of interim approval. Allowing the State's 
program to expire because of issues identified as recently as March 
2001, will cause disruption and further delay in the issuance of 
permits to major stationary sources in Alaska. As explained, Title V 
does not require 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. This process provides the State an 
adequate amount of time after such findings to implement any necessary 
changes without disrupting the continuity of the state operating 
permits program. Addressing newly identified issues on a separate track 
from the granting of full approval still ensures that these issues will 
be addressed in due course. Rather than undermining EPA's oversight 
authority as the commenter suggests, proceeding in this manner allows 
for a more rational and orderly method for addressing new issues as 
they arise.
    At this time, EPA has identified one concern regarding the Alaska 
Title V program for which it has asked the State for an immediate 
response. This concern relates to the rate of Title V permit issuance 
by Alaska. In response to EPA's request, Alaska has provided EPA with a 
commitment letter that includes a timeline and milestones for issuance 
of remaining permits. Specifically, the State has committed to issuing 
all outstanding Alaska Title V air operating permits on or before 
December 1, 2003. EPA is satisfied that this timeline for issuance of 
remaining permits represents reasonable progress towards issuance of 
all permits. Accordingly, EPA is not issuing a notice of deficiency 
because the State's commitment that future permits will be issued 
consistent with state and federal requirements addresses EPA's concern. 
However, it will be important to ensure that the State actually meets 
this commitment. EPA will monitor the State's efforts over the next two 
years to ensure the State is proceeding on a pace to meet the 
commitment and that the commitment is ultimately met.

IV. What Is the Scope of EPA's Full Approval?

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

V. 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 permits 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 permits program for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews an operating 
permits 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. 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

[[Page 63188]]

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 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 may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 70

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

    Dated: November 29, 2001.
L. John Iani,
Regional Administrator, Region 10.

    40 CFR part 70, chapter I, title 40 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. In appendix A to part 70, the entry for Alaska is amended by 
revising paragraph (a) to read as follows:

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

* * * * *

Alaska

    (a) Alaska Department of Environmental Conservation: submitted 
on May 31, 1995, as supplemented by submittals on August 16, 1995, 
February 6, 1996, February 27, 1996, July 5, 1996, August 2, 1996, 
and October 17, 1996; interim approval effective on December 5, 
1996; revisions submitted on June 5, 1996, October 3, 1996, August 
25, 1998, and May 24, 1999; full approval effective on November 30, 
2001.
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[FR Doc. 01-30143 Filed 12-4-01; 8:45 am]
BILLING CODE 6560-50-P