[Federal Register Volume 66, Number 246 (Friday, December 21, 2001)]
[Notices]
[Pages 65947-65948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31499]


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ENVIRONMENTAL PROTECTION AGENCY

[AD-FRL-7121-9]


Notice of Deficiency for Clean Air Act Operating Permit Program 
in the District of Columbia

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of deficiency.

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SUMMARY: Pursuant to its authority under the Clean Air Act, EPA is 
publishing this Notice of Deficiency (NOD) for the District of 
Columbia's Clean Air Act title V operating permit program. The NOD is 
based upon EPA's finding that the District of Columbia's requirements 
for public notification do not comply with the requirements of the 
Clean Air Act and its implementing regulations. Publication of this 
Notice is a prerequisite for withdrawal of the District of Columbia's 
title V program approval, but EPA is not withdrawing this program 
through this action.

EFFECTIVE DATE: December 13, 2001. Because this NOD is an adjudication 
and not a final rule, the Administrative Procedure Act's 30 day 
deferral of the effective date of a rule does not apply.

FOR FURTHER INFORMATION CONTACT: Paresh R. Pandya, U.S. Environmental 
Protection Agency Region III (3AP11), 1650 Arch Street, Philadelphia, 
PA 19103 at (215) 814-2167, or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    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). Sierra Club and the New York Public Interest 
Research Group challenged the action. In settling the litigation, EPA 
agreed to publish a notice in the Federal Register, so that the public 
would have the opportunity to identify and bring to EPA's attention 
alleged deficiencies in title V programs. The EPA published that notice 
on December 11, 2000 (65 FR 77376).
    As stated in the Federal Register notice, EPA agreed to respond by 
December 1, 2001 to timely public comments on programs that have 
obtained interim approval; and EPA agreed to respond by April 1, 2002 
to timely comments on fully approved programs. The EPA is publishing a 
NOD if the Agency determines that a deficiency exists, and is notifying 
the commenter in writing to explain the reasons for not making a 
finding of deficiency on other issues. The EPA received one timely 
comment letter pertaining to the District of Columbia's title V 
program. In reviewing the commenter's concerns, EPA agrees that the 
commenter has identified a deficiency in the District of Columbia's 
title V operating permit program relating to the District of Columbia's 
public notification requirements. The EPA is addressing that deficiency 
in this notice. In addition, the commenter raised other issues that EPA 
has determined are not deficiencies. The EPA is responding to the 
commenter in writing, explaining the basis for EPA's decision.

[[Page 65948]]

    Under EPA's permitting regulations, citizens may, at any time, 
petition EPA regarding alleged deficiencies in state title V operating 
permit programs. In addition, EPA may on its own identify deficiencies. 
If, in the future, EPA agrees with a new citizen petition or otherwise 
identifies deficiencies, EPA may issue a new NOD.

II. Description of Action

    The EPA is publishing this NOD to notify the District of Columbia 
and the public that EPA has found a deficiency in the District of 
Columbia's title V operating permit program. This document is being 
published to satisfy section 502(i) of the Clean Air Act and 40 CFR 
70.10(b)(1), which provides that EPA shall publish in the Federal 
Register a notice of any determination that a State's title V 
permitting program no longer complies with the requirements of 40 CFR 
part 70 and the Clean Air Act. The deficiency that is the subject of 
this document relates to the District of Columbia's regulatory 
authority to provide adequate public notification of permit actions, 
pursuant to 40 CFR part 70.
    The EPA's regulations at 40 CFR 70.7(h) and 70.7(d)(3)(i) provide 
that public notice shall be provided for all permit proceedings, except 
those qualifying as administrative permit amendments or minor permit 
modifications. Such public notification shall be provided by a number 
of means, including ``by publication in a newspaper of general 
circulation in the area where the source is located or in a State 
publication designed to give general public notice; to persons on a 
mailing list developed by the permitting authority, including those who 
request in writing to be on the list; and by other means if necessary 
to assure adequate notice to the affected public.'' See, 40 CFR 
70.7(h)(1). EPA's regulations at 40 CFR 70.4(b)(16) require that State 
part 70 program submittals contain provisions requiring the permitting 
authority to implement the requirements of 40 CFR 70.7. The District of 
Columbia's operating permit program regulations at 20 DCMR 303.10 
require that public notice of draft initial permits, significant 
modifications and permit renewals be published in the District of 
Columbia Register and that copies of such notice be sent to the 
applicant, to the representatives of affected states, and to persons on 
a mailing list developed by the Mayor, including those who request in 
writing to be on the list.
    However, the regulations do not expressly require that ``other 
means'' be employed if necessary to assure adequate public notice. 
Because the District of Columbia's operating permit program regulations 
do not require the District to provide public notice by other means if 
necessary to assure adequate notice to the affected public, the 
District of Columbia's operating permit program does not fully comply 
with the requirements of the Clean Air Act and 40 CFR part 70.
    Title V provides for the approval of State programs for the 
issuance of operating permits that incorporate the applicable 
requirements of the Clean Air Act. To receive title V program approval, 
a State permitting authority must submit a program to EPA that meets 
certain minimum criteria, and EPA must disapprove a program that fails, 
or withdraw an approved program that subsequently fails, to meet these 
criteria. These criteria include requirements for proper public 
participation procedures (40 CFR 70.4(b)(16)). See 40 CFR 70.7(h).
    The EPA's title V implementing regulations at 40 CFR 70.4 and 
70.10(b) and (c) provide that EPA may withdraw a part 70 program 
approval, in whole or in part, whenever the approved program no longer 
complies with the requirements of part 70 and the permitting authority 
fails to take corrective action. A list of potential bases for program 
withdrawal is provided at 40 CFR 70.10(c)(1)(i), and includes the case 
where the permitting authority's legal authority does not meet the 
requirements of 40 CFR part 70.
    The procedures for program withdrawal are set forth at 40 CFR 
70.10(b). The procedures require as a prerequisite to withdrawal that 
the EPA Administrator notify the permitting authority of any finding of 
deficiency by publishing a notice in the Federal Register. This 
document satisfies this requirement and constitutes a finding of 
deficiency. According to 40 CFR 70.10(b)(2), if the District of 
Columbia has not taken ``significant action to assure adequate 
administration and enforcement of the program'' within 90 days after 
issuance of this notice of deficiency, EPA may withdraw the state 
program, apply any of the sanctions specified in section 179(b) of the 
Act, and/or promulgate, administer, and enforce a federal title V 
program. As provided by 40 CFR 70.10(b)(3), if the state has not 
corrected the deficiency within 18 months after the date of the finding 
of deficiency and signature of the NOD, EPA would be required to apply 
the sanctions under section 179(b) of the Act, in accordance with 
section 179(a) of the Act. In addition, 40 CFR 70.10(b)(4) provides 
that, if the state has not corrected the deficiency within 18 months 
after the date of the finding of deficiency, EPA will promulgate, 
administer, and enforce a whole or partial program within 2 years of 
the date of the finding. This document constitutes a finding of 
deficiency.
    This document is not a proposal to withdraw the District of 
Columbia's title V program. Consistent with 40 CFR 70.10(b)(2), EPA 
will wait at least 90 days to determine whether the state has taken 
significant action to correct the deficiency.

III. EPA Responses to Citizen Comments

    EPA is responding in writing to all timely comments that citizens 
submitted pursuant to the settlement agreement. For all comments not 
resulting in an NOD, EPA is responding directly to the commenter, 
explaining the reasons why EPA did not find that an NOD was warranted. 
The EPA will publish a notice of availability in the Federal Register 
notifying the public that EPA has responded in writing to the commenter 
and explaining how the public may obtain a copy of EPA's responses.

IV. Administrative Requirements

    Under section 307(b)(1) of the Act, petitions for judicial review 
of today's action to issue a notice of deficiency for the District of 
Columbia's Clean Air Act title V operating permit program may be filed 
in the United States Court of Appeals for the appropriate circuit 
within 60 days of December 21, 2001.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: December 13, 2001.
Judith Katz,
Acting Regional Administrator, Region III.
[FR Doc. 01-31499 Filed 12-20-01; 8:45 am]
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