[Federal Register Volume 67, Number 62 (Monday, April 1, 2002)]
[Notices]
[Pages 15385-15386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7775]


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ENVIRONMENTAL PROTECTION AGENCY

[HI02-01; FRL -7166-1]


Notice of Deficiency for Clean Air Operating Permits Program; 
State of Hawaii

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of deficiency.

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SUMMARY: Pursuant to its authority under section 502(i) of the Clean 
Air Act and the implementing regulations at 40 CFR 70.10(b)(1), EPA is 
publishing this notice of deficiency for the State of Hawaii's (Hawaii 
or State) Clean Air Act title V operating permits program, which is 
administered by the Hawaii Department of Health. The notice of 
deficiency is based upon EPA's finding that Hawaii's provisions for 
insignificant emissions units do not meet minimum Federal requirements 
for program approval. Publication of this notice is a prerequisite for 
withdrawal of Hawaii's title V program approval, but does not effect 
such withdrawal.

EFFECTIVE DATE: March 22, 2002. Because this Notice of Deficiency 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: Robert Baker, EPA, Region 9, Air 
Division (AIR-3), 75 Hawthorne Street, San Francisco, CA 94105, (415) 
972-3979.

SUPPLEMENTARY INFORMATION:

I. Description of Action

    EPA is publishing a notice of deficiency for the Clean Air Act (CAA 
or Act) title V operating permits program for the State of Hawaii. This 
document is being published to satisfy 40 CFR 70.10(b)(1), which 
provides that EPA shall publish in the Federal Register a notice of any 
determination that a title V permitting authority is not adequately 
administering or enforcing its title V operating permits program. The 
deficiency that is the subject of this notice relates to Hawaii's 
requirements for insignificant emissions units (IEUs) and applies to 
the State permitting authority that implements Hawaii's title V 
program.

A. Approval of Hawaii's Title V Program

    The CAA requires all State and local permitting authorities to 
develop operating permits programs that meet the requirements of title 
V of the Act, 42 U.S.C. 7661-7661f, and its implementing regulations, 
40 CFR part 70. Hawaii's operating permits program was submitted in 
response to this directive. EPA granted interim approval to Hawaii's 
air operating permits program on December 1, 1994 (59 FR 61549).
    After Hawaii revised its program to address the conditions of the 
interim approval, EPA promulgated final full approval of Hawaii's title 
V operating permits program on November 26, 2001 (66 FR 62945).

B. Exemption of IEUs From Permit Content Requirements

    Part 70 authorizes EPA to approve as part of a state program a list 
of insignificant activities and emission levels (IEUs) which need not 
be included in the permit application, provided that an application may 
not omit information needed to determine the applicability of, or to 
impose, any applicable requirement, or to evaluate the fee amount 
required under the EPA-approved schedule. See 40 CFR 70.5(c). Nothing 
in part 70, however, authorizes a state to exempt IEUs from the 
testing, monitoring, recordkeeping, reporting, or compliance 
certification requirements of 40 CFR 70.6.
    Hawaii's regulations contain criteria for identifying IEUs. See HAR 
Sec. 11-60.1-82(f) thru (g). Hawaii's regulations also require that the 
permit application include identification and description of all points 
of emissions and all applicable requirements. See HAR Sec. 11-60.1-83. 
The Hawaii program, however, exempts IEUs from all permitting 
requirements including testing, monitoring, recordkeeping, reporting, 
and compliance certification requirements. See HAR Sec. 11-60.1-82(e). 
Because part 70 does not exempt IEUs from the testing, monitoring, 
recordkeeping, reporting, and compliance certification requirements of 
40 CFR 70.6, EPA has determined that Hawaii must revise its IEU 
regulations.
    The deficiency involving the provisions in the State's program that 
exempt insignificant activities from part 70 permitting requirements, 
came to light as a result of the court decision in Western States 
Petroleum Association (WSPA) v. Environmental Protection Agency, 87 
F.3d 280 (9th Cir. 1996).
    The court found in the WSPA case that EPA had acted inconsistently 
in its approval of the insignificant activities provisions in several 
part 70 programs, including the State of Hawaii's program. In order to 
address the inconsistencies identified by the Ninth Circuit, EPA is now 
notifying Hawaii that it must bring its IEU provisions into alignment 
with the requirements of part 70 and other State and Local title V 
programs or face withdrawal of its title V operating permits program.

C. Effect of Notice of Deficiency

    Part 70 provides 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. 40 CFR 70.10(c)(1). This section goes on to 
list a number of potential bases for program withdrawal, including the 
case where the permitting authority's legal authority no longer meets 
the requirements of part 70. 40 CFR 70.10(b) sets forth the procedures 
for program withdrawal, and requires as a prerequisite to withdrawal 
that the permitting authority be notified of any finding of deficiency 
by the Administrator and that the notice be published in the Federal 
Register. Today's notice satisfies this requirement and constitutes a 
finding of program deficiency. If the permitting authority has not 
taken ``significant action to assure adequate administration and 
enforcement of the program'' within 90 days after publication of a 
notice of deficiency, EPA may withdraw the State program, apply either 
of the sanctions specified in section 179(b) of the Act, or promulgate, 
administer, and enforce a Federal title V program. 40 CFR 70.10(b)(2). 
Section 70.10(b)(3) provides that if a State has not corrected the 
deficiency within 18 months of the finding of deficiency, EPA will 
apply the sanctions under section 179(b) of the Act, in accordance with 
section 179(a) of the Act. Upon EPA action, the sanctions will go into 
effect unless the State has corrected the deficiencies identified in 
this notice within 18 months after signature of this notice. In 
addition, section 70.10(b)(4) provides that, if the State has not 
corrected the deficiency within 18 months after the date of notice of 
deficiency, EPA must promulgate, administer, and enforce a whole or 
partial program within 2 years of the date of the finding.

[[Page 15386]]

    This document is not a proposal to withdraw Hawaii's title V 
program. Consistent with 40 CFR 70.10(b)(2), EPA will wait at least 90 
days, at which point it will determine whether Hawaii has taken 
significant action to correct the deficiency.

II. Administrative Requirements

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of today's action may be filed in the United States 
Court of Appeals for the appropriate circuit within 60 days of April 1, 
2002.

    Dated: March 22, 2002.
Wayne Nastri,
Regional Administrator, Region 9.
[FR Doc. 02-7775 Filed 3-29-02; 8:45 am]
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