[Federal Register Volume 67, Number 75 (Thursday, April 18, 2002)]
[Notices]
[Pages 19175-19177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9496]



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ENVIRONMENTAL PROTECTION AGENCY

[OH151-1; FRL-7173-3]


Notice of Deficiency for Clean Air Operating Permits Program; 
Ohio

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 (NOD) for the State of Ohio's 
Clean Air Act title V operating permits program. The notice of 
deficiency is based upon EPA's finding that Ohio's regulations 
governing insignificant emissions units and Ohio's regulations 
requiring reports of any required monitoring at least every six months 
and prompt reports of deviations do not meet the minimum Federal 
requirements of the Clean Air Act (Act) and 40 CFR part 70. Publication 
of this notice is a prerequisite for withdrawal of Ohio's title V 
program approval, but does not effect such withdrawal.

EFFECTIVE DATE: April 10, 2002. Because this notice of deficiency (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: Genevieve Damico, Environmental 
Engineer, Permits and Grants Section, Air Programs Branch, (AR-18J), 
U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 353-4761.

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). The 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. EPA published that document 
on December 11, 2000 (65 FR 77376). As stated in the Federal Register 
document, 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.
    EPA received three timely comment letters pertaining to Ohio's 
title V program from the United States Public Interest Research Group, 
Clean Air Conservancy, and the Earth Day Coalition. In reviewing the 
commenters' concerns, EPA agreed that one of the comments identified a 
deficiency in Ohio's program in that Ohio's reporting requirements fail 
to require that all deviations from permit terms be reported to the 
permitting authority. EPA is addressing this deficiency in this notice. 
In addition, the commenters raised other issues that EPA has determined 
are not deficiencies. EPA is responding to the commenters in writing, 
explaining the basis for EPA's decision.
    In 1997, D. David Altman submitted and amended a petition on behalf 
of Ohio Citizen Action, the Ohio Environmental Council (which was later 
replaced by the Ohio Public Interest Research Group (PIRG)), Rivers 
Unlimited, and the Ohio Sierra Club asking EPA to withdraw or revoke 
Ohio's authorization and/or approval to administer the Act, the Clean 
Water Act National Pollutant Discharge Elimination System (NPDES) 
permit program, and the Resource Conservation and Recovery Act (RCRA) 
hazardous waste programs in Ohio based on the Ohio Audit Law.
    Mr. Altman supplemented this petition on September 18, 1998, August 
4, 1999, and January 27, 2000, to add allegations addressing how the 
Ohio EPA (OEPA) was implementing its programs. The petitioners' 
September 18, 1998, supplement alleged that OEPA was mishandling these 
three programs. Their August 4, 1999 supplement included additional 
justification for petitioners' allegations regarding these 
implementation issues. Their January 27, 2000 supplement/amendment 
added allegations to their petition regarding several Clean Air Act 
programs and the RCRA Solid Waste Management Plan. The petitioners also 
submitted numerous affidavits in support of the petition in the summer 
of 2000.
    As supplemented, the petition expresses concerns with Ohio 
environmental programs and asks EPA to withdraw and/or revoke its 
authorization, delegation and/or approval of OEPA's RCRA hazardous 
waste program and Solid Waste Management Plan; Clean Water Act (NPDES) 
permit program; and Clean Air Act Standards of Performance for New 
Stationary Sources (NSPS), New Source Review (NSR), Prevention of 
Significant Deterioration (PSD), Noncompliance Penalty, and title V 
programs. Among other things, the petitioners question how OEPA 
addresses regulated facilities, follows up on complaints, monitors 
facilities, issues permits, sets standards, releases information to the 
public, pursues enforcement, and conducts and oversees cleanups.
    On September 4, 2001, U.S. EPA released a draft of a our evaluation 
of Ohio's programs. A copy of this draft report is at http://www.epa.gov/region5/ohioreview/index.htm. We held a public meeting on 
the draft report on November 13, 2001. We are currently working on the 
final report. In our draft report we addressed the issue of how OEPA 
addresses insignificant emissions units (IEUs) in it permits. After 
further consideration, we find that Ohio's regulation that allows 
exempting the applicable requirements and other information on IEUs 
from the permit is contrary to part 70. EPA is addressing this 
deficiency in this notice.
    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

    EPA is publishing a notice of deficiency for the title V operating 
permits program for the State of Ohio. This document is being published 
pursuant to section 502(i) of the 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 authority is not 
adequately administering or enforcing its title V operating permits 
program, or any portion thereof. The deficiencies that are the subject 
of this notice relate to Ohio's regulations governing insignificant 
emissions units (IEUs) and requiring reports of any required monitoring 
at least every six months and prompt reports of deviations. These 
deficiencies apply to all State and local permitting authorities that 
implement Ohio's title V program.

A. Approval of Ohio'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. Ohio submitted its operating permits program in 
response to this directive. EPA granted full approval to Ohio's air 
operating permits program on August 15, 1995 (60 FR 42045).

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B. Limitation of Deviation Reports to Deviations Detected by Compliance 
Methods Required by Permits

    Ohio Administrative Code (OAC) 3745-77-07(A)(3)(c)(ii) and (iii) 
limits the reporting of deviations to those which can be detected by 
the compliance method required by the permit. This limitation is 
contrary to the requirements of the Act and 40 CFR part 70. 
Specifically, Sec. 70.6(a)(3)(iii)(A) requires that permitees submit 
reports of required monitoring at least every 6 months and that all 
instances of deviations from permit requirements be identified in these 
reports. Section 70.6(a)(3)(iii)(B) requires that permitees promptly 
report deviations from permitting requirements to the permitting 
authority. Section 70.6 does not provide for any exceptions to these 
requirements. Section 113(c)(2) of the Act, among other things, 
prohibits any person from knowingly making a false certification or 
omitting material information from any reports. Finally, 40 CFR 70.5(d) 
and 70.6(a)(3) require responsible officials to certify that all 
reports are true, accurate and complete. See also FR 8314 (February 24, 
1997) (final rule promulgating credible evidence revisions). Together 
these statutory and regulatory requirements obligate sources to 
consider all available material information in evaluating and reporting 
deviations for purposes of promptly reporting deviations and submitting 
reports of any required monitoring at least semi-annually. Because 
Ohio's rule only requires permittees to consider compliance method test 
data when reporting deviations from permit requirements, Ohio's title V 
program does not meet the minimum requirements of part 70.

C. 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 permit 
content requirements of 40 CFR 70.6.
    Ohio's regulations contain criteria for identifying IEUs. See OAC 
3745-77-01(U). Ohio's regulations require that permit applications 
contain information necessary to determine the applicability of, or to 
impose, any applicable requirement. See OAC 3745-77-03(A). The Ohio 
program, however, specifically exempts from the federally enforceable 
section of its Title V permits federally enforceable applicable 
requirements to which IEUs are subject. See OAC 3745-77-02(E). Although 
the part 70 regulations provide states some opportunity to exempt or 
limit the amount of information on IEUs required in a Title V 
application, the July 21, 1992, preamble to the Title V regulations 
makes it clear that this exemption does not apply to the permit content 
(57 FR 32273). Therefore, Ohio's regulations at OAC 3745-77-02(E) are 
inconsistent with part 70.
    The United States Court of Appeals for the Ninth Circuit in Western 
States Petroleum Association (WSPA) v. Environmental Protection Agency, 
87 F.3d 280 (9th Cir. 1996) required EPA to approve the State of 
Washington's title V program even though Washington's regulations 
exempted IEUs from certain permit content requirements. The Court did 
this because EPA had acted inconsistently in previously approving at 
least eight other State or local programs that the Court found were 
also deficient in their treatment of IEUs in permits. Ohio was one of 
the eight permitting authorities identified by the WSPA Court as 
exempting IEUs from certain permit content requirements. Since issuance 
of the Court's order in the WSPA case, EPA has carefully reviewed the 
IEU provisions of those eight title V programs identified by the Court 
as inconsistent with EPA's decision on Washington's regulations and 
taken action to bring all State programs into consistency with part 70 
with regard to the treatment of IEUs in permits. EPA has determined 
that three of the title V programs identified by the WSPA Court 
(Massachusetts; North Dakota; Knox County, Tennessee) are, in fact, 
consistent with EPA's position that insignificant sources subject to 
applicable requirements may not be exempt from permit content 
requirements. See 61 FR 39338 (July 29, 1996). North Carolina, Florida 
and Jefferson County, Kentucky have made revisions to their IEU 
provisions and EPA has approved these. 65 FR 38744, 38745 (June 22, 
2000) (Forsyth County, North Carolina); 66 FR 45941 (August 31, 2001) 
(all other North Carolina permitting authorities); 66 FR 49837 (October 
1, 2001) (Florida); 67 FR 7973 (February 21, 2002) (Jefferson County, 
Kentucky). EPA has also issued a notice of deficiency to the States of 
Washington and Hawaii; 67 FR 72 (January 2, 2002) (Washington); 67 FR 
15385 (April 1, 2002) (Hawaii).
    Having addressed the inconsistencies in all other state or local 
programs identified by the Ninth Circuit when it ordered EPA to approve 
Washington's IEU provisions, EPA is now notifying Ohio 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. USEPA committed to address those 
inconsistent programs in the Federal Register notice that granted final 
interim approval to the title V programs of the State of Tennessee and 
Memphis-Shelby County (61 FR 39335, July 29, 1996).
    Because OAC 3745-77-02, the regulations that exempt IEUs, applies 
throughout the State of Ohio, this notice of deficiency applies to all 
State and local agencies that implement Ohio's operating permits 
program.

III. Availability of EPA Responses to Citizen Comments

    As discussed above, EPA is responding in writing to all timely 
comments that citizens submitted pursuant to the settlement agreement. 
For all comments not resulting in a NOD, EPA will explain why it found 
that a NOD was not warranted. EPA will publish a notice of availability 
in the Federal Register notifying the public that EPA has done so. EPA 
will also post its response letters on the Internet at http://www.epa.gov/oar/oaqps/permits/ response/ or you may obtain a copy by 
contacting Genevieve Damico, EPA Region 5, by phone at (312) 353-4761 
or by e-mail at [email protected].

IV. 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 lists 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. Section 40 CFR 70.10(b) sets forth the 
procedures for program withdrawal, and requires as a prerequisite to 
withdrawal, that the EPA notify the permitting authority of any finding 
of deficiency by the Administrator and that the document be published 
in the Federal Register. Today's document satisfies this requirement 
and constitutes a finding of program deficiency. If the permitting 
authority has not taken ``significant action to assure adequate

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administration and enforcement of the program'' within 90 days after 
publication of a NOD, EPA may withdraw the state program, apply any 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.\1\ In addition, section 70.10(b)(4) provides 
that, if the state has not corrected the deficiency within 18 months 
after the date of NOD, EPA must promulgate, administer, and enforce a 
whole or partial program within 2 years of the date of the finding. 
This document is not a proposal to withdraw approval of Ohio's title V 
program. Consistent with 40 CFR 70.10(b), EPA will wait at least 90 
days, at which point it will determine whether Ohio has taken 
significant action to correct the deficiencies.
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    \1\ EPA is developing an Order of Sanctions rule to determine 
which sanction applies at the end of this 18 month period.
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V. Administrative Requirements

    Under section 307(b)(1) of the 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 18, 2002.

    Dated: April 10, 2002.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. 02-9496 Filed 4-17-02; 8:45 am]
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