[Federal Register Volume 67, Number 101 (Friday, May 24, 2002)]
[Notices]
[Pages 36590-36591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13119]


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ENVIRONMENTAL PROTECTION AGENCY

[Petition IV-2001-1; FRL-7217-5]


Clean Air Act Operating Permit Program; Petition for Objection to 
State Operating Permit for Caldwell Tanks Alliance, LLC; Newnan (Coweta 
County), Georgia

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final order on petition to object to a state 
operating permit.

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SUMMARY: Pursuant to Clean Air Act section 505(b)(2) and 40 CFR 
70.8(d), the EPA Administrator signed an order, dated April 1, 2002, 
denying a petition to object to a State operating permit issued by the 
Georgia Environmental Protection Division (Georgia EPD) to Caldwell 
Tanks Alliance, LLC, for its facility, located in Newnan, Coweta 
County, Georgia. This order constitutes final action on the petition 
submitted by Georgia Center for Law in the Public Interest on behalf of 
the Sierra Club. Pursuant to section 505(b)(2) of the Clean Air Act any 
person may seek judicial review in the United States Court of Appeals 
for the appropriate circuit within 60 days of this document under 
section 307 of the Act.

ADDRESSES: Copies of the final order, the petition, and all pertinent 
information relating thereto are on file at the following location: 
Environmental Protection Agency, Region 4, Air, Pesticides and Toxics 
Management Division, 61 Forsyth Street, SW., Atlanta, Georgia 30303-
8960. The final order is also available electronically at the following 
address: http://

[[Page 36591]]

www.epa.gov/region07/programs/artd/air/title5/petitiondb/petitions/
caldwelltanks--decision2001.pdf.

FOR FURTHER INFORMATION CONTACT: Art Hofmeister, Air, Pesticides and 
Toxics Management Division, EPA, Region 4, telephone (404) 562-9115, e-
mail [email protected]. Interested parties may also contact the 
Air Protection Branch, Georgia Environmental Protection Division, 4244 
International Parkway, Atlanta, Georgia 30354.

SUPPLEMENTARY INFORMATION: The Clean Air Act (CAA or the Act) affords 
EPA a 45-day period to review, as appropriate, operating permits 
proposed by State permitting authorities under Title V of the CAA, 42 
U.S.C. 7661-7661f (Title V). Section 505(b)(2) of the Act and 40 CFR 
70.8(d) authorize any person to petition the EPA Administrator to 
object to a Title V operating permit within 60 days after the 
expiration of EPA's 45-day review period if EPA has not objected on its 
own initiative. Petitions must be based only on objections to the 
permit that were raised with reasonable specificity during the public 
comment period provided by the State, unless the petitioner 
demonstrates that it was impracticable to raise these issues during the 
comment period or the grounds for the issues arose after this period.
    Section 505(b)(2) provides that the Administrator shall grant or 
deny such a petition within 60 days after it is filed, and that the 
Administrator shall object to the permit within that period if the 
petitioner demonstrates that the permit is not in compliance with the 
requirements of the CAA. Section 505(b)(2) further provides that the 
Administrator's duties under that paragraph may not be delegated to 
another officer. In addition, section 505(e) of the CAA authorizes the 
Administrator to terminate, modify, or revoke and reissue a permit for 
cause at any time. In accordance with EPA's regulations at 40 CFR 
70.7(f) and 70.7(g), any person may petition EPA to reopen a permit for 
cause. However, there is no deadline by which EPA is required to 
respond to such petitions.
    Georgia Center for Law in the Public Interest submitted a petition 
on behalf of the Sierra Club (GCLPI or Petitioner) to the Administrator 
on May 9, 2001, requesting that EPA object to a state Title V operating 
permit, issued by the Georgia Environmental Protection Division 
(Georgia EPD) to Caldwell Tanks Alliance, LLC (Caldwell Tanks) for its 
facility located in Newnan, Georgia.
    GCLPI's petition was not filed within the statutory time period for 
filing a section 505(b)(2) petition for objection to a Title V permit. 
Petitioner claims that it relied upon erroneous information provided by 
the Georgia EPD which indicated that the permit had been re-proposed to 
EPA. Reproposal of the permit would have re-started EPA's review period 
and, in turn, extended the time allowed for filing petitions for 
objection to the permit. Because the petition was untimely, EPA 
informed Petitioner that EPA intended to treat it as a petition to 
reopen the permit for cause in accordance with 40 CFR 70.7(f) and 
70.7(g) and to respond on the merits.
    Accordingly, EPA sent a letter, dated January 28, 2002, from 
Winston A. Smith, Director of Region 4's Air, Pesticides & Toxics 
Management Division, to Petitioner's counsel, stating that the petition 
was not timely filed under section 505(b)(2) and 40 CFR 70.8(d) and 
that EPA was treating it as a petition to reopen the permit for cause 
in accordance with 40 CFR 70.7(f) and 70.7(g). EPA also denied the 
petition to reopen on the merits.
    Because EPA had not responded to the petition within the statutory 
60-day period for responding to section 505(b)(2) petitions for 
objection, the Petitioner filed a nondiscretionary duty suit pursuant 
to section 304(a)(2) of the CAA in the United States District Court for 
the District of Columbia to compel EPA to grant or deny its petition. 
Two days after EPA responded to the Petitioner's petition, the court 
held that the doctrine of equitable tolling applies to that 60-day 
limitations period generally and applied against EPA in the Caldwell 
Tanks case to render the Petitioner's petition timely under section 
505(b)(2). The court ordered the Administrator to consider the petition 
pursuant to section 505(b)(2) and to grant or deny the petition within 
60 days of the court's order. See Sierra Club v. Whitman, Civil Action 
No. 01-01991 (ESH) (D.D.C. Jan. 30, 2002) (order and memorandum 
opinion). In light of the court's holding that the Petitioner's 
petition was timely under section 505(b)(2), the Administrator 
responded to the petition pursuant to that statutory provision in an 
order, dated April 1, 2002.
    The Petitioner requested that EPA object to the Caldwell Tanks 
permit on the grounds that the permit is inconsistent with the Clean 
Air Act because the permit failed to: (1) Require the submittal of 
reports of any required monitoring at least every six months, as 
required under 40 CFR 70.6(a)(3)(iii)(A); (2) allow all persons to 
enforce violations of the permit; (3) go through proper public notice 
procedures because it stated only that the permit is enforceable by EPA 
and the Georgia EPD without also stating that the permit is enforceable 
by members of the public; and (4) include an emission limit or require 
monitoring to assure that no visible emissions result from a shot 
blasting and baghouse operation that the permit classifies as an 
insignificant activity.
    The order denying this petition explains the reasons behind EPA's 
conclusion that the Petitioner failed to demonstrate that the Caldwell 
Tanks permit is not in compliance with the requirements of the Clean 
Air Act on the grounds raised.

    Dated: May 13, 2002.
J. I. Palmer, Jr.,
Regional Administrator, Region 4.
[FR Doc. 02-13119 Filed 5-23-02; 8:45 am]
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