[Federal Register Volume 72, Number 76 (Friday, April 20, 2007)]
[Rules and Regulations]
[Pages 19804-19806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7550]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[EPA-R09-OAR-2007-0090; FRL-8303-5]


Clean Air Act Full Approval of Revisions to the State of Hawaii 
Operating Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the State of Hawaii's 
(``Hawaii'' or ``State'') operating permit program that amend Hawaii's 
regulations for insignificant emissions units (IEUs). In an April 1, 
2002 Notice of Deficiency published in the Federal Register, EPA 
notified Hawaii of EPA's finding that Hawaii's provisions for IEUs did 
not meet minimum Federal requirements. Hawaii has revised its program 
to correct the deficiency identified in the Notice of Deficiency and 
this action fully approves of those revisions.

DATES: This operating permits program rule is effective on June 19, 
2007 without further notice, unless EPA receives adverse comments by 
May 21, 2007. If we receive such comment, we will publish a timely 
withdrawal in the Federal Register to notify the public that these 
revisions will not take effect.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2007-0090, by one of the following methods:
    1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-
line instructions.
    2. E-mail: [email protected].
    3. Mail or deliver to Gerardo Rios, Permits Office Chief, Air 
Division (AIR-3), EPA Region IX, 75 Hawthorne Street, San Francisco, 
California, 94105.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at www.regulations.gov, 
including any personal information provided, unless the comment 
includes Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Information that you 
consider CBI or otherwise protected should be clearly identified as 
such and should not be submitted through www.regulations.gov or e-mail. 
www.regulations.gov is an ``anonymous access'' system, and EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send e-mail directly to EPA, your e-mail 
address will be automatically captured and included as part of the 
public comment. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 
IX, 75 Hawthorne Street, San Francisco, California. While all documents 
in the docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available in either location (e.g., CBI). 
To inspect the hard copy materials, please schedule an appointment 
during normal business hours with the contact listed in the FOR FURTHER 
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Robert Baker, EPA Region IX, at (415) 
972-3979, ([email protected]).

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. What Is the Operating Permit Program?
II. What Is Being Addressed in This Document?
III. What Are the Program Changes That EPA Is Approving?
IV. What Is Involved in This Action?
V. Public Comment and Final Action
VI. Statutory and Executive Order Reviews

I. What Is the Operating Permit Program?

    The Clean Air Act Amendments of 1990 required all state and local 
permitting authorities to develop operating permit programs that met 
certain federal criteria. In implementing the operating permit 
programs, the permitting authorities require certain sources of air 
pollution to obtain permits that contain all applicable requirements 
under the Clean Air Act (CAA). The focus of the operating permit 
program is to improve enforcement by issuing each source a permit that 
consolidates all of the applicable CAA requirements into a federally 
enforceable document. By consolidating all of the applicable 
requirements for a facility, the source, the public, and the permitting 
authorities can more easily determine what CAA requirements apply and 
how compliance with those requirements is determined.
    Sources required to obtain an operating permit under this program 
include ``major'' sources of air pollution and certain other sources 
specified in the CAA or in EPA's implementing regulations. Examples of 
major sources include those that have the potential to emit 100 tons 
per year or more of volatile organic compounds, carbon monoxide, lead, 
sulfur dioxide, nitrogen oxides (NOX), or particulate matter 
(PM10); those that emit 10 tons per year or more of any 
single hazardous air pollutant (HAP) listed under the CAA; or those 
that emit 25 tons per year or more of a combination of HAPs.
    Hawaii's operating permits program was submitted to EPA 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).

II. What Is Being Addressed in This Document?

    When an operating permit program does not fully meet the criteria 
outlined in the implementing regulations codified at 40 Code of Federal 
Regulations (CFR) part 70, EPA may withdraw part 70 program approval if 
the permitting authority fails to take corrective action. 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.
    Deficiencies 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.

[[Page 19805]]

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. As a result, on 
April 1, 2002 EPA published a Notice of Deficiency for the State of 
Hawaii's title V operating permits program based upon the finding that 
Hawaii's provisions for IEUs did not meet minimum Federal requirements 
for program approval. This Federal Register notice describes the 
changes that the State has made to its operating permit program 
(Chapter 60.1 of the Hawaii Administrative Rules) to correct the 
deficiency identified in the Notice of Deficiency.

III. What Are the Program Changes That EPA Is Approving?

    As discussed above, EPA published a Notice of Deficiency on April 
1, 2002 that identified a deficiency in the State's title V program. In 
response to the Notice of Deficiency, the State revised its operating 
permit program to remove or correct the deficiency identified by EPA. 
The State made its revised rule available to public review and 
comments. On November 4, 2003, the State adopted the revisions. The 
revised program was submitted to EPA on November 14, 2003. We have 
included below a discussion of the identified deficiency, the 
conditions for correction, and a summary of how the State has corrected 
the deficiency. The Technical Support Document (TSD) for this action 
includes more information about the State's submittal and more details 
of the revisions made. In the discussion here, we have listed the EPA 
cited deficiency identified in the April 1, 2002 Federal Register 
notice (see 62 FR 15385), followed by a brief description of the 
State's revisions to its operating permit program to remove the 
deficiency.
    Insignificant activities: Part 70 authorizes EPA to approve as part 
of a state program a list of 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. 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. 
Since the Hawaii program exempted IEUs from all permitting requirements 
including testing, monitoring, recordkeeping, reporting, and compliance 
certification requirements, EPA has required that Hawaii revise its IEU 
regulations.
    State's response: The State revised rule Sec.  11-60.1-82(e) 
removing the provision exempting IEUs from permitting requirements.

IV. What Is Involved in This Action?

    Today, we are fully approving the State's revised operating permit 
program (Chapter 60.1 of the Hawaii Administrative Rules). We have 
determined that the revisions made by the State remove or correct the 
deficiency identified by us in 2002. In addition, the State has made 
other changes to its operating permit program that are unrelated to the 
changes made to correct the identified program deficiency. EPA is not 
approving any action on these additional program changes in this 
notice. EPA will evaluate the additional program changes and will take 
appropriate action at a later date.

V. Public Comment and Final Action

    As authorized in section 110(k)(3) of the Act, EPA is fully 
approving the revisions into the State of Hawaii State Implementation 
Plan because we believe it is consistent with title V of the Clean Air 
Act and 40 CFR Part 70. We are processing this action as a direct final 
action because the revisions made to the program to resolve the Notice 
of Deficiency are not controversial. However, in the Proposed Rules 
section of this Federal Register, we are simultaneously proposing 
approval of this same rule. If we receive adverse comments by May 21, 
2007, we will publish a timely withdrawal in the Federal Register to 
notify the public that the direct final approval will not take effect 
and we will address the comments in a subsequent final action based on 
the proposal. Copies of the Hawaii submittal and other supporting 
documentation used in developing the approval are contained in docket 
files maintained at the EPA Region IX office. The docket is an 
organized and complete file of all the information submitted to, or 
otherwise considered by, EPA in the development of this full approval. 
The primary purposes of the docket are: (1) To allow interested parties 
a means to identify and locate documents so that they can effectively 
participate in the approval process, and (2) to serve as the record in 
case of judicial review. If we do not receive timely adverse comments, 
the direct final approval will be effective without further notice on 
June 19, 2007. Please note that if we receive adverse comment on an 
amendment, paragraph, or section of this rule and if that provision may 
be severed from the remainder of the rule, we may adopt as final those 
provisions of the revision that are not the subject of the adverse 
comment.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    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 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it approves a state rule 
implementing a Federal standard.

[[Page 19806]]

    In reviewing State operating permit 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 permit program for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews an operating 
permit 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.

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: April 4, 2007.
Jane Diamond,
Acting Regional Administrator, Region IX.

0
40 CFR part 70, chapter 1, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 70--[AMENDED]

0
1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.


0
2. Appendix A to part 70 is amended by adding paragraph (c) under 
Hawaii to read as follows:

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

* * * * *

Hawaii

* * * * *
    (c) Department of Health: Program revisions submitted on 
November 14, 2003; submittal corrects the deficiency outlined in an 
April 1, 2002 Notice of Deficiency. These revisions are hereby 
granted full approval effective June 19, 2007.
* * * * *
[FR Doc. E7-7550 Filed 4-19-07; 8:45 am]
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