[Federal Register Volume 66, Number 189 (Friday, September 28, 2001)]
[Proposed Rules]
[Pages 49577-49579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24381]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[VT-021-1224; A-1-FRL-7069-6]
Full Approval of Clean Air Act Operating Permit Program; State of
Vermont
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing to fully approve the operating permit
program for the State of Vermont. Vermont's operating permit program
was created to meet the federal Clean Air Act (Act) directive that
states develop, and submit to EPA, programs for issuing operating
permits to all major stationary sources of air pollution and to certain
other sources within the states' jurisdiction. EPA is proposing to
approve Vermont's program at the same time Vermont is proposing changes
to its state regulations to address EPA's interim approval issues. The
public comment period for Vermont's program regulations (Air Pollution
Control Regulations, Subchapter X) is open for comment from September
13, 2001 until October 15, 2001.
DATES: Comments on this federal proposed rule must be received on or
before October 29, 2001.
ADDRESSES: Comments may be mailed to Donald Dahl, Air Permits Program
Unit, Office of Ecosystem Protection (mail code CAP) U.S. Environmental
Protection Agency, EPA--New England, One Congress Street, Suite 1100,
Boston, MA 02114-2023. EPA strongly recommends that any comments should
also be sent to Conrad W. Smith of the Air Pollution Control Division,
Department of Environmental Conservation, 2nd floor, South Building,
Waterbury, Vermont, 05671-0402. Copies of the State submittal and other
supporting documentation relevant to this action, are available for
public inspection during normal business hours, by appointment at the
above addresses.
FOR FURTHER INFORMATION CONTACT: Donald Dahl at (617) 918-1657.
SUPPLEMENTARY INFORMATION:
I. Why Was Vermont Required To Develop an Operating Permit Program?
Title V of the Clean Air Act as amended (42 U.S.C. 7401 and 7661,
et seq.), requires all states to develop an operating permit program
and submit it to EPA for approval. EPA has promulgated rules that
define the minimum elements of an approvable state operating permit
program and the corresponding standards and procedures by which EPA
will approve, oversee, and withdraw approval of state operating permit
programs. See 57 FR 32250 (July 21, 1992). These rules are codified at
40 Code of Federal Regulations (CFR) part 70. Title V directs states to
develop programs for issuing operating permits to all major stationary
sources and to certain other sources. The Act directs states to submit
their operating permit programs to EPA by November 15, 1993, and
requires that EPA act to approve or disapprove each program within one
year after receiving the submittal. The EPA's program review occurs
pursuant to section 502 of the Act (42 U.S.C. 7661a) and the part 70
regulations, which together outline criteria for approval or
disapproval.
Where a program substantially, but not fully, meets the
requirements of part 70, EPA may grant the program interim approval.
EPA granted the State of Vermont final interim approval of its program
on October 2, 1996 (see 61 FR 51368) and the program became effective
on November 1, 1996.
II. What Did Vermont Submit to Meet the Title V Requirements?
Vermont submitted its Title V operating permit program on April 28,
1995. In addition to regulations (Environmental Protection Regulations,
Air Pollution Control Chapter V, Definitions and Subchapter X), the
program submittal included a legal opinion from the Attorney General of
Vermont stating that the laws of the State provide adequate legal
authority to carry out all aspects of the program, and a description of
how the State would implement the program. The submittal additionally
contained evidence of proper adoption of the program regulations,
application and permit forms, and a permit fee demonstration. This
program, including the operating permit regulations, substantially met
the requirements of part 70.
III. What Was EPA's Action on Vermont's 1995 Submittal?
EPA deemed the program administratively complete in a letter to the
state dated June 12, 1995. On May 24, 1996, EPA proposed to grant
interim approval to Vermont's submittal. After responding to comments,
EPA granted interim approval to Vermont's submittal on October 2, 1996.
In the document granting interim approval, EPA stated that there were
several areas of Vermont's program regulations that would need to be
amended in order for EPA to fully approve the state's program. EPA has
been working closely with the state and has determined that the state
is proposing to make all of the necessary rule changes for full
approval. The following section contains details regarding the areas of
Vermont's regulations where the state is proposing to address EPA's
interim approval issues.
IV. What Were EPA's Interim Approval Issues and How Has Vermont
Proposed To Amend Its Regulation To Address the Interim Approval
Issues?
1. 40 CFR 70.4(b)(12)(i) requires states to allow for facilities to
make changes as required by section 502(b)(10) of the Act, ``Section
502(b)(10) changes'' as defined in part 70, with just a seven day
notice. Subchapter X, section 5-1014 of the state's proposed rule has
been amended to allow a facility to make changes that are equivalent to
``502(b)(10) changes'' after a fifteen-day notice. Vermont's
regulations satisfy the requirements of Title V regarding ``section
502(b)(10) changes.''
2. 40 CFR 70.4(b)(12)(iii) requires states to allow facilities to
trade emissions under an emission cap
[[Page 49578]]
established solely within a permit, provided the emissions are
quantifiable and there are replicable procedures to enforce the
emission trades. Subchapter X, sections 5-1014 and 5-1015(a)(15) of the
state's proposed rule have been amended to require the state to grant
emission trades that meet these requirements. Any emissions involved in
such a trade are now required to be quantifiable, with replicable
procedures to enforce the trade.
3. 40 CFR 70.6(a)(3)(iii)(B) requires a state to write a source's
obligation in every permit to promptly report all permit deviations.
The state's permitting rule or each permit itself must also define what
is ``prompt reporting.'' Subchapter X, section 5-1015(a)(6) of the
state's proposed rule requires Vermont to include a permit condition
that mandates sources to promptly report all permit deviations. This
proposed section of the rule also requires Vermont to define ``prompt''
in each permit and provides that such reporting shall be at least as
stringent as required by EPA in permits issued under 40 CFR part 71.
4. 40 CFR 70.6(a)(9)(i) requires all permits to contain a condition
that a source maintain a record when switching between operating
scenarios. Subchapter X, section 5-1015(a)(8) of the state's proposed
rule requires Vermont to include a permit condition that specifies a
source must maintain records of switches between operating scenarios.
5. 40 CFR 70.6(b)(2) requires a state to designate those permit
terms which are enforceable only by the State and are not enforceable
under federal law. Subchapter X, section 5-1015(a)(9) of the state's
proposed rule requires Vermont to designate in the Findings of Fact
section of each permit all terms and conditions of a permit that are
not federally enforceable. The Findings of Fact section accompanies
each permit and makes the distinction required under section 70.6(b)(2)
available to the public and the permittee.
6. 40 CFR 70.6(a)(1)(i) requires a state to indicate in a Title V
permit the origin and authority of all permit terms and conditions, and
identify any difference in form as compared to the applicable
requirement upon which a permit term or condition is based. Subchapter
X, section 5-1015(a)(2) of the state's proposed rule requires Vermont
to list ``[a] reference, but not necessarily all references of the
origin and authority for each term or condition.'' The state's proposed
language, although it does appear to anticipate less than all
references will be included in some circumstances, is adequate to meet
this program element. Vermont has bound itself to provide a sufficient
identification of the origin and authority of permit terms.
7. 40 CFR 70.7(f) requires each permit to contain provisions
specifying the conditions when a permit must be reopened and revised.
Subchapter X, section 5-1015(a)(13) of the state's proposed rule
requires the state to write a permit condition stating when a permit
may be reopened and reissued in accordance with section 5-1008 of the
proposed rule. Subchapter X, section 5-1008(e)(1) of the proposed rule
requires that the state must reopen and reissue permits under certain
circumstances. EPA understands that the combination of these provisions
has the effect of requiring the reopening of any permit for which cause
to reopen exists under section 5-1008(e)(1). The permissive language
used in section 5-1015(a)(13) simply incorporates and does not change
the mandate in section 5-1008(e)(1) to reopen a permit for cause when
necessary. Provided Vermont does not disagree with this interpretation,
these two provision of the state's rule are now consistent with federal
requirements.
8. 40 CFR 70.7(f)(1)(i) requires a state to reopen and reissues a
permit within 18 months of a source's becoming subject to an additional
applicable requirement if there are 3 or more years remaining in the
permit term. Subchapter X, section 5-1008(e)(1)(i) of the state's
proposed rule requires the state to reopen and reissue a permit under
such circumstances.
V. Proposed Action
EPA proposes to fully approve Vermont's Title V program, provided
the state finalizes its regulations consistent with the terms and
interpretations of this proposed rule and submits its regulations to
EPA for approval.
VI. Administrative Requirements
Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this proposed action is not a ``significant
regulatory action'' and therefore is not subject to review by the
Office of Management and Budget. Under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.) the Administrator certifies that this proposed
rule will not have a significant economic impact on a substantial
number of small entities because it merely approves state law as
meeting federal requirements and imposes no additional requirements
beyond those imposed by state law. This rule does not contain any
unfunded mandates and does not significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Public Law 104-4) because it proposes to approve pre-existing
requirements under state law and does not impose any additional
enforceable duties beyond that required by state law. 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,
``Consultation and Coordination with Indian Tribal Governments'' (65 FR
67249, November 9, 2000). This rule also does not have Federalism
implications because it will 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,
``Federalism'' (64 FR 43255, August 10, 1999). The rule merely proposes
to approve existing requirements under state law, and does not alter
the relationship or the distribution of power and responsibilities
between the State and the Federal government established in the Clean
Air Act. This proposed 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) or Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001), because it
is not a significant regulatory action under Executive Order 12866.
This action will not impose any collection of information subject to
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
other than those previously approved and assigned OMB control number
2060-0243. For additional information concerning these requirements,
see 40 CFR part 70. An agency may not conduct or sponsor, and a person
is not required to respond to, a collection of information unless it
displays a currently valid OMB control number.
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
[[Page 49579]]
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: September 19, 2001.
Robert W. Varney,
Regional Administrator, EPA-New England.
[FR Doc. 01-24381 Filed 9-27-01; 8:45 am]
BILLING CODE 6560-50-P