Title V Clean Air Act Proposed Interim Approval of Operating Permits Program; West Virginia

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5287-8]

Title V Clean Air Act Proposed Interim Approval of Operating

Permits Program; West Virginia

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed interim approval.

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SUMMARY: EPA is proposing interim approval of the operating permits

program submitted by West Virginia. This program was submitted by West

Virginia for the purpose of complying with federal requirements which

mandate that states develop, and submit to EPA, programs for issuing

operating permits to all major stationary sources, and to certain other

sources. The rationale for proposing interim approval is set forth in

this notice; additional information is available at the address

indicated below. This action is being taken in accordance with the

provisions of the Clean Air Act.

DATES: Comments on this proposed action must be received in writing by

September 28, 1995.

ADDRESSES: Comments should be addressed to Jennifer M. Abramson

(3AT23), Air, Radiation and Toxics Division, U.S. Environmental

Protection Agency, Region III, 841 Chestnut Building, Philadelphia, PA

19107.

Copies of West Virginia's submittal and other supporting

information used in developing the proposed interim approval are

available for inspection during normal business hours at the following

location: Air, Radiation, and Toxics Division, U.S. Environmental

Protection Agency, Region III, 841 Chestnut Building, Philadelphia, PA

19107.

FOR FURTHER INFORMATION CONTACT: Jennifer M. Abramson (3AT23), Air,

Radiation and Toxics Division, U.S. Environmental Protection Agency,

Region III, 841 Chestnut Building, Philadelphia, PA 19107, (215) 597-

2923.

SUPPLEMENTARY INFORMATION:

I. Background

As required under Title V of the Clean Air Act (CAA) as amended

(1990), EPA has promulgated rules which define the minimum elements of

an approvable state operating permits program and the corresponding

standards and procedures by which EPA will approve, oversee, and

withdraw approval of state operating permits programs (see 57 FR 32250

(July 21, 1992)). These rules are codified at 40 Code of Federal

Regulations (CFR) Part 70 and require states to develop, and submit to

EPA, programs for issuing these operating permits to all major

stationary sources and to certain other sources. Due to pending

litigation over several aspects of the Part 70 rule which was

promulgated on July 21, 1992, Part 70 is in the process of being

revised. When the final revisions to Part 70 are promulgated, the

requirements of the revised Part 70 will define EPA's criteria for the

minimum elements of an approvable state operating permits program and

the corresponding standards and procedures by which EPA will approve,

oversee, and withdraw approval of state operating permits program

submittals. Until the date which the revisions to Part 70 are

promulgated, the currently effective July 21, 1992 version of Part 70

shall be used as the basis for EPA review.

The CAA requires that states develop and submit these programs to

EPA by November 15, 1993, and that EPA act to approve or disapprove

each program within 1 year after receiving the submittal. EPA's program

review occurs pursuant to section 502 of the CAA and the July 21, 1992

version of Part 70, which together outline the currently applicable

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 for a period of up to 2 years. If EPA has not

fully approved a program by 2 years after the November 15, 1993 date,

or by the end of an interim program, EPA must establish and implement a

federal operating permits program.

Following final interim approval, if West Virginia fails to submit

a complete corrective program for full approval by 6 months before the

interim approval

[[Page 44800]]

period expires, EPA would start an 18-month clock for mandatory

sanctions. If West Virginia then failed to submit a complete corrective

program before the expiration of that 18-month period, EPA would be

required to apply one of the sanctions in section 179(b) of the CAA.

Such a sanction would remain in effect until EPA determined that West

Virginia had corrected the deficiency by submitting a complete

corrective program. Moreover, if the Administrator found a lack of good

faith on the part of West Virginia, both sanctions under section 179(b)

would apply after the expiration of the 18-month period until the

Administrator determined that West Virginia had come into compliance.

In any case, if, six months after application of the first sanction,

West Virginia still had not submitted a corrective program that EPA

found complete, a second sanction would be required.

If, following final interim approval, EPA disapproved West

Virginia's complete corrective program, EPA would be required to apply

one of the section 179(b) sanctions on the date 18 months after the

effective date of the disapproval, unless prior to that date West

Virginia had submitted a revised program and EPA had determined that

this program corrected the deficiencies that prompted the disapproval.

Moreover, if the Administrator found a lack of good faith on the part

of West Virginia, both sanctions under section 179(b) would apply after

the expiration of the 18-month period until the Administrator

determined that West Virginia had come into compliance. In all cases,

if, six months after EPA applied the first sanction, West Virginia had

not submitted a revised program that EPA had determined corrected the

deficiencies that prompted disapproval, a second sanction would be

required.

In addition, discretionary sanctions may be applied where warranted

any time after the end of an interim approval period if West Virginia

has not timely submitted a complete corrective program or EPA has

disapproved a submitted corrective program. Moreover, if EPA has not

granted full approval to West Virginia's program by the expiration of

the interim approval period, EPA must promulgate, administer and

enforce a federal operating permits program for West Virginia upon the

date the interim approval period expires.

On November 12, 1993, West Virginia submitted an operating permits

program for review by EPA. The submittal was supplemented by additional

materials on August 26, 1994 and September 29, 1994, and was found to

be administratively complete pursuant to 40 CFR 70.4(e)(1). The

submittal includes the following components: Transmittal letter;

description of West Virginia's Title V operating permits program;

permitting regulations and rule adoption documentation; attorney

general's legal opinion; permitting program documentation, procedures,

guidelines, or policies for implementing the operating permits program;

permit fee demonstration and program resource/organizational

information; and compliance tracking and enforcement description.

II. Summary and Analysis of the State's Submittal

The analysis contained in this notice focuses on the major portions

of West Virginia's operating permits program submittal: regulations and

program implementation, variances, fees, and provisions implementing

the requirements of Titles III and IV of the CAA. Specifically, this

notice addresses the deficiencies in West Virginia's submittal which

will need to be corrected to fully meet the requirements of the July

21, 1992 version of Part 70. These deficiencies as well as other issues

related to West Virginia's operating permits program are discussed in

detail in the Technical Support Document (TSD). The full program

submittal and the TSD are available for review as part of the public

docket. The docket may be viewed during regular business hours at the

EPA Region III office listed in the ADDRESSES section of this notice.

A. Regulations and Program Implementation

West Virginia's operating permits program is primarily defined by

regulations adopted as Series 30 of Title 45, Legislative Rules of the

Air Pollution Control Commission, or 45CSR30--Requirements for

Operating Permits. The following analysis of West Virginia's operating

permits regulations corresponds directly with the format and structure

of the July 21, 1992 version of Part 70.

During the review of West Virginia's 45CSR30, EPA identified

several instances in which regulatory provisions contain vague

language, misreferences and/or typographical errors. The provisions in

which these errors occur are identified in the TSD and must be

interpreted as if written correctly to fully meet the requirements of

Part 70.

Section 70.2 Definitions. West Virginia's regulations

substantially meet the requirements of 40 CFR 70.2 for definitions.

However, the section 2.18 definition of ``Emissions unit'' does not

include activities or parts of activities which emit or potentially

emit pollutants listed under section 112(b) of the CAA. West Virginia

must revise the section 2.18 definition of ``Emissions unit'' to

specifically include activities or parts of activities which emit or

potentially emit pollutants listed under section 112(b) of the CAA in

order to fully meet the requirements of 40 CFR 70.2.

Section 70.3 Applicability. West Virginia's regulations fully meet

the requirements of 40 CFR 70.3 for applicability. The section 2.26

definition of ``Major source'' allows for research and development

(R&D) facilities to be treated as separate sources from other

stationary sources which are part of the same industrial grouping, are

located on contiguous or adjacent property, and are under common

control. The term ``Research and development facility'' is defined in

section 2.37 to preclude activities which contribute to the product

produced for sale or exchange for commercial profit.

EPA stated in the preamble to the final part 70 rule that, ``in

many cases States will have the flexibility to treat an R&D facility *

* * as though it were a separate source, and [the R&D facility] would

then be required to have a title V permit only if the R&D facility

itself would be a major source'' (57 FR 32264 and 32269, July 21,

1992). Read consistently with the ``major source'' definition in the

rule, this statement means that separate source treatment would occur

only in situations where the collocated R&D portion of a source has its

own two-digit SIC code and is not a support facility. Accordingly, EPA

had until recently considered separate treatment of R&D facilities to

be grounds for interim approval.

As explained in the supplemental proposal to revise Part 70 which

EPA expects to publish soon, EPA believes that R&D should be treated as

having its own industrial grouping for purposes of the title I and

section 302(j) elements of the major source definition.

Separate treatment will not exempt R&D facilities in all cases.

Some R&D activities may still be subject to permitting because they are

either individually major or a support facility making significant

contributions to the product of a collocated major facility. The

support facility test dictates that, even where there are two or more

industrial groupings at a commonly owned facility, these groupings

should be considered together if the output of one is more than 50 per

cent devoted to support of another.

Although West Virginia's program does not specifically reference

the

[[Page 44801]]

support facility test, EPA expects that such a test will be applied in

making major source applicability determinations as established under

the new source review program and continued under title V. Major source

applicability determinations made without the support facility test

would not fully meet the requirements of 40 CFR 70.3.

Section 70.5 Permit Applications. West Virginia's regulations

substantially meet the requirements of 40 CFR 70.5 for permit

applications. However, in section 3.2.d, West Virginia lists several

types of ``insignificant activities'' which need only to be identified,

rather than described, in permit applications. Several of the

activities listed in section 3.2.d are not intrinsically

``insignificant'' and could potentially prevent the Chief from having

sufficient emissions information to impose all applicable requirements

in accordance with Part 70.

The following section 3.2.d activities must be clarified to ensure

that emissions from such units will not interfere with the imposition

of all applicable requirements:

3.2.d.D ``Indoor or outdoor kerosene heaters'';

3.2.d.E ``Space heaters operating by direct heat transfer'';

Section 3.2.d.K (``Portable generators'') must be bounded to

include size or production rate cutoffs, or other qualifiers, to ensure

that emissions from these units will not interfere with the imposition

of all applicable requirements.

Additionally, unless and until the Administrator determines that

Title VI requirements need not be contained in Title V permits, West

Virginia must also modify section 3.2.d.C (``Comfort air conditioning *

* *'') as necessary to ensure that the Chief will have sufficient

information to incorporate Title VI requirements into Title V permits.

Section 3.2.d.M of West Virginia's rule authorizes the Chief to

determine activities or emissions units to be insignificant in addition

to those listed in section 3.2.d. For the same reasons stated above,

the Chief's discretion to consider additional activities to be

insignificant must be bounded. Bounding of the Chief's discretion is

necessary since, as section 3.2.d.M is presently structured, EPA will

not be given the opportunity to review these activities or emissions

units prior to them being listed in a source's application form.

Section 70.5(c) requires that insignificant activities be approved by

EPA as part of a State's approved program. This allows EPA to determine

whether such insignificant activities are likely to interfere with the

State's ability to assure compliance with applicable requirements

through permits.

In the absence of a specific list of insignificant activities, a

limitation on size or production rate may serve the same purpose. EPA

views size or production rate cutoffs in the range of 1-2 tons per year

for criteria pollutant emissions and the lesser of 1000 pounds per year

or section 112(g) de minimis levels for hazardous air pollutant

emissions to be an acceptable range for individual insignificant

activities. However, EPA may approve different levels that West

Virginia demonstrates will not interfere with the determination or

imposition or applicable requirements.

Notwithstanding the Chief's authority to consider additional

activities as insignificant on an application by application basis,

West Virginia must ensure that, consistent with the requirements of

section 70.5(c), the insignificant activities list approved as part of

the West Virginia program will not be modified without prior EPA

approval. West Virginia must also clarify that potential emissions from

all insignificant activities or emissions units, whether included in

section 3.2.d or determined by the Chief on an application by

application basis, will be included in determining whether a source is

a major source.

Notwithstanding the 45CSR30 provisions for insignificant

activities, sections 4.1.b and 4.3 specifically require sources to

provide all information necessary to evaluate the permit application

and to determine the applicability of, or to impose, any applicable

requirement.

Sections 70.4 and 70.6 Permit Content. West Virginia's regulations

substantially meet the requirements of 40 CFR 70.4 and 40 CFR 70.6 for

permit content. The following changes must be made in order to fully

meet the requirements of 40 CFR 70.4 and 40 CFR 70.6:

1. For clarity and consistency with Part 70 and section 5.1,

section 3.3.a must be revised to clarify that permits issued to major

sources will include all applicable requirements that apply to the

source, including those applicable requirements which may be later

found to be applicable to one or more ``insignificant activities''.

2. Section 5.1.j.D. provides that permit provisions for emissions

trading ``May include categories of VOC's which in the Chief's

discretion can be substituted for one another in a production

process.'' This provision is incorrectly placed in section 5.1.j.,

emissions trading, and should, instead be included in section 5.1.i.,

alternative operating scenarios. West Virginia must revise sections

5.1. i. and j. to clarify that permit provisions for emissions trading

may not include categories of VOC's which in the Chief's discretion can

be substituted for one another in a production process.

3. Section 5.3.e.A. must be revised to ensure that permits will

contain provisions requiring compliance certifications to be submitted

at least annually or such more frequent periods as specified by an

applicable requirement or by the permitting authority.

4. Section 5.5 must be revised to clarify that for temporary

sources that do not obtain a new preconstruction permit prior to each

change in location, the operating permits shall include a requirement

that the owner operator notify the Chief at least ten (10) days in

advance of each change in location.

Section 70.7 Permit Issuance, Renewal, Reopenings, and Revisions.

West Virginia's regulations substantially meet the requirements of 40

CFR 70.7 for permit issuance, renewal, reopenings, and revisions. EPA's

concern over the ambiguity in section 6.4.a.E as to the procedural and

compliance requirements necessary to administratively amend

preconstruction permits into Title V permits was addressed by an

October 11, 1994 supplemental Attorney General's opinion. In relevant

part, the opinion states:

Under 45CSR30.6.4.a.E, West Virginia's Title V administrative

permit amendment procedure will be used to incorporate only those

pre-construction permits issued under EPA-approved programs which

have met procedural requirements substantially equivalent to the

requirements of sections 6 and 7 of 45CSR30 that would be applicable

to the change if it were subject to review as a permit modification,

and which have also met compliance requirements substantially

equivalent to those contained in section 5.

EPA's approval of this portion of West Virginia's program is based

in part on the Attorney General's interpretation stated above. As such,

EPA expects West Virginia to implement section 6.4.a.E consistent with

the Attorney General's interpretation to fully meet the requirements of

40 CFR 70, Sec. 70.7(d)(1)(v). Notwithstanding, the following changes

must be made in order to fully meet the requirements of 40 CFR 70.7:

1. West Virginia must modify section 4.1 to require sources which

become subject to the permitting program after

[[Page 44802]]

the effective date to submit permit applications within 12 months.

During the interim, West Virginia must require sources which become

subject to the permitting program after the effective date to submit

permit applications within 12 months.

2. Section 6.5.a.A.(c) allows sources to make changes below

established ``de minimis'' levels without having to undergo any type of

permit modification. The July 21, 1992 version of Part 70 does not

provide ``de minimis'' levels for source changes below which no permit

modification is required. Accordingly, section 6.5.a.A.(c) must be

removed. It should be noted that in most cases sources making changes

below the thresholds established in section 6.5.a.A.(c) will be able to

make such changes pursuant to the ``off-permit'' provisions of section

5.9. Additional flexibility for these types of changes may be provided

in the Part 70 revisions process.

3. Section 6.8.a.A.(a)(B) must be revised to clarify that public

notice will be given for all scheduled public hearings, not just those

public hearings which have been scheduled at the request of an

interested person.

4. West Virginia must revise section 6.8.a.C. to clarify that for

all permit modification proceedings, except those modifications

qualifying for minor permit modifications or fast-track modifications

under the Acid Rain Program, public notice will be given by publication

in a newspaper of general circulation in the area where the source is

located (or in a state publication designed to give general public

notice), and to persons on a mailing list developed by the permitting

authority including those who request in writing to be on the list.

Section 70.11 Enforcement Authority. West Virginia's regulations

and code provisions substantially meet the requirements of 40 CFR 70.11

for enforcement authority. However, W.Va. Code section 22-5-6(b)(1)

impermissibly limits criminal penalties for knowing misrepresentations

of material fact to a total of $25,000 without regard to the continuing

nature of the misrepresentation. West Virginia must modify W.Va. Code

section 22-5-6(b)(1) to provide for a maximum criminal penalty of not

less than $10,000 per day per violation for knowing misrepresentations

of material fact.

B. Variances

Unless parts of federally approved, promulgated and/or delegated

applicable requirements, EPA regards the sections 5.7.D. and 6.9.c.D.

references to variance provisions as wholly external to the program

submitted for approval under Part 70, and consequently is proposing to

take no action on such provisions. EPA has no authority to approve

provisions of West Virginia law, such as the variance provisions

referred to in this section, which are inconsistent with the CAA. EPA

does not recognize the ability of a permitting authority to grant

relief from the duty to comply with a federally enforceable Part 70

permit, except where such relief is granted through procedures allowed

by Part 70. EPA reserves the right to enforce the terms of the Part 70

permit where the permitting authority purports to grant relief from the

duty to comply with a Part 70 permit in a manner inconsistent with Part

70 procedures.

C. Permit Fee Demonstration

West Virginia's fee schedule is substantially less than the annual

$25 + (1989 Base year) CPI per ton ``presumptive minimum'' established

in section 502 of the Clean Air Act. Although West Virginia's fee

demonstration/workload analysis reveals that the existing annual fee

level, $18 + (1993 Base Year) CPI per ton, may generate adequate

revenues to fund the direct and indirect projected program costs during

the first four years of implementation, EPA is concerned about the

flexibility of the fee structure in its ability to respond to resource

needs in the future.

West Virginia's program provides that the Chief of West Virginia's

Office of Air Quality (WVOAQ) shall, on or before October 1 of each

fiscal year, prepare an accounting report to the Air Pollution Control

Commission (APCC) of all Title V fees received from the previous fiscal

year and the manner in which they were used, together with projected

expenditures for the upcoming year. Accordingly, on or before May 1 of

each year, the APCC shall determine whether to adjust the annual $18 +

(1993 Base Year) CPI per ton fee amount. However, the APCC's ability to

adjust fees is only authorized up to $2 per ton and is not cumulative,

regardless of the amount needed.

EPA recognizes that many of the required permitting activities such

as case-by-case MACT determinations are difficult to reasonably

estimate in terms of cost and that revenues may be impacted by

circumstances such as acid rain Phase II ``active'' substitution units

which become temporarily exempt from the payment of emissions-based

permit fees. In order to prevent permitting delays due to lack of

resources and to maintain the quality of the 45CSR30 permitting

program, West Virginia should provide the APCC with the authority to

adjust permitting fees to a level at least equivalent to the

``presumptive minimum'' for a particular calendar year. As a result,

the APCC will have greater flexibility in responding to resource needs

without having to wait for legislative approval. The annual WVOAQ

accounting of all Title V fees received and the manner used, will serve

to ensure that revenues from Title V fees are expended solely to cover

reasonable direct and indirect Title V costs, as required by 45CSR30,

section 1.1.

All 45CSR30 fees collected by West Virginia will be deposited in a

separate special account in the State treasury designated as the ``Air

Pollution Control Fund''. Although fees collected pursuant to 45CSR22,

Air Quality Management Fee Program, are also deposited in this account,

an account tracking system will distinguish between revenues and

expenditures attributable to 45CSR22 versus 45CSR30. In this way, West

Virginia will be able to ensure that fees, penalties and interest

collected for operating permits shall be expended solely to cover costs

required to administer the operating permits program, as required by W.

VA Code section 16-20-5(a)(18), and 45CSR30.1.1. Although the Chief's

ability to spend the money collected from 45CSR30 fees is contingent on

legislative appropriation, W. Va. Code section 16-20-5(a)(18) and

45CSR30.1.1 require fees to be sufficient to cover ``all reasonable

direct and indirect costs required to administer the operating permits

program''. As with other fee generating programs in the West Virginia,

the legislature has the authority to transfer excess 45CSR30 monies

into other accounts.

D. Provisions Implementing the Requirements of Title III

Implementing Title III Standards through Title V Permits. Under

45CSR30 (Title 45, Series 30, Legislative Rules, Air Pollution Control

Commission, Requirements for Operating Permits) and West Virginia Code,

section 16-20-5 (Air Pollution Control Law of West Virginia), West

Virginia has demonstrated in its Title V program submittal broad legal

authority to incorporate into permits and enforce all applicable

requirements; however, West Virginia has also indicated that additional

regulatory authority may be necessary to carry out specific CAA section

112 activities. West Virginia has therefore supplemented its broad

legal authority with a commitment ``to adopt and submit all regulations

required to

[[Page 44803]]

implement the provisions of section 112 of the Clean Air Act necessary

under the Title V operating permit program.'' This commitment is stated

in the transmittal letter of the November 12, 1993 operating permits

program submittal. EPA has determined that this commitment, in

conjunction with West Virginia's broad statutory authority, adequately

assures compliance with all the CAA's section 112 requirements. EPA

regards this commitment as an acknowledgement by West Virginia of its

obligation to obtain further legal authority as needed to issue permits

that assure compliance with the CAA's section 112 applicable

requirements. This commitment does not substitute for compliance with

Part 70 requirements that must be met at the time of program approval.

EPA is interpreting the above legal authority and commitment to

mean that West Virginia is able to carry out all of the CAA's section

112 activities. For further rationale on this interpretation, please

refer to the TSD accompanying this rulemaking which is located in the

public docket and the April 13, 1993 guidance memorandum titled ``Title

V Program Approval Criteria for Section 112 Activities,'' signed by

John Seitz, Director, Office of Air Quality Planning and Standards,

Office of Air and Radiation, USEPA.

Implementation of 112(g) Upon Program Approval. EPA is proposing to

approve West Virginia's 45CSR30 operating permits program, 45CSR13 and

45CSR14 preconstruction permit programs, and authority under W. Va Code

section 22-5-4(a)(5) to issue administrative orders for the purpose of

implementing section 112(g) during the transition period between

federal promulgation of a section 112(g) rule and West Virginia's

adoption of 112(g) implementing regulations. EPA had until recently

interpreted the CAA to require sources to comply with section 112(g)

beginning on the date of approval of the Title V program regardless of

whether EPA had completed its section 112(g) rulemaking. EPA has since

revised this interpretation of the CAA as described in a February 14,

1995 Federal Register notice (see 60 FR 8333). The revised

interpretation postpones the effective date of section 112(g) until

after EPA has promulgated a rule addressing that provision. The

rationale for the revised interpretation is set forth in detail in the

February 14, 1995 interpretive notice.

The section 112(g) interpretive notice explains that EPA is still

considering whether the effective date of section 112(g) should be

delayed beyond the date of promulgation of the federal rule to allow

states time to adopt rules implementing the federal rule, and that EPA

will provide for any such additional delay in the final section 112(g)

rulemaking. Unless and until EPA provides for such an additional

postponement of section 112(g), West Virginia must be able to implement

section 112(g) during the transition period between promulgation of the

federal section 112(g) rule and adoption of West Virginia's

implementing regulations.

EPA believes that, although West Virginia currently lacks a program

designed specifically to implement section 112(g), West Virginia's

45CSR30 operating permits program, and 45CSR13 and 45CSR14

preconstruction permit programs will serve as adequate implementation

vehicles during a transition period because they will allow West

Virginia to select control measures that would meet MACT on a case-by-

case basis, as defined in section 112, and incorporate these measures

into federally enforceable source-specific permits. Section 112(g)

requirements for case-by-case MACT determinations are governed by the

provisions of the 45CSR30 operating permits program, sections 1.1, 2.6,

2.25, 4.1.a.B., and 12.2-12.4. In those situations when the Title V

process cannot insure the MACT determination is made before the

construction, reconstruction or modification takes place, West Virginia

will use its preconstruction permitting procedures of 45CSR13 and

45CSR14 to the extent applicable to the source. Moreover, for those

sources for which the Title V process is not suitable or for which

preconstruction permits are not applicable, West Virginia will issue an

administrative order pursuant to the authority of W. Va. Code section

22-5-4(a)(5) and 45CSR30.12 to apply the case-by-case MACT standard.

This proposed approval clarifies that West Virginia's 45CSR30

operating permits program, 45CSR13 and 45CSR14 preconstruction permit

programs, and authority under W. Va. Code section 22-5-4(a)(5) to issue

administrative orders are available as mechanisms to implement section

112(g) during the transition period between EPA's promulgation and West

Virginia's adoption of section 112(g) rules. EPA is proposing to limit

the duration of this approval to an outer limit of 18 months following

promulgation by EPA of the section 112(g) rule. Comment is solicited on

whether 18 months is an appropriate period taking into consideration

West Virginia's procedures for adoption of regulations.

However, since this proposed approval is for the single purpose of

providing a mechanism to implement section 112(g) during the transition

period, the approval itself will be without effect if EPA decides in

the final section 112(g) rule that sources are not subject to the

requirements of the rule until State regulations are adopted.

Although section 112(l) generally provides the authority for

approval of state air toxics programs, Title V and section 112(g)

provide authority for this limited approval because of the direct

linkage between implementation of section 112(g) and Title V. If West

Virginia does not wish to implement section 112(g) through the proposed

mechanisms discussed above and can demonstrate that an alternative

means of implementing section 112(g) exists during the transition

period, EPA may, in the final action approving West Virginia's Part 70

program, approve the alternative instead.

Program for Straight Delegation of Section 112 Standards.

Requirements for approval, specified in 40 CFR 70.4(b), encompass

section 112(l)(5) requirements for approval of a program for delegation

of section 112 standards promulgated by EPA as they apply to Part 70

sources. Section 112(l)(5) requires that the state programs contain

adequate authorities, adequate resources for implementation, and an

expeditious compliance schedule, which are also requirements under Part

70. Therefore, EPA is also proposing to grant approval under section

112(l)(5) and 40 CFR 63.91 of West Virginia's program for receiving

delegation of section 112 standards that are unchanged from the federal

standards as promulgated. For EPA-promulgated rules which are

applicable to sources in West Virginia, West Virginia intends to

request delegation after adopting the rules at the State level,

probably by incorporating the federal rules by reference. The details

of this delegation mechanism will be established prior to delegating

any section 112 standards under West Virginia's approved section 112(l)

program for straight delegation. This program applies to both existing

and future standards but is limited to sources covered by the Part 70

program.

E. Title IV Provisions/Commitments

As part of the November 12, 1994 program submittal, West Virginia

committed to submit all missing portions of the Title IV acid rain

program necessary to the Title V operating permits program by January

1, 1995. On December 15, 1994, West Virginia submitted an emergency

rule to EPA which incorporates EPA's Part 72

[[Page 44804]]

rule by reference. On June 23, 1995, West Virginia submitted an

identical permanent legislative rule to EPA, 45CSR33--``Acid Rain

Provisions and Permits'', which supersedes the emergency rule submitted

on December 15, 1994, and associated permit application forms. In the

June 23, 1995 transmittal letter, West Virginia acknowledged that some

of the provisions of 45CSR33 contain errors whereby the EPA

Administrator's authorities are incorrectly granted to the Director of

the Division of Environmental Protection and where conflicts between

45CSR33 and other state rules are addressed in a manner inconsistent

with the approach in Part 72. West Virginia committed to seek

amendments to fix these errors during the 1996 legislative session and

to interpret 45CSR33 consistent with the requirements of Part 72 until

the regulatory changes to 45CSR33 are adopted.

III. Request for Public Comments

EPA is soliciting public comments on the issues discussed in this

notice or on other relevant matters. These comments will be considered

before taking final action. Interested parties may participate in this

federal rulemaking action by submitting written comments to the EPA

Regional office listed in the ADDRESSES section of this notice.

Propsed Action

EPA is proposing to grant interim approval to the operating permits

program submitted by West Virginia on November 12, 1993. The scope of

West Virginia's Part 70 program applies to all Part 70 sources (as

defined in the program) within West Virginia. In order to fully meet

the requirements of the July 21, 1992 version of Part 70, West Virginia

must make the following changes:

1. Revise the section 2.18 definition of ``Emissions unit'' to

specifically include activities or parts of activities which emit or

potentially emit pollutants listed under section 112(b) of the CAA.

2. Revise relevant portions of section 3.2.d as described above in

this notice so as to ensure that permit applications will contain

sufficient information needed to determine the applicability of, or to

impose, all applicable requirements. West Virginia must also ensure

that the insignificant activities list approved as part of the State's

program will not be modified without prior EPA approval. Moreover, West

Virginia must clarify that potential emissions from all insignificant

activities or emissions units, whether included in section 3.2.d. or

determined by the Chief on an application by application basis, will be

included in determining whether a source is a major source.

3. Revise section 3.3.a to clarify that permits issued to major

sources will include all applicable requirements that apply to the

source, including those applicable requirements which may be later

found to be applicable to one or more ``insignificant activities''.

5. Remove section 5.1.j.D. from section 5.1.j.

6. Revise section 5.3.e.A. to ensure that permits will contain

provisions requiring compliance certifications to be submitted at least

annually or such more frequent periods as specified by an applicable

requirement or by the permitting authority.

7. Revise section 5.5 to clarify that for temporary sources that do

not obtain a new preconstruction permit prior to each change in

location, the operating permits shall include a requirement that the

owner operator notify the Chief at least ten (10) days in advance of

each change in location.

8. Modify section 4.1 so to require sources which become subject to

the permitting program after the effective date to submit permit

applications within 12 months.

9. Remove section 6.5.a.A.(c).

10. Revise section 6.8.a.A.(a).(B) to clarify that public notice

will be given for all scheduled public hearings, not just those public

hearings which have been scheduled at the request of an interested

person.

11. Revise section 6.8.a.C. to clarify that for all permit

modification proceedings, except those modifications qualifying for

minor permit modifications or fast-track modifications under the Acid

Rain Program, public notice will be given by publication in a newspaper

of general circulation in the area where the source is located (or in a

state publication designed to give general public notice), and to

persons on a mailing list developed by the permitting authority

including those who request in writing to be on the list.

12. Modify W. Va. Code Sec. 22-5-6(b)(1) to provide for a maximum

criminal penalty of not less than Sec. 10,000 per day per violation for

knowing misrepresentations of material fact.

This interim approval, which may not be renewed, extends for a

period of up to 2 years. During the interim approval period, West

Virginia is protected from sanctions for failure to have a fully

approved Title V, Part 70 program, and EPA is not obligated to

promulgate a federal permits program in West Virginia. Permits issued

under a program with interim approval have full standing with respect

to Part 70, and the 1-year time period for submittal of permit

applications by subject sources begins upon interim approval, as does

the 3-year time period for processing the initial permit applications.

Requirements for approval, specified in 40 CFR 70.4(b), encompass

the CAA's section 112(l)(5) requirements for approval of a program for

delegation of section 112 standards applicable to Part 70 sources as

promulgated by EPA. Section 112(l)(5) requires that the State's program

contain adequate authorities, adequate resources for implementation,

and an expeditious compliance schedule, which are also requirements

under Part 70. Therefore, EPA is also proposing under section 112(l)(5)

and 40 CFR 63.91 to grant approval of West Virginia's program for

receiving delegation of section 112 standards that are unchanged from

federal standards as promulgated. This program for delegations only

applies to sources covered by the Part 70 program.

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

EPA's actions under section 502 of the Act do not create any new

requirements, but simply address operating permits programs submitted

to satisfy the requirements of 40 CFR part 70. Because this action does

not impose any new requirements, it does not have a significant impact

on a substantial number of small entities.

EPA has determined that this proposed interim approval action does

not include a federal mandate that may result in estimated costs of

$100 million or more to either state, local, or tribal governments in

the aggregate, or to the private sector. This federal action to propose

interim approval of West Virginia's operating permits program pursuant

to Title V of the CAA and 40 CFR Part 70 approves pre-existing

requirements under state or local law, and imposes no new federal

requirements. Accordingly, no additional costs to state, local, or

tribal governments, or to the private sector result from this action.

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.

Authority: 42 U.S.C. 7401-7671q.

[[Page 44805]]

Dated: August 18, 1995.

W. Michael McCabe,

Regional Administrator.

[FR Doc. 95-21406 Filed 8-28-95; 8:45 am]

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