Clean Air Act Final Interim Approval of Operating Permits Program; Delegation of Section 112 Standards; State of Vermont

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5612-6]

Clean Air Act Final Interim Approval of Operating Permits

Program; Delegation of Section 112 Standards; State of Vermont

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final interim approval.

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SUMMARY: The EPA is promulgating interim approval of the Operating

Permits Program submitted by the State of Vermont for the purpose of

complying with Federal requirements for an approvable State program to

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

other sources.

EFFECTIVE DATE: November 1, 1996.

ADDRESSES: Copies of the State's submittal and other supporting

information used in developing the final interim approval are available

for inspection during normal business hours at the following location:

Office of Ecosystem Protection, U.S. Environmental Protection Agency,

Region I, One Congress Street, 11th floor, Boston, MA.

FOR FURTHER INFORMATION CONTACT: Ida Gagnon, (617) 565-3500.

SUPPLEMENTARY INFORMATION:

I. Background

Title V of the 1990 Clean Air Act Amendments (sections 501-507 of

the Clean Air Act (``the Act'')), and implementing regulations at 40

Code of Federal Regulations (CFR) Part 70 require that States develop

and submit operating permits programs to EPA by November 15, 1993, and

that EPA act to approve or disapprove each program within 1 year after

receiving the submittal. The EPA's program review occurs pursuant to

section 502 of the Act 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 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, it must establish

and implement a Federal program.

On May 24, 1996, EPA proposed interim approval of the operating

permits program for the State of Vermont. See 61 FR 26145. The EPA

received comments from the State of Vermont on the proposal. In this

document EPA is taking final action to promulgate interim approval of

the operating permits program for the State of Vermont.

II. Response to Comments

The comments received on the May 24, 1996 proposed rulemaking in

the Federal Register proposing interim approval of the Vermont Program

and EPA's response to those comments are as follows:

Comment: Vermont believes that EPA should grant Vermont ``full

approval until, at a minimum, all relevant litigation pertaining to

Part 70 is finalized and a static set of requirements to judge the

approvability of Vermont's program is in place.'' Specifically, Vermont

comments that ``EPA's interpretation of Section 502(b)(10) is currently

the subject of litigation and is likely to change.'' In addition,

Vermont asserts that its emissions trading requirements are more

stringent than the requirements of the Act and therefore, are not

preempted by federal law.

Response: Vermont's rule currently provides the State with the

authority to prohibit emissions trades under an emissions cap and does

not require that emissions be quantifiable as a precondition to

allowing such trades when a permit does contain an emissions cap. In

addition, Vermont's rule does not provide for ``Section 502(b)(10)

changes.''

To address the emissions trading issue, EPA is requiring Vermont to

adopt regulatory language requiring the State to include, upon request

by a source, emission trading provisions in a title V permit for the

purpose of complying with an emissions cap established in the permit,

provided that the emissions involved in such trades are quantifiable.

Vermont retains the option to include language in its regulation that

would require all such trades to be consistent with State requirements

as well as applicable requirements, and therefore EPA is not attempting

to supersede more stringent State law. EPA is also requiring Vermont to

adopt regulatory provisions to implement ``Section 502(b)(10) changes''

as defined in Part 70 so that both aspects of Part 70's operational

flexibility requirement are met.

EPA understands Vermont's concerns about the pending litigation,

but EPA is obligated to evaluate the State's program based on the Part

70 rules promulgated on July 21, 1992. Specifically, Part 70 currently

requires both ``Section 502(b)(10) changes'' and emissions trading

under emission caps established in a title V permit as mechanisms to

implement operational flexibility. In an August 29, 1994 (FR 44572)

rulemaking

[[Page 51369]]

proposal, EPA proposed to eliminate Section 502(b)(10) changes as a

mechanism for implementing operational flexibility. When the proposed

changes to Part 70 are finalized, EPA and the State will revisit this

matter and address it consistent with the program transition provisions

of the revised Part 70 regulations.

Comment: Vermont does not agree that it must include language in

its regulations requiring it to reopen and reissue operating permits

``for cause'' as defined by Part 70. Vermont feels that by mandating

such actions in its regulations, it imposes a regulatory burden on

itself that could be interpreted to limit its ability to reopen a

permit for reasons not specifically enumerated in its regulation.

Response: It is not EPA's intent to limit Vermont's ability to

reopen a permit for any reason the State believes is appropriate. EPA's

interim approval condition is intended to ensure that Vermont's

regulation requires permit reopening under the conditions required by

40 CFR 70.7(f)(1). Vermont is free to add to the list of conditions in

40 CFR 70.7(f)(1) requiring reopening, or to provide the Commissioner

with the discretion to reopen permits for reasons in addition to those

specified in 40 CFR 70.7(f)(1).

Comment: Vermont objects to EPA's position that Vermont's

regulations must list the terms and conditions that must appear in

every permit. Vermont believes the intent of the Act is for Vermont to

demonstrate that it has legal authority to include the necessary terms

and conditions, ``not to unnecessarily clutter its regulations with a

detailed list of all permit terms and conditions.'' Furthermore,

Vermont objects to promulgating regulations which it claims impose

requirements upon itself rather than the regulated community.

Response: Forty CFR 70.6 requires that a permitting authority

commit in the program regulations to incorporate critical permit

elements including prompt reporting of deviations, recordkeeping of

different operating scenarios, and separating permit terms which are

enforceable only by the State from those that are enforceable by both

the State and EPA. The State must also indicate the origin and

authority of all permit terms and conditions as well as identify any

difference in form as compared to the applicable requirement. It is

this regulatory commitment that makes the permitting authority

accountable not only to EPA but also to citizens and the regulated

community.

III. Final Action

The EPA is promulgating interim approval of the operating permits

program submitted by the State of Vermont on April 28, 1995. The State

must make the changes specified in the proposed rulemaking, under

II.B., Proposed Action, in order to be granted full approval.

The scope of the State of Vermont's Part 70 program approved in

this document applies to all Part 70 sources (as defined in the

approved program) within the State of Vermont, except any sources of

air pollution over which an Indian Tribe has jurisdiction. See, e.g.,

59 FR 55813, 55815-18 (Nov. 9, 1994). The term ``Indian Tribe'' is

defined under the Act as ``any Indian tribe, band, nation, or other

organized group or community, including any Alaska Native village,

which is Federally recognized as eligible for the special programs and

services provided by the United States to Indians because of their

status as Indians.'' See section 302(r) of the CAA; see also 59 FR

43956, 43962 (Aug. 25, 1994); 58 FR 54364 (Oct. 21, 1993).

This interim approval extends until November 2, 1998. During this

interim approval period, the State of Vermont is protected from

sanctions, and EPA is not obligated to promulgate, administer and

enforce a Federal operating permits program in the State of Vermont.

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 the effective date

of this interim approval, as does the 3-year time period for processing

the initial permit applications.

If the State of Vermont fails to submit a complete corrective

program for full approval by May 4, 1998, EPA will start an 18-month

clock for mandatory sanctions. If the State of Vermont then fails to

submit a corrective program that EPA finds complete before the

expiration of that 18-month period, EPA will be required to apply one

of the sanctions in section 179(b) of the Act, which will remain in

effect until EPA determines that the State of Vermont has corrected the

deficiency by submitting a complete corrective program. If, six months

after application of the first sanction, the State of Vermont still has

not submitted a corrective program that EPA has found complete, a

second sanction will be required.

If EPA disapproves the State of Vermont's complete corrective

program, EPA will 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 the State of Vermont has

submitted a revised program and EPA has determined that it corrected

the deficiencies that prompted the disapproval. If, six months after

EPA applies the first sanction, the State of Vermont has not submitted

a revised program that EPA has determined corrects the deficiencies, a

second sanction is required.

In addition, discretionary sanctions may be applied where warranted

any time after the expiration of an interim approval period if the

State of Vermont has not timely submitted a complete corrective program

or EPA has disapproved its submitted corrective program. Moreover, if

EPA has not granted full approval to the State of Vermont program by

the expiration of this interim approval, since the expiration would

occur after November 15, 1995, EPA would be required to promulgate,

administer and enforce a Federal permits program for the State of

Vermont upon interim approval expiration.

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 as promulgated by EPA as they apply to Part 70

sources. 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. Vermont submitted a supplemental letter dated March 6, 1996

addressing the 112(l)(5) requirements for area/minor sources.

Therefore, the EPA is also promulgating approval under section

112(l)(5) and 40 CFR 63.91 of the State's program for receiving

delegation of section 112 standards that are unchanged from Federal

standards as promulgated. This program for delegations applies to

sources covered by the Part 70 program as well as area/minor sources.

See 61 FR 26145 for a fuller discussion of Section 112(l)(5)

delegations.

IV. Administrative Requirements

A. Docket

Copies of the State's submittal and other information relied upon

for the final interim approval, including comments received by the

State of Vermont and reviewed by EPA on the proposal, are contained in

the docket maintained at the EPA Regional Office. The docket is an

organized and complete file of all the information

[[Page 51370]]

submitted to, or otherwise considered by, EPA in the development of

this final interim approval. The docket is available for public

inspection at the location listed under the ADDRESSES section of this

document.

B. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by December 2, 1996. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).)

C. Executive Order 12866

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

D. Regulatory Flexibility Act

The 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.

E. Unfunded Mandates

Under Sections 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated 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 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.

F. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

List of Subjects in 40 CFR Part 70

Environmental protection, Administrative practice and procedure,

Air pollution control, Environmental Protection, Intergovernmental

relations, Operating permits, Reporting and recordkeeping requirements.

Dated: September 8, 1996.

John P. DeVillars,

Regional Administrator, Region I.

Part 70, title 40 of the Code of Federal Regulations is amended as

follows:

PART 70--[AMENDED]

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

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

2. Appendix A to Part 70 is amended by adding the entry for Vermont

in alphabetical order to read as follows:

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

Permits Programs

* * * * *

Vermont

(a) Department of Environmental Conservation: submitted on April

28, 1995; interim approval effective on November 1, 1996; interim

approval expires November 2, 1998.

(b) (Reserved)

* * * * *

[FR Doc. 96-25233 Filed 10-1-96; 8:45 am]

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