12778 Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Proposed Rules

State and Tribal abandoned mine land

reclamation plans and revisions thereof

submitted by a State or Tribe are based

on a determination of whether the

submittal meets the requirements of

Title IV of SMCRA (30 U.S.C. 1231–

1243) and the Federal regulations at 30

CFR Parts 884 and 888.

National Environmental Policy Act

No environmental impact statement is

required for this rule since agency

decisions on proposed State and Tribal

abandoned mine land reclamation plans

and revisions thereof are categorically

excluded from compliance with the

National Environmental Policy Act (42

U.S.C. 4332) by the Manual of the

Department of the Interior [516 DM 6,

appendix 8, paragraph 8.4B(29)].

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by OMB under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has

determined 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.). The State submittal

which is the subject of this rule is based

upon Federal regulations for which an

economic analysis was prepared and

certification made that such regulations

would not have a significant economic

effect upon a substantial number of

small entities. Accordingly, this rule

will ensure that existing requirements

established by SMCRA or previously

promulgated by OSM will be

implemented by the State. In making the

determination as to whether this rule

would have a significant economic

impact, the Department relied upon the

data and assumptions in the analyses for

the corresponding Federal regulations.

Unfunded Mandates

This rule will not impose a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 914

Intergovernmental relations, Surface

mining, Underground mining.

Dated: March 10, 1997.

Ronald C. Recker,

Acting Regional Director, Appalachian

Regional Coordinating Center.

[FR Doc. 97–6752 Filed 3–17–97; 8:45 am]

BILLING CODE 4310–05–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 70

[AD–FRL–5710–8]

Clean Air Act Interim Approval of

Operating Permits Program;

Commonwealth of Virginia

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed interim approval.

SUMMARY: EPA proposes interim

approval of the Commonwealth of

Virginia’s Operating Permits Program,

which Virginia submitted in response to

Federal statutory and regulatory

directives that States adopt programs

providing for the issuance of operating

permits to all major stationary sources

and to certain other sources. EPA is

proposing interim approval of Virginia’s

submittal because Virginia’s program

substantially meets the requirements for

approval set forth at 40 Code of Federal

Regulations (CFR) Part 70, but still

requires some revisions to fully meet

those requirements. The required

revisions which Virginia will have to

make before EPA could grant full

approval are discussed in this notice.

DATES: Comments on this proposed

action must be received in writing by

April 17, 1997. Comments should be

addressed to the contact indicated

below.

ADDRESSES: Copies of the State’s

submittal and other supporting

information used in developing the

proposed interim approval are available

for inspection during normal business

hours at the following locations: (1) U.S.

EPA Region III; Air, Radiation, & Toxics

Division; 841 Chestnut Building;

Philadelphia, PA 19107, and (2) Virginia

Department of Environmental Quality;

629 East Main Street, Richmond,

Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Ray

Chalmers, 3AT23; U.S. EPA Region III;

Air, Radiation, & Toxics Division; 841

Chestnut Building; Philadelphia, PA

19107. (215) 566–2061.

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Submittal and Review Requirements

As required under Title V of the 1990

Clean Air Act Amendments (sections

501–507 of the Clean Air Act (CAA)),

EPA has promulgated rules which

define the minimum elements of an

approvable State operating permits

program and the corresponding

standards and procedures by which the

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. Title V directs States to develop, and

submit to EPA, programs for issuing

these operating permits to all major

stationary sources and to certain other

sources.

The CAA directs States to develop

and submit these programs to EPA by

November 15, 1993, and requires EPA 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

CAA and the part 70 regulations, which

together outline criteria for approval or

disapproval. Where a program

substantially, but not fully, meets the

requirements of section 502 of the CAA

and 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 November 15, 1995, or by

the end of an interim program, it must

establish and implement a Federal

program.

Due in part to pending litigation over

several aspects of the Part 70 rule

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 redefine EPA’s

criteria for the minimum elements of an

approvable State operating permits

program and the corresponding

standards and procedures by which EPA

will review State operating permits

program submittals. Until the date on

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.

B. Federal Oversight and Potential

Sanctions

If EPA were to finalize this proposed

interim approval, it would extend for

two years following the effective date of

the final interim approval. During the

interim approval period, Virginia would

be protected from sanctions, and EPA

would not be obligated to promulgate,

administer and enforce a Federal

permits program for the

Commonwealth. Permits issued under a

program with interim approval have full

standing with respect to part 70, and the

one year time period for submittal of

permit applications by subject sources

begins upon the effective date of interim

approval, as does the three year time

period for processing the initial permit

applications.

Following final interim approval, if

Virginia failed to submit a complete
Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Proposed Rules 12779

corrective program for full approval by

the date six months before expiration of

the interim approval, EPA would be

required to start an 18 month clock for

mandatory sanctions. If Virginia then

failed to submit a corrective program

that EPA found complete before the

expiration of the 18 month period, EPA

would be required to apply one of the

sanctions in section 179(b) of the CAA,

which would remain in effect until EPA

determined that Virginia had remedied

the deficiency by submitting a complete

corrective program. Moreover, if the

Administrator found a lack of good faith

on the part of Virginia, both sanctions

under section 179(b) would be required

to apply after the expiration of the 18

month period until the Administrator

determined that Virginia had come into

compliance. In any case, if, six months

after application of the first sanction,

Virginia still had not submitted a

corrective program that EPA found

complete, a second sanction would be

required.

If, following final interim approval,

EPA were to disapprove 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

Virginia had submitted a revised

program and EPA had determined that

it corrected the deficiencies that

prompted the disapproval. Moreover, if

the Administrator found a lack of good

faith on the part of Virginia, both

sanctions under section 179(b) would be

required to apply after the expiration of

the 18 month period until the

Administrator determined that Virginia

had come into compliance. In all cases,

if, six months after EPA applied the first

sanction, 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 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 Virginia’s program by the

expiration of the interim approval, EPA

must promulgate, administer and

enforce a Federal permits program for

Virginia after the interim approval

expires.

II. Description of Virginia’s Submittal

Virginia submitted an operating

permits program to EPA on November

12, 1993, pursuant to the requirements

of Title V. The submittal included

regulations, an Attorney General’s

opinion, a program description,

permitting program documentation, and

other required elements. On January 14,

1994, Virginia submitted a

supplemental letter pertaining to

enhanced monitoring. EPA disapproved

that submittal in a Federal Register

notice published on December 5, 1994

(59 FR 62324).

EPA disapproved the submittal

because it did not provide citizens with

adequate judicial standing to challenge

permits, did not prevent the default

issuance of permits, did not contain

regulations which were still in effect,

did not cover the proper universe of

sources, did not ensure that permits

would include all applicable

requirements, and did not correctly

delineate permit provisions enforceable

only by Virginia. In addition, EPA

identified numerous other deficiencies

that Virginia would need to correct to

meet the federal requirements for a fully

approvable program, although these

other deficiencies were not bases for the

disapproval action. These other issues

were what EPA calls ‘‘interim approval

issues’’—deficiencies that would

prevent granting full approval to the

State’s program, but that leave the

program qualified for interim approval

because they don’t cause it to fail to

‘‘substantially meet’’ the requirements

of the CAA.

On January 9, 1995, Virginia

submitted revised regulations and a

revised Attorney General’s opinion as

amendments to its original program, and

asked that EPA approve the revised

program. On January 17, 1995, Virginia

submitted an additional copy of the

revised regulations (the version

published in the Virginia Register).

Finally, on May 17, 1995, Virginia again

amended its program by submitting

revised statutory language and an

amended Attorney General’s opinion.

The revisions addressed many of the

disapproval bases and other deficiencies

EPA had previously identified.

However, Virginia did not submit

revised judicial standing provisions.

Virginia did not revise these provisions

because it believed its judicial standing

provisions were adequate and had sued

EPA to contest EPA’s conclusion that

they were not.

EPA proposed disapproval of

Virginia’s revised submittal in a Federal

Register notice published on September

19, 1995 (60 FR 48435). EPA proposed

disapproval because Virginia still did

not provide citizens with adequate

judicial standing to challenge permits,

because Virginia did not assure that all

sources required by the CAA to obtain

Title V permits would be required to

obtain such permits, and because

Virginia did not adequately provide for

collection of Title V program fees. EPA

also identified as interim approval

issues the fact that Virginia had defined

units as ‘‘insignificant’’ at far higher

emissions levels than those which EPA

considered ‘‘sound,’’ as well as certain

other provisions pertaining to

insignificant activities.

On November 8, 1995, Virginia

submitted revised Title V operating

permit regulations to EPA, which the

Commonwealth asserted corrected the

major regulatory problems which EPA

had identified in Virginia’s previous

submittals, and again asked that EPA

approve the State’s program. However,

these were emergency regulations in

effect for only one year, and Virginia

had taken no action to revise its judicial

standing provisions to give all affected

citizens the right to challenge in

Virginia’s courts operating permits

issued by Virginia. Moreover, Virginia

had not corrected provisions pertaining

to insignificant activities which EPA

had identified as raising interim

approval issues. On September 10 and

12, 1996, Virginia again submitted to

EPA revised Title V program

regulations, this time regulations which

had been permanently adopted, and

once more asked that EPA approve the

State’s Title V program. However,

Virginia had still not revised its judicial

standing provisions and had still not

corrected provisions pertaining to

insignificant activities. Since Virginia’s

November, 1995 and September, 1996

submittals did not properly address

previously identified deficiencies, EPA

did not propose to take action on these

submittals when EPA initially received

them.

Virginia has since appropriately

revised its judicial standing provisions.

After the Fourth Circuit Court of

Appeals affirmed EPA’s disapproval of

Virginia’s program, 80 F.3d 869 (1996),

Virginia appealed its case to the U.S.

Supreme Court. On January 21, 1997,

the Supreme Court decided not to hear

Virginia’s case. Virginia had prepared

for the possibility that the Courts might

not rule in the Commonwealth’s favor

by passing a revised judicial standing

law, acceptable to EPA, which would go

into effect should the Courts not find for

Virginia.

On February 6, 1997, Virginia

submitted to EPA an Attorney General’s

opinion affirming that Virginia’s

acceptable judicial standing law would

be in effect as of February 15, 1997 as

a result of the U.S. Supreme Court’s

January 21, 1997 denial of Virginia’s

petition. The Attorney General’s
12780 Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Proposed Rules

opinion also addressed several other

remaining legal issues. In addition, on

February 27, 1997, Virginia’s

Department of Environmental Quality

(VADEQ) agreed to commit to

recommending revisions to regulatory

requirements and also agreed to make

certain interpretations of existing

regulatory requirements. These

agreements are discussed below when

relevant.

As a result of these recent revisions,

EPA has determined that Virginia’s Title

V submittal now substantially meets the

requirements for approval set forth at 40

CFR part 70, and EPA is therefore

proposing interim approval of Virginia’s

submittal. The portions of the submittal

for which EPA is proposing interim

approval consist of the operating permit

and operating permit fee regulations

submitted on September 10, 1996, the

acid rain operating permit regulations

submitted on September 12, 1996, and

other non-regulatory documentation.

EPA cannot propose full approval

because Virginia must still address

certain ‘‘interim approval issues,’’ as

discussed below. Concurrently with this

proposed interim approval, EPA is

withdrawing the proposal to disapprove

Virginia’s submittal which EPA

published in the Federal Register on

September 19, 1995.

III. Analysis of Virginia’s Submittal

This section focuses on how Virginia

has corrected the program deficiencies

which EPA identified in Virginia’s

program in the proposed disapproval

notice which EPA published at 60 FR

48435 on September 19, 1995, and on

certain other important deficiencies

which Virginia must still address before

EPA can fully approve the

Commonwealth’s program. Virginia’s

full program submittal, EPA’s Technical

Support Document (TSD), which

provides additional analysis of

Virginia’s submittal, and other relevant

materials are available as part of the

public docket.

Virginia’s Title V operating permit

program submittal substantially, but not

fully, meets the requirements of the

CAA and of the implementing

regulations at 40 CFR Part 70. Virginia

has substantially corrected the

deficiencies which had earlier caused

EPA to disapprove and to propose to

disapprove Virginia’s programs. The

deficiencies which EPA identified as

bases for disapproval when it published

its September 19, 1995, Federal Register

notice proposing disapproval of

Virginia’s program were that Virginia’s

Title V program submittal: (1) Did not

provide all citizens with adequate

judicial standing to challenge State

permits; (2) did not assure that all

sources required by the CAA to obtain

Title V permits would be required to

obtain such permits; and (3) did not

contain an adequate provision for

collection of Title V program fees. EPA

discusses below the changes Virginia

made in its Title V submittal to correct

these deficiencies. EPA also identified

other deficiencies during its previous

review, which it identified as interim

approval issues. Virginia has already

corrected some of these deficiencies.

Discussed below are changes which

Virginia made which adequately

address some of these previously

identified deficiencies, as well as

certain additional changes which

Virginia must still make before EPA

could grant full approval to Virginia’s

program.

A. Deficiencies Corrected

1. Virginia’s Judicial Standing

Provisions

A major reason for EPA’s disapproval

and its proposal to disapprove Virginia’s

earlier Title V operating permit program

submittals was that Virginia’s law did

not provide interested parties with

adequate standing to obtain judicial

review in State court of final Title V

permit decisions. Virginia’s judicial

standing law restricted the right to

judicial review to those who had

suffered an actual or imminent injury

which was an invasion of ‘‘an

immediate, pecuniary and substantial

interest which is concrete and

particularized.’’ EPA, and the U.S. Court

of Appeals for the 4th Circuit,

concluded that Virginia’s requirement

that a petitioner had to demonstrate a

‘‘pecuniary’’ interest was too restrictive

to be approved under Title V. See 80

F.3rd 869 (4th Cir., 1996).

After EPA’s position was upheld by

the Fourth Circuit Court of Appeals,

Virginia appealed the case to the U.S.

Supreme Court. On January 21, 1997,

the Supreme Court declined to hear

Virginia’s case. To be prepared should

EPA’s position that Virginia’s judicial

standing provisions were deficient be

upheld by the Courts, Virginia had

adopted revised and acceptable judicial

standing provisions, at sections 10.1–

1318, 10.1–1457, and 62.1–44.29 of the

Code of Virginia, but specified that the

revised provisions would become

effective only if Virginia’s suit against

EPA was unsuccessful.

The Supreme Court’s refusal to take

Virginia’s appeal has caused Virginia’s

revised judicial standing provisions to

become effective, and Virginia’s

standing provisions are now fully

acceptable. Virginia’s revised standing

law now provides judicial standing to

any person who ‘‘meets the standard for

judicial review of a case or controversy

pursuant to Article III of the United

States Constitution.’’ It further provides

that ‘‘a person shall be deemed to meet

such standard if (i) such person has

suffered an actual or imminent injury

which is an invasion of a legally

protected interest and which is concrete

and particularized; (ii) such injury is

fairly traceable to the decision of the

Board and not the result of the

independent action of some third party

not before the court; and (iii) such

injury will likely be redressed by a

favorable decision by the court.’’ This

new standard is consistent with the

standard for Article III standing

articulated by the Supreme Court in

Lujan v. Defenders of Wildlife, 112 S. Ct.

2130 (1992). Consequently, EPA has

determined that Virginia’s standing

provisions meet the requirements of

CAA section 502(b)(6) and 40 CFR

70.4(b)(3).

2. Applicability Under the Operating

Permits Program

In the original disapproval of

Virginia’s program, EPA identified as a

basis for disapproval Virginia’s failure

to require issuance of permits to the

proper universe of sources required by

part 70. See 59 FR 62325. In addition,

in its September 19, 1995, Federal

Register notice proposing disapproval of

Virginia’s previous operating permit

program submittal, EPA again cited the

fact that the submittal did not ensure

the applicability of the Title V operating

permit program to all sources required

to be subject to the program under 40

CFR 70.3 as a reason for disapproving

the submittal.

This was because in the applicability

sections of the earlier version of its

regulations (which were designated as

sections 120–08–0501 and 120–08–

0601) Virginia should have listed all of

the CAA requirements which trigger

Title V applicability, as they are set

forth at 40 CFR 70.3. Instead of meeting

this requirement by listing federal CAA

section 111 and 112 requirements,

Virginia inappropriately listed certain of

its own air pollution control regulations,

into which it had incorporated federal

CAA section 111 and 112 requirements.

In the revised regulations it submitted to

EPA in September 1996, Virginia

correctly cited federal CAA section 111

and 112 requirements in the

applicability sections of its regulations

(now designated as sections 9 VAC 5–

80–50 and 9 VAC 5–80–310), thus

correcting this deficiency. As discussed

later in this notice, Virginia’s

regulations regarding applicability
Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Proposed Rules 12781

continue to present a minor facial

inconsistency with part 70, which EPA

does not view as an impediment to

future full approval of the

Commonwealth’s program.

3. Permit Fee Demonstration

In its September 19, 1995, Federal

Register notice EPA cited the

inadequacy of the permit fee provisions

in Virginia’s submittal as another reason

for proposing disapproval of the

submittal. The deficiency in the fee

provision was that Virginia had not set

a minimum fee amount of $25 per ton

of emissions, to be adjusted for

consumer price inflation (CPI) using a

1989 base year. Virginia revised its

regulations to correct this deficiency.

In its prior notice EPA also identified

as a concern a statutory limit on the

amount of fees which the

Commonwealth can collect. This

statutory limit, which is found in the

Virginia Air Pollution Control Law at

§ 10.1–1322 B, appears to create a cap of

$25 per ton of emissions, to be adjusted

for inflation using a 1990 base year. EPA

stated that the statute should be revised

to specify a base year of 1989. EPA

believed that unless Virginia made this

change the Commonwealth would not

be able to collect the full fee amount

specified by its regulations because of

the statutory cap.

Virginia did not change this statutory

provision. However, Virginia’s Attorney

General provided an assurance that this

cap would not interfere with the State’s

ability to collect the full amount of

required fees. Virginia’s Attorney

General stated that: ‘‘Virginia Code

§ 10.1–1322(B) provides that the annual

permit fees ‘shall be adjusted annually

by the Consumer Price Index as

described in § 502 of the federal Clean

Air Act.’ ’’ Since Code § 10.1–1322(B)

references § 502 and § 502 provides that

adjustment shall be made using 1989 as

the base year, the CPI adjustment

required by Code § 10.1–1322(B) also

employs a 1989 base year. The reference

in Code § 10.1–1322(B) to a 1990 base

year does not pertain to the CPI

adjustment, but refers instead to the

year in which the initial $ 25 per ton

charge applies. In keeping with the

requirements of section 502 of the CAA

as interpreted by EPA and for this

purpose only, the year 1990 runs from

September 1, 1989 through August 31,

1990.’’ See Supplement to January 6,

1995 Attorney General’s Opinion dated

February 6, 1997. Because the fee cap as

adjusted by the CPI under the Virginia

fee statute is in fact the same as the

amount as the fee assessed under the

Virginia regulations (i.e., the calculation

begins at $25 per ton and is adjusted by

changes in the CPI since 1989), EPA is

satisfied that Virginia will be able to

assess fees which meet the presumptive

minimum required under Title V.

4. Other Deficiencies Corrected

In its September 19, 1995, Federal

Register notice EPA cited several other

deficiencies in the insignificant

activities provisions in Virginia’s

submittal which would prevent EPA

from being able to grant full approval to

the program. Virginia corrected some

but not all of these deficiencies. In this

section EPA discusses the deficiencies

which Virginia corrected.

In its previous proposed disapproval

notice, EPA expressed concern

regarding the fact that Virginia had

defined as insignificant all emissions

units with uncontrolled emissions of

less than 10 tons per year of nitrogen

dioxide, sulfur dioxide, and total

suspended particulates or particulate

matter (PM10), less than seven tons per

year of volatile organic compounds, and

less than 100 tons per year of carbon

monoxide (CO). EPA noted that it

considered these levels too high.

Virginia responded to EPA’s concerns

by changing its insignificant activity

provisions to define units as

insignificant which had uncontrolled

emissions of less than 5 tons per year

(TPY) of nitrogen dioxide, sulfur

dioxide, total suspended particulates or

particulate matter (PM10), and volatile

organic compounds. EPA considers the

exemption level of less than 5 TPY of

uncontrolled emissions of these

pollutants to be acceptable. Virginia did

not change its specification that units

with uncontrolled CO emissions of less

than 100 TPY are insignificant. For the

reasons discussed in the September 19,

1995 Federal Register notice, EPA

continues to regard this as a deficiency

which must be corrected before EPA

could grant full approval to Virginia’s

program. This deficiency is discussed

further below in the section entitled

Remaining Deficiencies.

EPA was also concerned by the fact

that under Virginia’s previous rules a

determination of whether or not a

source is subject to the operating permit

program could be made without taking

into account emissions from units

considered to be insignificant. If the

total emissions from units subject to

Title V requirements were just below

the levels which would trigger Title V

program applicability, failure to take

into account additional emissions from

units which are exempt could result in

a source avoiding Title V requirements

to which it should have been subject.

Virginia corrected this deficiency by

stating in Rule 8–5 at 9 VAC 5–80–90,

and in Rule 8–7 at 9 VAC 5–80–440,

that ‘‘the emissions from any emissions

unit shall be included in the permit

application if the omission of those

emissions units from the application

would interfere with the determination

of the applicability of this rule, the

determination or imposition of any

applicable requirement, or the

calculation of permit fees,’’ and by

including a similar statement in Article

4 at 9 VAC 5–80–710. Thus, EPA has

determined that Virginia has sufficiently

corrected this prior deficiency, and the

Commonwealth need take no further

action with respect to it before EPA

could grant full approval to Virginia’s

program.

In addition, EPA was concerned by

the fact that in Appendix W of the

Commonwealth’s prior regulations

(since redesignated as Article 4) Virginia

had defined as insignificant all

pollutant emission units with emissions

less than the section 112(g) de minimis

levels set forth at 40 CFR 63.44 or the

accidental release threshold levels set

forth at 40 CFR 68.130. See 9 VAC 5–

80–720 B 6. EPA noted that these levels

were appropriate in many cases, but

were too high in others. Virginia

adequately addressed this concern by

adding the qualifier ‘‘or 1000 pounds

per year, whichever is less’’ to the

statement at 9 VAC 5–80–720 B 6.

Furthermore, while not a concern for

purposes of program approval, EPA

notes that the references to emission

units with emissions at or below the

section 112(g) de minimis levels

established in 40 CFR 63.44 now have

no meaning. See 9 VAC 5–80–720 B 5

and B 6. Virginia apparently assumed

when it prepared its regulation that EPA

would finalize the referenced list.

However, EPA did not finalize this list

and there are now no emissions levels

‘‘in 40 CFR 63.44.’’ As a result, emission

units emitting hazardous air pollutants

which are not 112(r) pollutants need to

be fully described in application forms.

This fact reduces the universe of units

which can be considered insignificant

under Virginia’s regulations, but this is

not a concern with respect to EPA’s

decision to approve or disapprove

Virginia’s program, because part 70 does

not require States to define any

particular units as insignificant.

Finally, EPA also expressed concern

with the fact that in its prior program

Virginia had inappropriately included

‘‘comfort air conditioning’’ and

‘‘refrigeration systems,’’ which are

subject to stratospheric ozone protection

requirements, in the listing of

insignificant activities found in Article

4. Virginia removed these items from
12782 Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Proposed Rules

the list. Thus, this previous deficiency

has been fully corrected.

B. Remaining Deficiencies (Interim

Approval Issues)

As noted above, in its December 5,

1994 and September 19, 1995, Federal

Register notices EPA cited several other

deficiencies in the insignificant

activities provisions in Virginia’s

submittal as another impediment to

granting full approval of the submittal.

EPA stated that Virginia would have to

correct these deficiencies before EPA

could fully approve the

Commonwealth’s program. In this

section EPA addresses one insignificant

activity related deficiency which

Virginia did not correct in its revised

program, and several additional

insignificant activity related

deficiencies which EPA has identified

in reviewing the Commonwealth’s new

program since publishing the September

1995 proposed disapproval notice.

1. Units Emitting Up To 100 TPY of CO

Inappropriately Considered to be

Insignificant

EPA remains concerned that Virginia

continues to define any emission unit

emitting less than 100 TPY of carbon

monoxide (CO) as insignificant. As EPA

stated in its September, 1995 proposed

disapproval notice, and as discussed

previously in this notice, EPA has

determined that the 100 TPY emissions

level is far too high. The Director of the

VADEQ has recently informed EPA that

VADEQ will seek to change this

regulation to correct this problem. (See

letter from VADEQ Director dated

February 27, 1997.) Virginia must

complete this correction before EPA can

fully approve Virginia’s program.

EPA does not consider this deficiency

to be an impediment to interim

approval. Virginia has identified a

specific provision in its regulations that

requires sources to provide emissions

information in permit applications if the

omission of that information ‘‘would

interfere with the determination of the

applicability of the State’s Title V

program, the determination or

imposition of any applicable

requirement, or the calculation of fees.’’

9 VAC 5–80–90. See also 9 VAC 5–80–

710 4. In addition, the majority of

sources in Virginia which have units

emitting CO are not subject to

applicable requirements for CO. Sources

that are subject to CO-related

requirements are likely to be subject to

federal standards, such as new source

performance standards (NSPS), for those

units, and should be aware of the

specific CO-related requirements

applicable to them. Thus, in the interim

period before Virginia revises its

regulations, EPA believes that the

potential for confusion caused by

Virginia’s 100 TPY CO threshold should

be minimized, provided the

Commonwealth takes care to monitor

source compliance with applicable

requirements. EPA therefore does not

believe it would be reasonable to

disapprove Virginia’s program due to

this deficiency. EPA’s treatment of

Virginia’s high CO threshold is

consistent with how EPA has addressed

similar problems in other States.

2. Applications Not Required to Include

Sufficient Information To Identify All

Applicable Requirements for Emission

Units Deemed Insignificant

In connection with its review of

Virginia’s inappropriate designation of

units emitting up to 100 TPY of CO as

insignificant EPA carefully reviewed

Virginia’s ‘‘gatekeeper’’ provisions to

determine whether or not they might

substantially address the concerns this

inappropriate designation had raised.

‘‘Gatekeeper’’ provisions are meant to

assure that all applicable requirements

for units designated as insignificant are

included in both applications and

permits, thereby enabling permitting

authorities, reviewing members of the

public, affected States, and EPA to

adequately assess source compliance

with all applicable requirements. During

the course of its review EPA identified

several deficiencies with these

‘‘gatekeeper’’ provisions.

Virginia’s regulations at 9 VAC 5–80–

90 D 1 now require emissions

information to be included in permit

applications, even for insignificant

activities, ‘‘if the omission of these

emissions units from the application

would interfere with the determination

of the applicability of this rule, the

determination or imposition of any

applicable requirement, or the

calculation of permit fees.’’ However,

with respect to including all applicable

requirements in applications, EPA notes

that Virginia has inappropriately

included a provision in the applicability

section of Rule 8–5, at 9 VAC 5–80–50

F, which states that ‘‘[t]he provisions of

9 VAC 5–80–90 concerning application

requirements shall not apply to

insignificant activities designated in 9

VAC 5–80–720 with the exception of the

requirements of 9 VAC 5–80–90 D 1 and

9 VAC 5–80–710,’’ and that it has

included a similar provision in the

applicability section of Rule 8–7, at 9

VAC 5–80–360 E. As a result of these

provisions, sources are required to

provide only emissions information for

insignificant activities, but not any

additional information, such as that

required by 9 VAC 5–80–90 D.2, E., or

F. (which require all information

necessary to determine applicable

requirements), which might be required

to identify applicable requirements

when emissions information alone is

not sufficient. Since many applicable

requirements under the CAA,

particularly those relating to 112(d)

standards for hazardous air pollutants,

could not be identified solely by

emissions information, EPA does not

believe that Virginia’s existing

‘‘gatekeeper’’ provision fully meets the

requirements of Title V. Specifically, 40

CFR 70.5(c) provides that applications

‘‘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 schedule approved pursuant

to § 70.9 of this part.’’ (emphasis added).

Before EPA can fully approve Virginia’s

program Virginia must assure that the

requirements of § 70.5(c) will be met by

appropriately revising the provisions at

9 VAC 5–80–50 F and 9 VAC 5–80–360

E.

VADEQ agrees that permit

applications must include all

information required to identify

applicable requirements, and has agreed

to seek revisions to Virginia’s

regulations in the future to ensure that

sources provide such information. In

addition, VADEQ has stated that

‘‘[u]nder the provisions of 9 VAC 5–80–

90 E 1, the Board (Virginia’s Air

Pollution Control Board) will require

that permit applications contain a

citation and description of all applicable

requirements including those covering

activities deemed insignificant under 9

VAC 5 Chapter 80, Article 4.’’ (See letter

from VADEQ Director dated February

27, 1997.) In light of this, EPA has

determined that Virginia’s program

substantially meets the requirements of

Title V with respect to this issue and

that it is appropriate to grant interim

approval of Virginia’s program. This is

consistent with how EPA has treated

similar deficiencies in other States.

3. Permits Not Required To Include

Applicable Requirements for Emission

Units Deemed Insignificant

With respect to including all

applicable requirements in permits,

Virginia Rule 8–5 contains an

inappropriate provision at 9 VAC 5–80–

110 which states that ‘‘For major

sources subject to this rule, the board

shall include in the permit all

applicable requirements for all emission

units in the major source except those

deemed insignificant in Article 4 (9

VAC 5–80–710 et. seq.) of this part.’’

Virginia’s Rule 8–7 (the acid rain
Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Proposed Rules 12783

regulation) essentially repeats this

deficiency at 9 VAC 5–80–490.A.1.

These provisions in Rules 8–5 and 8–7

are inadequate because they contain the

qualification ‘‘except those deemed

insignificant in Article 4 * * *’’ EPA

cannot fully approve Virginia’s program

until Virginia removes these

qualifications.

VADEQ agrees that the change EPA

calls for above is required and has

committed to seek this change. In

addition, VADEQ has stated that ‘‘In

addition to the provisions of 9 VAC 110

A 1, the Board will also include in the

permit those applicable requirements

covering activities deemed insignificant

under 9 VAC 5 Chapter 80, Article 4.’’

(See letter from VADEQ Director dated

February 27, 1997.) Finally, Virginia’s

regulations elsewhere suggest that the

Commonwealth’s program inadvertently

contains the deficiencies identified at 9

VAC 5–80–110 A.1 and 5–80–490 A.1.

This is suggested by the fact that 9 VAC

5–80–110 B.1, 5–80–150 A.4, 5–80–490

B.1 and 5–80–510 B 4 require that

permits ‘‘specify and reference

applicable emission limitations and

standards, including those [* * *] that

assure compliance with all applicable

requirements’’ and that permits may be

issued only if ‘‘the conditions of the

permit provide for compliance with all

applicable requirements.’’ In light of

this, EPA has determined that Virginia’s

program substantially meets the

requirements of Title V with respect to

this issue and that it is appropriate to

grant interim approval of Virginia’s

program. EPA’s treatment of this issue is

consistent with how it has been treated

in other States.

4. Emergency or Standby Compressors,

Pumps, and/or Generators

Inappropriately Defined as Insignificant

EPA also notes that under 9 VAC 5–

80–720 C 4 Virginia designates as

insignificant emissions units ‘‘Internal

combustion powered compressors and

pumps used for emergency replacement

or standby service, operating at 500

hours per year or less, as follows’’ and

then goes on to cite emergency

generators of various horsepower

ratings, depending on whether or not

the generators are gasoline, diesel, or

natural gas powered. EPA believes that

9 VAC 5–80–720 C 4 is confusing in that

Virginia first defines emergency or

standby compressors or pumps as

insignificant, and then further qualifies

the units considered insignificant by

discussing various sizes of emergency

generators. VADEQ has agreed to seek to

clarify this provision in the revised

regulations Virginia will be submitting

in the future. In the interim, VADEQ has

explained to EPA that ‘‘With regard to

the provisions of 9 VAC 5–80–720 C 4

regarding the designation of certain

internal combustion powered

compressors and pumps as insignificant

emissions units, the exemption levels

(expressed in horsepower) for the

emergency generators refer to the size of

the engines that provide the power to

the compressors and pumps.’’ (See letter

from VADEQ Director dated February

27, 1997.)

EPA notes that engines of the sizes

designated will likely be large enough to

trigger certain NSPS standards, e.g., 40

CFR part 60, Subpart Dc—Standards of

Performance for Small IndustrialCommercial-Institutional Steam

Generating Units, or GG—Standards of

Performance for Stationary Gas

Turbines, or be major sources in and of

themselves. EPA believes that to avoid

confusion any list of insignificant

activities should not contain items

which may clearly be subject to

applicable requirements. Accordingly,

before EPA can grant full approval to

the Commonwealth’s program, Virginia

must not only clarify its insignificant

activity provision for emergency pumps,

compressors, or generators, but must

also reduce the horsepower size

designations sufficiently to exclude any

unit which would likely trigger an

applicable requirement or emit

pollutants in major amounts. It is

important to note that the major source

thresholds for air pollutants will vary

depending on nonattainment

designations in the Commonwealth. For

example, given that there is a serious

ozone nonattainment area in northern

Virginia, the State’s insignificant

activities will be judged relative to the

major source thresholds of 50 tons/year

for volatile organic compounds and

nitrogen oxides.

EPA took a similar position in its

notice giving final interim approval to

Tennessee’s program. See 61 FR 39335

(July 29, 1996). In that notice EPA stated

that ‘‘insignificant activities lists should

avoid the potential for confusion created

when an activity that is plainly subject

to an applicable requirement is

included.’’ 61 FR 39337. EPA required,

as an interim approval item, that

Tennessee address EPA’s concerns

regarding the potential for confusion

which arose because certain activities

and emission units were listed as

insignificant which could also be

subject to applicable requirements. EPA

took similar positions when it proposed

approval of West Virginia’s program at

60 FR 44799 (August 29, 1995), and

then approved that program at 60 FR

57352 (November 15, 1995), and when

it proposed approval of Florida’s

program at 60 FR 32292 (June 21, 1995),

and then approved that program at 60

FR 49343 (September 25, 1995).

5. ‘‘Off-Permit Changes’’ Defined as

Including Changes Subject to

Requirements Under Title IV

In addition to the acid rain regulatory

provisions cited above that track flaws

in Virginia’s main Title V rule, EPA is

concerned with two other provisions in

the Commonwealth’s regulations

relating to acid rain requirements.

Currently, EPA’s Part 70 rule allows

sources to make certain so-called ‘‘offpermit’’ changes that are not addressed

or prohibited by the permit without

obtaining a permit revision. See 40 CFR

70.4(b)(14). However, this flexibility

does not extend to changes that are

modifications under Title I of the CAA

or those that are subject to any of the

acid rain requirements under Title IV of

the CAA. 40 CFR 70.4(b)(15). Regarding

acid rain requirements, EPA stated in its

preamble to the final part 70 rule that

‘‘the allowance trading system provided

for in Title IV will not be feasible unless

there is an accurate accounting of each

source’s obligations thereunder in the

Title V permit.’’ 57 FR 32250, 32270

(July 21, 1992). Virginia’s regulations

allowing ‘‘off permit’’ changes at 9 VAC

5–80–280.C and 5–80–680.C fail to

exclude from eligibility changes that are

subject to requirements under Title IV.

For the reasons discussed in the

preamble to the final part 70 rule, EPA

has determined that it cannot grant full

approval to Virginia’s program until

Virginia revises its regulations to

correctly exclude Title IV changes from

off-permit eligibility. In the meantime,

EPA does not view this deficiency as

preventing Virginia’s program from

substantially meeting the requirements

of Title V. Thus, the Commonwealth’s

program is still eligible for interim

approval.

6. Affirmative Defense Provisions

Deficient

Part 70 provides that a source may

qualify for an affirmative defense for

noncompliance with a technology based

emission limitation in ‘‘emergency’’

situations if certain conditions are met.

Section 70.6(g)(1) defines what kind of

situations may qualify as

‘‘emergencies,’’ and § 70.6(g)(3)

provides, in part, that the affirmative

defense of emergency shall be

demonstrated through properly signed,

contemporaneous operating logs, or

other relevant evidence that, ‘‘(iv) the

permittee submitted notice of the

emergency to the permitting authority

within 2 working days of the time when

emission limitations were exceeded due
12784 Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Proposed Rules

to the emergency.’’ Section 70.6(g)(3)

further provides that this notice would

satisfy the requirement for ‘‘prompt’’

reporting of deviations required by

§ 70.6(a)(3)(iii)(B).

In its program Virginia uses the term

‘‘malfunction’’ instead of emergency.

Virginia’s definition of this term is

consistent with how EPA defines

‘‘emergency.’’ However, Virginia’s

operating permit regulations at 9 VAC

5–80–250.B.4 and 5–80–650 provide in

part that ‘‘[f]or malfunctions that

occurred for one hour or more, the

permittee submitted to the board by the

deadlines established in B.4.a and B.4.b.

a notice and a written statement

containing a description of the

malfunction, any steps taken to mitigate

emissions, and corrective actions taken.

The notice fulfills the requirement of 9

VAC 5–80–110 F.2.b. to report promptly

deviations from permit requirements.’’

(emphasis added)

Virginia allows sources to claim the

affirmative defense for malfunctions

which last less than one hour even

when the source does not notify the

Commonwealth of the malfunction.

Thus, Virginia’s affirmative defense

provision is less stringent than that

required under § 70.6(g), and sources

may be able to shield themselves from

liability beyond what is allowed under

part 70. EPA cannot grant full approval

to Virginia’s program until Virginia

revises its regulations to correct this

deficiency. However, EPA does not view

this deficiency as preventing Virginia’s

program from substantially meeting the

requirements of Title V, since it is of

limited scope and Virginia’s regulations

otherwise comport with § 70.6(g). Thus,

the Commonwealth’s program is still

eligible for interim approval.

C. Other EPA Comments

1. Acid Rain Provisions

Virginia submitted Rule 8–7 to require

operating permits for sources subject to

acid rain emission reduction

requirements or limitations. Except for

the deficiencies discussed elsewhere in

today’s notice, EPA has determined that

Virginia’s Rule 8–7 for acid rain sources

is acceptable.

2. Authority and Commitments for

Section 112 Implementation

Section 112 of the CAA requires EPA

to control hazardous air pollutant

emissions from various categories of

sources by establishing maximum

achievable control technology (MACT)

standards. Upon request, EPA delegates

the authority to implement and enforce

section 112 requirements to State and

local agencies. Virginia requested that

EPA grant Virginia ‘‘delegation of

authority upon approval of the

operating permit program for all Section

112 programs except Section 112(r),

prevention of accidental releases.’’ (See

the VADEQ Director’s 11/12/93 letter

submitting Virginia’s initial request for

approval of its Title V program.)

Virginia demonstrated that it has in Va.

Code § 10.1–1322.A. and Rule 8–5 the

broad legal authority to incorporate into

permits and to enforce applicable CAA

section 112 requirements. Virginia

supplemented its broad legal authority

with a commitment to ‘‘develop the

state regulatory provisions as necessary

to carry out these programs and the

responsibilities under the delegation

after approval of the operating permit

program and EPA has issued the

prerequisite guidance for development

of these Title III programs.’’ (See the

VADEQ Director’s 11/12/93 letter

submitting Virginia’s initial request for

approval of its Title V program.) (Note:

States must meet their responsibilities

under the CAA and part 70 without

respect to whether or not EPA has

issued ‘‘guidance.’’ Nevertheless, EPA’s

view is that it has issued sufficient

guidance to enable States to develop all

necessary regulatory provisions

pertaining to section 112 requirements

(formerly referred to as Title III

requirements). With respect to CAA

section 112(r), Virginia has the authority

under section 9 VAC 5–80–90 1C to

require that an applicant state that the

source has complied with CAA section

section 112(r) or state in the compliance

plan that the source intends to comply

and has set a schedule to do so.

When EPA has not promulgated an

applicable Federal MACT emission

limitation, section 112(g) of the Clean

Air Act requires the Title V permitting

authority (generally a State or local

agency responsible for the program) to

determine a MACT emission limitation

on a case by case basis. On December

27, 1996, EPA promulgated regulations

at 40 CFR part 63 (61 FR 68384,

December 27, 1996) (the 112(g) MACT

rule) implementing certain provisions in

section 112(g). The 112(g) MACT rule

assures that owners or operators of a

newly constructed, reconstructed, or

modified major sources of hazardous air

pollutants (HAP)(unless they are

specifically exempted) will be required

to install effective pollution controls

during the period before EPA can

establish a national MACT standard for

a particular industry, provided they are

located in a State with an approved

Title V permit program. The rule does

not require new source MACT for

modifications to existing sources.

The 112(g) MACT rule establishes

requirements and procedures for owners

or operators to follow to comply with

section 112(g), and contains guidance

for permitting authorities in

implementing 112(g). Section 112(g)

will be in effect in a State or local

jurisdiction on the date that the

permitting authority, under Title V,

places its implementing program for

section 112(g) into effect. Permitting

authorities have up to 18 months from

the December 27, 1996, date of

publication of the 112(g) rule to initiate

implementing programs. After the 18

month transition period, if a State or

local permitting authority is unable to

initiate a section 112(g) program, there

are two options for obtaining a MACT

approval: Either (1) the EPA will issue

112(g) determinations for up to one

year; or (2) the permitting authority will

make 112(g) determinations according

to procedures specified at 40 CFR 63.43,

and will issue a notice of MACT

approval that will become final and

legally enforceable after the EPA

concurs in writing with the permitting

authority’s determination. Requirements

for permitting authorities are found at

40 CFR 63.42.

To place its 112(g) implementing

program into effect, the chief executive

officer of the State or local jurisdiction

must certify to EPA that its program

meets all the requirements set forth in

the 112(g) rule, and publish a notice

stating that the program has been

adopted and specifying its effective

date. The program need not be officially

reviewed or approved by EPA.

3. Deferral of Area Sources

Virginia’s regulations continue to

present a minor facial inconsistency

with part 70’s applicability

requirements with respect to permitting

of area sources which EPA wishes to

clarify in advance. In Virginia Rule 8–

5, 9 VAC 5–80–50 D.1 provides that area

sources subject to requirements

promulgated under section 111 or 112 of

the CAA are deferred from the

obligation to obtain permits, and that

the ‘‘decision to require a permit for

these sources shall be made at the time

that a new standard is promulgated and

shall be incorporated into [Virginia’s

regulations] along with the listing of the

new standard.’’

EPA’s regulations at 40 CFR 70.3(b)(2)

provide that the decision to exempt area

sources that become subject to section

111 or 112 standards adopted after July

21, 1992, will be made when such

standards are promulgated. EPA

interprets this language to mean that

unless the new standard explicitly

exempts area sources from Title V
Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Proposed Rules 12785

1 Document is defined to include ‘‘field notes,

records of observations, findings, opinions,

suggestions, conclusions, drafts, memoranda,

drawings, photographs, videotape, computergenerated or electronically recorded information,

maps, charts, graphs and surveys.’’ Va. Code § 10.1–

1198.A.

applicability, these area sources remain

subject to the permitting requirement of

CAA section 502(a) and are required to

obtain permits.

EPA was initially concerned that

owners and operators of these area

sources might, based on Virginia’s

regulations, mistakenly believe they are

not required to obtain permits either

because: (1) EPA may have not made an

explicit decision whether to exempt

them in setting the relevant standard,

thus resulting in no ‘‘decision’’ to

require them to obtain a permit being

incorporated into Virginia’s regulations

at the time the standard is incorporated;

or (2) Virginia may have not yet

incorporated into its regulations the

relevant standard, and its associated

implicit or explicit decision whether to

exempt area sources. Regarding the first

possible reason, EPA believes that

Virginia’s regulations can be reasonably

interpreted to properly require such

sources to obtain permits, if Virginia’s

incorporation of relevant sections 111

and 112 standards is treated as having

incorporated both any explicit decisions

to exempt sources from permitting and

any explicit or implicit decisions by

EPA to subject them to the permitting

requirement. The VADEQ has

committed to EPA that ‘‘In cases where

EPA has promulgated a standard under

section 111 or section 112 after July 21,

1992 and failed to declare whether or

not the facility or source category

covered by the standard is subject to the

Title V program or not, the Board in

making decisions under 9 VAC 5–80–90

D shall presume that the facility or

source category is subject to the Title V

program.’’ (See letter from the Director

of the VADEQ dated February 27, 1997.)

Regarding the second possible area of

confusion, Virginia’s provision does not

require area sources to obtain permits,

even if EPA has explicitly stated in the

substantive section 111 or section 112

rulemaking that they must, unless and

until Virginia incorporates the

underlying standard into its regulations.

Thus, if Virginia does not incorporate

the substantive federal rules into its

regulations, the requirement for these

sources to obtain a permit is not

triggered under Virginia’s program. The

Commonwealth has incorporated all

relevant sections 111 and 112 standards

to date, including any that extend the

permitting requirement to area sources.

Thus, the potential for confusion exists

only with respect to section 111 or

section 112 standards EPA promulgates

in the future. EPA notes that Virginia

has procedures for prompt

incorporation of new federal standards.

Since EPA has no reason to believe that

the Commonwealth will not continue to

timely incorporate these standards as

they become promulgated, Virginia’s

regulations do not in the Agency’s view

present an impediment to full approval

regarding this issue. EPA will, of course,

in conducting its oversight of Virginia’s

implementation of the program, watch

for any indication that delayed

incorporation of substantive standards

results in area sources not getting

permitted in a timely manner.

4. Audit Immunity and Privilege Law

Among other minimum elements

required for approval of a State

operating permits program, the CAA

includes the requirement that the

permitting authority has adequate

authority to assure that sources comply

with all applicable CAA requirements as

well as authority to enforce permits

through recovery of certain civil

penalties and appropriate criminal

penalties. Sections 502(b)(5) (A) and (E)

of the CAA. In addition, Part 70

explicitly requires States to have certain

enforcement authorities, including

authority to seek injunctive relief to

enjoin a violation, to bring suit to

restrain violations imposing an

imminent and substantial endangerment

to public health or welfare, and to

recover appropriate criminal and civil

penalties. 40 CFR 70.11. Moreover,

section 113(e) of the CAA sets forth

penalty factors for EPA or a court to

consider for assessing penalties for civil

and criminal violations of Title V

permits. EPA is concerned about the

potential impact of some State privilege

and immunity laws on the ability of

such States to enforce federal

requirements, including those under

Title V of the CAA.

Virginia has adopted legislation that

would provide, subject to certain

conditions, for an environmental

assessment (audit) ‘‘privilege’’ for

voluntary compliance evaluations

performed by a regulated entity. The

legislation further addresses the relative

burden of proof for parties either

asserting the privilege or seeking

disclosure of documents for which the

privilege is claimed. Virginia’s

legislation also provides, subject to

certain conditions, for a penalty waiver

for violations of environmental laws

when a regulated entity discovers such

violations pursuant to a voluntary

compliance evaluation and voluntarily

discloses such violations to the

Commonwealth and takes prompt and

appropriate measures to remedy the

violations.

Virginia’s Voluntary Environmental

Assessment Privilege, Code § 10.1–1198,

provides a privilege that protects from

disclosure documents 1 and information

about the content of those documents

that are the product of a voluntary

environmental assessment. The

privilege does not extend to documents

or information that are: (1) Generated or

developed before the commencement of

a voluntary environmental assessment;

(2) that are prepared independently of

the assessment process; (3) that

demonstrate a clear, imminent and

substantial danger to the public health

or environment; or (4) that are required

by law. Particularly since documents

required by Title V of the Act and by

part 70 are documents ‘‘required by

law,’’ EPA interprets the

Commonwealth’s privilege as not

extending to Title V required

documents. Virginia’s Office of the

Attorney General has submitted a legal

opinion which supports EPA’s

understanding that the

Commonwealth’s Title V program

requirements for compliance

monitoring, reporting of violations,

record keeping, and compliance

certification, together render the

privilege inapplicable to compliance

evaluations, at a Title V source, of the

Commonwealth’s Title V requirements.

Virginia’s immunity law, Va. Code

§ 10.1–1199, provides that ‘‘[t]o the

extent consistent with requirements

imposed by federal law,’’ any person

making a voluntary disclosure of

information to a state agency regarding

a violation of an environmental statute,

regulation, permit, or administrative

order is granted immunity from

administrative or civil penalty.

The Office of the Attorney General’s

legal opinion states that the phrase ‘‘to

the extent consistent with requirements

imposed by federal law’’ renders this

statute inapplicable to Title V

enforcement. No person can claim or be

accorded immunity from any

enforcement action that involves the

Commonwealth’s Title V program

because to do so would be inconsistent

with the requirements of Title V of the

federal Clean Air Act. Thus, the statute

by its terms cannot apply to sources

operating under a Title V permit.’’ Thus,

EPA is not listing any conditions on

Virginia’s Title V program approval for

this issue because the legislation will

not preclude the Commonwealth from

enforcing its Title V permit program

consistent with the CAA’s requirements.
12786 Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Proposed Rules

5. Variance Provision

While not an issue for purposes of

program approval, it should be noted

that Virginia has the authority to issue

a variance from requirements imposed

by Virginia law. The variance provision

at Va. Code § 10.1–1307.C. empowers

the Air Pollution Control Board, after a

public hearing, to grant a local variance

from any regulation adopted by the

board. EPA regards this provision as

wholly external to the program

submitted for approval under Part 70,

and consequently is proposing to take

no action on this provision of Virginia

law. EPA has no authority to approve

provisions of State law, such as the

variance provision referred to, 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 permit, except where such

relief is consistent with the applicable

requirements of the CAA and is granted

through procedures allowed by Part 70.

EPA reserves the right to enforce the

terms of the permit where the

permitting authority purports to grant

relief from the duty to comply with a

permit in a manner inconsistent with

the CAA and Part 70 procedures.

6. Permit Fee Changes

EPA notes that Virginia Rule 8–6

includes a provision, at 9 VAC 5–80–40

D. and E., which allows Virginia to

assess a fee of less than $25 per ton

(1989 dollars) adjusted for inflation, if

Virginia determines that it would collect

more money than required to fund its

Title V program if it assessed the full

$25 per ton fee (1989 dollars), adjusted

for inflation. If Virginia chooses in the

future to collect a fee of less than $25

(1989 dollars), adjusted for inflation, its

fee assessment would no longer meet

the requirement for presumed adequacy

under 40 CFR 70.9. Accordingly,

Virginia would trigger the requirements

under 40 CFR 70.9(b)(5) that it provide

EPA with a detailed accounting that its

fee schedule meets the requirements of

40 CFR 70.9(b)(1).

Before the Commonwealth assesses a

fee lower than the presumptive

minimum of $25 per ton (1989 dollars),

adjusted for inflation, it must obtain

EPA approval of such a fee. EPA would

approve such a fee if Virginia submitted

a detailed accounting showing that the

fee would result in the collection of

sufficient funds to run a fully adequate

Title V program. This requirement for

EPA approval of any fee lower than the

presumptive minimum is consistent

with the requirements of 40 CFR 70.9,

and is implied by 9 VAC 5–80–40 D.,

which states that ‘‘Any adjustments

made to the annual permit program fee

shall be made within the constraints of

40 CFR 70.9.’’

7. Title I Modifications

The EPA proposed to define ‘‘Title I

modification’’ in the August 31, 1995

Operating Permits Program and Federal

Operating Permits Program proposed

rule. The EPA proposed to define Title

I modification to mean any modification

under part C and D of Title I or sections

111(a)(4), 112(a)(5), or 112(g) of the Act

and regulations promulgated pursuant

to § 61.07 of part 61. If the definition of

‘‘Title I modification’’ is finalized as

proposed in the August 31, 1995,

proposed rule, the State’s definition

would be consistent with part 70. If the

definition of ‘‘Title I modification’’ is

changed from that proposed in the

August 31, 1995, proposed rule to

include minor new source review

changes, the Commonwealth will need

to revise its permit regulation to be

consistent with part 70.

IV. Proposed Aaction

EPA is proposing to grant interim

approval to the operating permits

program submitted by Virginia, and is

soliciting public comment on whether

or not such approval is appropriate. The

portions of the submittal for which EPA

is proposing interim approval consist of

the operating permit and operating

permit fee regulations submitted on

September 10, 1996, the acid rain

operating permit regulations submitted

on September 12, 1996, and other nonregulatory documentation. If EPA does

grant such approval, Virginia will be

required to correct all of the remaining

deficiencies in its program which are

discussed earlier in this notice before

EPA could grant full approval to

Virginia’s program. The interim

approval, which would not be

renewable, would extend for a period of

two years. During the interim approval

period Virginia would be protected from

sanctions for failure to have a program,

and EPA would not be obligated to

promulgate a Federal permits program

in the Commonwealth. Permits issued

under a program with interim approval

have full standing with respect to Part

70, and the one year time period for

submittal of permit applications by

subject sources begins upon interim

approval, as does the three year time

period for processing the initial permit

applications.

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. Therefore, EPA is also

proposing to grant 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 only applies to sources

covered by the Part 70 program.

V. Sanctions Stayed

Pursuant to section 502(d)(2)(A) of the

CAA, EPA may, at its discretion, apply

any of the sanctions in section 179(b) at

any time following the effective date of

a final disapproval. The available

sanctions include a prohibition on the

approval by the Secretary of

Transportation of certain highway

projects or the awarding of certain

federal highway funding, and a

requirement that new or modified

stationary sources or emissions units for

which a permit is required under Part D

of Title I of the CAA achieve an

emissions reductions-to-increases ratio

of at least 2-to-1. In addition, EPA is

required by section 502(d)(2)(B) of the

CAA to apply one of the sanctions in

section 179(b), as selected by the

Administrator, on the date 18 months

after the effective date of a final

disapproval, unless prior to that date the

State had submitted a revised operating

permits program and EPA had

determined that it corrected the

deficiencies that prompted the final

disapproval. Moreover, if the

Administrator finds a lack of good faith

on the part of the State, both sanctions

are to apply after the expiration of the

18-month period until the

Administrator determines that the State

has come into compliance. In all cases,

if, six months after EPA applies the first

sanction, the State has not submitted a

revised program that EPA has

determined corrects the disapproved

program’s deficiencies, a second

sanction is required. Finally, if EPA has

not granted full approval to the State’s

program by November 15, 1995, and the

State’s program at that point does not

have interim approval status, EPA must

promulgate, administer and enforce a

Federal permits program for the State on

that date.

EPA first disapproved Virginia’s

operating permits program in a Federal

Register notice published on December

5, 1994, which became effective on

January 5, 1995. As a result, EPA’s

authority to apply discretionary
Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Proposed Rules 12787

sanctions to Virginia arose on January 5,

1995, and the 18-month period before

which EPA is required to apply

sanctions also began on that date. EPA

was required to apply the first sanction

on July 5, 1996 and the second sanction

on January 5, 1997, unless by those

dates EPA had determined that Virginia

had corrected each of the deficiencies

that prompted EPA’s original

disapproval. EPA interprets the CAA to

require the Administrator to select by

rulemaking which sanction to apply

first, before mandatory sanctions may

actually be imposed. These sanctions

have not been applied in Virginia

because EPA has not yet published such

a rule covering deficiencies under Title

V.

EPA’s sanctions policy for applying

sanctions for State Title V Operating

Permits Program largely follows the

approach under Title I of the Act (see 40

CFR 52.31, 59 FR 39832 (August 4,

1994). Update to Sanctions Policy for

State Title V Operating Permits

Programs, John S. Seitz, Director Office

of Air Quality Planning and Standards,

(March 28, 1995).

Based on this proposed approval of

the Virginia Title V operating permits

program, EPA is making an interim final

determination by this action that the

Commonwealth has corrected the

deficiencies prompting the original

disapproval of the Virginia Title V

operating permits program. EPA has

determined that it is more likely than

not that the Commonwealth has

corrected the deficiencies that prompted

the original disapproval of the Virginia

operating permits program. This interim

final determination will stay the

implementation of sanctions unless and

until either this proposed approval is

finalized or is withdrawn.

Although this action regarding

sanctions is effective upon publication,

EPA will take comment on this interim

final determination as well as on EPA’s

proposed interim approval of the

Commonwealth’s submittal. EPA will

publish a final notice taking into

consideration any comments received

on EPA’s proposed action and this

interim final action. EPA has

determined that it is appropriate to give

immediate effect to this interim final

determination that Virginia has

corrected its prior disapproval

deficiencies because it would not be in

the public interest to leave Virginia

vulnerable to sanctions pending

finalization of the proposed approval.

See, e.g., 59 FR 39832, 39838 and

39849–50 (August 4, 1994).

Today EPA is also providing the

public with an opportunity to comment

on this interim final determination. If,

based on any comments on this action

and any comments on EPA’s proposed

interim approval of Virginia’s Title V

submittal, EPA determines that the

Virginia’s Title V submittal is not

approvable and this final action was

inappropriate, EPA will take further

action to disapprove the Title V

submittal. If EPA’s proposed approval of

the Virginia Title V submittal is

reversed, then Virginia would remain

vulnerable to sanctions under section

502(d)(2)(A) of the CAA.

VI. Administrative Requirements

A. Request for Public Comments

The EPA is requesting comments on

this proposed interim approval. Copies

of the State’s submittal and other

information relied upon for the

proposed interim approval are

contained in a docket maintained at the

EPA Regional 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 proposed interim approval. The

principal 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. The

EPA will consider any comments

received by April 17, 1997.

B. Executive Order 12866

The Office of Management and Budget

has exempted this action from Executive

Order 12866 review.

C. Regulatory Flexibility Act

The EPA’s actions under section 502

of the CAA 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 significantly impact a substantial

number of small entities.

D. Federal Mandates

Under Section 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 action

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 consider the most costeffective 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. This

Federal action proposes to approve

Virginia’s pre-existing Title V program,

and imposes no new Federal

requirements. Accordingly, this action

would not impose a federal mandate

which would result in additional costs

for State, local, or tribal governments, or

for the private sector.

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.

Dated: March 7, 1997.

W. Michael McCabe,

Regional Administrator,

Region III.

[FR Doc. 97–6826 Filed 3–17–97; 8:45 am]

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