[Federal Register Volume 66, Number 200 (Tuesday, October 16, 2001)]
[Rules and Regulations]
[Pages 52538-52544]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 01-26097]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[DC-T5-2001-01a; FRL-7085-8]
Clean Air Act Full Approval of Operating Permit Program; District
of Columbia
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to fully approve the
operating permit program of the District of Columbia. The District of
Columbia's operating permit program was submitted in response to the
Clean Air Act (CAA) Amendments of 1990 that required States to develop,
and submit to EPA, programs for issuing operating permits to all major
stationary sources and to certain other sources within the States'
jurisdiction. The EPA granted final interim approval of the District of
Columbia's operating permit program on August 7, 1995. The District of
Columbia amended its operating permit program to address deficiencies
identified in the interim approval action and this action approves
those amendments. Any parties interested in commenting on this action
granting full approval of the District of Columbia's title V operating
permit program should do so at this time. A more detailed description
of the District of Columbia's submittals and EPA's evaluation are
included in a Technical Support Document (TSD) in support of this
rulemaking action. A copy of the TSD is available, upon request, from
the EPA Regional Office listed in the ADDRESSES section of this
document.
DATES: This rule is effective on November 30, 2001 without further
notice, unless EPA receives adverse written comment by November 15,
2001. If EPA receives such comments, it will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.
ADDRESSES: Written comments may be mailed to Makeba Morris, Chief,
Permits and Technical Assessment Branch, Mailcode 3AP11, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103. Copies of the documents relevant to
this action are available for public inspection during normal business
hours at the Air Protection Division, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103
and District of Columbia Department of Public Health, Air Quality
Division, 51 N Street, N.E., Washington, DC 20002.
FOR FURTHER INFORMATION CONTACT: Paresh R. Pandya, Permits and
Technical Assessment Branch at (215) 814-2167 or by e-mail at
pandya.perry@.epa.gov.
SUPPLEMENTARY INFORMATION: On May 21, 2001, August 30, 2001, and
September 26, 2001, the District of Columbia submitted amendments to
its State operating permit program. These amendments are the subject of
this document and this section provides additional information on the
amendments by addressing the following questions:
What is the State operating permit program?
What are the State operating permit program requirements?
What is being addressed in this document?
What is not being addressed in this document?
What changes to the District of Columbia's operating permit
program is EPA approving?
What action is being taken by EPA?
What Is the State Operating Permit Program?
The Clean Air Act Amendments of 1990 required all States to develop
operating permit programs that meet certain federal criteria. When
implementing the operating permit programs, the States require certain
sources of air pollution to obtain permits that contain all of their
applicable requirements under the Clean Air Act (CAA). The focus of the
operating permit program is to improve enforcement by issuing each
source a permit that consolidates all of its applicable CAA
requirements into a federally-enforceable document. By consolidating
all of the applicable requirements for a given air pollution source
into an operating permit, the source, the public, and the State
environmental agency can more easily understand what CAA requirements
apply and how compliance with those requirements is determined.
Sources required to obtain an operating permit under this program
include ``major'' sources of air pollution and certain other sources
specified in the CAA or in EPA's implementing regulations. For example,
all sources regulated under the acid rain program, regardless of size,
must obtain operating
[[Page 52539]]
permits. Examples of ``major'' sources include those that have the
potential to emit 100 tons per year or more of volatile organic
compounds, carbon monoxide, lead, sulfur dioxide, nitrogen oxides, or
particulate matter (PM10); those that emit 10 tons per year of any
single hazardous air pollutant (HAP) specifically listed under the CAA;
or those that emit 25 tons per year or more of a combination of HAPs.
In areas that are not meeting the national ambient air quality
standards (NAAQS) for ozone, carbon monoxide, or particulate matter,
major sources are defined by the gravity of the nonattainment
classification.
What Are the State Operating Permit Program Requirements?
The minimum program elements for an approvable operating permit
program are those mandated by title V of the Clean Air Act Amendments
of 1990 and established by EPA's implementing regulations at title 40,
part 70--``State Operating Permit Programs'' in the Code of Federal
Regulations (40 CFR part 70). Title V required state and local air
pollution control agencies to develop operating permit programs and
submit them to EPA for approval by November 15, 1993. Under title V,
State and local air pollution control agencies that implement operating
permit programs are called ``permitting authorities''.
Where an operating permit program substantially, but not fully, met
the program approval criteria outlined at 40 CFR part 70, EPA granted
interim approval contingent on the permitting authority revising its
program to correct those programmatic deficiencies that prevented full
approval. The District of Columbia's original operating permit program
substantially, but not fully, met the requirements of 40 CFR part 70.
Therefore, EPA granted final interim approval of the program in a
rulemaking published on August 7, 1995. [See 60 FR 40101.] The interim
approval notice identified 29 outstanding deficiencies that had to be
corrected in order for the District of Columbia's program to receive
full approval. On May 21, 2001, August 30, 2001, and September 26,
2001, the District of Columbia submitted amendments to its operating
permit program to EPA to address its outstanding program deficiencies.
The District of Columbia's May 21, 2001, August 30, 2001, and
September 26, 2001 submittals satisfy the District's requirement to
submit program amendments to EPA for action by December 1, 2001. After
December 1, 2001, those jurisdictions lacking fully-approved operating
permit programs will, by operation of law, be subject to a federal
operating permit program implemented by EPA under 40 CFR part 71 [See
65 FR 32035, dated May 22, 2000].
What Is Being Addressed in This Document?
On May 21, 2001, August 30, 2001, and September 26, 2001, the
District of Columbia submitted amendments to its currently EPA-approved
title V operating permit program. In general, the District of Columbia
amended its operating permit program regulations to address
deficiencies identified by EPA when it granted final interim approval
of the District of Columbia's program in 1995.
What Is Not Being Addressed in This Document?
On December 11, 2000, EPA announced a 90-day comment period for
members of the public to identify deficiencies they perceive exist in
State and local agency operating permits programs. [See 65 FR 77376.]
The public was able to comment on all currently-approved operating
permit programs, regardless of whether they have been granted full or
interim approval. The December 11, 2000 notice instructed the public to
not include in their comments any program deficiencies that were
previously identified by EPA when the subject program was granted
interim approval. Since those program deficiencies have already been
identified and permitting authorities have been working to correct
them, EPA will solicit comments when taking action on those corrective
measures.
The EPA stated that it will consider information received from the
public pursuant to the December 11, 2000 notice and determine whether
it agrees or disagrees with the purported deficiencies. Where EPA
agrees there is a deficiency, it will publish a notice of deficiency
consistent with 40 CFR 70.4(i) and 40 CFR 70.10(b). The Agency will at
the same time publish a notice identifying any alleged problems that we
do not agree are deficiencies. For programs that have not yet received
full approval, such as the District of Columbia's program, EPA will
publish these notices by December 1, 2001.
The EPA received numerous comments in response to the December 11,
2000 notice announcing the start of the 90-day public comment period.
As part of those comments, EPA Region III received comments germane to
the District of Columbia's currently-approved operating permit program.
The Agency will respond to those comments in a separate notice(s) by
December 1, 2001 as required by the December 11, 2000 notice.
The EPA is not addressing any comments received pursuant to the
December 11, 2000 notice in this document. As mentioned above, comments
provided in accordance with the December 11, 2000 notice were to
address shortcomings that had not previously been identified by EPA as
deficiencies necessitating interim, rather than full, approval of a
state's operating permit program. This action granting full approval of
the District of Columbia's operating permit program only addresses
program deficiencies identified when EPA granted interim approval to
the District of Columbia's program in 1995. Therefore, any persons
wishing to comment on this action should do so at this time.
What Changes to the District of Columbia's Program Is EPA
Approving?
The EPA has reviewed the District of Columbia's May 21, 2001,
August 30, 2001, and September 26, 2001 program amendments in
conjunction with the portion of the District of Columbia's program that
was earlier approved on an interim basis. Based on this review, EPA is
granting full approval of the District of Columbia's amended operating
permit program. The EPA has determined that the amendments to the
District of Columbia's operating permit program adequately address the
29 deficiencies identified by EPA in its August 7, 1995 rulemaking
granting interim approval. The District of Columbia's operating permit
program, including the amendments submitted on May 21, 2001, August 30,
2001, and September 26, 2001, fully meets the minimum requirements of
40 CFR part 70.
Changes to the District of Columbia's Program That Correct Interim
Approval Deficiencies
The interim approval deficiencies identified by EPA in 60 FR 40101
(August 7, 1995) are listed in each of the 29 headings below.
1. Rename District of Columbia Municipal Regulations 20 DCMR 399.1
Definition of ``Emissions Emissions'' to ``Fugitive Emissions''
The District of Columbia revised 20 DCMR 399.1 to properly identify
the definition of ``fugitive emissions.''
[[Page 52540]]
2. Revise 20 DCMR 399.1 Definition of ``Title I Modification or
Modification Under Any Provision of Title I of the Act'' To Include
Changes Reviewed Under Minor New Source Review (if EPA Establishes Such
a Change in Definition Through Rulemaking)
Since EPA has yet to revise the definition of a ``Title I
modification'' to include changes subject to minor new source review,
the District's current regulations are consistent with 40 CFR part 70.
Should EPA revise this definition in the future, the District will be
required to revise its regulations as appropriate.
3. Modify 20 DCMR 301.1(b)(6)(B) To Clarify That Applications for
Permit Renewal Must Contain Both a Compliance Plan and a Compliance
Certification
The District of Columbia has revised 20 DCMR 301.1(b)(6) to add a
new section 301.1(b)(6)(C) that requires permit renewal applications to
contain compliance certifications, as specified by section 301.3(i).
Compliance plans continue to be required by 20 DCMR 301.1(b)(6)(B).
This amendment makes the District of Columbia's program consistent with
40 CFR 70.7(c)(1)(i) with regard to permit renewal requirements.
4. Revise 20 DCMR 301.3(c)(1) To Ensure That All Applicable
Requirements Will Be Described in Permit Applications
Title 20 DCMR 301.3(c)(1) contained the following exception
regarding permit application requirements ``* * * except where the
units are exempted under this subsection or section 300.2''. The
District of Columbia revised section 301.3(c)(1) to delete this
language related to exemptions. By removing this statement, all
applicable requirements must be described in permit applications,
without exception. This revision makes the District of Columbia's
program consistent with 40 CFR 70.5(c).
5. Revise 20 DCMR 301.3(g) To Correct Misreferenced Sections of the
District's Regulations Which Address Alternate Operating Scenarios and
Emissions Trading
Title 20 DCMR 301.3(g) contained two misreferenced sections. An
incorrect reference to section 302.1(i) has been changed to 302.1(j)
regarding alternative operating scenarios and an incorrect reference to
section 302.1(j) has been changed to 302.1(k) regarding defining permit
terms and conditions allowing emissions trading. This amendment makes
the District of Columbia's program consistent with 40 CFR 70.5(c)(7),
70.4(b)(12)(iii), and 70.6 (a)(10).
6. Revise 20 DCMR 301.3(h)(3)(C) To Clarify That Any Schedule of
Compliance Shall Be Supplemental to and Shall Not Sanction
Noncompliance With the Applicable Requirements on Which It Is Based
The District of Columbia revised 20 DCMR 301.3(h)(3)(C) to include
the following language: ``Any schedule of compliance shall be
supplemental to, and shall not sanction noncompliance with, the
applicable requirements on which it is based.'' This amendment makes
the District of Columbia's program consistent with 40 CFR
70.5(c)(8)(iii)(C).
7. Revise 20 DCMR 302.1(k) To Clarify That Terms and Conditions for the
Trading or Averaging of Emissions Must Meet All Applicable Requirements
and the Requirements of the Operating Permits Program
The District of Columbia revised 20 DCMR 302.1(k) to include the
following language: ``The terms and conditions for the trading or
averaging of emissions shall meet all applicable requirements and the
requirements of the operating permits program.'' This amendment makes
the District of Columbia's program consistent with 40 CFR
70.6(a)(10)(iii).
8. Renumber 20 DCMR 302.3(e)(6) to 302.3(f)
The District of Columbia renumbered 20 DCMR 302.3(e)(6) to
302.3(f).
9. Revise 20 DCMR 302.4(e) To Clarify That Requests for Coverage Under
a General Permit Must Meet the Permit Application Requirements of Title
V of the Clean Air Act, and Include All Information Necessary To Assure
Compliance With the General Permit
The District of Columbia revised 20 DCMR 302.4(e) to require
subject sources to meet the general permit qualification criteria and
application requirements and that sources covered by the general permit
must be in compliance with the general permit. This amendment makes the
District of Columbia's program consistent with 40 CFR 70.6(d)(2).
10. Restructure 20 DCMR 302.8 Pertaining to Operational Flexibility in
Accordance With the Structure of 40 CFR Part 70 Operational Flexibility
Provisions
The EPA indicated that the District should restructure 20 DCMR
302.8 pertaining to operational flexibility in accordance with the
structure of 40 CFR part 70 provisions for operational flexibility. The
District of Columbia provided a legal opinion on the adequacy of its
air quality regulations regarding operational flexibility dated
September 26, 2001. In its legal opinion, the District compared each of
the requirements of 40 CFR 70.4(b)(12) to the requirements in 20 DCMR
302.8. The District's legal opinion clarifies that the District's
regulations pertaining to operational flexibility are functionally
equivalent to the federal requirements. With the clarifying opinion
from the District, the restructuring of section 302.8 is not necessary.
The District of Columbia's program is consistent with 40 CFR 70.4 with
regard to operational flexibility.
11. With Respect to 20 DCMR 302.8, Clarify That Compliance With
Emissions Trading Provisions in a Permit Will Be Determined According
to Requirements of the Applicable State Implementation Plan (SIP)/
Federal Implementation Plan (FIP) or Applicable Requirements
Authorizing the Emissions Trade
The District of Columbia provided a legal opinion on the adequacy
of its air quality regulations regarding operational flexibility dated
September 26, 2001. The District's legal opinion states that 20 DCMR
302.8 is substantially similar to 40 CFR 70.4(b)(12). One of the
purposes of 20 DCMR 302.8(b) and 40 CFR 70.4(b)(12)(ii)(B) is to enable
permitted sources to trade increases and decreases in emissions.
However, the federal regulations explicitly provide that the trades
shall be determined according to requirements of the applicable
implementation plan authorizing the emissions trade. The District's
regulations refer to compliance with ``applicable requirements''
instead of directly referencing the District's SIP. The term
``applicable requirements,'' however, is a defined term in 20 DCMR 399
and includes the requirements of the District's approved SIP. The
District's legal opinion states that the District's regulations, by
requiring emission trades to comply with ``applicable requirements,''
also requires compliance with the District's SIP. Therefore, the
District interprets its operational flexibility provisions to require
that a source wishing to trade emissions first have that authority
under the District's SIP and provide written notice of that authority
pursuant to the SIP. With this clarification, the District of
Columbia's program is consistent with 40 CFR 70.4 with regard to
emissions trading.
[[Page 52541]]
12. Revise 20 DCMR 303.1(f) and 303.1(d)(1) To Ensure That the Part 70
Permit Issuance Deadlines Will Be Met
Title 20 DCMR 303.1(f) provides that the Mayor shall transmit a
proposed permit, permit modification, or renewal to the Administrator
no later than 45 days before the appropriate deadline for permit
issuance. Section 303.1(d)(1) provides that the proposed permit,
modification, or renewal shall be issued no later than 45 days
preceding the respective deadlines for permit issuance, modifications
and renewals. The District of Columbia revised 20 DCMR 303.1(f) and
303.1(d)(1) to ensure that the part 70 permit issuance deadlines will
be met. This amendment makes the District of Columbia's program
consistent with 40 CFR 70.4(b)(6).
13. Modify 20 DCMR 303.3(a) To Clarify That Public Participation and
EPA and Affected State Review Will Apply to the Entire Draft Renewal
Permit, Including Those Portions Which Are Incorporated by Reference
The District of Columbia revised 20 DCMR 303.3(a) to clarify that
applications for permit renewal and renewal permits in their entirety
must be subject to the same procedural requirements, including those
for public participation, affected state review and EPA review that
apply to initial permit issuance. This amendment makes the District of
Columbia's program consistent with 40 CFR 70.7(c)(1)(i).
14. Revise 20 DCMR 303.5(d)(1) To Require the Use of the Significant
Permit Modification Procedures for any Type of Change Which Does Not
Qualify as Either a Minor Permit Modification or an Administrative
Amendment
The District of Columbia revised 20 DCMR 303.5(d)(1) by adding
303.5(d)(1)(E) requiring that significant modification procedures shall
be used for applications requesting permit modifications that do not
qualify as administrative permit amendments or minor permit
modifications. This amendment makes the District of Columbia's program
consistent with 40 CFR 70.7(e).
15. Revise 20 DCMR 303.10 To Provide for Sending Notice to Persons on a
Mailing List Developed by the Permitting Authority, Including Those
People Who Request in Writing To Be on the List
The District of Columbia revised the public participation
procedures of 20 DCMR 303.10(a) to require the District to send notices
of permit actions to persons on a mailing list developed by the Mayor,
including those who request in writing to be on the list pursuant to 20
DCMR 303.10(a)(2). This amendment makes the District of Columbia's
program consistent with 40 CFR 70.7(h)(1).
16. Revise 20 DCMR 303.10(a)(1)(B) to Require the Notice To Include
Procedures To Request a Hearing in the Event That a Hearing Has Not
Been Scheduled
The District of Columbia revised 20 DCMR 303.10(a)(1)(B) to
establish procedures for the public to request a hearing on a permit
action if the Mayor has not scheduled a hearing. This amendment makes
the District of Columbia's program consistent with 40 CFR 70.7(h)(2).
17. Revise 20 DCMR 303.10 To Include a Provision That Requires Notice
of a Public Hearing at Least 30 Days in Advance of the Hearing
The District of Columbia revised 20 DCMR 303.10(a)(1) by adding
303.10(a)(1)(C) requiring that any notice of a public hearing be
published at least 30 days in advance of the hearing. This amendment
makes the District of Columbia's program consistent with 40 CFR
70.7(h)(4).
18. Clarify That the Average 1989 Consumer Price Index (CPI) Value Will
Be Used for the Purposes of Calculating the CPI Fee Adjustment
Each title V source in the District of Columbia is provided the
updated adjusted annual fee calculation each year by the District. The
District of Columbia adjusts the annual fee based on the CPI-Urban
Index that represents the12-month average from September through August
of the following year. The District uses the same presumptive minimum
fee that is computed by EPA each year. With this clarification, the
District of Columbia's program is consistent with 40 CFR
70.9(b)(2)(iv).
19. Revise 20 DCMR 305.1 To Ensure That Provisions for Equivalent Fee
Schedules Are Enforceable as a Practical Matter or Remove Section 305.1
Language ``or the Equivalent Over Some Other Period''
The District of Columbia revised 20 DCMR 305.1 to remove ``or the
equivalent over some other period.'' The revised 20 DCMR 305.1 now
reads as follows: ``Owners or operators of Part 70 sources shall pay
annual fees of twenty-five dollars ($25) per year (as adjusted pursuant
to the criteria set forth in section 305.2) times the total tons of
actual emissions of each regulated pollutant (for presumptive fee
calculation purposes) emitted from Part 70 sources.'' This amendment
makes the District of Columbia's program consistent with 40 CFR 70.9.
20. Revise the Corporation Counsel's Opinion to Reference Existing
Provisions in District of Columbia Law Which Satisfy the Requirements
of 40 CFR 70.11(a)(1) and (2), or Establish Authorities To Restrain or
Enjoin Immediately Permit Violators Presenting Substantial
Endangerment, and to Seek Injunctive Relief for Program and Permit
Violations Without the Need for Prior Revocation of the Permit
The EPA determined that the provisions cited in the Corporation
Counsel's opinion of January 13, 1994 did not specifically identify
authorities to restrain or enjoin immediately permit violators without
the need for prior revocation of the permit. EPA added that if such
enforcement authority existed, the District must clearly establish that
the authority extends to Chapter 3 of Title 20 DCMR. The Corporation
Counsel in its ``May 2001 Amendment to `Corporation Counsel's (Attorney
General's) Legal Opinion' submitted to the United States Environmental
Protection Agency, Region III, by letter dated January 13, 1994'',
cites to several provisions in the District's Air Pollution Control Act
implementing regulations and to the Home Rule Act, approved December
24, 1973 (87 Stat. 813; D.C. section102(a)) that provide the necessary
authorities. Specifically, the Corporation Counsel identifies the
following authorities in the implementing regulations of the Air
Pollution Control Act: (1) 20 DCMR 102.3 provides that the Mayor may
seek ``enforcement of this subtitle by injunctive relief or other
appropriate remedy; (2) 20 DCMR 401.10 authorizes the Mayor to issue
emergency orders forbidding operation where the Mayor finds that a
situation is causing or contributing to air pollution, or has the
potential to do so; and, (3) 20 DCMR 401.12 provides that nothing shall
preclude the Mayor from seeking relief or remedy, other than penalties,
that is provided for by law. The Corporation Counsel further states
that 20 DCMR 102.3 extends to all chapters in Subtitle A of the Air
Pollution Control Act, including Chapter 3. With this clarification,
the District of Columbia's program is consistent with 40 CFR 70.11.
[[Page 52542]]
21. Amend Subtitle I of 20 DCMR To Specifically Address the Types of
Violations for Which Civil Fines Are Recoverable, or Otherwise Have the
Corporation Counsel Demonstrate That 20 DCMR 100.6 Applies to Each of
the Specific Types of Violations Mentioned in 40 CFR 70.11(a)(3)(i)
EPA requested that the District of Columbia clarify that civil
fines are recoverable for the violations enumerated in 40 CFR
70.11(a)(3)(i). The Corporation Counsel in its ``May 2001 Amendment to
`Corporation Counsel's (Attorney General's) Legal Opinion' submitted to
the United States Environmental Protection Agency, Region III, by
letter dated January 13, 1994'', cites to several provisions in its Air
Pollution Control Act implementing regulations for the required
authority. Specifically, the Corporation Counsel indicates that 20 DCMR
100.6 and 105.1 authorize the imposition of civil fines for each of the
violations listed in 40 CFR 70.11(a)(3)(i), including a violation of
any applicable requirement as defined in 20 DCMR 399, any permit
condition, including any requirement in 20 DCMR 302; any fee or filing
requirement as provided in 20 DCMR 301 and 305; any duty to allow or
carry out inspection, entry or monitoring activities as provided in 20
DCMR 302.3; or, any regulation or orders issued by the Mayor pursuant
to 20 DCMR 102 and 104.10. In addition, according to the Corporation
Counsel, 20 DCMR 100.6 and 105.2 authorize the imposition of civil
fines, penalties and fees as alternative sanctions for violations of
the Air Pollution Control Act's implementing regulations using the
process of scheduling and enforcing these fines under the Civil
Infractions Act. With this clarification, the District of Columbia's
program is consistent with 40 CFR 70.11(a)(3).
22. Establish Civil Enforcement Authority for the Collection of
Penalties in a Maximum Amount of Not Less Than $10,000 Per Day Per
Violation
EPA requested that the District of Columbia establish civil
enforcement authority for the collection of penalties in the maximum
amount of not less than $10,000 per day per violation. The District
revised 20 DCMR 105.5 to require that ``[i]n the event of any violation
of, or failure to comply with, the air quality provisions of this title
[which includes Subtitle A thereof, the Air Pollution Control Act's
implementing regulations], each and every day of the violation or
failure shall constitute a separate offense, and the penalties
described in 20 DCMR 105.1 shall be applicable to each separate
offense.'' The Corporation Counsel in its ``May 2001 Amendment to
`Corporation Counsel's (Attorney General's) Legal Opinion' submitted to
the United States Environmental Protection Agency, Region III, by
letter dated January 13, 1994'' stated that civil fines are recoverable
under 20 DCMR 100.6, 105.1, 105.2, and 105.5 in the amount of $10,000
per day per violation for failure to comply with 20 DCMR including the
Air Pollution Control Act's implementing regulations in 20 DCMR
Subtitle A as required by 40 CFR 70.11(a)(3)(i). This amendment makes
the District of Columbia's program consistent with 40 CFR 70.11(a)(3).
23. Establish Regulatory Provisions for Strict Civil Liability, or
Provide a Demonstration From the Corporation Counsel That Mental State
Is Not Allowed as an Element of Proof for Civil Violations
With respect to the 20 DCMR 100.6 civil enforcement authority, EPA
requested that the District of Columbia clarify that mental state is
not allowed as an element of proof for civil violations. The
Corporation Counsel in its ``May 2001 Amendment to `Corporation
Counsel's (Attorney General's) Legal Opinion' submitted to the United
States Environmental Protection Agency, Region III, by letter dated
January 13, 1994'' states that 20 DCMR 100.6, 105.1 and 105.2 do not
include mental state as an element of proof of civil violations.
District laws and regulations enacted to protect the public health and
safety (among other purposes), including those of 20 DCMR Subtitle A
are generally construed as strict liability violations for purposes of
civil proceedings. With this clarification, the District of Columbia's
program is consistent with 40 CFR part 70.
24. Amend Subtitle I of 20 DCMR to Specifically Address the Types of
Knowing Violations for Which Criminal Fines Are Recoverable, or Have
the Corporation Counsel Demonstrate That Section 105.1 Applies to Each
of the Specific Types of Knowing Violations Mentioned in 40 CFR
70.11(a)(3)(ii) and (iii)
The EPA requested that the District of Columbia clarify that
criminal fines are recoverable for each of the specific types of
knowing violations mentioned in 40 CFR 70.11(a)(3)(ii) and (iii). The
Corporation Counsel in its ``May 2001 Amendment to `Corporation
Counsel's (Attorney General's) Legal Opinion' submitted to the United
States Environmental Protection Agency, Region III, by letter dated
January 13, 1994'' states that criminal penalties are recoverable under
20 DCMR 105.1 for all the violations enumerated in 40 CFR
70.11(a)(3)(ii), which include any applicable requirement (as defined
in 20 DCMR 399); any permit condition (including any requirement in 20
DCMR 302); and, any fee or filing requirement (as provided in 20 DCMR
301 and 305). The Corporation Counsel further states that 20 DCMR 105.1
allows for recovery of criminal penalties for all the violations
enumerated in 40 CFR 70.11(a)(3)(iii), which include making a false
statement, representation or certification in any form, in any notice
or report required by a permit (prohibited by 20 DCMR 105.1) or
knowingly rendering inaccurate any required monitoring device or method
(prohibited by 20 DCMR 107.1). With this clarification, the District of
Columbia's program is consistent with 40 CFR 70.11.
25. Revise Criminal Enforcement Provisions To Authorize the Collection
of Penalties in a Maximum Amount of Not Less Than $10,000 Per Day Per
Violation
The EPA requested that the District of Columbia revise 20 DCMR
105.1 to provide for the recovery of criminal fines at a maximum amount
of $10,000 per day per violation as required by 40 CFR 70.11(a)(3)(i)
for the violations enumerated in 40 CFR 70.11(a)(3)(ii) and (iii). The
District revised 20 DCMR 105 by adding 105.5. The Corporation Counsel
in its ``May 2001 Amendment to `Corporation Counsel's (Attorney
General's) Legal Opinion' submitted to the United States Environmental
Protection Agency, Region III, by letter dated January 13, 1994''
states that pursuant to 20 DCMR 105.5, ``[i]n the event of any
violation of, or failure to comply with, the air quality provisions of
this title [which includes Subtitle A thereof, the Air Pollution
Control Act's implementing regulations], each and every day of the
violation or failure shall constitute a separate offense, and the
penalties described in 20 DCMR 105.1 shall be applicable to each
separate offense.'' This amendment makes the District of Columbia's
program consistent with 40 CFR 70.11(a)(3).
[[Page 52543]]
26. Amend 20 DCMR 303.11 To Clarify That When the Mayor Fails To Issue
or Deny a Permit Within the Required Deadline, This Failure Can Be
Challenged Any Time Before the Permitting Authority Denies the Permit
or Issues the Final Permit
The District of Columbia revised 20 DCMR 303.11 by deleting
303.11(c) and restructuring 303.11(a) to clarify that when the Mayor
fails to issue or deny a permit within the required deadline, this
failure can be challenged any time before the permitting authority
denies the permit or issues the final permit. The permit program
regulations now provide that no application for judicial review may be
filed more than 90 days following the final action on which the review
is sought, unless the final action being challenged is the Mayor's
failure to take final action, in which case an application for judicial
review may be filed any time before the Mayor denies the permit or
issues the final permit. This amendment makes the District of
Columbia's program consistent with 40 CFR 70.4.
27. Clarify the Specific Responsibilities and Procedures for
Coordination Regarding the Engineering and Planning Branch (EPB) and
the Compliance and Enforcement Branch (CEB) Involvement in Compliance
and Enforcement Activities for Part 70 Sources. Such a Clarification
Must Demonstrate That Compliance and Enforcement Activities Will Be
Fully Supported by Title V Fees
The District of Columbia's management of its operating permit
program is divided between the EPB and the CEB. EPB, under the
supervision of the branch chief, is responsible for permit issuance;
modifications and renewals; inventory management; and, the annual fee
computation. Likewise, under the supervision of the branch chief, CEB
is responsible for plant inspections; receipt and review of semi-annual
and annual compliance reports and certifications; review and approval
of testing protocols; compliance determinations; issuance of citations
to violators; participation in hearings; and, transmittal of
enforcement data to EPA. Both branches are supported by the Office of
the Program Manager (OPM) and the attorney advisor in the Air Quality
Division (AQD). Staff from EPB, CEB, and OPM who work on title V
activities, including compliance and enforcement activities charge the
time expended on such tasks to the title V account to reflect direct
salary, fringe benefits and indirect costs (to cover overhead, such as
utilities, rental, telephone and supplies). Other AQD supervisors and
advisors who provide applicable title V services also charge their time
appropriately, inclusive of fringe benefits and indirect costs. The
number of hours worked on title V activities during each pay period are
submitted on time sheets. With this clarification, the District of
Columbia's program is consistent with 40 CFR 70.9(c).
28. Submit Additional Information Regarding How the District Will
Monitor and Track Source Compliance or Reference Any Agreement the
District Has With EPA That Provides This Information
The District of Columbia's Compliance & Enforcement Branch (CEB) is
responsible for ensuring source compliance with the applicable
requirements of title V permits. This is accomplished through annual
on-site inspections, review of semi-annual and annual certification
reports, and pursuit of enforcement actions. Existing EPA and District
of Columbia agreements require the District to submit a compliance
monitoring strategy, which includes detailed information about sources
targeted for inspections. These existing agreements require the
District to submit semi-annual enforcement reports, to participate in
quarterly enforcement program reviews, and to report inspection
compliance and enforcement data. With this clarification, the District
of Columbia's program is consistent with 40 CFR part 70.
29. Clarify That Information on the District's Enforcement Activities
Will Be Submitted to EPA at Least Annually
The District of Columbia reports enforcement activities, including
specific information required by 70.4(b)(9) to EPA primarily by way of
the Aerometric Information Retrieval System/AIRS Facility Subsystem
(AIRS/AFS). With this clarification, the District of Columbia's program
is consistent with 40 CFR part 70.
What Action Is Being Taken By EPA?
The District of Columbia has satisfactorily addressed the program
deficiencies identified when EPA granted final interim approval of its
operating permit program on August 7, 1995. The operating permit
program amendments that are the subject of this document considered
together with that portion of the District of Columbia's operating
permit program that was earlier approved on an interim basis fully
satisfy the minimum requirements of 40 CFR part 70 and the Clean Air
Act. Therefore, EPA is taking direct final action to fully approve the
District of Columbia title V operating permit program in accordance
with 40 CFR 70.4(e).
The EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comment. However, in the ``Proposed Rules'' section of today's
Federal Register, EPA is publishing a separate document that will serve
as the proposal to approve the operating permit program approval if
adverse comments are filed relevant to the issues discussed in this
action. This rule will be effective on November 30, 2001 without
further notice unless EPA receives adverse comment by November 30,
2001. If EPA receives adverse comment, EPA will publish a timely
withdrawal in the Federal Register informing the public that the rule
will not take effect. The EPA will address all public comments in a
subsequent final rule based on the proposed rule. The EPA will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time. Please note that if
EPA receives adverse comment on an amendment, paragraph, or section of
this rule and if that provision may be severed from the remainder of
the rule, EPA may adopt as final those provisions of the rule that are
not the subject of an adverse comment.
Administrative Requirements
A. General Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 Fed. Reg. 28355 (May 22, 2001)).
This action merely approves State law as meeting Federal requirements
and imposes no additional requirements beyond those imposed by State
law. Accordingly, the Administrator certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Because this rule approves pre-existing requirements under State law
and does not impose any additional enforceable duty beyond that
required by State law, it does not contain any unfunded mandate or
significantly or uniquely affect small governments, as described in the
[[Page 52544]]
Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also
does not have a substantial direct effect on one or more Indian tribes,
on the relationship between the Federal Government and Indian tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian tribes, as specified by Executive Order
13175 (65 FR 67249, November 9, 2000), nor will it have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it
merely approves a State rule implementing a Federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. This rule also is
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997),
because it is not economically significant.
In reviewing State operating permit program submissions, EPA's role
is to approve State choices, provided that they meet the criteria of
the Clean Air Act. In this context, in the absence of a prior existing
requirement for the State to use voluntary consensus standards (VCS),
EPA has no authority to disapprove an operating permit program for
failure to use VCS. It would thus be inconsistent with applicable law
for EPA, when it reviews an operating permit program submission, to use
VCS in place of an operating permit program submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing
this rule, EPA has taken the necessary steps to eliminate drafting
errors and ambiguity, minimize potential litigation, and provide a
clear legal standard for affected conduct. The EPA has complied with
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the
takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
This rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit 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 United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
C. 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 17, 2001. 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 fully approving the District of Columbia's
title V operating permit program may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Dated: October 10, 2001.
Donald S. Welsh,
Regional Administrator, Region III.
Appendix A of part 70 of title 40, chapter I, 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 paragraph (b) to the
entry for the District of Columbia to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
District of Columbia
* * * * *
(b) The District of Columbia Department of Health submitted
program amendments on May 21, 2001, August 30, 2001, and September
26, 2001. The rule amendments contained in the May 21, 2001, August
30, 2001, and September 26, 2001 submittals adequately addressed the
conditions of the interim approval effective on September 6, 1995.
The District of Columbia is hereby granted final full approval
effective on November 30, 2001.
* * * * *
[FR Doc. 01-26097 Filed 10-15-01; 8:45 am]
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