[Federal Register: May 24, 2002 (Volume 67, Number 101)]
[Notices]
[Page 36590-36591]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24my02-68]
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ENVIRONMENTAL PROTECTION AGENCY
[Petition IV-2001-1; FRL-7217-5]
Clean Air Act Operating Permit Program; Petition for Objection to
State Operating Permit for Caldwell Tanks Alliance, LLC; Newnan (Coweta
County), Georgia
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of final order on petition to object to a state
operating permit.
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SUMMARY: Pursuant to Clean Air Act section 505(b)(2) and 40 CFR
70.8(d), the EPA Administrator signed an order, dated April 1, 2002,
denying a petition to object to a State operating permit issued by the
Georgia Environmental Protection Division (Georgia EPD) to Caldwell
Tanks Alliance, LLC, for its facility, located in Newnan, Coweta
County, Georgia. This order constitutes final action on the petition
submitted by Georgia Center for Law in the Public Interest on behalf of
the Sierra Club. Pursuant to section 505(b)(2) of the Clean Air Act any
person may seek judicial review in the United States Court of Appeals
for the appropriate circuit within 60 days of this document under
section 307 of the Act.
ADDRESSES: Copies of the final order, the petition, and all pertinent
information relating thereto are on file at the following location:
Environmental Protection Agency, Region 4, Air, Pesticides and Toxics
Management Division, 61 Forsyth Street, SW., Atlanta, Georgia 30303-
8960. The final order is also available electronically at the following
address: http://
[[Page 36591]]
www.epa.gov/region07/programs/artd/air/title5/petitiondb/petitions/
caldwelltanks--decision2001.pdf.
FOR FURTHER INFORMATION CONTACT: Art Hofmeister, Air, Pesticides and
Toxics Management Division, EPA, Region 4, telephone (404) 562-9115, e-
mail hofmeister.art@epa.gov. Interested parties may also contact the
Air Protection Branch, Georgia Environmental Protection Division, 4244
International Parkway, Atlanta, Georgia 30354.
SUPPLEMENTARY INFORMATION: The Clean Air Act (CAA or the Act) affords
EPA a 45-day period to review, as appropriate, operating permits
proposed by State permitting authorities under Title V of the CAA, 42
U.S.C. 7661-7661f (Title V). Section 505(b)(2) of the Act and 40 CFR
70.8(d) authorize any person to petition the EPA Administrator to
object to a Title V operating permit within 60 days after the
expiration of EPA's 45-day review period if EPA has not objected on its
own initiative. Petitions must be based only on objections to the
permit that were raised with reasonable specificity during the public
comment period provided by the State, unless the petitioner
demonstrates that it was impracticable to raise these issues during the
comment period or the grounds for the issues arose after this period.
Section 505(b)(2) provides that the Administrator shall grant or
deny such a petition within 60 days after it is filed, and that the
Administrator shall object to the permit within that period if the
petitioner demonstrates that the permit is not in compliance with the
requirements of the CAA. Section 505(b)(2) further provides that the
Administrator's duties under that paragraph may not be delegated to
another officer. In addition, section 505(e) of the CAA authorizes the
Administrator to terminate, modify, or revoke and reissue a permit for
cause at any time. In accordance with EPA's regulations at 40 CFR
70.7(f) and 70.7(g), any person may petition EPA to reopen a permit for
cause. However, there is no deadline by which EPA is required to
respond to such petitions.
Georgia Center for Law in the Public Interest submitted a petition
on behalf of the Sierra Club (GCLPI or Petitioner) to the Administrator
on May 9, 2001, requesting that EPA object to a state Title V operating
permit, issued by the Georgia Environmental Protection Division
(Georgia EPD) to Caldwell Tanks Alliance, LLC (Caldwell Tanks) for its
facility located in Newnan, Georgia.
GCLPI's petition was not filed within the statutory time period for
filing a section 505(b)(2) petition for objection to a Title V permit.
Petitioner claims that it relied upon erroneous information provided by
the Georgia EPD which indicated that the permit had been re-proposed to
EPA. Reproposal of the permit would have re-started EPA's review period
and, in turn, extended the time allowed for filing petitions for
objection to the permit. Because the petition was untimely, EPA
informed Petitioner that EPA intended to treat it as a petition to
reopen the permit for cause in accordance with 40 CFR 70.7(f) and
70.7(g) and to respond on the merits.
Accordingly, EPA sent a letter, dated January 28, 2002, from
Winston A. Smith, Director of Region 4's Air, Pesticides & Toxics
Management Division, to Petitioner's counsel, stating that the petition
was not timely filed under section 505(b)(2) and 40 CFR 70.8(d) and
that EPA was treating it as a petition to reopen the permit for cause
in accordance with 40 CFR 70.7(f) and 70.7(g). EPA also denied the
petition to reopen on the merits.
Because EPA had not responded to the petition within the statutory
60-day period for responding to section 505(b)(2) petitions for
objection, the Petitioner filed a nondiscretionary duty suit pursuant
to section 304(a)(2) of the CAA in the United States District Court for
the District of Columbia to compel EPA to grant or deny its petition.
Two days after EPA responded to the Petitioner's petition, the court
held that the doctrine of equitable tolling applies to that 60-day
limitations period generally and applied against EPA in the Caldwell
Tanks case to render the Petitioner's petition timely under section
505(b)(2). The court ordered the Administrator to consider the petition
pursuant to section 505(b)(2) and to grant or deny the petition within
60 days of the court's order. See Sierra Club v. Whitman, Civil Action
No. 01-01991 (ESH) (D.D.C. Jan. 30, 2002) (order and memorandum
opinion). In light of the court's holding that the Petitioner's
petition was timely under section 505(b)(2), the Administrator
responded to the petition pursuant to that statutory provision in an
order, dated April 1, 2002.
The Petitioner requested that EPA object to the Caldwell Tanks
permit on the grounds that the permit is inconsistent with the Clean
Air Act because the permit failed to: (1) Require the submittal of
reports of any required monitoring at least every six months, as
required under 40 CFR 70.6(a)(3)(iii)(A); (2) allow all persons to
enforce violations of the permit; (3) go through proper public notice
procedures because it stated only that the permit is enforceable by EPA
and the Georgia EPD without also stating that the permit is enforceable
by members of the public; and (4) include an emission limit or require
monitoring to assure that no visible emissions result from a shot
blasting and baghouse operation that the permit classifies as an
insignificant activity.
The order denying this petition explains the reasons behind EPA's
conclusion that the Petitioner failed to demonstrate that the Caldwell
Tanks permit is not in compliance with the requirements of the Clean
Air Act on the grounds raised.
Dated: May 13, 2002.
J. I. Palmer, Jr.,
Regional Administrator, Region 4.
[FR Doc. 02-13119 Filed 5-23-02; 8:45 am]
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