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Clean Air Act Full Approval of Operating Permit Program; Virginia

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Information about this document as published in the Federal Register.

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to fully approve the operating permit program of the Commonwealth of Virginia. Virginia'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 Virginia's operating permit program on June 10, 1997, as corrected on March 19, 1998. Virginia 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 Virginia's title V operating permit program should do so at this time. A more detailed description of Virginia's submittal 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 26, 2001 without further notice, unless EPA receives adverse written comment by November 9, 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 Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia, 23219.

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FOR FURTHER INFORMATION CONTACT:

David Campbell, Permits and Technical Assessment Branch at (215) 814-2196 or by e-mail at campbell.dave@.epa.gov.

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SUPPLEMENTARY INFORMATION:

On November 20, 2000, the Commonwealth of Virginia 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 Virginia's operating permit program is EPA approving?

How does Virginia's Voluntary Environmental Assessment Privilege Law affect its operating permit program?

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 the EPA's implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain operating 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. For example, in the counties and cities in northern Virginia that are part of the metropolitan Washington, DC serious ozone nonattainment area, major sources include those with the potential of emitting 50 tons per year or more of volatile organic compounds or nitrogen oxides. Start Printed Page 51582

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 permit authority revising its program to correct those programmatic deficiencies that prevented full approval. Virginia'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 June 10, 1997, as corrected on March 19, 1998. [See 62 FR 31516 and 63 FR 13346.] The interim approval notice identified six outstanding deficiencies that had to be corrected in order for Virginia's program to receive full approval. On November 20, 2000, the Commonwealth of Virginia submitted amendments to its operating permit program to EPA to address its outstanding program deficiencies.

Virginia's November 20, 2000 submittal satisfies the Commonwealth's requirement to submit program amendments to EPA by June 1, 2001. This deadline was established by EPA in order to allow for time for EPA review and action on program amendments such that operating permit programs with interim approval status could be considered for full approval 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.]

What Is Being Addressed in This Document?

On November 20, 2000, Virginia submitted amendments to its currently EPA-approved title V operating permit program. In general, Virginia amended its operating permit program regulations to address deficiencies identified by EPA when it granted final interim approval of Virginia's program in 1997. In the November 20, 2000 submittal, Virginia also provided revisions to its existing program to improve certain aspects and to make minor regulatory corrections. These additional revisions are the subject of a separate rulemaking action as more fully discussed below.

What Is Not Being Addressed in This Document?

As part of its November 20, 2000 submittal, Virginia also submitted additional revisions to its currently EPA-approved title V operating permit program which are unrelated to the interim approval deficiencies. These program revisions are comprised of technical and administrative corrections which do not bear on the program's ability to fully meet the substantive requirements of 40 CFR part 70. These revisions were submitted pursuant to 40 CFR 70.4(i) which authorizes States with approved programs to initiate program revisions. Since these revisions do not directly affect the approval status of Virginia's program according to 40 CFR 70.4(d) and 40 CFR 70.4(e), they will be considered in a separate rulemaking action.

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 Virginia'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 Virginia'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 Virginia's operating permit program only addresses program deficiencies identified when EPA granted interim approval to Virginia's program in 1997. Therefore, any persons wishing to comment on this action should do so at this time.

What Changes to Virginia's Program Is EPA Approving?

The EPA has reviewed Virginia's November 20, 2000 program amendments in conjunction with the portion of Virginia's program that was earlier approved on an interim basis. Based on this review, EPA is granting full approval of Virginia's amended operating permit program. The EPA has determined that the amendments to Virginia's operating permit program adequately address the six deficiencies identified by EPA in its June 10, 1997 rulemaking action granting interim approval. Virginia's operating permit program, including the amendments submitted on November 20, 2000 to address the six program deficiencies, fully meets the minimum requirements of 40 CFR part 70. The following describes the changes made to Virginia's operating permit program to address the six deficiencies.

Changes to Virginia's Program That Correct Interim Approval Deficiencies

1. Units Emitting Up to 100 Tons Per Year (TPY) of Carbon Monoxide (CO) Inappropriately Considered To Be Insignificant

Virginia's regulations originally defined any emission unit emitting less than 100 tons per year (TPY) of carbon monoxide (CO) as an insignificant activity. Virginia amended 9 VAC 5-80-720 B 3 to state that any emission unit Start Printed Page 51583emitting less than five TPY of CO may be considered an insignificant activity. This amendment is consistent with 40 CFR part 70 and with what EPA has required of other similar insignificant activities regulations.

2. Applications Not Required To Include Sufficient Information To Identify All Applicable Requirements for Emission Units Deemed Insignificant

Virginia's original program inappropriately included a provision in the applicability section of the operating permit regulations, 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.” A similar provision is provided in the applicability section of the acid rain operating permit regulations at 9 VAC 5-80-360 E. As originally worded, permittees were required to provide only emissions information for insignificant activities, but not any additional information which might be required to identify applicable requirements when emissions information alone is not sufficient.

Virginia amended 9 VAC 5-80-50 F and 9 VAC 5-80-360 E by removing the language cited above in its entirety. By removing this language, permittees are obligated to provide any additional information necessary to identify applicable requirements. These amendments are consistent with 40 CFR part 70 and with what EPA has required of other similar regulations.

3. Permits Not Required To Include Applicable Requirements for Emission Units Deemed Insignificant

Virginia's original program contained an inappropriate provision at 9 VAC 5-80-110 A 1 which stated 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 acid rain operating permit regulations essentially repeated this deficiency at 9 VAC 5-80-490 A 1.

Virginia amended 9 VAC 5-80-110 A 1 and 9 VAC 5-80-490 A 1 by removing the exception provided to insignificant emission units of the requirement to include all applicable requirements in the permit. The amended regulations simply require all applicable requirements for all emission units to be included in the permit. These amendments are consistent with 40 CFR part 70 and with what EPA has required of other similar regulations.

4. Emergency or Standby Compressors, Pumps, and/or Generators Inappropriately Defined as Insignificant

In its original insignificant activities regulations at 9 VAC 5-80-720 C 4, Virginia designated “Internal combustion powered compressors and pumps used for emergency replacement or standby service, operating at 500 hours per year or less'' as insignificant emission units. The regulations also cited emergency generators of various horsepower ratings, depending on whether or not the generators are gasoline, diesel, or natural gas powered. As originally worded, 9 VAC 5-80-720 C 4 was confusing because it defined emergency or standby compressors or pumps as insignificant, and then further qualified the units considered insignificant by discussing various sizes of emergency generators. Furthermore, the engines and generators of the sizes provided by the original version of the regulations would likely be large enough to trigger applicable requirements or emit pollutants in significant amounts.

Virginia amended 9 VAC 5-80-720 C 4 to clarify its insignificant activity provisions for emergency pumps, compressors, or generators and also reduced the horsepower size designations sufficiently to exclude any units which would likely trigger an applicable requirement or emit pollutants in significant amounts. These amendments are consistent with 40 CFR part 70 and with what EPA has required of other similar insignificant activities regulations.

5. “Off-Permit Changes” Defined as Including Changes Subject to Requirements Under Title IV

The EPA was concerned with two provisions in the Commonwealth's original acid rain operating permit regulations. According to 40 CFR 70.4(b)(14), permittee's are allowed to make certain so-called “off-permit” changes that are not addressed or prohibited by the permit without obtaining a permit revision. However, 40 CFR 70.4(b)(15) does not extend this flexibility 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. Virginia's regulations allowed “off-permit” changes at 9 VAC 5-80-280 C 1 and 5-80-680 C 1, however, they failed to exclude from eligibility changes that are subject to requirements under title IV.

Virginia amended 9 VAC 5-80-280 C 1 and 5-80-680 C 1 to exclude changes that are subject to requirements under title IV from being eligible for “off-permit” changes. These amendments are consistent with 40 CFR part 70 and with what EPA has required of other similar regulations.

6. Affirmative Defense of Emergency Provisions Deficient

In its operating permit 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 original operating permit regulations at 9 VAC 5-80-250 B 4 and 5-80-650 B 4 allowed sources to claim the affirmative defense for malfunctions which last less than one hour, but did not require the permittee to notify the Commonwealth of these malfunctions. Malfunctions lasting longer than one hour were required to be reported. Virginia's affirmative defense provisions were less stringent than 40 CFR 70.6(g) which requires the demonstration of the affirmative defense of an malfunction, including the prompt notification of the permitting authority of the malfunction. A demonstration is required for all malfunctions seeking an affirmative defense, including those malfunctions lasting less than one hour.

Virginia amended 9 VAC 5-80-250 B 4 and 5-80-650 B 4 to expand the requirement to report malfunctions of any duration, not only those that occurred for one hour or more. The amended regulations also require the prompt notification of malfunctions within two working days of their occurrence. These amendments are consistent with 40 CFR part 70 and with what EPA has required of other similar regulations.

How Does Virginia's Voluntary Environmental Assessment Privilege Law Affect Its State Operating Permit Program?

In 1995, Virginia adopted legislation that provides, 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 Start Printed Page 51584discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are 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.

On January 12, 1997, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. * * *” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 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 Attorney General's January 12, 1997 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its operating permit program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law.

What Action Is Being Taken by EPA?

The Commonwealth of Virginia has satisfactorily addressed the six program deficiencies identified when EPA granted final interim approval of its operating permit program on June 10, 1997, as corrected on March 19, 1998. The operating permit program amendments submitted by Virginia on November 20, 2000 considered together with that portion of Virginia'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 granting full approval of the Commonwealth of Virginia's title V operating permit program.

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 if adverse comments are filed relevant to the issues discussed in this action. This rule will be effective on November 26, 2001 without further notice unless EPA receives adverse comment by November 9, 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 FR 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 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 a State operating permit Start Printed Page 51585program submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a State operating permit program submission, to use VCS in place of a State 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 10, 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 Virginia's title V operating permit program may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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List of Subjects in 40 CFR Part 70

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Dated: September 25, 2001.

Donald S. Welsh,

Regional Administrator, Region III.

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Appendix A of part 70 of title 40, chapter I, of the Code of Federal Regulations is amended as follows:

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PART 70—[AMENDED]

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

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

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2. Appendix A to part 70 is amended by adding paragraph (b) in the entry for Virginia to read as follows:

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Appendix A to Part 70—Approval Status of State and Local Operating Permits Programs

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Virginia

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(b) The Virginia Department of Environmental Quality submitted operating permit program amendments on November 20, 2000. The rule revisions contained in the November 20, 2000 submittal adequately addressed the conditions of the interim approval effective on March 12, 1998. The Commonwealth is hereby granted final full approval effective on November 26, 2001.

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[FR Doc. 01-25012 Filed 10-9-01; 8:45 am]

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