[Federal Register Volume 59, Number 228 (Tuesday, November 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29268]
[[Page Unknown]]
[Federal Register: November 29, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 70
[CA 99-01-6614; FRL-5112-5]
Clean Air Act Proposed Disapproval of the Title V Operating
Permit Programs for Glenn County, Lake County, Shasta County and Tehama
County, California; Proposed Disapproval of the Lake County,
California, State Implementation Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing disapproval of the operating permits programs
submitted by the California Air Resources Board on behalf of Glenn
County Air Pollution Control District (APCD), Lake County Air Quality
Management District (AQMD), Shasta County AQMD, and Tehama County APCD.
These programs were submitted for the purpose of complying with federal
requirements in title V of the Clean Air Act which mandates that states
develop, and submit to EPA, programs for issuing operating permits to
all major stationary sources and to certain other sources. In the
alternative, EPA is proposing to grant source category-limited interim
approval to any of these programs for which the California Air
Resources Board submits certain revisions to each District's upset/
breakdown rule and, except for Tehama County, equipment shutdown rule.
The EPA is also proposing to disapprove a revision to Lake County's
portion of the California State Implementation Plan (SIP) regarding a
regulation for issuing federally enforceable state operating permits to
non-title V sources. In the alternative, the EPA proposes to approve
this regulation if Lake County makes revisions to its upset/breakdown
and shutdown rules.
DATES: Comments on this proposed action must be received in writing by
December 29, 1994.
ADDRESSES: Comments on the Lake County program and SIP should be
addressed to Ed Pike, Operating Permits Section, A-5-2, Air and Toxics
Division, US EPA-Region IX, 75 Hawthorne Street, San Francisco,
California 94105. Comments on the other programs should be addressed to
Sara Bartholomew at the same address.
Copies of the submissions and other supporting information used in
developing the proposed disapprovals/interim approvals including the
Technical Support Documents are available for inspection during normal
business hours at the following location: Operating Permits Section, A-
5-2, Air and Toxics Division, U.S. EPA-Region IX, 75 Hawthorne Street,
San Francisco, California 94105.
FOR FURTHER INFORMATION CONTACT: For information on the Lake County
program and SIP, please contact: Ed Pike, (415) 744-1248. For
information on the programs for the other Districts, please contact:
Sara Bartholomew, (415) 744-1170.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
1. Title V
As required under title V of the Clean Air Act (``the Act'') as
amended (1990), EPA has promulgated rules that define the minimum
elements of an approvable state operating permits program and the
corresponding standards and procedures by which 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 CFR part
70. Title V requires states to develop, and submit to EPA, programs for
issuing these operating permits to all major stationary sources and to
certain other sources.
The Act requires that states develop and submit these programs to
EPA by November 15, 1993, and that EPA act to approve or disapprove
each program within one year after receiving the submittal. EPA's
program review occurs pursuant to section 502 of the Act and the part
70 regulations, which together outline criteria for approval or
disapproval. Where a program substantially, but not fully, meets the
requirements of part 70, EPA may grant the program interim approval for
a period of up to two years. If EPA has not fully approved a program by
two years after the November 15, 1993 date, or by the end of an interim
program, it must establish and implement a federal program.
2. Federally-Enforceable State Operating Permit Programs
On June 28, 1989 (54 FR 27282), the EPA published criteria for
approving and incorporating into SIPs under section 110 of the Act,
regulatory programs for the issuance of federally-enforceable operating
permits. These programs are known as federally-enforceable state
operating permit (FESOP) programs. Permits issued under a FESOP program
approved into the SIP pursuant to the June, 1989, notice are considered
federally enforceable. EPA has allowed states to develop such programs
in conjunction with title V operating permit programs for the purpose
of creating federally-enforceable limits on sources' potential to emit.
This mechanism would allow potentially major sources to become
synthetic minor sources and avoid being subject to title V by reducing
their potential to emit to below the title V applicability thresholds.
For further information, see the EPA guidance document entitled
``Limitation of Potential to Emit with Respect to Title V Applicability
Thresholds,'' dated September 18, 1992. A copy of this document is
contained in the Lake County docket.
B. Federal Oversight and Sanctions
EPA is proposing to disapprove the title V operating permit
programs for the Glenn County APCD, Lake County AQMD, Shasta County
AQMD, and Tehama County APCD. If EPA were to finalize this proposed
disapproval for any one of these Districts, the District may become
subject to sanctions under the Act. Pursuant to section 502(d)(2)(A) of
the Act, 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 Act achieve an
emissions reductions-to-increases ratio of at least 2-to-1. The latter
sanction, however, is available only in areas that are classified
nonattainment. Because none of the four Districts is classified
nonattainment for any criteria pollutant, the only available sanction
is the highway approval and funding sanction. In addition, EPA is
required by section 502(d)(2)(B) of the Act to apply sanctions on the
date 18 months after the effective date of a final disapproval, unless
prior to that date the District has submitted a revised operating
permits program and EPA has determined that it corrects the
deficiencies that prompted the final disapproval. Finally, if EPA has
not granted either full or interim approval to the District program by
November 15, 1995, EPA must promulgate, administer and enforce a
Federal permits program for that District on that date.
EPA is also proposing to disapprove Lake County's FESOP program.
Sanctions are available only for requirements of the Act. FESOP
programs are not required by the Act; therefore, disapproval of Lake's
program will not trigger a sanctions deadline for the District.
II. Proposed Action and Implications
A. Analysis of State Submission
The analysis contained in this notice focuses on the major elements
of the Districts' title V operating permits program submittals and on
specific elements that must be corrected to meet the minimum
requirements of 40 CFR part 70. The four District programs being
reviewed are based on a model rule and program description developed by
the California Air Resources Board (CARB). As a result, the programs
are very similar. A detailed analysis of each program can be found in
Technical Support Document (TSDs) for each District. The full program
submittals, TSDs, and other relevant materials are available for public
review in the public docket for each District. The dockets may be
viewed during regular business hours at the address listed above.
1. Title V Support Materials
In submitting each District's title V program, CARB requested
source category-limited interim approval for the program because
California law currently exempts agricultural sources from all
permitting requirements including title V. Each District's submission
contains a complete program description, District implementing and
supporting regulations, application and reporting forms, and other
supporting information. In addition, CARB submitted for all Districts
in the State a single Attorney General's opinion, State enabling
legislation, and certain other information regarding State law.
EPA has reviewed each District's program to assure that it contains
all the elements required by Sec. 70.4 (b) (elements of the initial
program submission) and has found each program complete pursuant to
Sec. 70.4 (e)(1) in letters to the California Air Resources Board on
January 13, 1994 (Shasta), February 4, 1994 (Tehama), March 4, 1994
(Glenn), and May 20, 1994 (Lake). Copies of these letters are in the
dockets. Prior to final action to approve these operating permit
programs, EPA intends to have in place an implementation agreement with
each of these Districts that addresses data management, acid rain
provisions, procedures for delegation of hazardous air pollutant
standards under section 112(l) of the Act, and other elements regarding
the implementation of the District's title V program.
2. Title V Operating Permit Regulations and Program Implementation
This section discusses how the Districts' rules in general comply
with the requirements of part 70. In each case, the Districts' rules/
regulations are identical to or very similar to the CARB model;
therefore, the discussion below is applicable to all four programs. If
a District's program differs substantially from the CARB model and the
other Districts' programs in a way that is not fully approvable under
part 70, it is noted in sections later in this notice that discuss the
interim approval issues for each District.
Applicability. All programs meet the source applicability
requirements of Secs. 70.2 (Definitions) and 70.3 (Applicability)
except that current California law exempts agricultural sources from
all permitting requirements including title V. This exemption must be
removed from State law in order for the District programs to receive
full approval. All programs opted to defer the permitting of minor
sources subject to New Source Performance Standards (NSPS) or National
Emission Standards for Hazardous Air Pollutants (NESHAP) as allowed
under Sec. 70.3 (b)(1).
Permit application. The rules substantially meet the application
deadlines and application content requirements of Sec. 70.5 (Permit
applications). Each program contains the application forms that the
District intends to use for initial permit, permit renewal, and permit
modification applications. In this action, EPA is proposing to approve
these application forms as part of each District's program. All rules
require sources to list all emission units in sufficient detail to
establish applicable requirements and permit fees. EPA has identified
several interim approval issues regarding permit application
requirements that must be corrected for full approval. The interim
approval issues are discussed in detail later in this notice. In the
TSD, EPA has also identified other recommended changes that are not
required for full approval but would improve, clarify, or strengthen
the Districts' title V programs.
Insignificant activities. Section 70.4 (b)(2) requires States to
include in their part 70 programs any criteria used to determine
insignificant activities or emission levels for the purposes of
determining complete applications. Section 70.5(c) states that an
application for a part 70 permit may not omit information needed to
determine the applicability of, or to impose, any applicable
requirement, or to evaluate appropriate fee amounts. Section 70.5(c)
also states that EPA may approve, as part of a State program, a list of
insignificant activities and emissions levels which need not be
included in permit applications. Under part 70, a State must request
and EPA must approve as part of that State's program any activity or
emission level that the State wishes to consider insignificant. Part
70, however, does not establish appropriate emission levels for
insignificant activities, relying instead on a case-by-case
determination of appropriate levels based on the particular
circumstances of part 70 program under review.
All four Districts provided their current permit exemption lists as
their list of insignificant activities. Several of these lists provide
unbounded discretion to the APCO to determine additional exemptions.
For criteria, Glenn, Shasta, and Tehama either provided no criteria or
stated that their criteria for insignificance was the list of
activities in their current permit exemption list. Because EPA was
provided no criteria or information on the level of emissions of
activities on most Districts' exemptions list and no demonstration that
these activities are not likely to be subject to an applicable
requirement, EPA cannot propose full approval of the lists as the basis
for determining insignificant activities.
Lake submitted several permit exemptions for their part 70
permitting program. Lake County did not submit emission levels or other
criteria for these exemptions, although Lake stated that sources above
the significance levels in their new source review regulations (Section
602) could not be exempted. These ``significance levels'' are 20 pounds
per hour or 150 pounds per day of any criteria pollutant except carbon
monoxide and lead, 150 pounds per hour or 1500 pounds per day of carbon
monoxide, and more than 27 pounds per day of lead. These levels are a
substantial fraction of the major source thresholds for Lake County and
would almost certainly exclude units with applicable requirements. EPA,
therefore, finds that these emission levels are too high to be
considered insignificant.
For other State programs, EPA has proposed to accept, as sufficient
for full approval, emission levels for insignificant activities of 2
tons per year and the lesser of 1000 pounds per year, section 112(g) de
minimus levels, or other title I significant modification levels for
HAPs and other toxics (40 CFR 52.21 (b)(23)(i)). EPA believes that
these levels are sufficiently below applicability thresholds for many
applicable requirements to assure that no unit potentially subject to
an applicable requirement is left off a title V application and are
consistent with current permitting thresholds for the nineteen
Districts under consideration here. EPA is requesting comment on the
appropriateness of these emission levels for determining insignificant
activities in these Districts. This request for comment is not intended
to restrict the ability of individual Districts to propose and EPA to
approve other emission levels if the District demonstrates that such
alternative emission levels are insignificant compared to the level of
emissions from and types of units that are permitted or subject to
applicable requirements.
Permit content. The rules substantially meet the permit content
requirements of Sec. 70.6 (Permit content) including assuring
compliance with all applicable requirements, monitoring and related
recordkeeping and reporting requirements, and compliance requirements.
None of the programs opted to use general permits or the permit shield.
In addition, the programs substantially meet the operational
flexibility requirements of Sec. 70.4 (b)(12). The programs also
prohibit changes that are considered minor under new source review from
being made under the operational flexibility provisions. EPA has
identified several problems with the permit content and the operational
flexibility provisions that must be corrected for full approval. These
interim approval issues are discussed in detail later in this notice.
In the TSDs, EPA has also identified other recommended changes that are
not required for full approval but would improve, clarify, or
strengthen the Districts' title V programs.
Permit issuance and modifications. All programs provide adequate
criteria and procedures for deeming applications complete as required
by Sec. 70.5 (a)(2). Most programs provide deadlines and procedures
(including public participation and EPA/affected state review) for
acting on permits consistent with Sec. 70.7 (a) (Action on
applications) and (h) (Public participation) and Sec. 70.8 (Permit
review by EPA and affected States); the exceptions are noted in the
discussions of each District's program given below. All programs have
permit modification procedures that are, for the most part, consistent
with Sec. 70.7 (e) (Permit modification). All programs contain
procedures that allow new emission units that do not trigger major
source NSR, are not acid rain units, and whose operations are not
addressed or prohibited by the existing part 70 permit to be handled
``off-permit.'' EPA has identified several problems with the permit
issuance and modification procedures that must be corrected for full
approval. The interim approval issues are discussed in detail later in
this notice. In the TSDs, EPA has also identified other recommended
changes that are not required for full approval but would improve,
clarify, or strengthen the Districts' title V programs.
Definition of title I modification. Part 70 prohibits changes that
are modifications under any provisions of title I of the Clean Air Act
(``title I modification'') from being treated as minor permit
modifications, being made ``off-permit,'' or being made under an
operational flexibility provision. None of the Districts' programs
specifically define ``title I modification'' although it is clear from
the use of the term that the programs do not treat changes reviewed
under a minor source preconstruction review program (``minor NSR
changes'') as title I modifications. See, for example, the distinction
made between ``a modification under Title I of the CAA'' and ``any
provision of [the District NSR and PSD rules]'' in Shasta's Rule 5,
sections V.I. and V.I.3.c. See also the discussion on operational
flexibility in each District's Program Description: ``Title I
modifications include a modification that is major under federal NSR *
* *, a modification that is major under PSD * * *.''
The EPA is currently in the process of determining the proper
definition of title I modification. As further explained below, EPA has
solicited public comment on whether the phrase ``modification under any
provision of title I of the Act'' should be interpreted to mean
literally any change at a source that would trigger permitting
authority review under regulations approved or promulgated under title
I of the Act. This would include State preconstruction review programs
approved by EPA as part of the State Implementation Plan under section
110(a)(2)(C) of the Clean Air Act.
On August 29, 1994, EPA proposed revisions to the interim approval
criteria in 40 CFR 70.4(d) to, among other things, allow State programs
with a more narrow treatment or definition of title I modifications to
receive interim approval (59 FR 44572). EPA explained its view that the
better reading of title I modifications includes minor NSR, and
solicited public comment on the proper interpretation of that term (59
FR 44573). EPA stated that if, after considering the public comments,
it continues to believe that the phrase title I modifications should be
interpreted as including minor NSR changes, it would revise the interim
approval criteria as needed to allow states with a narrower definition
to be eligible for interim approval.
The EPA hopes to finalize its rulemaking revising the interim
approval criteria under 40 CFR 70.4(d) expeditiously.\1\ If EPA
establishes in its rulemaking that the definition of title I
modifications can be interpreted to exclude changes reviewed under
minor NSR programs and changes that trigger the application of a pre-
1990 NESHAP requirement, the Districts' treatment of title I
modifications would be fully consistent with part 70. Conversely, if
EPA establishes through the rulemaking that the definition must include
changes reviewed under minor NSR, the Districts' treatment of title I
modifications will become a basis for interim approval. If the
treatment becomes a basis for interim approval as a result of EPA's
rulemaking, each of the four Districts would be required to revise its
treatment of title I modifications to conform to the requirements of
part 70.
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\1\Publication of the proposed interim approval criteria
revisions was delayed until August 29, 1994, and EPA received
several requests to extend the public comment period until November
27, 1994. Given the importance of the issues in that rulemaking to
States, sources and the public, but mindful of the need to take
action quickly, EPA agreed to extend the comment period until
October 28, 1994 (see 59 FR 52122 (October 14, 1994)).
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Accordingly, today's proposed approval does not identify the
Districts' treatment of title I modification as necessary grounds for
either interim approval or disapproval. Again, although EPA has reasons
for believing that the better interpretation of title I modifications
is the broader one, EPA does not believe that it is appropriate to
determine whether this is a program deficiency until EPA completes its
rulemaking on this issue.
3. District Title V Enforcement and Compliance Provisions
The EPA is proposing to disapprove the operating permits programs
for Glenn County APCD, Lake County AQMD, Shasta County AQMD, and Tehama
County APCD because of deficiencies in the Districts' enforcement
authorities. The primary deficiency lies in provisions in the
Districts' equipment breakdown/upset rules that state that excess
emissions during equipment breakdowns/upsets are not violations. In
addition, the Glenn, Lake, and Shasta Districts have rules that state
that excess emissions during equipment shutdown for maintenance are not
violations.
On January 24, 1978 (43 FR 3275) EPA disapproved Glenn's Rules 95.2
and 95.3, Lake's Rules 500, 510, and 511 (now, codified as Articles I
and II of Chapter III), Shasta's Rule 3:10 and Tehama's Rule 4:17 as
revisions to the California State Implementation Plan (SIP) because
each rule provided a priori that emission exceedances during
malfunctions or equipment shutdowns were not violations.\2\ The
disapproval action was taken consistent with EPA's policy that SIPs
cannot contain automatic exemptions from emission limitations during
malfunctions/shutdowns. This policy was originally established in 1977
(42 FR 21472 (April 27, 1977) and 42 FR 58171 (November 8, 1977)),
restated in 1983 (Memorandum, ``Policy on Excess Emissions During
Startup, Shutdown, Maintenance, and Malfunctions.'' Kathleen M.
Bennett, Assistant Administrator for Air, Noise and Radiation, to
Regional Administrators, Region I-X. February 15, 1983) (provided in
the dockets), and reflected in the emergency provisions included in the
1992 promulgation of part 70.
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\2\Although both the Shasta and Lake Districts have revised
their rules since the disapproval, neither has revised the language
that resulted in the SIP disapproval.
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In its 1978 disapproval of these breakdown rules, EPA stated that
automatic exemptions to SIP limits during malfunctions/shutdowns
``render [SIP] emission limitations potentially unenforceable.'' The
rules pose similar enforceability problems in the context of title V.
The potential impact on enforceability is of special concern in title V
because title V permits will contain emission limits that not only
include SIP limits but also limits in NSPS, NESHAP, and MACT standards,
and preconstruction permits.
A permitting program that includes rules specifically stating that
excess emissions during malfunctions or shutdowns are not violations
cannot meet the minimum requirements of Sec. 70.11 (Requirements for
enforcement authority). These rules may also compromise the ability of
the Districts to issue permits that assure compliance with all
applicable requirements. The ability to enforce permits as specified in
Sec. 70.11 and issue permits that assure compliance with all applicable
requirements are identified as minimum elements for interim approval of
title V programs in Sec. 70.4(d)(3). Programs that do not have the
minimum requirements listed in Sec. 70.4(d)(3) and otherwise do not
substantially meet the requirements of part 70 are subject to
disapproval.
Other than the emergency/shutdown provisions, California law and
District rules and regulations provide the Districts with the
enforcement authorities required by Sec. 70.11. See the California
Attorney General's Opinion and the TSDs (especially Attachments A and
F).
Variances. The Hearing Boards of all four Districts have authority
to issue variances from requirements imposed by State and local law.
See California Health and Safety Code 42350 et seq. In the opinion
submitted with California operating permit programs, California's
Attorney General states that ``[t]he variance process is not part of
the Title V permitting process and does not affect federal enforcement
for violations of the requirements set forth in a Title V permit.''
(Emphasis in original.)
EPA regards State and District variance provisions as wholly
external to the programs submitted for approval under part 70 and
consequently is proposing to take no action on these provisions of
State and local law. EPA has no authority to approve provisions of
state law that are inconsistent with the Act. EPA does not recognize
the ability of a permitting authority to grant relief from the duty to
comply with a federally-enforceable part 70 permit, except where such
relief is granted through procedures allowed by part 70. A part 70
permit may be issued or revised, consistent with part 70 permitting
procedures, to incorporate those terms of a variance that are
consistent with applicable requirements. A part 70 permit may also
incorporate, via part 70 permit issuance or revision procedures, the
schedule of compliance set forth in a variance. However, EPA reserves
the right to pursue enforcement of applicable requirements
notwithstanding the existence of a compliance schedule in a permit to
operate. This is consistent with Sec. 70.5(c)(8)(iii)(C), which states
that a schedule of compliance ``shall be supplemental to, and shall not
sanction noncompliance with, the applicable requirements on which it is
based.''
Prompt reporting of deviations. Section 70.6 (a)(3)(iii)(B) states
that permits must require prompt reporting of deviations from the
permit requirements and that the permitting authority shall define
prompt in relation to the degree and type of deviation likely to occur
and the applicable requirements. The Districts' rules do not define
``prompt'' and instead leave the determination of what constitutes
``prompt'' to the discretion of the Air Pollution Control Officer.
Although the permit program regulations should define ``prompt'' for
purposes of administrative efficiency and clarity, it is acceptable to
define the term in each permit. EPA believes that prompt means
reporting a deviation that is not the result of an emergency or
breakdown within two to ten days of the occurrence. Two to ten days is
sufficient time in most cases to protect public health and safety as
well as to provide a forewarning of potential problems. For sources
with a low level of excess emissions, a longer time period may be
acceptable. However, prompt reporting must be more frequent than the
semiannual reporting requirement, since this is a separate reporting
obligation under Sec. 70.6(a)(3)(iii)(A). Where ``prompt'' is defined
in the individual permit but not in the program regulations, EPA may
veto permits that do not require sufficiently prompt reporting of
deviations.
4. Permit Fee Demonstration
Section 502(b)(3) of the Act and Sec. 70.9 (a) require that each
permitting authority collect fees sufficient to cover all reasonable
direct and indirect costs required to develop and administer its title
V operating permits program. Each title V program submittal must
contain either a detailed demonstration of fee adequacy or a
demonstration that aggregate fees collected from title V sources meet
or exceed $25 per ton of emissions per year (adjusted from 1989 by the
Consumer Price Index (CPI)). The $25 per ton amount is presumed, for
program approval, to be sufficient to cover all reasonable program
costs and is thus referred to as the ``presumptive minimum,''
(Sec. 70.9 (b)(2)(i)). All four Districts have opted to make a
presumptive minimum fee demonstration.
Currently, the four Districts charge fees for permitting based on
some combination of equipment type and/or size, number of emission
units, permitting action, and actual cost of services. All Districts
have adopted supplemental fee rules or revised existing fee rules to
assure that title V sources (either individually or in the aggregate)
will pay fees that will remain at or above the CPI-adjusted presumptive
minimum. These annual fees are all about $29.26 per ton with total
annual revenue from title V sources ranging from $4,096 (in Tehama with
one title V source) to $101,506 (in Shasta County with 10 title V
sources). (All figures are for 1993). All four Districts demonstrated
in their program descriptions that the presumptive minimum fees are
adequate to cover the direct and indirect costs of their title V
programs.
5. Provisions Implementing the Requirements of Other Titles of the Act
a. Section 112--Hazardous Air Pollutants. The Districts have
demonstrated in their title V program submittals adequate legal
authority to implement and enforce all section 112 requirements through
the title V permit. This legal authority is contained in the State of
California enabling legislation and in regulatory provisions in each
District's rule defining ``applicable requirements'' and mandating that
all federal air quality requirements must be incorporated into permits.
EPA has determined that this legal authority is sufficient to allow the
Districts to issue permits that assure compliance with all section 112
requirements. For further discussion on the District's legal authority,
please refer to the TSDs accompanying this action and the April 13,
1993 guidance memorandum entitled, ``Title V Program Approval Criteria
for Section 112 Activities,'' signed by John Seitz, Director, Office of
Air Quality Planning and Standards, USEPA, which can be found in the
dockets.
b. Title IV--acid rain. No Districts in California have Phase I
acid rain sources and none of the four Districts has identified Phase
II sources. The Glenn, Lake, and Tehama Districts have provided
commitments to expeditiously adopt the appropriate regulatory authority
necessary to issue a timely title IV permit to any new or existing
source in the District that becomes subject to, or wants to opt into,
the acid rain program. For the Shasta District, EPA will require this
commitment as part of the District-EPA implementation agreement.
6. Lake County AQMD's FESOP Program
On February 28, 1994, CARB submitted for approval into Lake
County's portion of the California SIP, a District operating permit
program designed to create federally-enforceable limits on sources'
potential to emit. This program is contained in sections 12.800 through
12.850 of Lake County's rule as well as relevant definitions in section
12.200. If approved into the SIP, the program will allow major sources
to become synthetic minor sources by limiting their potential to emit
to less than the major source level. A detailed analysis of the program
can be found in the TSD for Lake County.
B. Proposal for and Implications of Disapproval and Interim Approval
1. Title V Programs
EPA is proposing to disapprove the operating permits programs
submitted by the California Air Resources Board on behalf of Glenn
County APCD (received: December 27, 1993), Lake County AQMD (received:
November 16, 1993 and March 15, 1994), Shasta County AQMD (received:
November 16, 1993), and Tehama County APCD (received: December 6,
1993). If promulgated, these disapprovals would constitute disapprovals
under section 502(d) of the Act. As provided under section 502(d)(1) of
the Act, CARB and these Districts would have up to 180 days from the
date of EPA's final action to revise and resubmit the programs.
EPA is proposing to disapprove the operating permits programs for
these four Districts because of provisions in their equipment
breakdown/upset rules that state that excess emissions during equipment
breakdowns/upsets are not violations. In addition, EPA is proposing to
disapprove the programs for the Glenn, Lake, and Shasta Districts
because these Districts have rules that state that excess emissions
during equipment shutdown for maintenance are not violations.
As discussed earlier in this notice, these provisions mean that the
Districts do not have enforcement authorities that meet the minimum
requirements of Sec. 70.11. These provisions also compromise the
ability of the Districts to issue permits that assure compliance with
all applicable requirements. The minimum requirements for interim
approval in Sec. 70.4(d)(3) require that the permitting authority have
the ability to both enforce permits (Sec. 70.4(d)(3)(vii)) and issue
permits that assure compliance with all applicable requirements
(Sec. 70.4(d)(3)(ii)). Programs that do not have the minimum
requirements listed in Sec. 70.4(d)(3) and otherwise do not
substantially meet the requirements of part 70 are subject to
disapproval.
If EPA were to finalize this proposed disapproval for any of the
four Districts, that District may become subject to sanctions under the
Act within 18 months following final action to disapprove its program
if the District fails to submit a corrected program that EPA determines
corrects the disapproved program's deficiencies.
In the alternative, EPA proposes to grant source-category limited
interim approval to any of these four programs for which, prior to the
final disapproval action, the District adopts and CARB submits to EPA,
revisions to the breakdown/shutdown rules that remove the ``no
violation'' language. For the breakdown rules, these Districts can
either adopt the language of Sec. 70.6(g) that an emergency constitutes
an affirmative defense to noncompliance with technology-based emission
limitations or that emissions exceeding emission limitations during
equipment breakdowns constitute a violation of District rules. The Air
Pollution Control Officer may exercise enforcement discretion where an
emergency has caused a violation. The latter language is used in most
California district equipment breakdown rules and is acceptable to EPA.
Provisions for the special treatment of excess emissions during non-
emergency equipment shutdown must be deleted altogether. No special
treatment of excess emissions during equipment shutdown is allowed
because shutdowns are part of the normal operation of a source and,
thus, proper design of the equipment should eliminate excess emissions
during shutdowns. See the February 15, 1983, Bennett memo cited above
for a further discussion of the treatment of excess emissions during
shutdowns.
If EPA finalizes an interim approval for a District in lieu of the
disapproval, each District (and in some instances the State) must make
the changes noted below in order for its title V program to receive
full approval. This interim approval, which may not be renewed, extends
for a period of 2 years. During the interim approval period, a District
is protected from sanctions for failure to have a program, and EPA is
not obligated to promulgate a Federal permits program in the District.
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.
Following final interim approval, if any of the Districts fail to
submit a complete corrective program for full approval by the date six
months before expiration of the interim approval, EPA would start an
18-month clock for mandatory sanctions. If the District then fails to
submit a corrective program that EPA can find complete before the
expiration of that 18-month period, EPA would be required to apply one
of the sanctions in section 179(b) of the Act, which would then remain
in effect until EPA determines that the District has corrected the
deficiency by submitting a complete corrective program.
If, following final interim approval, EPA were to disapprove the
District'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 the
District submits a revised program and EPA determines that it corrects
the deficiencies that prompted the disapproval.
In addition, discretionary sanctions may be applied where warranted
any time after the end of an interim approval period if a District 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 a District program by the expiration of an
interim approval and that expiration occurs after November 15, 1995,
EPA must promulgate, administer and enforce a Federal permits program
for that District upon interim approval expiration.
2. Lake County AQMD's FESOP Program
The EPA is also proposing to disapprove the Lake District's FESOP
program because it does not meet the criteria for approving federally
enforceable state program for issuing synthetic minor operating permits
in EPA's June 28, 1989, Federal Register notice (54 FR 27282). As
discussed above, the Lake District currently has rules that state that
excess emissions during equipment breakdowns and maintenance are not
violations of District, state, and federal emission limitations. This
``no violation'' language calls into question the practical
enforceability of any limits on potential to emit established under
Lake's synthetic minor permitting program. Under the June 28, 1989
criteria, state operating permit programs that do not create
practically enforceable limits cannot create federally-enforceable
limits on potential to emit.
In the alternative, EPA is proposing to approve Lake's FESOP
program into the California SIP under section 110 of the Act if the
District removes the no violation language from its equipment breakdown
rule and eliminates any special treatment of excess emissions during
non-emergency equipment shutdowns. The program otherwise meets the June
28, 1989 approval criteria by ensuring that the limits on potential to
emit will be permanent and quantifiable and be no less stringent than
any other applicable federal limitations and requirements, by requiring
the source comply with the limits in its permit, and by providing
adequate notice to EPA and the public of the proposed permit. An
analysis of the June 28, 1989 criteria as they apply to Lake County's
FESOP program can be found in the TSD for Lake County.
Neither CARB nor Lake County AQMD requested approval of the
District's FESOP under section 112(l) of the Act for the purpose of
creating federally enforceable limitations on the potential to emit of
hazardous air pollutants (HAPs). A separate request for approval under
section 112(l) is necessary because the proposed SIP approval discussed
above only provides a mechanism for controlling criteria pollutants.
While federally enforceable limits on criteria pollutants (i.e.,
volatile organic compounds or particulate matter) may have the
incidental effect of limiting certain HAP listed pursuant to section
112(b), section 112 of the Act provides the underlying authority for
controlling HAP emissions that are not criteria pollutants. As a legal
matter, no additional program approval by EPA is required in order for
the criteria pollutant limits to be recognized as federally enforceable
for HAPs; however, because EPA is not proposing to approve Lake
County's FESOP program under section 112(l), federally-enforceable
potential to emit limits established specifically for HAPs cannot be
created through the program.
C. District Title V Interim Approval Issues Common to All Four
Districts
In order to receive full approval for its title V program, each
District must make the following changes:
(1) Provide a demonstration that activities that are exempt from
part 70 permitting are truly insignificant and are not likely to be
subject to an applicable requirement. Alternatively, the District may
restrict the exemptions (including any director's discretion
provisions) to activities that are not likely to be subject to an
applicable requirement and emit less than District-established emission
levels. The District should establish separate emission levels for HAPs
and for other regulated pollutants and demonstrate that these emission
levels are insignificant compared to the level of emissions from and
type of units that are required to be permitted or subject to
applicable requirements.
(2) Revise the exemption list to remove the general exemption for
agricultural production sources or to restrict the exemption to non-
title V sources. Insignificant activities at agricultural production
sources may still be listed.
(3) Revise the rule's application content requirements so that any
compliance schedule required by the rule for a source not in compliance
must resemble and be at least as stringent as that contained in any
judicial consent decree, administrative order, or schedule approved by
the hearing board to which the source is subject, as required by
Sec. 70.5(c)(4)(iii)(C), rather than simply a schedule of compliance
approved by the District's hearing board.
(4) Revise the rule's application content requirements to clarify
that all reports and other documents submitted in the permit
application must be certified by a responsible official as required by
Sec. 70.5(d) and to provide the full text of the responsible official's
certification in Sec. 70.5(d).
(5) Provide in the rule a permit application deadline for sources
that become subject to the District's title V rule after the rule's
effectiveness date for reasons other than commencing operation. This
deadline cannot be any later than 12 months after the source becomes
subject to the rule as required by Sec. 70.5(a)(1).
(6) Revise the rule's permit issuance procedures to provide for
notifying EPA and Affected States in writing of any refusal by the
District to accept all recommendations for the proposed permit that the
Affected State submitted during the public/Affected State review period
as required by Sec. 70.8(b)(2).
(7) Incorporate in the rule provisions citing the right of the
public to petition EPA after the expiration of EPA's 45-day review
period under Sec. 70.8(d) and prohibiting the District from issuing a
permit, if it has not already done so, until the EPA's objections in
response to the petition are resolved as required by Sec. 70.8(d).
(8) Revise the rule to provide for public notice of permitting
actions by other means if necessary to assure adequate notice to the
affected public as required by Sec. 70.7(h)(1).
(9) Revise the rule's permit content requirements to clarify that
all reports and other documents required by the permit must be
certified by a responsible official as required by Sec. 70.6(c)(1) and
to provide the full text of the responsible official's certification in
Sec. 70.5(d).
(10) Revise the rule's permit content requirements to require that
any compliance schedule for a source not in compliance must resemble
and be at least as stringent as that contained in any judicial consent
decree, administrative order, or schedule approved by the hearing board
to which the source is subject as required by Secs. 70.6(c)(3) and
70.5(c)(8)(iii)(C).
(11) Revise the rule's permit content requirements to require the
submission of compliance certifications more frequently than annually
if a more frequent period is specified in the applicable requirement or
by the District as required by Sec. 70.6(c)(5)(i).
(12) Revise the rule's operational flexibility provisions to
require notification by the source of operational flexibility changes
to both the EPA and the District as required by Sec. 70.4(b)(12).
D. Basis for Title V Source Category-Limited Interim Approval
California state law currently exempts agricultural production
sources from permit requirements; therefore, EPA is proposing to grant
source category-limited interim approval to the operating permits
program of any of the four Districts that corrects the disapproval
issues discussed above. At this time, none of the Districts has
identified any agricultural production sources as potential title V
sources. In order for these programs to receive full approval (and to
avoid a disapproval upon the expiration of the interim approval), the
California Legislature must revise the Health and Safety Code to
eliminate the exemption of agricultural production sources from the
requirement to obtain a permit and the District must revise its permit
exemption rules to eliminate any blanket exemption granted agricultural
sources.
III. Individual District Title V Interim Approval Issues
A. Glenn County APCD
In addition to the disapproval and interim approval issues noted
above for all Districts, the Glenn District must make the following
changes to its title V rule, Article VIII--Additional Procedures for
Issuing Permits to Operate for Sources Subject to Title V of the
Federal Clean Air Act Amendments of 1990, adopted October 19, 1993, in
order to receive full approval:
(1) Revise Article VIII V.C.6\3\ to take final action on early
reduction applications within nine months of receipt of the complete
application rather than within nine months of the date the application
was deemed complete as required by Sec. 70.4(b)(11)(iii).
---------------------------------------------------------------------------
\3\The EPA has cited specific sections of District rules and
regulations to illustrate appropriate places for making the
revisions/changes necessary for full approval. The District may,
however, revise other sections of their rules to satisfy the interim
approval issue.
---------------------------------------------------------------------------
B. Lake County AQMD
In addition to the disapproval and interim approval issues noted
above for all Districts, the Lake District must make the following
changes to its title V rule, Chapter XII--Requirements for Issuing
Permits to Operate for Sources Subject to Title V of the Federal Clean
Air Act Amendments of 1990, adopted October 19, 1993, in order to
receive full approval:
(1) Revise all deadlines for final permit action in Chapter VII,
Section 12.520 (except for (a) and (e)) to be no later than the
appropriate number of months after the complete application is
received, rather than after the application is deemed complete, as
required by Secs. 70.4(b)(11)(iii) and 70.7(a)(2).
C. Shasta County AQMD
In addition to the disapproval and interim approval issues noted
above for all Districts, the Shasta District must make the following
changes to its title V rule, Rule 5--Additional Procedures for Issuing
Permits to Operate for Sources Subject to Title V of the Federal Clean
Air Act Amendments of 1990, adopted September 28, 1993, and Rule 3:10--
Excusable Malfunctions, last amended on July 22, 1986, in order to
receive full approval:
(1) Revise all deadlines for final permit action in Rule 5 IV.C.
(except for C.1. and C.5.) to be no later than the appropriate number
of months after the complete application is received, rather than after
the application is deemed complete, as required by
Secs. 70.4(b)(11)(iii) and 70.7(a)(2).
(2) Revise Rule 3:10 to remove the prohibition on the use of
reports required by Rule 3:10 in enforcement/permitting actions.
D. Tehama County APCD
In addition to the disapproval and interim approval issues noted
above for all Districts, the Tehama District must make the following
changes to its title V rule, Rule 7:1--Federal Operating Permit
Program, adopted October 26, 1993, in order to receive full approval:
(1) Revise Rule 7:1 IV.B.4. to incorporate the compliance
provisions of Sec. 70.7(e)(2)(v). Rule 7:1 IV.B.4. allows the air
pollution control officer (APCO) to approve a minor permit modification
when the proposed permit revision is sent to EPA for review. While this
is allowed under Sec. 70.7(e)(2)(v), Rule 7:1 does not state, as does
Sec. 70.7(e)(2)(v), that until the District takes final action to issue
or deny the requested permit modification or determines that it is a
significant modification, the source must comply with the applicable
requirements governing the change and the proposed permit terms and
conditions in lieu of complying with the existing permit terms and
conditions being modified. Rule 7:1 should also be revised to state
that if the source fails to comply with the permit terms and conditions
in the requested modification, the existing permit terms and conditions
may be enforced against it.
(2) Revise Rule 7:1 IV.B.3. to limit the discretion of the APCO to
authorize sources to commence operation of significant permit
modifications prior to final permit action to when the changes meet the
criteria of Sec. 70.5(a)(1)(ii). Rule 7:1 IV.B.3. allows the APCO to
authorize sources to commence operation of significant permit
modifications when the proposed permit revision is publicly noticed but
prior to final permit action. Part 70 prohibits sources from making
significant permit modification changes prior to final permit issuance
unless the changes have undergone preconstruction review pursuant to
section 112(g) or a program approved into the SIP pursuant to part C or
D of title I, and the changes are not otherwise prohibited by the
source's existing part 70 permit. See Sec. 70.5(a)(1)(ii). The
authority in Rule 7:1 IV.B.3. is discretionary with the APCO, and EPA
expects that the APCO will exercise this authority during the interim
approval period only where the change meets the criteria of
Sec. 70.5(a)(1)(ii).
IV. Approvals Under Section 112 of the Act
A. Implementation of 112(g) Upon Program Approval
As a condition of approval of its part 70 program, each District is
required to implement section 112(g) of the Act from the effective date
of its part 70 program. Imposition of case-by-case determinations of
maximum achievable control technology (MACT) or offsets under section
112(g) will require the use of a mechanism for establishing federally
enforceable restrictions on a source-specific basis. EPA is proposing
to approve each District's preconstruction permitting program under the
authority of title V and part 70 solely for the purpose of implementing
section 112(g) during the transition period between title V approval
and adoption of a District rule implementing EPA's section 112(g)
regulations. EPA believes this approval is necessary so that each
District has a mechanism in place to establish federally enforceable
restrictions for section 112(g) purposes from the date of part 70
approval. Although section 112(l) of the Act generally provides the
authority for approval of State and local air toxics programs, title V
and section 112(g) provide authority for this limited approval because
of the direct linkage between implementation of section 112(g) and
title V. The scope of this approval is narrowly limited to section
112(g), and does not confer or imply approval for purposes of any other
provision under the Act. The specific District rules that EPA is
approving for this purpose are listed in Attachment I of the TSD for
each District. If a District does not wish to implement section 112(g)
through its preconstruction permit program and can demonstrate prior to
EPA taking final action on its title V program that an alternative
means of implementing section 112(g) exists, EPA may, in the final
action approving that District's part 70 program, approve the
alternative instead.
This approval is for an interim period only, until such time as
each District is able to adopt regulations consistent with any
regulations promulgated by EPA to implement section 112(g).
Accordingly, EPA is proposing to limit the duration of this approval to
a reasonable time following promulgation of section 112(g) regulations
so that each District, acting expeditiously, will be able to adopt
regulations consistent with the section 112(g) regulations. EPA is
proposing here to limit the duration of this approval to 12 months
following promulgation by EPA of section 112(g) regulations. Comment is
solicited on whether 12 months is an appropriate period considering
each District's procedures for adoption of regulations.
B. Program for Delegation of Section 112 Standards as Promulgated
Requirements for approval, specified in Sec. 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 each state and/or local
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 each District's
program for receiving delegation of section 112 standards that are
unchanged from the Federal standards as promulgated. EPA has
interpreted California law (AB 2728) to mean that Districts receive
automatic delegation of section 112(d) standards. The details of this
delegation mechanism will be set forth in a Memorandum of Agreement as
part of the implementation agreement between each District and EPA. EPA
expects to be completed this MOA prior to approval of the District's
section 112(l) program for straight delegations. This program applies
to both existing and future standards but is limited to sources covered
by the part 70 program.
V. Administrative Requirements
A. Request for Public Comments
EPA is requesting comments on all aspects of this proposed
disapproval/interim approval. Copies of the Districts' submittals and
other information relied upon for the proposed disapproval/interim
approval are contained in dockets maintained at the EPA Region IX
Office. Each docket is an organized and complete file of all the
information submitted to, or otherwise considered by, EPA in the
development of this proposed disapproval/interim approval and EPA
detailed analysis of each program. 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/
disapproval process, and
(2) to serve as the record in case of judicial review.
EPA will consider any comments received by [insert date 30 days
after date of publication].
Docket number for this proposal is CA-MULTI-94-1-OPS. The docket
for each of the four Districts is located in a separate section of this
overall docket.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
C. Regulatory Flexibility Act
EPA's actions under section 502 of the Act do not create any new
requirements, but simply address operating permits programs submitted
to satisfy the requirements of 40 CFR part 70. Because this action does
not impose any new requirements, it does not have a significant impact
on a substantial number of small entities.
Authority: 42 U.S.C. 7401-7671q.
Dated: November 9, 1994.
John Wise,
Acting Regional Administrator.
[FR Doc. 94-29268 Filed 11-28-94; 8:45 am]
BILLING CODE 6560-50-W
