[Federal Register Volume 60, Number 235 (Thursday, December 7, 1995)]
[Rules and Regulations]
[Pages 62758-62762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29834]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5341-9]
Clean Air Act Interim Approval of Operating Permits Program;
Mariposa Air Pollution Control District, California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is promulgating direct final interim approval of the
title V operating permits program submitted by the California Air
Resources Board (CARB), on behalf of the Mariposa Air Pollution Control
District (Mariposa or District), for the purpose of complying with
federal requirements for an approvable state program to issue operating
permits to all major stationary sources and to certain other sources.
In addition, today's action promulgates direct final approval of
Mariposa's mechanism for receiving delegation of section 112 standards
as promulgated.
DATES: This direct final rule is effective on February 5, 1996 unless
adverse or critical comments are received by January 8, 1996. If the
effective date is delayed, a timely notice will be published in the
Federal Register.
ADDRESSES: Copies of the District's submittal and other supporting
[[Page 62759]]
information used in developing this direct final rule are available for
public inspection (docket number CA-MA-95-1-OPS) during normal business
hours at the following location: Operating Permits Section (A-5-2), Air
and Toxics Division, U.S. Environmental Protection Agency, Region IX,
75 Hawthorne Street, San Francisco, CA 94105.
FOR FURTHER INFORMATION CONTACT: Sara Bartholomew (telephone 415/744-
1170), Operating Permits Section (A-5-2), Air and Toxics Division, U.S.
Environmental Protection Agency, Region IX, 75 Hawthorne Street, San
Francisco, CA 94105.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
Title V of the 1990 Clean Air Act Amendments (sections 501-507 of
the Clean Air Act (Act)), and implementing regulations at 40 Code of
Federal Regulations (CFR) part 70 (part 70), require that states
develop and submit operating permits programs to EPA by November 15,
1993, and that EPA act to approve or disapprove each program within 1
year after receiving the submittal. The 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 2 years.
If EPA has not fully approved a program by 2 years after the November
15, 1993 date, or by the end of an interim program, it must establish
and implement a federal program.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial action and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing interim approval of the
operating permit program submitted by Mariposa should adverse or
critical comments be filed.
If EPA receives adverse or critical comments, this action will be
withdrawn before the effective date by publishing a subsequent document
that will withdraw the final action. All public comments received will
then be addressed in a subsequent final rule based on this action
serving as the proposed rule. The EPA will not institute a second
comment period. Any parties interested in commenting on this action
should do so at this time. If no such comments are received, the public
is advised that this action will be effective on February 5, 1996.
B. Federal Oversight and Sanctions
This interim approval, which may not be renewed, extends until
February 9, 1998. During this interim approval period, Mariposa is
protected from sanctions, and EPA is not obligated to promulgate,
administer and enforce a federal operating permits program in the
District. Permits issued under a program with interim approval have
full standing with respect to part 70, and the 1-year time period for
submittal of permit applications by subject sources begins upon the
effective date of this interim approval, as does the 3-year time period
for processing the initial permit applications.
If Mariposa fails to submit a complete corrective program for full
approval by August 7, 1997, EPA will start an 18-month clock for
mandatory sanctions. If Mariposa then fails to submit a corrective
program that EPA finds complete before the expiration of that 18-month
period, EPA will be required to apply one of the sanctions in section
179(b) of the Act, which will remain in effect until EPA determines
that Mariposa has corrected the deficiency by submitting a complete
corrective program. Moreover, if the Administrator finds a lack of good
faith on the part of the District, both sanctions under section 179(b)
will apply after the expiration of the 18-month period until the
Administrator determines that Mariposa has come into compliance. In any
case, if, six months after application of the first sanction, the
District still has not submitted a corrective program that EPA has
found complete, a second sanction will be required.
If EPA disapproves Mariposa's complete corrective program, EPA will
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 Mariposa has submitted a revised program and EPA has
determined that it corrected the deficiencies that prompted the
disapproval. Moreover, if the Administrator finds a lack of good faith
on the part of the District, both sanctions under section 179(b) shall
apply after the expiration of the 18-month period until the
Administrator determines that Mariposa has come into compliance. In all
cases, if, six months after EPA applies the first sanction, the
District has not submitted a revised program that EPA has determined
corrects the deficiencies, a second sanction is required.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if Mariposa
has not timely submitted a complete corrective program or EPA has
disapproved its submitted corrective program. Moreover, if EPA has not
granted full approval to the District's program by the expiration of
this interim approval and that expiration occurs after November 15,
1995, EPA must promulgate, administer and enforce a federal permits
program for Mariposa upon interim approval expiration.
II. Direct Final Action and Implications
A. Analysis of State Submission
The analysis contained in this notice focuses on specific elements
of Mariposa's title V operating permits program that must be corrected
to meet the minimum requirements of part 70. The full program
submittal; the Technical Support Document (TSD), which contains a
detailed analysis of the submittal; and other relevant materials are
available for inspection as part of the public docket (CA-MA-95-1-OPS).
The docket may be viewed during regular business hours at the address
listed above.
1. Support Materials
Mariposa's title V program was submitted by the California Air
Resources Board (CARB) on March 8, 1995 and found to be complete on May
25, 1995. Enabling legislation for the State of California and the
Attorney General's legal opinion were submitted by CARB for all
districts in California and therefore were not included separately in
Mariposa's submittal. The Mariposa submission does contain a Governor's
letter requesting source category-limited interim approval, District
implementing and supporting regulations, and all other program
documentation required by section 70.4. EPA will wait to develop an
implementation agreement between Mariposa and EPA until the District
has title V sources.
2. Regulations and Program Implementation
Mariposa's title V implementing regulation, District Regulation X,
was adopted on February 28, 1995. The District used the CARB model
rule, and Regulation X is almost identical to the other smaller
districts in California. EPA has granted interim approval to 23 of
these smaller districts to date, and a detailed discussion of the
issues in these programs can be found in 60 FR 21720, published on May
3, 1995.
Mariposa's title V implementing regulations substantially meet the
[[Page 62760]]
requirements of 40 CFR part 70, sections 70.2 and 70.3 for
applicability; sections 70.4, 70.5, and 70.6 for permit content,
including operational flexibility; section 70.7 for public
participation and permit modifications; section 70.5 for criteria that
define insignificant activities and complete application forms; and
section 70.11 for enforcement authority. Although the regulations
substantially meet part 70 requirements, there are a few deficiencies
in the program that are outlined under section II.B.1. below as interim
approval issues and further described in the TSD.
3. Permit Fee Demonstration
Section 502(b)(3) of the Act requires 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 per year (adjusted annually based on the Consumer Price Index
(``CPI''), relative to 1989 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'' (40 CFR
70.9(b)(2)(i)).
Mariposa does not currently have any title V sources. The District
has adopted a fee rule that would charge the presumptive minimum to any
title V source that locates in the District, or to any source to which
title V becomes applicable.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority and Commitments for Section 112 Implementation
Mariposa has demonstrated in its title V program submittal 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
defining federal ``applicable requirements'' and requiring each permit
to incorporate conditions that assure compliance with all applicable
requirements. EPA has determined that this legal authority is
sufficient to allow Mariposa to issue permits that assure compliance
with all section 112 requirements. For further discussion, please refer
to the TSD accompanying this action and the April 13, 1993 guidance
memorandum entitled, ``Title V Program Approval Criteria for Section
112 Activities,'' signed by John Seitz and located in the docket.
b. Authority for Title IV Implementation
Mariposa has no title V sources at this time, and therefore has no
Phase I or Phase II acid rain sources. The District has not submitted a
complete acid rain program, due to its lack of sources. If, in the
future, title V sources locate in the District, or if title V should
become applicable to any existing sources, Mariposa will need to
provide the same commitment that EPA is requiring of other Districts
that do not have a complete acid rain program. This commitment will be
to expeditiously adopt the appropriate regulatory authority, if and
when it becomes necessary to issue a 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.
B. Proposed Interim Approval and Implications
1. Title V Operating Permits Program
The EPA is promulgating direct final interim approval to the
operating permits program submitted by the California Air Resources
Board, on behalf of the Mariposa Air Pollution Control District, on
March 8, 1995. Areas in which Mariposa's program is deficient and
requires corrective action prior to full approval are as follows:
(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 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 in Rule 402 (Exemptions to Rule 401)
to remove the general exemption for agricultural production sources or
to restrict the exemptions to non-title V sources.
(3) Revise the application content requirements in Rule 1006 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 application content requirements in Rule 1006 to
clarify that all reports and other documents submitted in the permit
application must be certified by the 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 Rule 1004 a permit application deadline for sources
that become subject to the District's part 70 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 permit issuance procedures in Rule 1005 to provide
for notifying the 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 Rule 1005 provisions citing the right of the
public to petition EPA under Sec. 70.8 (d) after the expiration of the
EPA's 45-day review period 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 Rule 1005 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 permit content requirements in Rule 1006 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 permit content requirements in Rule 1006 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 permit content requirements in Rule 1006 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).
[[Page 62761]]
This interim approval, which may not be renewed, extends for a
period of up to two years. During the interim approval period, Mariposa
is protected from sanctions for failure to have a program, and EPA is
not obligated to promulgate a federal permits program in the State.
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.
The scope of Mariposa's part 70 program that EPA is acting on in
this notice applies to all part 70 sources (as defined in the approved
program) within Mariposa's jurisdiction. The approved program does not
apply to any part 70 sources over which an Indian tribe has
jurisdiction. See, e.g., 59 FR 55813, 55815-18 (Nov. 9, 1994). The term
``Indian tribe'' is defined under the Act as ``any Indian tribe, band,
nation, or other organized group or community, including any Alaska
Native village, which is federally recognized as eligible for the
special programs and services provided by the United States to Indians
because of their status as Indians.'' See section 302(r) of the CAA;
see also 59 FR 43956, 43962 (Aug. 25, 1994); 58 FR 54364 (Oct. 21,
1993).
2. State Preconstruction Permit Program Implementing Section 112(g)
The EPA has published an interpretive notice in the Federal
Register regarding section 112(g) of the Act (60 FR 8333; February 14,
1995) that postpones the effective date of section 112(g) until after
EPA has promulgated a rule addressing that provision. The interpretive
notice also explains that EPA is considering whether the effective date
of section 112(g) should be delayed beyond the date of promulgation of
the federal rule so as to allow states time to adopt rules implementing
the federal rule, and that EPA will provide for any such additional
delay in the final section 112(g) rulemaking. Unless and until EPA
provides for such an additional postponement of section 112(g),
Mariposa must be able to implement section 112(g) during the period
between promulgation of the federal section 112(g) rule and adoption of
implementing State regulations.
For this reason, EPA is approving the use of Mariposa's
preconstruction review program as a mechanism to implement section
112(g) during the transition period between promulgation of the section
112(g) rule and adoption by Mariposa of rules specifically designed to
implement section 112(g). However, since the sole purpose of this
approval is to confirm that the District has a mechanism to implement
section 112(g) during the transition period, the approval itself will
be without effect if EPA decides in the final section 112(g) rule that
there will be no transition period. The EPA is limiting the duration of
this approval to 18 months following promulgation by EPA of the section
112(g) rule.
3. Program for Delegation of Section 112 Standards as Promulgated
Requirements for approval, specified in 40 CFR section 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 a state's program
contain adequate authorities, adequate resources for implementation,
and an expeditious compliance schedule, which are also requirements
under part 70. Therefore, EPA is also promulgating approval under
section 112(l)(5) and 40 CFR part 63.91 of Mariposa's program for
receiving delegation of section 112 standards that are unchanged from
federal standards as promulgated. California Health and Safety Code
section 39658 provides for automatic adoption by CARB of section 112
standards upon promulgation by EPA. Section 39666 of the Health and
Safety Code requires that districts then implement and enforce these
standards. Thus, when section 112 standards are automatically adopted
pursuant to section 39658, Mariposa will have the authority necessary
to accept delegation of these standards without further regulatory
action by the District. The details of this mechanism and the means for
finalizing delegation of standards will be set forth in an
implementation agreement between Mariposa and EPA, which will be
negotiated at the time when the District has title V sources. This
program applies to both existing and future standards but is limited to
sources covered by the part 70 program.
III. Administrative Requirements
A. Docket
Copies of Mariposa's submittal and other information relied upon
for this direct final action is contained in docket number CA-MA-95-1-
OPS maintained at the EPA Regional Office. The docket is an organized
and complete file of all the information submitted to, or otherwise
considered by, EPA in the development of this direct final rulemaking.
The docket is available for public inspection at the location listed
under the ADDRESSES section of this document.
B. Regulatory Flexibility Act
The 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.
C. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a federal mandate that may result in estimated
costs to state, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated today does
not include a Federal mandate that may result in estimated costs of
$100 million or more to either state, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under state or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to state, local,
or tribal governments, or to the private sector, result from this
action.
D. Executive Order 12866
The Office of Management and Budget has exempted this action from
review under Executive Order 12866.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
and Reporting and recordkeeping requirements.
Dated: November 13, 1995.
Felicia Marcus,
Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
[[Page 62762]]
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding paragraph (n) to the
entry for California to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
The following district program was submitted by the California Air
Resources Board on behalf of:
(n) Mariposa Air Pollution Control District: submitted on March 8,
1995; approval effective on February 5, 1996 unless adverse or critical
comments are received by January 8, 1996.
* * * * *
[FR Doc. 95-29834 Filed 12-6-95; 8:45 am]
BILLING CODE 6560-50-P
