[Federal Register Volume 60, Number 54 (Tuesday, March 21, 1995)]
[Proposed Rules]
[Pages 14921-14927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6929]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5174-4]
Title V Clean Air Act Proposed Interim Approval of Operating
Permits Program; District of Columbia
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim approval.
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SUMMARY: EPA is proposing interim approval of the operating permits
program submitted by the District of Columbia. This program was
submitted by the District for the purpose of complying with federal
requirements which mandate that states develop, and submit to EPA,
programs for issuing operating permits to all major stationary sources,
and to certain other sources. The rationale for proposing interim
approval is set forth in this notice; additional information is
available at the address indicated below. This action is being taken in
accordance with the provisions of the Clean Air Act.
DATES: Comments on this proposed action must be received in writing by
April 20, 1995.
ADDRESSES: Comments should be submitted to Jennifer Abramson at the
Region III address indicated. Copies of the District's submittal and
other supporting information used in developing the proposed interim
approval are available for inspection during normal business hours at
the following location: Air, Radiation, and Toxics Division, U.S.
Environmental Protection Agency, Region III, 841 Chestnut Building,
Philadelphia, PA 19107.
FOR FURTHER INFORMATION CONTACT: Jennifer M. Abramson (3AT23), Air,
Radiation and Toxics Division, U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, PA 19107, (215) 597-
2923.
SUPPLEMENTARY INFORMATION:
I. Background
As required under Title V of the Clean Air Act (CAA) as amended
(1990), EPA has promulgated rules which 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 Code of Federal
Regulations (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 CAA 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 1 year after receiving the submittal. EPA's program
review occurs pursuant to section 502 of the CAA and part 70, 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, EPA must establish
and implement a federal operating permits program.
Following final interim approval, if the District fails to submit a
complete corrective program for full approval by 6 months before the
interim approval period expires, EPA would start an 18-month clock for
mandatory sanctions. If the District then failed to submit a complete
corrective program before the expiration of that 18-month period, EPA
would be required to apply one of the sanctions in section 179(b) of
the CAA. Such a sanction would remain in effect until EPA determined
that the District had corrected the deficiency by submitting a complete
corrective program. Moreover, if the Administrator found a lack of good
faith on the part of the District, both sanctions under section 179(b)
would apply after the [[Page 14922]] expiration of the 18-month period
until the Administrator determined that the District had come into
compliance. In any case, if, six months after application of the first
sanction, the District still had not submitted a corrective program
that EPA found complete, a second sanction would be required.
If, following final interim approval, EPA disapproved 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 had submitted a revised program and EPA had determined that
this program corrected the deficiencies that prompted the disapproval.
Moreover, if the Administrator found a lack of good faith on the part
of the District, both sanctions under section 179(b) would apply after
the expiration of the 18-month period until the Administrator
determined that the District had come into compliance. In all cases,
if, six months after EPA applied the first sanction, the District had
not submitted a revised program that EPA had determined corrected the
deficiencies that prompted disapproval, a second sanction would be
required.
In addition, discretionary sanctions may be applied where warranted
any time after the end of an interim approval period if the 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 period, EPA must promulgate, administer and enforce a
federal operating permits program for the District upon the date the
interim approval period expires.
On January 13, 1994, the District of Columbia submitted an
operating permits program for review by EPA. The submittal was
supplemented by additional materials on March 11, 1994, and was found
to be administratively complete pursuant to 40 CFR 70.4(e)(1). The
submittal includes an Administrator's letter, a description of the
District's title V program, permitting regulations, a Corporation
Counsel's legal opinion, permitting program documentation, a permit fee
demonstration, a description of compliance tracking and enforcement
program, and provisions implementing the requirements of other titles
of the CAA.
II. Summary and Analysis of the District's Submittal
The analysis contained in this notice focuses on the major portions
of the District's operating permits program submittal: regulations and
program implementation, variances, fees, support materials, and
provisions implementing the requirements of titles III and IV of the
CAA. Specifically, this notice addresses the deficiencies in the
District's submittal which will need to be corrected prior to full
approval by EPA. These deficiencies as well as other issues related to
the District's operating permit program are discussed in detail in the
Technical Support Document (TSD). The full program submittal and the
TSD are available for review as part of the public docket. The docket
may be viewed during regular business hours at the EPA Region III
office listed in the ADDRESSES section of this document.
A. Regulations and Program Implementation
The District of Columbia's operating permit program is primarily
defined by regulations adopted as chapter 3 of subtitle I of title 20
of the District of Columbia Municipal Regulations (20 DCMR). Provisions
for enforcement authority are located in other Chapters of subtitle I
of 20 DCMR. The following analysis of the District's operating permit
regulations corresponds directly with the format and structure of part
70.
Section 70.2 Definitions
The District's regulations substantially meet the requirements of
40 CFR 70.2 for definitions. The following changes must be made to
chapter 3 in order to fully meet the requirements of 40 CFR 70.2.
1. The Sec. 399.1 definition of ``Fugitive emissions'' is entitled
``Emissions emissions''. This typographical error must be corrected to
clarify the meaning of the term fugitive emissions as the term is used
in the chapter 3 operating permits regulations.
2. The Sec. 399.1 definition of ``Title I modification or
modification under any provision of Title I of the Act'' does not
expressly include changes reviewed under a minor source preconstruction
review program (``minor NSR changes''). EPA is currently in the process
of determining the proper definition of this term. As further explained
below, EPA has solicited public comment on whether the phrase
``modification under any provision of Title I of the Act'' in 40 CFR
70.7(e)(2)(i)(A)(5) 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 a State Implementation Plan (SIP) 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 definition of ``Title I modifications'' to receive
interim approval (59 FR 44572). EPA explained its view that the
preferred 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 continued to believe that the term ``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.
EPA hopes to finalize its rulemaking revising the interim approval
criteria under 40 CFR 70.4(d) expeditiously. If EPA establishes in its
rulemaking that the definition of ``Title I modifications'' can be
interpreted to exclude changes reviewed under minor NSR programs, the
District's definition of ``Title I modification or modification under
any provision of Title I of the Act'' 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
District's definition of ``Title I modification or modification under
any provision of Title I of the Act'' will not fully meet the 40 CFR
70.2 requirements for definitions. If the impact of this deficiency
becomes a basis for interim approval as a result of EPA's rulemaking,
the District would be required to revise the section 399.1 definition
to conform to the requirements of part 70.
Accordingly, this proposed approval does not identify the
District's definition of ``Title I modification or modification under
any provision of Title I of the Act'' 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.
Section 70.5 Permit Applications
The District's regulations substantially meet the requirements of
[[Page 14923]] 40 CFR 70.5 for permit applications. The following
changes must be made to Chapter 3 in order to fully meet the
requirements of 40 CFR 70.5:
1. Section 301.1(b)(6)(B) must be modified to clarify that
applications for permit renewal must contain both a compliance plan, as
required by Sec. 301.3(h), and a compliance certification, as required
by Sec. 301.3(i).
2. The District must revise Sec. 301.3(c)(1) to ensure that all
regulated air pollutant emissions which are subject to applicable
requirements, including emissions from nonmajor sources subject to
section 111 or 112 of the CAA, and sources solely subject to Part 60,
Subpart AAA--Standards of Performance for new Residential Wood Heaters
and Part 61, Subpart M--National Emissions Standard for Hazardous Air
Pollutants (NESHAP) for Asbestos, section 61.145, Standard for
Demolition and Renovation, will be described in permit applications.
During the interim period, the District will be expected to require
sources to prepare permit applications which include all information
needed to determine the applicability of any applicable requirement, in
accordance with Sec. 301.3.
Accordingly, the District will also be expected to issue permits to
major sources that include all applicable requirements, in accordance
with Sec. 302.1.
3. Section 301.3(g) must be revised to correct the misreferenced
sections of the District's regulations which address alternate
operating scenarios and emissions trading.
4. Section 301.3(h)(3)(C) must be revised to clarify that any
schedule of compliance shall be supplemental to and shall not sanction
noncompliance with the applicable requirements on which it is based.
Sections 70.4 and 70.6 Permit Content
The District's regulations substantially meet the requirements of
40 CFR 70.4 and 40 CFR 70.6 for permit content. The following changes
must be made to Chapter 3 in order to fully meet the requirements of 40
CFR 70.4 and 40 CFR 70.6:
1. Section 302.1(k) must be revised to clarify that terms and
conditions for the trading or averaging of emissions must meet all
applicable requirements and the requirements of the operating permits
program.
2. Section 302.3(e)(6) must be renumbered to Sec. 302.3(f) to be
consistent with the structure of 40 CFR 70.6(c)(6). Such a change is
needed to clarify that the permit will include provisions required by
the Mayor to ensure compliance.
3. Section 302.4(e) must be revised to clarify that requests for
coverage under a general permit must meet the permit application
requirements of Title V of the Clean Air Act, and include all
information necessary to assure compliance with the general permit.
4. The section 302.8 provisions regarding operational flexibility
must be restructured to clarify that the three types of operational
flexibility (Section 502(b)(10) changes, emissions trading under SIP,
and emissions trading for the purposes of complying with federally
enforceable emissions cap) are available only when the conditions
specified in 40 CFR 70.4(b)(12) are met.
5. Section 302.8(b) must be revised to clarify that compliance with
emissions trading provisions in a permit will be determined according
to requirements of the applicable SIP/ Federal Implementation Plan
(FIP) or applicable requirement authorizing the emissions trade.
Section 70.7 Permit Issuance, Renewal, Reopenings, and Revisions
The District's regulations substantially meet the requirements of
40 CFR 70.7 for permit issuance, renewal, reopenings, and revisions.
The following changes must be made to Chapter 3 in order to fully meet
the requirements of 40 CFR 70.7:
1. The provisions of Sec. 303.1(f) and Sec. 303.1(e)(2) authorize
an extension of 5 days from the permit issuance deadlines required in
part 70. Sections 303.1(f) and 303.1(d)(1) must be revised to ensure
that the Part 70 permit issuance deadlines will be met.
2. Section 303.3(a) language must be modified to clarify that
public participation and EPA and affected state review will apply to
the entire draft renewal permit, including those portions which are
incorporated by reference.
3. Section 303.5(d)(1) prescribes the use of significant permit
modification procedures for changes meeting certain criteria. So that
all types of changes will be assigned a specified permit revision
track, Sec. 303.5(d)(1) must be revised to also require the use of the
significant permit modification procedure for any type of change which
does not qualify for either a minor permit modification or an
administrative amendment.
4. The District must revise Sec. 303.10 to provide for sending
notice to persons on a mailing list developed by the permitting
authority, including those people who request, in writing, to be on the
list.
5. Section 303.10(a)(1)(B) must be revised to require the notice to
include procedures to request a hearing in the event that a hearing has
not been scheduled. Although not specified in the Chapter 3
regulations, the District must provide an opportunity to request a
hearing if one has not been scheduled during the interim period.
6. Section 303.10 must be revised to include a provision that
requires notice of a public hearing at least 30 days in advance of the
hearing. Although not specified in the Chapter 3 regulations, the
District must provide notice of a public hearing at least 30 days in
advance of the hearing during the interim period.
Section 70.9 Fee Determination and Certification
The District's regulations substantially meet the requirements of
40 CFR 70.9 for fee determination and certification. The following
changes must be made to Chapter 3 in order to fully meet the
requirements of 40 CFR 70.9:
1. Section 305.2(b) must be revised to clarify that the August 1989
CPI value of 124.6 will not be used for the purposes of calculating the
CPI fee adjustment and that the appropriate value of 122.15, the
average 1989 CPI value, will be used instead.
2. Section 305.1 requires sources to pay an annual presumptive
minimum fee ``or the equivalent over some other period''. Although
appearing in section 502(b)(3)(A) of the CAA, the language ``or the
equivalent over some other period'' as written into this section may
allow for wide variations in the amount and timing of fee payments and
could frustrate enforcement of the fee payment requirement. If the
District intends to provide sources with the flexibility to pay fees
pursuant to a pay schedule other than the annual presumptive minimum,
section 305.1 must be revised to ensure that such equivalent fee
schedule is enforceable as a practical matter. If the District does not
intend to allow sources to pay fees other than the annual presumptive
minimum, the section 305.1 language ``or the equivalent over some other
period'' should be removed.
Section 70.11 Enforcement Authority
The District's regulations substantially meet the requirements of
40 CFR 70.11 for requirements for enforcement authority. The following
changes must be made to subtitle I of 20 DCMR in order to fully meet
the requirements of 40 CFR 70.11:
1. The enforcement provisions cited in the Corporation Counsel's
opinion as [[Page 14924]] meeting the enforcement requirements of part
70 do not satisfy the requirements of Sec. 70.11(a)(1) and (2). The
District must either revise the Corporation Counsel's opinion to
reference existing provisions in District of Columbia law which satisfy
the requirements of 70.11(a) (1) and (2), or specifically establish
authorities to restrain or enjoin immediately permit violators
presenting substantial endangerment, and to seek injunctive relief for
program and permit violations without the need for prior revocation of
the permit. Whichever approach the District takes, the District's
regulations must clearly establish that such enforcement authority
extends to chapter 3.
2. The District must clarify that civil fines are recoverable for
the violation of any applicable requirement, any permit condition, any
fee or filing requirement, any duty to allow or carry out inspection,
entry of monitoring activities or, any regulation or orders issued by
the Mayor. The District must either amend the Subtitle I of 20 DCMR to
specifically address the types of violations for which civil fines are
recoverable, or otherwise have the Corporation Counsel demonstrate that
section 100.6 applies to each of the specific types of violations
mentioned in Sec. 70.11(a)(3)(i).
3. As required by 40 CFR 70.11(a)(3), the District must establish
civil enforcement authority for the collection of penalties in a
maximum amount of not less than $10,000 per day per violation. Such
civil penalties must be recoverable for the types of violations
discussed in Sec. 70.11(a)(3)(i).
4. With respect to the Sec. 100.6 civil enforcement authority, the
District must clarify that mental state is not allowed as an element of
proof for civil violations. The District must either establish
regulatory provisions for strict liability or provide a demonstration
from the Corporation Counsel that mental state is not allowed as an
element of proof for civil violations.
5. The District must clarify that criminal fines are recoverable
for any knowing violations of applicable requirements, permit
conditions, or fee or filing requirements. Criminal fines must also be
recoverable against any person who knowingly makes any false material
statement, representation or certification in any forms, in any notice
or report required by a permit, or who knowingly renders inaccurate any
required monitoring device or method. The District must either amend
the subtitle I of 20 DCMR to specifically address the types of knowing
violations for which criminal fines are recoverable or have the
Corporation Counsel demonstrate that section 105.1 applies to each of
the specific types of knowing violations mentioned in
Sec. 70.11(a)(3)(ii) and (iii).
6. Section 105.1 provides criminal enforcement authority for the
recovery of fines in an amount not to exceed $10,000. Pursuant to the
requirements of Sec. 70.11(a)(3)(i), the District must revise the
provisions pertaining to criminal enforcement so to authorize the
collection of penalties in a maximum amount of not less than
Sec. 10,000 per day per violation. Such criminal penalties must be
recoverable for the types of knowing violations discussed in
Sec. 70.11(a)(3)(ii) and (iii).
B. Variances
The District of Columbia has the authority to issue a variance from
requirements imposed by the District under the ``District of Columbia
Air Pollution Control Act of 1984'' (APCA). Under specific
circumstances and following a specified procedure, section 103 of the
APCA authorizes the Mayor to grant or deny requests for relief from
APCA requirements. EPA regards this provision as wholly external to the
program submitted for approval under part 70, and consequently is
proposing to take no action on this provision of the District's law.
EPA has no authority to approve provisions of District law, such as the
variance provisions referred to, which are inconsistent with the CAA.
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. EPA reserves the right to enforce the terms of the part 70
permit where the permitting authority purports to grant relief from the
duty to comply with a Part 70 permit in a manner inconsistent with Part
70 procedures.
C. Permit Fee Demonstration
Section 305 of the District's regulations requires owners or
operators of part 70 sources to pay annual fees of twenty-five dollars
($25), adjusted by the CPI index, times the total tons of the actual
emissions of each regulated pollutant (for presumptive fee calculation)
emitted from part 70 sources, or an equivalent amount. All fees,
penalties, and interest collected shall be deposited by the Mayor in a
special District of Columbia Treasury fund, subject to appropriation,
to carry out part 70 activities solely. The District's fee calculation,
based on 1990 inventory data, shows that revenues will be able to cover
the estimated costs of the program.
In chapter V. of the submittal entitled ``Permitting Program
Documentation'', the District estimates revenues and costs associated
with the implementation of its operating permits program. However, the
District's projection of revenues is based on the August 1989 CPI value
of 124.6 rather than the average 1989 CPI value of 122.15 required
under the concept of presumptive minimum. Although Chapter V.
demonstrates that revenues would have been adequate using the August
1989 value, section 305 requires the District to use the average 1989
value in calculating the CPI adjustment which will result in the
collection of greater revenues. Until the District submits a revised
fee rule accompanied by a detailed fee demonstration, the average 1989
value of 122.15 must be employed in the implementation of the chapter 3
operating permits program.
In addition to revenues obtained from the payment of emissions-
based fees, the District's chapter V. projection of revenues includes
revenues received from annual $200 operating fees assessed to each of
the District's 38 sources. Because the imposition of the annual $200
operating fee is not authorized under any provision of the chapter 3
regulations, EPA cannot be certain that such fees will be paid.
Accordingly, EPA has subtracted the revenue estimates from operating
fees from total projected revenues for purposes of evaluating the
adequacy of the District's fee program. The estimates of revenues from
the authorized collection of emissions-based fees reveal that the
District's program will have adequate funding to cover the direct and
indirect costs of implementing the permit program during each of the
first four years.
D. Support Materials
The District's part 70 operating permits program submittal
substantially meets the requirements of 40 CFR 70.4 for an attorney
general's legal opinion. Among the several issues required to be
addressed in the attorney general's opinion, part 70 requires each
opinion to demonstrate adequate authority for judicial review of final
permit actions. Specifically, Sec. 70.4(b)(3)(xi) requires the legal
opinion to demonstrate authority to ensure that if the final permit
action being challenged is the permitting authority's failure to issue
or deny a permit within the required timeframes, a petition for
judicial review may be filed any time before the permitting authority
issues or denies the permit. Section XX. of the Corporation
[[Page 14925]] Counsel's opinion cites DCMR 303.11 as the authority
which fulfills this requirement. In doing so, it appears that the
Corporation Counsel interprets District law such that each day which
the Mayor fails to issue or deny a permit (after the permit issuance
deadline) constitutes a new final action date for purposes of the 90-
day judicial review petition deadline. However, the District's 303.11
regulations are vague in this regard and do not prohibit petitions for
the Mayor's failure to act from being filed after the Mayor issues or
denies the permit. The District must amend DCMR 303.11 to clarify that
when the Mayor fails to issue or deny a permit within the required
deadline, this failure can be challenged up until the time before the
permitting authority denies the permit or issues the final permit.
The District's part 70 operating permits program substantially
meets the requirements of 40 CFR 70.4 for a statement of adequate
resources. Chapter VIII. of the District's submittal indicates that the
Compliance and Enforcement Branch (CEB) of the District's Air Resources
Management Division (ARMD) manages compliance and enforcement
activities in the District. In chapters II., and V., the submittal
indicates that title V fee revenues will support the hiring of 4
engineers in the Engineering and Planning Branch (EPB) of the ARMD who
will perform engineering functions inclusive of permitting,
inspections, compliance monitoring and reporting. Chapter II. of the
submittal indicates that the EPB will collaborate with the CEB to carry
out compliance and enforcement functions.
In order to fully meet the 40 CFR 70.4 requirement for a statement
of adequate resources, the District must clarify the specific
responsibilities and procedures for coordination regarding EPB and CEB
involvement in compliance and enforcement activities for part 70
sources. The District must also demonstrate that compliance and
enforcement activities (not including court costs or other costs
associated with an enforcement action) will be fully supported by title
V fees, including resources allocated to support CEB involvement in
compliance and enforcement activities, if applicable.
The District's part 70 operating permits program submittal
substantially meets the requirements of 40 CFR 70.4 for compliance
tracking and enforcement. In order to fully meet the 40 CFR 70.4
requirement for compliance tracking and enforcement, the District must
submit additional information regarding how the District will monitor
and track source compliance (e.g., inspection/enforcement strategies,
description of system to be used prior to/in conjunction with
Aerometric Information Retrieval System (AIRS)/AIRS Facility Subsystem
(AFS) enhancements, etc.) or reference any agreement the District has
with EPA that provides this information. The District must also clarify
that information related to the District's enforcement actions will be
submitted to EPA at least annually.
E. Provisions Implementing the Requirements of Title III
Implementing Title III Standards Through Title V Permits
Under the ``District of Columbia Air Pollution Control Act of
1984'', D.C. Law 5-165 as amended by D.C. Law 9-162, D.C. Code Sec. 6-
906 and Title 20, District of Columbia Municipal Regulations (20 DCMR),
Chapter 3, the District of Columbia has demonstrated in its Title V
program submittal broad legal authority to incorporate into permits and
enforce all applicable requirements; however, the District has also
indicated that additional regulatory authority may be necessary to
carry out specific CAA section 112 activities. The District has
therefore supplemented its broad legal authority with a commitment ``to
adopt and implement expeditiously any additional regulations that might
be needed to incorporate such requirements into operating permits.''
This is stated in the Operating Permit Program submittal, Chapter IX,
entitled ``Provisions Implementing the Requirements of Other Titles of
the Act'', paragraph B. EPA has determined that this commitment, in
conjunction with the District of Columbia's broad statutory authority,
adequately assures compliance with all the CAA's section 112
requirements. EPA regards this commitment as an acknowledgement by the
District of Columbia of its obligation to obtain further legal
authority as needed to issue permits that assure compliance with the
CAA's section 112 applicable requirements. This commitment does not
substitute for compliance with part 70 requirements that must be met at
the time of program approval.
EPA is interpreting the above legal authority and commitment to
mean that the District of Columbia is able to carry out all of the
CAA's section 112 activities. For further rationale on this
interpretation, please refer to the TSD accompanying this rulemaking
which is located in the public docket and the April 13, 1993 guidance
memorandum titled ``Title V Program Approval Criteria for Section 112
Activities,'' signed by John Seitz, Director, Office of Air Quality
Planning and Standards, Office of Air and Radiation, USEPA.
Implementation of 112(g) Upon Program Approval
EPA is proposing to approve the District's Chapter 3 operating
permits program for the purpose of implementing section 112(g) during
the transition period between federal promulgation of a section 112(g)
rule and District adoption of 112(g) implementing regulations. EPA had
until recently interpreted the CAA to require sources to comply with
section 112(g) beginning on the date of approval of the Title V program
regardless of whether EPA had completed its section 112(g) rulemaking.
EPA has since revised this interpretation of the CAA as described in a
February 14, 1995 Federal Register notice (see 60 FR 83333). The
revised interpretation postpones the effective date of section 112(g)
until after EPA has promulgated a rule addressing that provision. The
rationale for the revised interpretation is set forth in detail in the
February 14, 1995 interpretive notice.
The section 112(g) interpretive notice explains that EPA is still
considering whether the effective date of section 112(g) should be
delayed beyond the date of promulgation of the federal rule 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), the District must be able to implement
section 112(g) during the transition period between promulgation of the
federal section 112(g) rule and adoption of implementing District
regulations.
EPA believes that, although the District currently lacks a program
designed specifically to implement section 112(g), the District's
Chapter 3 permit program will serve as an adequate implementation
vehicle during a transition period because it will allow the District
to select control measures that would meet MACT on a case-by-case
basis, as defined in section 112, and incorporate these measures into
federally enforceable source-specific permits. Section 112(g)
requirements for case-by-case MACT determinations are governed by the
provisions of 20 DCMR, sections 301.1(a)(3), 303.9, and the section
399.1 definition of ``Applicable requirement''. However, in accordance
with the provisions of section 112(g), the section 301.1(a)(3)
requirement to obtain an operating permit or permit revision within
twelve (12) months after [[Page 14926]] commencing operation must
instead be satisfied prior to construction during the transition
period.
This proposed approval clarifies that the operating permits program
is available as a mechanism to implement section 112(g) during the
transition period between promulgation of the section 112(g) rule and
adoption by the District of Columbia of rules established to implement
section 112(g). EPA is proposing to limit the duration of this approval
to an outer limit of 18 months following promulgation by EPA of the
section 112(g) rule. Comment is solicited on whether 18 months is an
appropriate period taking into consideration the District's procedures
for adoption of regulations.
However, since this proposed approval is for the single purpose of
providing 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 sources are not subject to the
requirements of the rule until State regulations are adopted.
Although section 112(l) generally provides the authority for
approval of state 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. If the
District of Columbia does not wish to implement section 112(g) through
its Chapter 3 permit program and can demonstrate that an alternative
means of implementing section 112(g) exists during the transition
period, EPA may, in the final action approving the District of
Columbia's Part 70 program, approve the alternative instead.
Program for Straight Delegation of Section 112 Standards
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of section 112 standards promulgated by EPA as they apply to part 70
sources. Section 112(l)(5) requires that the state programs 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 the District of Columbia's program for
receiving delegation of section 112 standards that are unchanged from
the federal standards as promulgated. For EPA-promulgated rules which
are applicable to sources in the District, the District intends to
request delegation after adopting the rules by incorporation by
reference. The details of this delegation mechanism will be established
prior to delegating any section 112 standards under the District's
approved section 112(l) program for straight delegation. This program
applies to both existing and future standards but is limited to sources
covered by the Part 70 program.
F. Title IV Provisions/Commitments
As part of the program submittal, the District of Columbia
committed to submit all missing portions of the title IV acid rain
program by January 1, 1995. On February 3, 1995, the District submitted
a letter notifying EPA that the January 1, 1995 date would not be met.
In this letter, the District committed to having acid rain regulations
in place by November 15, 1995 and provided a brief schedule for
adoption of the necessary regulatory authorities.
III. Request for Public Comments
EPA is soliciting public comments on the issues discussed in this
notice or on other relevant matters. These comments will be considered
before taking final action. Interested parties may participate in this
federal rulemaking action by submitting written comments to the EPA
Regional office listed in the ADDRESSES section of this document.
Proposed Action
EPA is proposing to grant interim approval to the operating permits
program submitted by the District of Columbia on January 13, 1994. The
scope of the District's Part 70 program applies to all Part 70 sources
(as defined in the program) within the District, except for sources of
air pollution over which an Indian Tribe has jurisdiction. See, e.g.,
59 FR 55813, 55815-55818 (Nov. 9, 1994). The term ``Indian Tribe'' is
defined under the CAA 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). Prior to
full approval by EPA, the District must make the following changes:
1. Rename section 399.1 definition of ``Emissions emissions'' to
``Fugitive emissions''.
2. If EPA establishes through rulemaking that the definition of
``Title I modifications'' must include changes reviewed under minor
NSR, the District's definition of ``Title I modification or
modification under any provision of title I of the Act'' will not fully
meet the 40 CFR 70.2 requirements for definitions. If the impact of
this deficiency becomes a basis for interim approval as a result of
EPA's rulemaking, the District must revise its section 399.1 definition
of the term ``Title I modification or modification under any provision
of title I of the Act'' to conform to the requirements of part 70. At
that time, EPA will determine the required timeframe, up to two years,
to correct the deficiency.
3. Modify section 301.1(b)(6)(B) to clarify that applications for
permit renewal must contain both a compliance plan, as required by
section 301.3(h), and a compliance certification, as required by
section 301.3(i).
4. Revise section 301.3(c)(1) to ensure that all applicable
requirements will be described in permit applications.
5. Revise section 301.3(g) to correct misreferenced sections of the
District's regulations which address alternate operating scenarios and
emissions trading.
6. Revise section 301.3(h)(3)(C) to clarify that any schedule of
compliance shall be supplemental to and shall not sanction
noncompliance with the applicable requirements on which it is based.
7. Revise section 302.1(k) to clarify that terms and conditions for
the trading or averaging of emissions must meet all applicable
requirements and the requirements of the operating permits program.
8. Renumber section 302.3(e)(6) to 302.3(f).
9. Revise section 302.4(e) to clarify that requests for coverage
under a general permit must meet the permit application requirements of
title V of the Clean Air Act, and include all information necessary to
assure compliance with the general permit.
10. Restructure section 302.8 for operational flexibility in
accordance the structure of part 70 operational flexibility provisions.
11. Revise section 302.8(b) to clarify that compliance with
emissions trading provisions in a permit will be determined according
to requirements of the applicable SIP/FIP or applicable requirement
authorizing the emissions trade.
12. Revise sections 303.1(f) and 303.1(d)(1) to ensure that the
part 70 permit issuance deadlines will be met.
13. Modify section 303.3(a) to clarify that public participation
and EPA and affected state review will apply to the entire draft
renewal permit, including those portions which are incorporated by
reference.
14. Revise section 303.5(d)(1) to require the use of the
significant permit [[Page 14927]] modification procedure for any type
of change which does not qualify as either a minor permit modification
or an administrative amendment.
15. Revise section 303.10 to provide for sending notice to persons
on a mailing list developed by the permitting authority, including
those people who request in writing to be on the list.
16. Revise section 303.10(a)(1)(B) to require the notice to include
procedures to request a hearing in the event that a hearing has not
been scheduled.
17. Revise section 303.10 to include a provision that requires
notice of a public hearing at least 30 days in advance of the hearing.
18. Revise section 305.2(b) to clarify that the August 1989 CPI
value of 124.6 will not be used for the purposes of calculating the CPI
fee adjustment and that the appropriate value of 122.15, the average
1989 CPI value, will be used instead.
19. Revise section 305.1 to ensure that provisions for equivalent
fee schedules are enforceable as a practical matter or remove section
305.1 language ``or the equivalent over some other period''.
20. Revise the Corporation Counsel's opinion to reference existing
provisions in District of Columbia law which satisfy the requirements
of Sec. 70.11(a)(1) and (2), or establish authorities to restrain or
enjoin immediately permit violators presenting substantial
endangerment, and to seek injunctive relief for program and permit
violations without the need for prior revocation of the permit.
21. Amend subtitle I of 20 DCMR to specifically address the types
of violations for which civil fines are recoverable, or otherwise have
the Corporation Counsel demonstrate that section 100.6 applies to each
of the specific types of violations mentioned in Sec. 70.11(a)(3)(i).
22. Establish civil enforcement authority for the collection of
penalties in a maximum amount of not less than $10,000 per day per
violation.
23. Establish regulatory provisions for strict civil liability, or
provide a demonstration from the Corporation Counsel that mental state
is not allowed as an element of proof for civil violations.
24. Amend Subtitle I of 20 DCMR to specifically address the types
of knowing violations for which criminal fines are recoverable, or have
the Corporation Counsel demonstrate that section 105.1 applies to each
of the specific types of knowing violations mentioned in
Sec. 70.11(a)(3)(ii) and (iii).
25. Revise criminal enforcement provisions to authorize the
collection of penalties in a maximum amount of not less than $10,000
per day per violation.
26. Amend DCMR 303.11 to clarify that when the Mayor fails to issue
or deny a permit within the required deadline, this failure can be
challenged any time before the permitting authority denies the permit
or issues the final permit.
27. Clarify the specific responsibilities and procedures for
coordination regarding EPB and CEB involvement in compliance and
enforcement activities for part 70 sources. Such a clarification must
demonstrate that compliance and enforcement activities (not including
court costs or other costs associated with an enforcement action) will
be fully supported by title V fees.
28. Submit additional information regarding how the District will
monitor and track source compliance or reference any agreement the
District has with EPA that provides this information.
29. Clarify that information on the District's enforcement
activities will be submitted to EPA at least annually.
This interim approval, which may not be renewed, extends for a
period of up to 2 years. During the interim approval period, the
District is protected from sanctions for failure to have a fully
approved title V, part 70 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 1-year time period for submittal of permit
applications by subject sources begins upon interim approval, as does
the 3-year time period for processing the initial permit applications.
Requirements for approval, specified in 40 CFR 70.4(b), encompass
the CAA's section 112(l)(5) requirements for approval of a program for
delegation of section 112 standards applicable to Part 70 sources as
promulgated by EPA. Section 112(l)(5) requires that the 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 proposing under section 112(l)(5)
and 40 CFR 63.91 to grant approval of the District's program for
receiving delegation of section 112 standards that are unchanged from
federal standards as promulgated. This program for delegations only
applies to sources covered by the part 70 program.
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
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 to
propose interim approval of the District of Columbia's operating
permits program pursuant to title V of the CAA and 40 CFR part 70 does
not impose any new requirements, it does not have a significant impact
on a substantial number of small entities.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: March 9, 1995.
Stanley L. Laskowski,
Acting Regional Administrator.
[FR Doc. 95-6929 Filed 3-20-95; 8:45 am]
BILLING CODE 6560-50-P
