[Federal Register Volume 60, Number 94 (Tuesday, May 16, 1995)]
[Proposed Rules]
[Pages 26013-26018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11794]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5206-3]
Clean Air Act Proposed Interim Approval of the Operating Permits
Program; Monterey Bay Unified Air Pollution Control District,
California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA proposes interim approval of the Operating Permits
Program submitted by the Monterey Bay Unified Air Pollution Control
District (Monterey 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.
DATES: Comments on this proposed action must be received in writing by
June 15, 1995.
ADDRESSES: Comments should be addressed to Regina Spindler, Mail Code
A-5-2, U.S. Environmental Protection Agency, Region IX, Air and Toxics
Division, 75 Hawthorne Street, San Francisco, CA 94105.
Copies of the District submittal and other supporting information
used in developing the proposed interim approval are available for
inspection during normal business hours at the following location: U.S.
Environmental Protection Agency, Region IX, 75 Hawthorne Street, San
Francisco, CA 94105.
FOR FURTHER INFORMATION CONTACT: Regina Spindler (telephone: 415/744-
1251), Mail Code A-5-2, U.S. Environmental Protection Agency, Region
IX, Air and Toxics Division, 75 Hawthorne Street, San Francisco, CA
94105.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
As required under title V of the Clean Air Act (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 (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 title V 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.
II. Proposed Action and Implications
A. Analysis of State Submission
The analysis contained in this notice focuses on specific elements
of Monterey's title V operating permits program that must be corrected
to meet the minimum requirements of 40 CFR 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. The docket may
be viewed during regular business hours at the address listed above.
[[Page 26014]]
1. Title V Program Support Materials
Monterey's original title V program was submitted by the California
Air Resources Board (CARB) on December 6, 1993. Additional material was
submitted on February 2, 1994 and April 7, 1994. The submittal was
found to be complete on February 4, 1994. The Governor's letter
requesting source category-limited interim approval, California
enabling legislation, and Attorney General's legal opinion were
submitted by CARB for all districts in California and therefore were
not included separately in Monterey's submittal. The Monterey
submission does contain a complete program description, District
implementing and supporting regulations, and all other program
documentation required by Sec. 70.4. An implementation agreement is
currently being developed between Monterey and EPA.
The EPA determined in its evaluation of Monterey's program that
Rule 218, the District's permitting regulation, contained several
deficiencies that were cause for disapproval of the program. The EPA
described these deficiencies and the corrections necessary to make the
program eligible for interim approval in a letter from Felicia Marcus,
EPA Region IX Administrator, to Abra Bennett, Monterey Air Pollution
Control Officer (APCO), dated July 22, 1994. In response, Monterey
adopted a revised regulation which was submitted by CARB on the
District's behalf on October 13, 1994. Section 70.4(e)(2) gives EPA the
option of extending the review period for a title V program submission
if the program is materially changed during the initial one-year
review. Because the revisions to Monterey's program were regulatory and
affect critical elements of part 70, such as applicability, permit
applications, and permit content, the program required additional
review and analysis. The EPA considered the program to be materially
changed and therefore decided to exercise the Sec. 70.4(e)(2) option
and extend its review period by six months. This extension moves the
deadline for EPA's final action on Monterey's title V operating permits
program from December 6, 1994, which is one year after receipt of the
original program submittal, to June 6, 1995.
2. Title V Operating Permit Regulations and Program Implementation
Monterey's regulations adopted or revised to implement title V
include Rule 218, Title V: Federal Operating Permits, adopted November
17, 1993 and revised on September 21, 1994; Rule 308, Title V: Federal
Operating Permit Fees, adopted November 17, 1993; and Rule 201, Sources
Not Requiring Permits, adopted September 1, 1974, as revised on April
21, 1993. The regulations substantially meet the requirements of 40 CFR
part 70, Secs. 70.2 and 70.3 for applicability; Secs. 70.4, 70.5, and
70.6 for permit content, including operational flexibility; section
70.7 for public participation and minor permit modifications; section
70.5 for criteria that define insignificant activities; section 70.5
for complete application forms; and section 70.11 for enforcement
authority. Although the regulations substantially meet part 70
requirements, there are several deficiencies in the program that are
outlined under section II.B. below as interim approval issues and
further described in the Technical Support Document.
a. Applicability and Duty To Apply
While the ``major source'' definition in Monterey's title V program
meets the applicability requirements of part 70, the District rule
provides that sources with actual emissions below certain thresholds
are exempt from the obligation to obtain a title V permit until three
years after program approval (Rule 218, section 1.3.3). Ordinarily,
part 70 requires that sources apply within one year of program
approval. A District may, however, request interim approval of a source
category-limited program that defers the obligation to obtain a permit
for a certain category or categories of sources. Monterey's source
category-limited program defers sources with actual emissions below 60%
of the criteria pollutant and 10 ton per year hazardous air pollutant
(HAP) major source thresholds and 72% of the 25 ton per year HAP
threshold. Two years after EPA grants interim approval to the source
category-limited program, these deferred sources must either have
federally enforceable conditions that limit their potential to emit to
below major source thresholds or will be required to apply for a title
V permit.
The EPA's policy on source category-limited interim approval is set
forth in a document entitled, ``Interim Title V Program Approvals,''
signed on August 2, 1993 by John Seitz, Director of the Office of Air
Quality Planning and Standards. This policy requires that a district
that requests interim approval of a source category-limited program
demonstrate that there are compelling reasons why the district cannot
address all sources in the interim. Additionally, the district must
demonstrate that the source category-limited program will apply to at
least 60 percent of all part 70 sources and cover sources that are
responsible for at least 80 percent of the aggregate emissions from
part 70 sources (60/80 test).
In an addendum to Monterey's revised title V program submittal,
dated October 25, 1994, from Fred Thoits, Engineering Division Chief to
Felicia Marcus, Region IX Administrator, Monterey demonstrated to EPA's
satisfaction that it meets this 60/80 test. With regard to the
demonstration of compelling reasons, the District asserts that while
many small sources in the District meet title V applicability criteria
based on their potential emissions, these sources' actual emissions are
well below the major source threshold. The District reasons that it is
a more productive use of its limited resources during the initial three
year transition period to issue title V permits to the larger sources
that are clearly intended to be permitted under title V and to
establish a prohibitory rule and synthetic minor permit program that
sources with lower actual emissions may use to establish federally
enforceable limits on their potential emissions. The EPA believes that
these are compelling reasons for implementing a source category-limited
interim program.
b. 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 purpose 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 the part 70 program under review.
Monterey submitted District Rule 201, its current permit exemption
rule, as its list of insignificant activities. It is clear that Rule
201 was not developed with the purpose of defining insignificant
activities under the District's title V program in mind; the
applicability provisions of the rule state that the exemptions apply to
the requirements of [[Page 26015]] Rule 200, the District requirements
for obtaining Authority to Construct permits and non-federally
enforceable Permits to Operate. Monterey did not provide EPA with
criteria used to develop the exemptions list, information on the level
of emissions from the activities, nor with a demonstration that these
activities are not likely to be subject to an applicable requirement.
Therefore, EPA cannot propose full approval of the list as the basis
for determining insignificant activities.
For other state and district programs, EPA has proposed to accept,
as sufficient for full approval, emission levels for insignificant
activities of 2 tons per year for criteria pollutants and the lesser of
1000 pounds per year, section 112(g) de minimis levels, or other title
I significant modification levels for hazardous air pollutants (HAP)
and other toxics (40 CFR 52.21(b)(23)(i)). The EPA believes that these
levels are sufficiently below the applicability thresholds of many
applicable requirements to assure that no unit potentially subject to
an applicable requirement is left off a title V application. The EPA is
requesting comment on the appropriateness of these emission levels for
determining insignificant activities in Monterey. This request for
comment is not intended to restrict the ability of other states and
districts to propose, and EPA to approve, different emission levels if
the state or 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.
c. Variances
Monterey has authority under State and local law to issue a
variance from State and local requirements. Sections 42350 et sec. of
the California Health and Safety Code and District Regulation VI,
Article 2 allow the District to grant relief from enforcement action
for permit violations. The EPA regards these provisions as wholly
external to the program submitted for approval under part 70, and
consequently, is proposing to take no action on these provisions of
State and local law.
The EPA has no authority to approve provisions of state or local
law, such as the variance provisions referred to, that are inconsistent
with the Act. The 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 modification 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
40 CFR 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.''
d. Definition of Title I Modification
Among the several criteria that Monterey includes in its definition
of ``Significant Permit Modification'' is the provision that it involve
any ``significant change as specified in the EPA's title I regulations
in 40 CFR parts 51, 52, 50, 61 and 63.'' The EPA might interpret the
reference to title I regulations in part 51 to include changes reviewed
under a minor source preconstruction review program (``minor NSR
changes''). However, Monterey's inclusion of the term ``significant
change'' as well as the statement in its program description that title
I modifications include modifications that are ``major under federal
NSR, * * * major under PSD resulting in a `significant' net emissions
increase, or a modification at a major HAPs source resulting in a `de
minimis' increase of HAPs'' clearly indicates that Monterey does not
interpret ``title I modification'' to include ``minor NSR changes.''
Part 70 requires all modifications under title I of the Act to be
processed as significant permit modifications
(Sec. 70.7(e)(2)(i)(A)(5)). 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''
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 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 definition of ``title I modification'' to receive
interim approval (59 FR 44572). The Agency explained its view that the
better reading of ``title I modification'' includes minor NSR, and
solicited public comment on the proper interpretation of that term (59
FR 44573). The Agency stated that if, after considering the public
comments, it continued to believe that the phrase ``title I
modification'' 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. If EPA
establishes in its rulemaking that the definition of ``title I
modification'' can be interpreted to exclude changes reviewed under
minor NSR programs, Monterey's definition of ``significant permit
modification'' and interpretation of ``title I modification'' would be
fully consistent with part 70. Conversely, if EPA establishes through
the rulemaking that the definition of ``title I modification'' must
include changes reviewed under minor NSR, Monterey's definition and
interpretation will become a basis for interim approval. If the
definition and interpretation become a basis for interim approval as a
result of EPA's rulemaking, Monterey would be required to revise its
definition and interpretation to conform to the requirements of part
70.
Accordingly, today's proposed approval does not identify Monterey's
definition of ``significant permit modification'' and interpretation 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 modification'' 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. 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 [[Page 26016]] 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)).
Monterey's title V fee rule (Rule 308) requires all title V sources
to pay an application fee, an evaluation fee of $80.00 per hour for
every District staff hour necessary to complete the title V permit
evaluation, and an emissions-based fee of $14.44 per ton of emissions,
as calculated by the District. This emissions-based fee will be
adjusted annually based upon the CPI. In addition to these title V
fees, title V sources must continue to pay existing District permit
fees. These fees combined result in collection of an average of $92.00
per ton per year, an amount that is well above the presumptive minimum.
Monterey expects revenues of $73,600 in the first year of the program
and revenues of $200,000 in the second and ensuing years. Monterey's
fee schedule was developed based on an estimation of workload
associated with administration of the title V program.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority and Commitments for Section 112 Implementation
Monterey 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 ``federally enforceable requirements'' and requiring each
permit to incorporate conditions that assure compliance with all such
federally enforceable requirements. Monterey has supplemented this
legal authority with a commitment to implement and enforce section 112
requirements and to adopt additional regulations as needed to issue
permits that implement and enforce the requirements of section 112.
This commitment is contained in a letter from Abra Bennett, Air
Pollution Control Officer to Debbie Jordan, Chief of the Operating
Permits Section at EPA, Region IX, dated April 7, 1994. The EPA has
determined that the legal authority and commitments are sufficient to
allow Monterey to issue permits that assure compliance with all section
112 requirements. For further discussion, please refer to the Technical
Support Document accompanying this action and the April 13, 1993
guidance memorandum entitled, ``Title V Program Approval Criteria for
Section 112 Activities,'' signed by John Seitz.
b. Authority and Commitments for Title IV Implementation
Monterey committed in a letter from Abra Bennett, Air Pollution
Control Officer, dated April 7, 1994, to submit a complete acid rain
program to EPA by January 1, 1995. The letter stated the District's
intentions to adopt part 72, EPA's acid rain regulation, by reference;
to use EPA acid rain application forms; to revise District regulations
as necessary to accommodate federal revisions; and to meet all acid
rain deadlines contained in part 72. Monterey incorporated part 72
(except provisions applicable to phase I units and permitting of acid
rain units by EPA) by reference into District Regulation II, Rule 219
on November 23, 1994. Rule 219 was subsequently submitted to EPA along
with proof of board adoption.
B. Proposed Interim Approval and Implications
The EPA is proposing to grant interim approval to the operating
permits program submitted by CARB on behalf of the Monterey Bay Unified
Air Pollution Control District on December 6, 1993, supplemented on
February 2, 1994 and April 7, 1994, and revised by the submittal made
on October 13, 1994. If EPA were to finalize this proposed interim
approval, it would extend for two years following the effective date of
final interim approval, and could not be renewed. During the interim
approval period, Monterey would be protected from sanctions, and EPA
would not be obligated to promulgate, administer and enforce a federal
permits program for 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 interim approval, as does the
3-year time period for processing the initial permit applications.
Following final interim approval, if the District failed to submit
a complete corrective program for full approval by the date 6 months
before expiration of the interim approval, EPA would start an 18-month
clock for mandatory sanctions. If Monterey then failed to submit a
corrective program that EPA found 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 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 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 were to disapprove
Monterey'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 it
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, Monterey 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 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.
1. Monterey's Title V Operating Permits Program
If EPA finalizes this interim approval, Monterey must make the
following changes, or changes that have the same effect, to receive
full approval (all required revisions are to District Rule 218 unless
otherwise noted):
(1) Revise section 1.3 to require that, regardless of the source's
actual or potential emissions, acid rain sources and solid waste
incineration units required to obtain a permit pursuant to section
129(e) of the Act may not be exempted from the requirement to
[[Page 26017]] obtain a permit pursuant to Rule 218. Section 70.3(b)
requires that major sources, affected sources (acid rain sources), and
solid waste incinerators may not be exempted from the program.
Monterey's deferral for certain major sources other than acid rain
sources and solid waste incinerators is allowable under John Seitz's
``Interim Approval Guidance,'' dated August 2, 1993.
(2) Revise section 2.1.4 of the definition of ``Administrative
Permit Amendments'' as follows:
``requires more frequent monitoring or reporting for the stationary
source; or''
Increasing monitoring requirements could be a significant change to
these requirements. Significant changes in monitoring must be processed
as significant permit modifications. (Sec. 70.7(d)(1)(iii),
Sec. 70.7(e)(4))
(3) Revise the definition of ``Federally Enforceable Requirement''
in section 2.12 to include any standard or other requirement provided
for in the State Implementation Plan approved or promulgated by EPA.
This revision is necessary to make the section 2.12 definition
consistent with the part 70 definition of ``Applicable requirement''
and with the Rule 218, section 4.2.4 requirement that each permit
require compliance with any standard or requirement set forth in the
applicable implementation plan.
(4) Revise section 2.18.4 of the definition of ``Minor Permit
Modification'' to require that a minor permit modification may not
establish or change a permit condition used to avoid a federally
enforceable requirement to which the source would otherwise be subject.
(Sec. 70.7(e)(2)(i)(A)(4))
(5) Revise section 3.1.6.12 to require that the compliance
certification within the permit application include a statement
indicating the source's compliance status with any applicable enhanced
monitoring and compliance certification requirements of the Act.
(Sec. 70.5(c)(9)(iv))
(6) Revise section 3.1.6.13 as follows to be consistent with
Sec. 70.5(c)(8)(iii)(C):
* * * a schedule of compliance approved by the District hearing
board that identifies remedial measures, including an enforceable
sequence of actions, with specific increments of progress, a final
compliance date, testing and monitoring methods, recordkeeping
requirements, and a schedule for submission of certified progress
reports to the USEPA and the APCO at least every 6 months. This
schedule of compliance shall resemble and be at least as stringent
as that contained in any judicial consent decree or administrative
order to which the source is subject; and * * *
(7) Provide a demonstration that activities that are exempt from
permitting under Rule 218 (pursuant to Rule 201, the District's permit
exemption list) are truly insignificant and are not likely to be
subject to an applicable requirement. Alternatively, Rule 218 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 HAP 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. Revise Rule 218 to require that insignificant
activities that are exempted because of size or production rate be
listed in the permit application. Revise Rule 218 to require that an
application may not omit information needed to determine the
applicability of, or to impose, any applicable requirement, or to
evaluate the fee amount required. (Sec. 70.5(c), Sec. 70.4(b)(2))
(8) Revise section 3.5.3 to provide that the APCO shall also give
public notice ``by other means if necessary to assure adequate notice
to the affected public.'' (Sec. 70.7(h)(1))
(9) Revise Rule 218 to include the contents of the public notice as
specified by Sec. 70.7(h)(2).
(10) Revise Rule 218 to provide that the District shall keep a
record of the commenters and of the issues raised during the public
participation process so that the Administrator may fulfill her
obligation to determine whether a citizen petition may be granted.
(Sec. 70.7(h)(5))
(11) The EPA must be provided with 45 days to review the version of
the permit that incorporates any public comments and that the District
proposes to issue. Rule 218 indicates that the District intends to
provide for concurrent public and EPA review of the draft permit.
Therefore, the District must revise the rule to provide that EPA will
have an additional 45 days to review the proposed permit if it is
revised as a result of comments received from the public.
(Sec. 70.8(a)(1))
(12) Revise Rule 218 to define and provide for giving notice to
affected states per Secs. 70.2 and 70.8(b). Although emissions from
Monterey may not currently be affecting any neighboring states, Native
American tribes may in the future apply for treatment as states for air
program purposes and if granted such status would be entitled to
affected state review under title V. (See EPA's proposed Tribal Air
Rule at 59 FR 43956, August 25, 1995.)
(13) Revise section 3.7.1 to require that the permit shall be
reopened under the circumstances listed in sections 3.7.1.1 to 3.7.1.3.
(Sec. 70.7(f)(1))
(14) Revise section 3.8.2 to provide, consistent with section
70.7(e)(2)(iv), that the District shall take action on a minor permit
modification application within 90 days of receipt of the application
or 15 days after the end of the 45-day EPA review period, whichever is
later. Currently, the District rule provides that the permit be issued
within 90 days after the application is deemed complete (section 3.3.2
provides 30 days from receipt for a completeness determination) or 60
days after written notice and concurrence from EPA, whichever is later.
The EPA will not necessarily provide written notice and concurrence on
minor permit modifications and the District rule does not address what
action is taken should EPA not provide written notice.
(Sec. 70.7(e)(2)(iv))
(15) Revise section 3.8.2 to provide that the action taken on a
minor permit modification application in the timeframes discussed above
in (14) shall be one of the following:
(a) Issue the permit modification as proposed;
(b) Deny the permit modification application;
(c) Determine that the requested modification does not meet the
minor permit modification criteria and should be reviewed under the
significant modification procedures; or
(d) Revise the draft permit modification and transmit to the
Administrator the new proposed permit modification.
The current District rule states that the minor permit modification
shall be completed within the timeframes discussed above in (14), but
does not specify that the District must take one of the actions listed
above. (Sec. 70.7(e)(2)(iv))
2. California Enabling Legislation--Legislative Source Category Limited
Interim Approval Issue
Because California State law currently exempts agricultural
production sources from permit requirements, the California Air
Resources Board has requested source category-limited interim approval
for all California districts. The EPA is proposing to grant source
category-limited interim approval to the operating permits program
submitted by the California Air Resources Board on behalf of Monterey
on December 6, 1993. In order for this program to receive full approval
(and to avoid a disapproval upon the expiration of this interim
approval), the California [[Page 26018]] Legislature must revise the
Health and Safety Code to eliminate the exemption of agricultural
production sources from the requirement to obtain a permit.
The above described program and legislative deficiencies must be
corrected before Monterey can receive full program approval. For
additional information, please refer to the TSD, which contains a
detailed analysis of Monterey's operating permits program and
California's enabling legislation.
3. District 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). The interpretive notice 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), Monterey must be able to implement section 112(g) during the
period between promulgation of the federal section 112(g) rule and
adoption of implementing District regulations.
For this reason, EPA is proposing to approve the use of Monterey'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 Monterey 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 proposed
approval to 12 months following promulgation by EPA of the section
112(g) rule.
4. Program for Delegation of Section 112 Standards as Promulgated
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 as promulgated by EPA as they apply to part 70
sources. 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 to grant approval under section
112(l)(5) and 40 CFR 63.91 of Monterey'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, Monterey 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 a Memorandum of Agreement
between Monterey and EPA, expected to be completed prior to approval of
Monterey's section 112(l) program for delegation of unchanged federal
standards. This program applies to both existing and future standards
but is limited to sources covered by the part 70 program.
III. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of this proposed
interim approval. Copies of the District's submittal and other
information relied upon for the proposed interim approval are contained
in a docket 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 proposed
interim approval. 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
process, and
(2) to serve as the record in case of judicial review. The EPA will
consider any comments received by June 15, 1995.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. 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.
D. Unfunded Mandates Act
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 proposed 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.
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: May 2, 1995.
John Wise,
Acting Regional Administrator.
[FR Doc. 95-11794 Filed 5-15-95; 8:45 am]
BILLING CODE 6560-50-P
