[Federal Register Volume 60, Number 85 (Wednesday, May 3, 1995)]
[Rules and Regulations]
[Pages 21720-21724]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10825]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5200-7]
Clean Air Act Final Interim Approval of Operating Permits
Program for Nineteen California Air Pollution Control Districts
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval.
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SUMMARY: The EPA is promulgating interim approval of the Operating
Permits Program submitted by the California Air Resources Board on
behalf of Amador County Air Pollution Control District (APCD), Butte
County APCD, Calaveras County APCD, Colusa County APCD, El Dorado
County APCD, Feather River Air Quality Management District (AQMD),
Great Basin Unified APCD, Imperial County APCD, Kern County APCD,
Lassen County APCD, Mendocino County APCD, Modoc County APCD, North
Coast Unified AQMD, Northern Sierra AQMD, Northern Sonoma County APCD,
Placer County APCD, Siskiyou County APCD, Tuolumne County APCD, and
Yolo-Solano AQMD, California (districts) 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.
EFFECTIVE DATE: June 2, 1995.
ADDRESSES: Copies of the nineteen districts' submittals and other
supporting information used in developing the final interim approval
are available for inspection during normal business hours at the
following location: Operating Permits Section, A-5-2, Air and Toxics
Division, U.S. EPA-Region IX, 75 Hawthorne Street, San Francisco,
California 94105.
FOR FURTHER INFORMATION CONTACT: For information, please contact: Sara
Bartholomew, Operating Permits Section, A-5-2, Air and Toxics Division,
U.S. EPA-Region IX, 75 Hawthorne Street, San Francisco, California
94105, (415) 744-1170.
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 (the Act)), and implementing regulations at 40 Code
of Federal Regulations (CFR) 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.
On December 8, 1994, EPA proposed interim approval of the operating
permits programs for Amador County APCD, Butte County APCD, Calaveras
County APCD, Colusa County APCD, El Dorado County APCD, Feather River
AQMD, Great Basin Unified APCD, Imperial County APCD, Kern County APCD,
Lassen County APCD, Mendocino County APCD, Modoc County APCD, North
Coast Unified AQMD, Northern Sierra AQMD, Northern Sonoma County APCD,
Placer County APCD, Siskiyou County APCD, Tuolumne County APCD, and
Yolo-Solano AQMD, California. See 54 FR 63289. The EPA received public
comment on the proposal, and is responding to those comments in this
document and in a separate ``Response to Comments'' document that is
[[Page 21721]] available in the docket. The EPA also compiled a
Technical Support Document (TSD) for each of the nineteen districts,
which describes each operating permits program in greater detail.
In this notice EPA is taking final action to promulgate interim
approval of the operating permits program for Amador County APCD, Butte
County APCD, Calaveras County APCD, Colusa County APCD, El Dorado
County APCD, Feather River AQMD, Great Basin Unified APCD, Imperial
County APCD, Kern County APCD, Lassen County APCD, Mendocino County
APCD, Modoc County APCD, North Coast Unified AQMD, Northern Sierra
AQMD, Northern Sonoma County APCD, Placer County APCD, Siskiyou County
APCD, Tuolumne County APCD, and Yolo-Solano AQMD, California.
II. Final Action and Implications
A. Analysis of State Submission
EPA received two comment letters on the proposed rulemaking for the
districts, one from the National Environmental Development Associations
Clean Air Regulatory Project (``NEDA/CARP''), and one from the American
Forest & Paper Association (``AF&PA''), both dated January 9, 1995. The
issues discussed in the December 8, 1994 proposal were not changed as a
result of public comment with the exception of the implementation of
section 112(g) from the effective date of the title V program. EPA's
final action is being revised from the proposed notice with respect to
this issue. This change is discussed below along with other issues
raised during the public comment period.
1. 112(g) Implementation
NEDA/CARP and AF&PA both submitted comments regarding EPA's
proposed approval of the nineteen California districts' preconstruction
permitting programs for the purpose of implementing section 112(g)
during the transition period between title V approval and adoption of a
District rule implementing EPA's section 112(g) regulations. In
opposition to the proposed action, the commenters argued that the
nineteen districts should not, and cannot, implement section 112(g)
until: (1) EPA has promulgated a section 112(g) regulation; and (2) the
District has a section 112(g) program in place.
EPA received many comments nationally on this issue, and agrees
that it is not reasonable to expect the states and districts to
implement section 112(g) before a rule is issued. EPA has therefore
published an interpretive notice in the Federal Register regarding
section 112(g) of the Act: 60 FR 8333 (February 14, 1995). This notice
outlines EPA's revised interpretation of 112(g) applicability prior to
EPA's issuing the final 112(g) rule. The notice states that major
source modifications, constructions, and reconstructions will not be
subject to 112(g) requirements until the final rule is promulgated. EPA
expects to issue the 112(g) final rule in September 1995.
The notice further 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 and Districts
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 nineteen districts 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 nineteen
districts' preconstruction review programs as a mechanism to implement
section 112(g) during the transition period between promulgation of the
section 112(g) rule and adoption by the nineteen districts of rules
specifically designed to implement section 112(g). However, since
approval is intended solely to confirm that the districts have
mechanisms 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 its approval of the use of preconstruction
programs to implement 112(g) to 12 months following promulgation by EPA
of the section 112(g) rule.
2. Insignificant Activities
NEDA/CARP and AF&PA both assert that EPA lacks the legal footing to
reject the districts' present ``insignificant levels,'' and that EPA
has no authority to hold out ``suggested'' emission levels as a
threshold for receiving full approval.
EPA disagrees that it lacks authority to reject inappropriate or
unsupported insignificance levels, or to articulate on a program-by-
program basis levels that it definitely would accept. Part 70 allows
States to deem certain activities or emission levels insignificant if
they are listed in the program submitted to EPA and approved by EPA,
but does not grant States authority to create new exemptions without
EPA approval. Section 70.4(b)(2) requires the submittal of criteria
used to determine insignificant activities, and Sec. 70.5(c) does not
allow States to create an insignificant activities permit exemption if
the exemption will interfere with the imposition of applicable
requirements or the collection of fees. In addition, part 70 explicitly
authorizes EPA to approve insignificant activities based on emission
levels (Sec. 70.5(c)). EPA has the legal authority to reject district
provisions which contravene these part 70 requirements.
As stated in the proposal, most of the nineteen programs provided
EPA with no criteria or information on the level of emissions of
activities on the districts' exemption lists. In addition, the specific
insignificant activities provisions submitted by the districts have
raised concerns with EPA regarding the districts' ability to ensure
that applicable requirements are included in permits. None of the
nineteen districts provided EPA with a demonstration to the contrary.
For these reasons, the nineteen districts' lists of insignificant
activities are not acceptable.
In the proposed rulemaking EPA suggested insignificance levels that
the Agency would find acceptable even without a further demonstration.
Neither of the commenters specifically addressed these sugested
insignificance levels. EPA would like to note that the nineteen
districts have the flexibility to modify their regulations and submit
criteria for EPA approval of new exemptions, as long as each district
demonstrates, or EPA is otherwise satisfied, that such alternative
emission levels are insignificant compared to the level of emissions
and types of units that are permitted or subject to applicable
requirements.
3. Public Petitions to EPA
NEDA/CARP and AF&PA both registered their concern regarding the
public petition requirements, notification and other procedural
requirements, stating that they believe these requirements will thwart
efforts in California to develop market incentive approaches to
emissions reductions.
Provisions for public participation, notification and public
petitions are required under title V of the Clean Air Act (CAA
502(b)(6) for public participation, and CAA 505(b)(2) for public
petitions), and are therefore included in part 70, the regulations that
implement title V. EPA believes public participation does not preclude
a district from developing market based incentive programs.
[[Page 21722]]
4. Compliance Certification
NEDA/CARP and AF&PA both contend that EPA has misread its own rule
in requiring that the full text of the responsible official's
certification be included in both the application content and permit
content. They argue that the provision of Sec. 70.5(d) sets out the
terms and conditions for any certification of an application form,
report or compliance made pursuant to the rules, but does not establish
a signatory statement that must be attested to by the responsible
official to the exclusion of all other statements (emphasis in comment
letters).
EPA disagrees with the above comment. Section 70.5 requires that:
``This certification * * * shall state that, based on information and
belief formed after reasonable inquiry, the statements and information
in the document are true, accurate, and complete'' (emphasis added).
This indicates that it is not sufficient merely for the responsible
official to sign the certification; the certificate must state that he
or she considered the issue carefully. The statement must contain the
essential elements of Sec. 70.5(d), and include the words quoted above.
EPA does not rule out having a pre-printed statement on the certificate
for convenience.
5. Deviation Reporting
NEDA/CARP and AF&PA both contend that it is necessary for EPA to
revise several of its earlier interim approval notices, in which the
Agency conditioned final approval on including a definition of
``prompt'' in the state operating permits program, in order to provide
a consistent application of the appropriate interpretation of its
rules.
In the proposed interim approval notice EPA stated that the
nineteen districts' regulations should define the meaning of ``prompt''
as used in the requirement found at 40 CFR 70.6(a)(3)(iii)(B), which
requires ``prompt'' reporting of deviations from applicable
requirements. The Agency indicated that an acceptable alternative to
defining in the regulation what constitutes ``prompt'' is to define
``prompt'' in each individual permit.
NEDA/CARP and AF&PA both support this approach. EPA has
consistently asserted that this is an acceptable alternative to
defining ``prompt'' in the body of the permitting regulations, and sees
no need to revisit past interim approval actions to clarify this
interpretation of the definition of what constitutes ``prompt''
reporting of deviations from applicable requirements.
6. Potential to Emit
In the proposed rulemaking, EPA required Amador and Tuolumne
counties to revise the definition of ``potential to emit'' in their
rules to clarify that only federally-enforceable limitations may be
considered in determining a source's potential to emit. NEDA/CARP and
AF&PA both argue that limitations based on state requirements, as well
as federally-enforceable limitations, should be considered in
determining the potential to emit.
EPA's requirement that Amador and Tuolumne revise their definitions
of the term ``potential to emit'' is based upon the definition of that
term found in 40 CFR 70.2. Section 70.2 defines ``potential to emit''
as the maximum capacity of a stationary source to emit any air
pollutant under its physical and operational design. The definition
further provides, however, that a physical and operational limit on
potential to emit is considered to be part of the source's design if it
is enforceable by EPA. Since the Amador and Tuolumne rules do not
conform to this critical definition, the districts must revise their
programs to clarify that only federally enforceable restrictions can
provide a legal limitation on a source's potential to emit.
B. Final Action
The EPA is promulgating interim approval of the operating permits
programs submitted by the California Air Resources Board on behalf of
Amador County APCD (complete submittal received on December 27, 1993),
Butte County APCD (complete submittal received on December 16, 1993),
Calaveras County APCD (complete submittal received on October 31,
1994), Colusa County APCD (complete submittal received on February 24,
1994), El Dorado County APCD (complete submittal received on November
16, 1993), Feather River AQMD (complete submittal received on November
16, 1993), Great Basin Unified APCD (complete submittal received on
January 12, 1994), Imperial County APCD (complete submittal received on
March 12, 1994), Kern County APCD (complete submittal received on
November 16, 1993), Lassen County APCD (complete submittal received on
January 12, 1994), Mendocino County APCD (complete submittal received
on December 27, 1993), Modoc County APCD (complete submittal received
on December 27, 1993), North Coast Unified AQMD (complete submittal
received on February 24, 1994), Northern Sierra AQMD (complete
submittal received on June 6, 1994), Northern Sonoma County APCD
(complete submittal received on January 12, 1994), Placer County APCD
(complete submittal received on December 27, 1993), Siskiyou County
APCD (complete submittal received on December 6, 1993), Tuolumne County
APCD (complete submittal received on November 16, 1993), and Yolo-
Solano AQMD (complete submittal received on October 14, 1994),
California.
The nineteen districts must make the changes specified in the
proposed rulemaking, under II.C., District Title V Interim Approval
Issues Common to All Nineteen Districts and Section III., Individual
District Title V Interim Approval Issues, in order to be granted full
approval.
The scope of the nineteen districts' part 70 programs approved in
this notice applies to all part 70 sources (as defined in the approved
program) within the districts, except any 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
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).
This interim approval, which may not be renewed, extends until June
3, 1997. During this interim approval period, the nineteen districts
are protected from sanctions, and EPA is not obligated to promulgate,
administer and enforce a Federal operating permits program in any of
these districts. 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 any of the nineteen districts fails to submit a complete
corrective program for full approval by December 3, 1996, EPA will
start an 18-month clock for mandatory sanctions. If any of the
districts then fail to submit a corrective program that EPA finds
complete before the expiration of that 18-month period, EPA will apply
sanctions to that district as required by section 502(d)(2) of the Act,
which will remain in effect until EPA determines that the district has
[[Page 21723]] corrected the deficiency by submitting a complete
corrective program.
If EPA disapproves any of the nineteen districts' complete
corrective program, EPA will apply sanctions to that district or
districts as required by section 502(d)(2) on the date 18 months after
the effective date of the disapproval, unless prior to that date the
district or districts has submitted a revised program and EPA has
determined that the district or districts corrected the deficiencies
that prompted the disapproval.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if any of
the nineteen districts 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 any of the nineteen
districts' programs 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 those districts
lacking full approval, upon interim approval expiration.
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 or District's
program contain adequate authorities, adequate resources for
implementation, and an expeditious compliance schedule, which are also
requirements under part 70. Therefore, the EPA is also promulgating
approval under section 112(l)(5) and 40 CFR 63.91 of the nineteen
districts' programs 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.
III. Administrative Requirements
A. Docket
Copies of the nineteen districts' submittals and other information
relied upon for the final interim approval, including two public
comments received and reviewed by EPA on the proposal, are contained in
docket number CA-NONGR19-94-01-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 final interim approval. The docket is available for
public inspection at the location listed under the ADDRESSES section of
this document.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
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. Regulatory Flexibility Act
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.
Dated: April 21, 1995.
John Wise,
Acting Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
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 the entry for
California in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
California
The following district programs were submitted by the California
Air Resources Board on behalf of:
(a) Amador County Air Pollution Control District (APCD) (complete
submittal received on September 30, 1994); interim approval effective
on June 2, 1995; interim approval expires June 3, 1997.
(b) [Reserved]
(c) Butte County APCD (complete submittal received on December 16,
1993); interim approval effective on June 2, 1995; interim approval
expires June 3, 1997.
(d) Calaveras County APCD (complete submittal received on October
31, 1994); interim approval effective on June 2, 1995; interim approval
expires June 3, 1997.
(e) Colusa County APCD (complete submittal received on February 24,
1994); interim approval effective on June 2, 1995; interim approval
expires June 3, 1997.
(f) El Dorado County APCD (complete submittal received on November
16, 1993); interim approval effective on June 2, 1995; interim approval
expires June 3, 1997.
(g) Feather River Air Quality Management District (AQMD) (complete
submittal received on December 27, 1993); interim approval effective on
June 2, 1995; interim approval expires June 3, 1997.
(h) [Reserved]
(i) Great Basin Unified APCD (complete submittal received on
January 12, 1994); interim approval effective on June 2, 1995; interim
approval expires June 3, 1997.
(j) Imperial County APCD (complete submittal received on March 24,
1994); interim approval effective on June 2, 1995; interim approval
expires June 3, 1997.
(k) Kern County APCD (complete submittal received on November 16,
1993); interim approval effective on June 2, 1995; interim approval
expires June 3, 1997.
(l) [Reserved]
(m) Lassen County APCD (complete submittal received on January 12,
1994); interim approval effective on June 2, 1995; interim approval
expires June 3, 1997.
(n) [Reserved]
(o) Mendocino County APCD (complete submittal received on December
27, 1993); interim approval effective on June 2, 1995; interim approval
expires June 3, 1997.
(p) Modoc County APCD (complete submittal received on December 27,
1993); interim approval effective on June 2, 1995; interim approval
expires June 3, 1997.
(q) [Reserved]
(r) [Reserved]
(s) North Coast Unified AQMD (complete submittal received on
February 24, 1994); interim approval effective on June 2, 1995; interim
approval expires June 3, 1997.
(t) Northern Sierra AQMD (complete submittal received on June 6,
1994); interim approval effective on June 2, 1995; interim approval
expires June 3, 1997.
(u) Northern Sonoma County APCD (complete submittal received on
January 12, 1994); interim approval effective on June 2, 1995; interim
approval expires June 3, 1997.
(v) Placer County APCD (complete submittal received on December 27,
1993); interim approval effective on June 2, 1995; interim approval
expires June 3, 1997.
(w) [Reserved] [[Page 21724]]
(x) [Reserved]
(y) [Reserved]
(z) [Reserved]
(aa) [Reserved]
(bb) [Reserved]
(cc) Siskiyou County APCD (complete submittal received on December
6, 1993); interim approval effective on June 2, 1995; interim approval
expires June 3, 997.
(dd) [Reserved]
(ee) [Reserved]
(ff) Tuolumne County APCD (complete submittal received on November
16, 1993); interim approval effective on June 2, 1995; interim approval
expires June 3, 1997.
(gg) [Reserved]
(hh) Yolo-Solano AQMD (complete submittal received on October 14,
1994); interim approval effective on June 2, 1995; interim approval
expires June 3, 1997.
* * * * *
[FR Doc. 95-10825 Filed 5-2-95; 8:45 am]
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