[Federal Register Volume 60, Number 121 (Friday, June 23, 1995)]
[Rules and Regulations]
[Pages 32606-32612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15038]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 70
[CA 77-1-6996; AD-FRL-5216-5]
Clean Air Act Final Interim Approval of the Operating Permits
Program; Final Approval of State Implementation Plan Revision for the
Issuance of Federally Enforceable State Operating Permits; Bay Area Air
Quality Management District, California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is promulgating interim approval of the title V
operating permits program submitted by the Bay Area Air Quality
Management District (Bay Area, BAAQMD, or District) for the purpose of
complying with federal requirements that mandate that states develop,
and submit to EPA, programs for issuing operating permits to all major
stationary sources and to certain other sources. In addition, EPA is
promulgating final approval of a revision to Bay Area's portion of the
California State Implementation Plan (SIP) regarding synthetic minor
regulations for the issuance of federally enforceable state operating
permits (FESOP). In order to extend the federal enforceability of state
operating permits to hazardous air pollutants (HAP), EPA is also
finalizing approval of Bay Area's synthetic minor regulations pursuant
to section 112(l) of the Clean Air Act (CAA or Act). Finally, today's
action grants final approval to Bay Area's mechanism for receiving
delegation of section 112 standards as promulgated.
EFFECTIVE DATE: July 24, 1995.
ADDRESSES: Copies of Bay Area's submittals and other supporting
information used in developing the final approvals are available for
inspection (docket number CA-BA-94-1-OPS) during normal business hours
at the following location: U.S. Environmental Protection Agency, Region
IX, Air & Toxics Division, 75 Hawthorne Street, San Francisco, CA
94105. Copies of the regulations being incorporated by reference in
today's rule are also available for inspection at the following
location: Air Docket (6102), U.S. Environmental Protection Agency, 401
M Street, S.W., Washington, D.C. 20460.
FOR FURTHER INFORMATION CONTACT: Celia Bloomfield (telephone 415/744-
1249), Mail Code A-5-2, U.S. Environmental Protection Agency, Region
IX, Air & Toxics Division, 75 Hawthorne Street, San Francisco, CA
94105.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
Title V of the 1990 Clean Air Act Amendments (sections 501-507 of
the Clean Air Act (Act)), and implementing regulations at 40 Code of
Federal Regulations (CFR) part 70, 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 November 29, 1994, EPA proposed interim approval of the
operating permits program for Bay Area, California. See 59 FR 60939.
The November 29, 1994 Federal Register document also proposed approval
of Bay Area's interim mechanism for implementing section 112(g) and
program for delegation of section 112 standards as promulgated. Public
comment was solicited on these proposed actions. 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
available in the docket at the Regional office. In this notice, EPA is
promulgating interim approval of Bay Area's operating permits program
and approving the section 112(g) and section 112(l) mechanisms noted
above.
On June 28, 1989 (54 FR 27274), EPA published criteria for
approving and incorporating into the SIP regulatory programs for the
issuance of federally enforceable state operating permits. Permits
issued pursuant to a program meeting the June 28, 1989 criteria and
approved into the SIP are considered [[Page 32607]] federally
enforceable for criteria pollutants. The synthetic minor mechanism may
also be used to create federally enforceable limits for emissions of
hazardous air pollutants (HAP) if it is approved pursuant to section
112(l) of the Act.
In the November 29, 1994 Federal Register document, EPA also
proposed approval of Bay Area's synthetic minor program for creating
federally enforceable limits in District operating permits. In this
notice, EPA is promulgating approval of the synthetic minor program for
the Bay Area as a revision to Bay Area's SIP and pursuant to section
112(l) of the Act.
II. Final Action and Implications
A. Analysis of State Submission and Response to Public Comments
On November 29, 1994, EPA proposed interim approval of Bay Area's
title V operating permits program as it was submitted on November 16,
1993 and amended on October 27, 1994. Since the time that EPA proposed
interim approval, Bay Area adopted regulations to implement title IV of
the Act. On September 21, 1994, Bay Area incorporated part 72 by
reference into District Regulation 2, Rule 7. Regulation 2, Rule 7 was
submitted to EPA on December 29, 1994, and it corrects the first
program deficiency (i.e., acid rain definitions) identified in the
proposed interim approval notice by incorporating the federal acid rain
definitions by reference and by stating that ``if the provisions or
requirements of 40 CFR Part 72 are determined to conflict with
Regulation 2, Rule 6, the provisions and requirements of Part 72 shall
apply and take precedence.''
EPA recently became aware that the November 29, 1994 proposal
incorrectly identified District Regulation 1, sections 431-433. Those
regulations are SIP-approved District breakdown provisions (September
2, 1981, 46 FR 43968) and are recognized by EPA.
EPA received comments on the proposed interim approval of the Bay
Area program from three public commenters: New United Motor
Manufacturing Inc. (NUMMI), BAAQMD, and the National Stone Association
(NSA). Several interim approval issues set forth in the November 29,
1994 proposal were modified as a result of public comment. These
changes are discussed below along with other issues raised during the
public comment period. EPA's final action, as set forth in section
II.B. below, is being revised from the proposed notice in response to
public comment. EPA received no adverse public comment on the proposed
approval of Bay Area's synthetic minor program or program for receiving
section 112(l) standards as promulgated.
1. Section 112(g) Implementation
One commenter stated that in the absence of a final section 112(g)
regulation, Bay Area should be allowed to use its existing air toxics
program and de minimis levels to determine case-by-case Maximum
Achievable Control Technology (MACT) for new, reconstructed, and
modified sources. The commenter further stated that the broad statutory
requirements of section 112(g) should not supersede Bay Area's existing
toxics program.
EPA has received many comments on various state part 70 programs
concerning 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 section 112(g) applicability prior to EPA's issuing the final
section 112(g) rule. The notice states that major source modifications,
constructions, and reconstructions will not be subject to section
112(g) requirements until the final rule is promulgated. EPA expects to
issue the final section 112(g) rule in September 1995.
The interpretative 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 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), Bay Area 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.
In the November 29, 1994 Federal Register notice proposing interim
approval for the Bay Area's title V program, EPA also proposed to
approve the use of Bay Area'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 the Bay
Area of rules specifically designed to implement section 112(g). Since
approval is intended solely 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.
Bay Area commented that EPA should allow California districts 18
months, rather than 12 months, to develop section 112(g) regulations
following EPA's promulgation of the federal section 112(g) rule. Bay
Area stated that 12 months is not sufficient time to both undergo the
regulatory development process and prepare a section 112(l) equivalency
package for approval of the District's regulation to be used in lieu of
the federal section 112(g) rule.
EPA has approved an 18-month transition period in other states and
does not see a unique reason to limit the Bay Area to 12 months.
Therefore, EPA will allow Bay Area 18 months from the date of EPA's
final section 112(g) rule to develop and submit district regulations
for the implementation of section 112(g). If the final section 112(g)
rule, however, eliminates the transition period, Bay Area must follow
the implementation time lines set out in that rulemaking.
2. Certification by a Responsible Official
One commenter objected to EPA's statement, under program
deficiencies, that any document submitted in conjunction with a title V
permit must be certified by a responsible official. The commenter
stated that part 70 specifies which documents must be certified and
that requiring ``any document'' to be certified represents an overly
strict interpretation of section 70.6(c)(1).
EPA disagrees that the requirement to certify ``any document''
required by the permit is either redundant or unwarranted. The use of
the term ``any document'' is necessary to ensure that all documents
required to be certified under part 70 will be certified. Including the
language in section 70.6(c)(1) should not create any additional burden
than if the documents were all specifically listed. As the Bay Area's
program is currently written, only semiannual reports and annual
compliance certifications need to be certified by a responsible
official. The Bay Area's program fails to specify certification of
other required documents such as progress reports associated with a
compliance schedule (section 70.6(c)(4)) or prompt reports of permit
deviations (section 70.6(a)(3)(iii)(B)). Adding a requirement
consistent with section 70.6(c)(1) would correct such omissions.
On a related note, EPA believes that, in one respect, the language
suggested [[Page 32608]] in the November 29, 1994 Federal Register
proposal may have been an overly inclusive interpretation of section
70.6(c)(1). Section 70.6(c)(1) reads, ``Any document (including
reports) required by a part 70 permit shall contain a certification by
a responsible official * * *'' While the commenter focused on the words
``any document,'' EPA believes that the overly inclusive language in
the proposed interim approval is the reference to any document
submitted ``in conjunction with'' a permit. Therefore, Bay Area may
substitute the phrase ``required by,'' rather than ``in conjunction
with,'' when correcting the above deficiency.
3. Insignificant Activities
Two commenters responded to EPA's identification of deficiencies
regarding Bay Area's insignificant activities list and significance
thresholds. The commenters raised several points, the first being that
EPA's recommended insignificance levels would impose unnecessary
administrative burdens.
EPA does not agree that the cut-off levels proposed in the November
29, 1994 notice of 2 tons per year (tpy) for criteria pollutants and
the lesser of 1000 pounds per year or the section 112(g) de minimis
levels for hazardous air pollutants (HAP) would create an unreasonable
administrative burden. Insignificant activities are relevant only
during the initial application phase when the source has to determine
what information must be included in its permit application. Regardless
of the list of insignificant activities or the cut-off emissions
levels, the source may not omit from its application any information
that is necessary to determine applicability, impose an applicable
requirement, or assess fees (section 70.5(c)).
EPA also disagrees that the requirement to describe emissions from
activities not qualifying as insignificant is overly burdensome. First,
sources can use reliable emissions factors rather than extensive
testing and monitoring. Second, the source descriptions required by
section 70.5(c)(3)(ii) need only include sufficient detail to determine
fees and the applicability of requirements of the Act. Finally, in many
cases, smaller units can be aggregated and described in general terms
if such an approach would not interfere with determining whether and
how an applicable requirement applies at a source.
A second point raised in comment was that the redesignation of Bay
Area to attainment status for ozone justifies a higher insignificance
threshold for criteria pollutants. EPA agrees that emissions cut-offs
for insignificant activities should be based on area-specific
circumstances and analysis. The proposed notice recommended a 2 tpy
cut-off for criteria pollutants for the Bay Area because of the large
number of sources and emissions in the District, the high population
density, and the distinct relationship between regulatory compliance
and air quality improvement in the Bay Area. While EPA is open to
evaluating alternative emissions cut-offs, such a proposal must clearly
demonstrate that the higher level of emissions are insignificant for
the Bay Area.
An industry commenter also requested that EPA accept Bay Area's
categorical permit exemption list as its list of insignificant
activities. While part 70 allows state and local agencies to submit a
list of insignificant activities and emissions levels for approval,
this list must be accompanied by selection criteria that will assure
insignificance with respect to federal applicable requirements
(sections 70.4(b)(2) and 70.5(c)). The fact that the District has a
preexisting exemption list does not constitute sufficient justification
of insignificance. Because Bay Area has not provided EPA with
justification for each categorical exemption, EPA does not have
adequate information on which to evaluate the activities.
A fourth point raised in response to EPA's recommended
insignificance thresholds was the suggestion that a single emissions
cut-off be used to define insignificant activities for HAP-emitting
sources. The commenter suggested that a single threshold would be more
appropriate than the section 112(g) de minimis values since the Act
uses a broad 10 tpy applicability threshold.
EPA recommended using the proposed section 112(g) de minimis levels
because they define what EPA, through research and science, has
determined to be significant enough to warrant review by the public and
EPA on a facility-wide basis. EPA believes that the section 112(g) de
minimis levels would more easily allow the permitting authority to
verify independently the applicability of requirements and should serve
as an upper bound on which activities may be excluded from permit
applications. The same result may be achieved, however, with a single
cut-off of 1000 pounds per year if the threshold is accompanied by a
caveat that activities and emissions necessary for determining the
applicability of, or imposing an applicable requirement on, the source
may not be omitted from the permit application.
A fifth comment regarding insignificant activities was Bay Area's
objection to adding an ``applicable requirement gatekeeper'' that
excludes activities subject to an applicable requirement from
classification as insignificant. Bay Area asserted that the applicable
requirement gatekeeper for insignificant activities is too stringent
since some state implementation plans (SIPs) contain requirements such
as opacity limits that would generally apply to all activities at the
facility regardless of size.
EPA understands Bay Area's concerns and believes that the
applicable requirement gatekeeper can be added to Bay Area's program
without nullifying the usefulness of insignificant activities. EPA
recognizes that certain requirements approved into the SIP, such as
opacity standards, are applicable not to specific emissions units, but
instead to the facility as a whole. Therefore, the presence of an
applicable opacity limit does not mean that every emissions unit at the
facility must be described in the application since the applicability
of the requirement is clear.
4. Notice to the Public and Affected States
Bay Area disagreed with the public and affected state notice
deficiencies identified by EPA in the proposed interim approval notice.
First, Bay Area objected to revising its program to include affected
state notice provisions for Native American tribes since there is not
currently a potentially affected tribe that is eligible for treatment
as a state.
EPA is concerned about Bay Area's proposal to delay adoption of
affected state notice provisions until tribes apply for state status.
Although the federal rule that will enable tribes to apply for
treatment as states has not yet been finalized, and there are no tribes
currently eligible for treatment as a state under the Act, EPA believes
that the likelihood of Native American tribes qualifying as affected
states under part 70 is great and that Bay Area will ultimately need to
revise its rule to address this outcome. Nonetheless, as an alternative
to up-front adoption of affected state notice provisions, EPA will
accept a commitment from Bay Area to: (1) initiate rule revisions upon
notification from EPA that an affected tribe has applied for state
status, and (2) provide affected state notice to tribes upon their
filing for state status, that is, prior to the District's adoption of
affected state notice rules. Second, Bay Area also objected to adding
the phrase ``by other means if necessary to assure adequate notice to
the affected public'' [[Page 32609]] to the District's public notice
procedures. Bay Area claimed that its existing public notice procedures
already assure adequate notice to the affected public.
EPA acknowledges that the Bay Area has an extensive public notice
process and that it is adequate in most circumstances. However, EPA
also realizes that the United States, in general, and the Bay Area, in
particular, consist of diverse communities with varying ties to the
publications used for public notification. EPA proposed adding the
phrase ``by other means if necessary to assure adequate notice to the
affected public * * * '' to Bay Area's public notice provisions to give
Bay Area the legal authority to expand its notification procedures if
notice under existing procedures is ever inadequate. The additional
language is not intended to require the Bay Area to expand its routine
notification procedures, but rather to allow the District to take extra
steps when circumstances dictate.
5. Alternative Emission Limits
Bay Area believes that EPA's concerns regarding alternative
emission limits can be handled on a permit-by-permit basis rather than
by revising the District's Manual of Procedures (MOP). Bay Area's MOP
states that alternative emission control plans issued pursuant to
District Regulation 8 may be incorporated into title V permits. In the
proposed interim approval notice, EPA stated that the permit may
contain an alternative emission limit only if it has been approved into
Bay Area's SIP. The MOP provides no assurance that an alternative
emission control plan in District Regulation 8 is SIP-approved before
it is incorporated into a title V permit. In response, Bay Area
commented that if the alternative emission control plan in District
Regulation 8 has been approved into the SIP, it will become part of the
federally enforceable portion of the permit; if it has not been
approved into the SIP, it will become part of the state-only portion of
the permit.
EPA finds this permit-by-permit approach acceptable. However, the
current language in the MOP does not distinguish between alternative
emission control plans in District Regulation 8 that have been approved
into the SIP and alternative emission control plans in Regulation 8
that have not been approved into the SIP. Therefore, in order to
correct this deficiency, the District must add a provision to the MOP
(section 4.1) stating that only alternative emission control plans that
have been approved into the SIP may be incorporated into the federally
enforceable portion of the permit.
6. Emissions Trading
Bay Area commented that the emissions trading provisions of section
70.6(a)(10) should not be required for the Bay Area since the
District's new source review program prohibits emissions increases at a
facility without a case-by-case approval. EPA does not support Bay
Area's position on this matter. Bay Area must include a provision
consistent with section 70.6(a)(10) to ensure that the District can
implement mandatory trading opportunities that may arise in specific
federal requirements.
7. Particulate Matter (PM) Issues
The National Stone Association raised several issues regarding PM
that were not relevant to EPA's proposed interim approval of Bay Area's
operating permits program. Therefore, EPA is addressing these comments
in the Response to Comments Document (located in the docket at the
Regional Office) and not in this final interim approval notice.
B. Final Action
1. Title V Operating Permits Program
The EPA is promulgating interim approval of Bay Area's title V
operating permits program as submitted on November 16, 1993 and amended
on October 27, 1994. Bay Area must make the following changes to
receive full approval:
(1) Provide a demonstration that each activity on Bay Area's
insignificant activities list (See p. II-3 of program description, 2-6-
405.4, and list in Appendix B.) is truly insignificant and is not
likely to be subject to an applicable requirement. Alternatively, the
District may establish emissions level cut-offs, in which activities
emitting below the cut-offs would qualify as insignificant. In the
latter case, the District must demonstrate that the cut-off emissions
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. In addition, Bay Area must revise Regulation
2, Rule 6 to state that activities needed to determine the
applicability of, or impose applicable requirements on, the facility
may not qualify as insignificant activities. (Secs. 70.5(c) and
70.4(b)(2))
(2) Include a term consistent with the part 70 definition of
``applicable requirement,'' and use that term consistently in rules 2-
6-409.1, 2-6-409.2 and throughout the regulation. As currently written,
Bay Area's regulation requires that ``all federal * * * air quality
requirements'' be incorporated into permits (2-6-409.1); yet, the term
is never defined. Bay Area's program does define ``applicable
requirement'' (2-6-202), but the definition deviates from the part 70
definition and includes non-federally enforceable District and State
requirements. Bay Area's definition of ``federally enforceable'' (2-6-
207) appears to address the federal definition of ``applicable
requirement''; however, it does not include the entire list of
applicable requirements, and it is not clearly used in the permit
content section of Regulation 2-6.
(3) Rule 2-6-409 must be revised to require that permit terms and
conditions assure compliance with all applicable requirements
(Sec. 70.7(a)(1)(iv)) and that permits contain emission limitations and
standards (Sec. 70.6(a)(1)) and compliance certification requirements
(Sec. 70.6(c)(1)) that assure compliance with all applicable
requirements. As Regulation 2-6 is currently written, the District's
title V permits only have to include requirements for testing,
monitoring, reporting, and recordkeeping sufficient to assure
compliance with the terms and conditions of the permit and the
applicable requirements themselves. (2-6-409.1 and 2-6-409.2)
(4) Require that certifications by the responsible official
affirmatively state that they are based on truth, accuracy, and
completeness and that they are based on information and belief formed
after reasonable inquiry. Bay Area must revise 2-6-405.9, 2-6-502, MOP
(4.5 and 4.7), and any other certification provisions to ensure that
both elements are explicitly required. (Sec. 70.5(d))
(5) Revise Regulation 2-6 to define and require notice to, affected
states. Alternatively, Bay Area may make a commitment to: (1) Initiate
rule revisions upon being notified by EPA of an application by an
affected tribe for state status, and (2) provide affected state notice
to tribes upon their filing for state status (i.e., prior to Bay Area's
adopting affected state notice rules).
(6) Eliminate the phrase ``but not limited to'' from the definition
of ``administrative permit amendment'' (2-6-201). Only changes
identified in the rule and approved as part of Bay Area's program may
be processed as administrative amendments. (Sec. 70.7(d)(1)(vi))
(7) Revise 2-6-404.3 to limit the universe of significant permit
modification applications due 12 months after commencing operations to
only those applications for revisions pursuant to section 112(g) and
title I, [[Page 32610]] parts C and D of the Act that are not
prohibited by an existing part 70 permit. Except in the above
circumstances, a source is not allowed to operate the proposed change
until the permitting authority has revised the source's part 70 permit.
(Sec. 70.5(a)(1)(ii))
(8) In minor permit modification procedures, eliminate the extended
review period (2-6-414.2) that is inconsistent with 2-6-410.2 and
Sec. 70.7(e)(2)(iv). This extension inappropriately lengthens the time
that the source can operate under new conditions without a formal
permit revision.
(9) Revise 2-6-412.1 to include notice ``by other means if
necessary to assure adequate notice to the affected public.''
(Sec. 70.7(h)(1))
(10) Add a provision to the Manual of Procedures (section 4.1)
stating that only alternative emission control plans that have been
approved into the SIP may be incorporated into the federally
enforceable portion of the permit. (Sec. 70.6(a)(1)(iii))
(11) Add emissions trading provisions consistent with
Sec. 70.6(a)(10), which requires that trading must be allowed where an
applicable requirement provides for trading increases and decreases
without a case-by-case approval.
(12) Add a requirement to Regulation 2-6 that any document required
by a part 70 permit must be certified by a responsible official.
(Sec. 70.6(c)(1))
(13) Revise 2-6-224 and 2-6-409.10 to specify that all progress
reports must include: (1) Dates when activities, milestones, or
compliance required in the schedule of compliance were achieved; and
(2) an explanation of why any dates in the schedule of compliance were
not or will not be met and any preventive or corrective measures
adopted. (Sec. 70.6(c)(4) (i) and (ii))
(14) Revise section 4.5 of the MOP and add a provision to 2-6-409
to require that compliance certifications be submitted more frequently
than annually if specified in an underlying applicable requirement.
(Sec. 70.6(c)(4))
(15) Bay Area has indicated in its program description that it
intends to process new units that do not affect any federally
enforceable permit condition ``off-permit'' (Section II, p. 21 and
Staff Report, pp. 3-4). However, Regulation 2-6 does not include any of
the off-permit provisions required by Secs. 70.4(b) (14) and (15). The
part 70 off-permit provisions provide several safeguards such as notice
to EPA and recordkeeping requirements that must be incorporated into
Bay Area's program. In order to receive full approval in this regard,
Bay Area may submit a letter revising its program description to
indicate that it will not process new units ``off-permit'' or it may
revise its rule to include the part 70 off-permit provisions.
(16) Revise 2-6-222 defining ``regulated air pollutant'' to be
consistent with the federal definition (Sec. 70.2) and include
pollutants subject to any requirement established under section 112 of
the Act, including sections 112 (g), (j), and (r).
(17) In addition to the District-specific issues arising from Bay
Area's program submittal and locally adopted regulations, California
state law currently exempts agricultural production sources from permit
requirements. In order for this program to receive full approval (and
avoid a disapproval upon the expiration of this interim approval), the
California Legislature must revise the Health and Safety Code to
eliminate the exemption of agricultural production sources from the
requirement to obtain a permit.
The scope of the Bay Area's part 70 program approved in this notice
applies to all part 70 sources (as defined in the approved program)
within the Bay Area, California, except any sources of air pollution
over which an Indian tribe has jurisdiction. See, e.g., 59 FR 55813,
55815-18 (Nov. 9, 1994). The term ``Indian tribe'' is defined under the
Act as ``any Indian tribe, band, nation, or other organized group or
community, including any Alaska Native village, which is federally
recognized as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians.''
See section 302(r) of the Act; 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 July
23, 1997. During this interim approval period, the Bay Area is
protected from sanctions, and EPA is not obligated to promulgate,
administer and enforce a federal operating permits program in the Bay
Area. 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 the Bay Area fails to submit a complete corrective program for
full approval by January 23, 1997, EPA will start an 18-month clock for
mandatory sanctions. If the Bay Area then fails to submit a corrective
program that EPA finds complete before the expiration of that 18-month
period, EPA will be required to apply one of the sanctions in section
179(b) of the Act, which will remain in effect until EPA determines
that the Bay Area has corrected the deficiency by submitting a complete
corrective program. Moreover, if the Administrator finds a lack of good
faith on the part of the Bay Area, both sanctions under section 179(b)
will apply after the expiration of the 18-month period until the
Administrator determines that the Bay Area has come into compliance. In
any case, if, six months after application of the first sanction, the
Bay Area still has not submitted a corrective program that EPA has
found complete, a second sanction will be required.
If EPA disapproves the Bay Area's complete corrective program, EPA
will be required to apply one of the section 179(b) sanctions on the
date 18 months after the effective date of the disapproval, unless
prior to that date the Bay Area has submitted a revised program and EPA
has determined that it corrected the deficiencies that prompted the
disapproval. Moreover, if the Administrator finds a lack of good faith
on the part of the Bay Area, both sanctions under section 179(b) shall
apply after the expiration of the 18-month period until the
Administrator determines that the Bay Area has come into compliance. In
all cases, if, six months after EPA applies the first sanction, the Bay
Area has not submitted a revised program that EPA has determined
corrects the deficiencies, a second sanction is required.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if the Bay
Area has not submitted a timely and complete corrective program or EPA
has disapproved its submitted corrective program. Moreover, if EPA has
not granted full approval to the Bay Area program by the expiration of
this interim approval and that expiration occurs after November 15,
1995, EPA must promulgate, administer and enforce a federal permits
program for the Bay Area upon interim approval expiration.
2. District Preconstruction Permit Program Implementing Section 112(g)
EPA is approving the use of Bay Area's preconstruction review
program found in Regulation 2, Rule 2 as a mechanism to implement
section 112(g) during the transition period between promulgation of
EPA's section 112(g) rule and adoption by the Bay Area of rules
specifically designed to implement section 112(g). EPA is limiting the
[[Page 32611]] duration of this approval to 18 months following
promulgation by EPA of the section 112(g) rule.
3. Program for Delegation of Section 112 Standards as Promulgated
Requirements for part 70 program approval, specified in 40 CFR
section 70.4(b), encompass section 112(l)(5) requirements for approval
of a program for delegation of section 112 standards as promulgated by
EPA as they apply to part 70 sources. Section 112(l)(5) requires that
the District's program contain adequate authorities, adequate resources
for implementation, and an expeditious compliance schedule, which are
also requirements under part 70. Therefore, EPA is also promulgating
approval under section 112(l)(5) and 40 CFR section 63.91 of Bay Area's
program for receiving delegation of section 112 standards that are
unchanged from the federal standards as promulgated. This program for
delegations applies to both existing and future standards but is
limited to sources covered by the part 70 program.
4. State Operating Permit Program for Synthetic Minors
EPA is promulgating full approval of Bay Area's synthetic minor
operating permit program submitted to EPA by the California Air
Resources Board, on behalf of the Bay Area, on February 28, 1994
(supplemented April 29, 1994). The synthetic minor operating permit
program is being approved into Bay Area's SIP pursuant to part 52 and
the five approval criteria set out in the June 28, 1989 Federal
Register document (54 FR 27282). EPA is also promulgating full approval
pursuant to section 112(l)(5) of the Act so that HAP emission limits in
synthetic minor operating permits may be deemed federally enforceable.
Bay Area has already begun to issue permits containing voluntarily
accepted limits pursuant to the District's synthetic minor regulations.
If the District followed its own procedures, each of those permits was
subject to public notice and prior EPA review. Therefore, EPA will
consider all operating permits issued pursuant to Bay Area's synthetic
minor regulations being approved in today's notice to be federally
enforceable with the promulgation of this approval provided that Bay
Area submit any permits that it wishes to make federally enforceable to
EPA, accompanied by documentation that the procedures approved today
have been followed. EPA will expeditiously review any individual
permits so submitted to ensure their conformity to the program
requirements. (See 57 FR 59931.)
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future implementation
plan. Each request for revision to the state implementation plan shall
be considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
III. Administrative Requirements
A. Docket
Copies of Bay Area's submittal and other information relied upon
for the final interim approval, including the three public comment
letters received and reviewed by EPA on the proposal, are contained in
docket number CA-BA-94-1-OPS maintained at the EPA Regional Office. The
docket is an organized and complete file of all the information
submitted to, or otherwise considered by, EPA in the development of
this 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
review under Executive Order 12866 review.
C. Regulatory Flexibility Act
The EPA's actions under sections 502, 110, and 112 of the Act do
not create any new requirements, but simply address operating permit
programs submitted to satisfy the requirements of 40 CFR part 70.
Because these actions do not impose any new requirements, they do not
have a significant impact on a substantial number of small entities.
D. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a federal mandate that may result in estimated
costs to state, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated today does
not include a federal mandate that may result in estimated costs of
$100 million or more to either state, local, or tribal governments in
the aggregate, or to the private sector. This federal action approves
pre-existing requirements under state or local law, and imposes no new
federal requirements. Accordingly, no additional costs to state, local,
or tribal governments, or to the private sector, result from this
action.
List of Subjects
40 CFR Part 52
Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation
by reference, Intergovernmental relations, Lead, Nitrogen dioxide,
Ozone, Particulate matter, Sulfur oxides, Volatile organic compounds.
40 CFR Part 70
Administrative practice and procedure, Air pollution control,
Environmental protection, Hazardous substances, Intergovernmental
relations, Operating permits, and Reporting and recordkeeping
requirements.
Note: Incorporation by reference of the State Implementation
Plan for the State of California was approved by the Director of the
Federal Register on July 1, 1982.
Dated: May 25, 1995.
David P. Howekamp,
Acting Regional Administrator.
Chapter I, title 40 of the Code of Federal Regulations is amended
as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart F--California
2. Section 52.220 is amended by adding paragraphs (c) (217) and
(218) to read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(217) New and amended regulations for the following APCDs were
submitted on February 28, 1994, by the Governor's designee.
(i) Incorporation by reference.
(A) Bay Area Air Quality Management District.
(1) Amended Regulation 2, Rule 1, Sections 102, 129, 204, 213, 214,
215, 216, 217, 218, 219, 302, 408, 411 adopted November 3, 1993; and
New Regulation 2, Rule 6, Sections 206, 207, 210, 212, 213, 214, 218,
222, 230, 231, [[Page 32612]] 301, 311, 401, 402, 403, 404, 420, 421,
422, 602 adopted November 3, 1993.
(218) New and amended regulations for the Bay Area Air Quality
Management District were submitted on April 29, 1994 by the Governor's
designee.
(i) Incorporation by reference.
(A) New Regulation 2, Rule 6, Sections 310 and 423 adopted November
3, 1993.
* * * * *
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding paragraph (b) to the
entry for California to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
(b) Bay Area Air Quality Management District: submitted on November
16, 1993 and amended on October 27, 1994; interim approval effective on
July 24, 1995, interim approval expires July 23, 1997.
* * * * *
[FR Doc. 95-15038 Filed 6-22-95; 8:45 am]
BILLING CODE 6560-50-P
