[Federal Register Volume 61, Number 158 (Wednesday, August 14, 1996)]
[Proposed Rules]
[Pages 42222-42228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20591]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5552-7]
Clean Air Act Proposed Interim Approval of Operating Permits
Program; Delegation of Section 112 Standards; State of New Hampshire
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim approval.
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SUMMARY: The EPA is promulgating interim approval of the Operating
Permits Program submitted by the State of New Hampshire 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. EPA is also approving the State's authority to
implement hazardous air pollutant requirements.
DATES: Comments on this proposed action must be received in writing by
September 13, 1996.
ADDRESSES: Comments should be addressed to Ida E. Gagnon, Air Permits
Program, CAP, U.S. Environmental Protection Agency, Region I, JFK
Federal Building, Boston, MA 02203-2211.
Copies of the State's submittal and other supporting information
relevant to this action are available for inspection during normal
business hours at the following location: U.S. Environmental Protection
Agency, Region 1, One Congress Street, 11th floor, Boston, MA 02203.
FOR FURTHER INFORMATION CONTACT: Ida E. Gagnon, Air Permits Program,
CAP, U.S. Environmental Protection Agency, Region 1, JFK Federal
Building, Boston, MA 02203-2211, (617) 565-3500.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
As required under title V of the 1990 Clean Air Act Amendments
(sections 501-507 of the Clean Air Act (``the Act'')), EPA has
promulgated rules which define the minimum elements of an approvable
State operating permits program and the corresponding standards and
procedures by which the EPA will approve, oversee, and withdraw
approval of State operating permits programs (see 57 FR 32250 (July 21,
1992)). These rules are codified at 40 Code of Federal Regulations
(CFR) Part 70. Title V requires States to develop, and submit to EPA,
programs for issuing these operating permits to all major stationary
sources and to certain other sources.
The Act requires that States develop and submit these programs to
EPA by November 15, 1993, and that EPA act to approve or disapprove
each program within 1 year after receiving the submittal. 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.
B. Federal Oversight and Sanctions
If EPA were to finalize this proposed interim approval, it will
extend for two years following the effective date of final interim
approval, and cannot be renewed. During the interim approval period,
the State of New Hampshire is protected from sanctions, and EPA is not
obligated to promulgate, administer and enforce a Federal permits
program for the State of New Hampshire. 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 specified in section 503(c) of the Act begins upon the
effective date of interim approval, as does the 3-year time period for
processing the initial permit applications.1
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\1\ Note that states may require applications to be submitted
earlier than required under section 503(c). See Env-A 609.05(d).
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Following final interim approval, if the State of New Hampshire
fails to submit a complete corrective program for full approval by the
date 6 months before expiration of the interim approval, EPA will start
an 18-month clock for mandatory sanctions. If the State of New
Hampshire 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 State of New
Hampshire has corrected the deficiency by submitting a complete
corrective program. If, six months after application of the first
sanction, the State of New Hampshire still has not submitted a
corrective
[[Page 42223]]
program that EPA finds complete, a second sanction will be required.
If, following final interim approval, EPA disapproves the State of
New Hampshire'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
State of New Hampshire has submitted a revised program and EPA has
determined that it corrected the deficiencies that prompted the
disapproval. If, six months after EPA applies the first sanction, the
State of New Hampshire has not submitted a revised program that EPA has
determined corrected the deficiencies that prompted disapproval, a
second sanction will be required.
Moreover, if EPA has not granted full approval to a State of New
Hampshire 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 the State of New
Hampshire upon interim approval expiration.
II. Proposed Action and Implications
A. Analysis of State Submission
1. Support Materials
The Air Resource Division Director of the State of New Hampshire
(Designee of the Governor) submitted an administratively complete title
V Operating Permits Program (PROGRAM) on October 26, 1995. EPA deemed
the PROGRAM administratively complete in a letter to the Commissioner
dated November 22, 1995. The PROGRAM submittal includes a description
of how the State intends to implement the PROGRAM and legal opinions
from the Attorney General of New Hampshire stating that the laws of the
State provide adequate authority to carry out the PROGRAM. The
submittal additionally contains evidence of proper adoption of the
PROGRAM regulations, permit application forms, a data management system
and a fee adequacy demonstration.
2. Regulations and Program Implementation
The State of New Hampshire has submitted Env-A 600 entitled
``Statewide Permit System'' for implementing the State Part 70 program
as required by 40 CFR 70.4(b)(2). Sufficient evidence of procedurally
correct adoption is included in Section III of the submittal.
The New Hampshire operating permits regulations follow Part 70 very
closely. The following requirements, set out in EPA's Part 70 operating
permits program review are addressed in Section III of the State's
submittal.
The New Hampshire PROGRAM, including the operating permits
regulations, substantially meets the requirements of 40 CFR Part 70,
including Secs. 70.2 and 70.3 with respect to applicability;
Secs. 70.4, 70.5 and 70.6 with respect to permit content and
operational flexibility; Secs. 70.5 with respect to complete
application forms and criteria which define insignificant activities;
Secs. 70.7 and 70.8 with respect to public participation, minor permit
modifications, and review by affected states and EPA; and Sec. 70.11
with respect to requirements for enforcement authority. Although the
PROGRAM substantially meets Part 70 requirements, there are program
deficiencies that are outlined in section II.B. below as Interim
Approval issues. Those Interim Approval issues are more fully discussed
in the Technical Support Document, dated November 6, 1995 and entitled
``Technical Support Document--New Hampshire Operating Permits Program''
(``TSD''). The TSD also contains a detailed discussion of elements of
Part 70 that appear in New Hampshire's title V program regulations but
which are in need of some clarification. That clarification is provided
by EPA in the TSD and by the New Hampshire Attorney General's Office by
a legal Opinion supplementing the State's original submittal.
Prompt Reporting of Deviations From Permit Requirements
Part 70 of the operating permits regulation requires prompt
reporting of deviations from the permit requirements. Section
70.6(a)(3)(iii)(B) requires the permitting authority to define prompt
in relation to the degree and type of deviation likely to occur and the
applicable requirements. The State of New Hampshire has not defined
``prompt'' in its program with respect to reporting of deviations.
Although the permit program regulations should define prompt for
purposes of administrative efficiency and clarity, an acceptable
alternative is to define prompt in each individual permit. The EPA
believes that prompt should generally be defined as requiring reporting
within two to ten days of the deviation. Two to ten days is sufficient
time in most cases to protect public health and safety as well as to
provide a forewarning of potential problems. For sources with a low
level of excess emissions, a longer time period may be acceptable.
However, prompt reporting must be more frequent than the semiannual
reporting requirement, given this is a distinct reporting obligation
under Sec. 70.6(a)(3)(iii)(A). Where ``prompt'' is defined in the
individual permit but not in the program regulations, EPA may veto
permits that do not contain sufficiently prompt reporting of
deviations.
Definition of ``Title I Modification''
New Hampshire's definition of ``title I modification'' does not
include changes reviewed under a minor source preconstruction review
program (``minor NSR changes''). In an August 29, 1994 rulemaking
proposal, EPA explained its view that the better reading of ``title I
modifications'' includes minor NSR. However, the Agency solicited
public comment on whether the phrase 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. (59 FR 44572, 44573). 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.
The EPA has not yet taken final action on the August 29, 1994
proposal. However, in response to public comment on that proposal, the
Agency has decided that the definition of ``title I modifications'' is
best interpreted as not including changes reviewed under minor NSR
programs. EPA included this interpretation in a supplemental rulemaking
proposal published on August 31, 1995. 60 FR 45530, 545-546. Thus, New
Hampshire's definition of ``title I modification'' is fully consistent
with EPA's current interpretation of Part 70.
In the August 29, 1994 proposal (59 FR 44572) the Agency stated
that if, after considering the public comments, it determined that the
phrase ``title I modifications'' should be interpreted as including
minor NSR changes, the Agency would revise the interim approval
criteria as needed to allow states with a narrower definition to be
eligible for interim approval. If EPA should conclude, during the final
rulemaking on the August 29, 1994 (59 FR 44572) and August 31, 1995 (60
FR 45530, 545-546) proposals, that Title I modifications should be read
to include minor NSR, it will identify the narrow definition of Title I
modification as an interim approval condition on New Hampshire's
program at the appropriate time.
Variances
New Hampshire has the authority to issue a variance from certain
regulatory
[[Page 42224]]
requirements imposed by State law. See Env-A 207 and RSA 125-C:16. The
EPA regards New Hampshire's variance 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 law. The EPA
has no authority to approve provisions of State law 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 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 revision 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
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.''
Audit Privilege and Penalty Waiver Legislation
The Clean Air Act sets forth the minimum elements required for
approval of a State operating permits program, including the
requirement that the permitting authority has adequate authority to
assure that sources comply with all applicable CAA requirements as well
as authority to enforce permits through recovery of minimum civil
penalties and appropriate criminal penalties. Section 502(b)(5) (A) and
(E) of the CAA. EPA's implementing regulations, which further specify
the required elements of State operating permits programs (40 CFR Part
70), explicitly require States to have certain enforcement authorities,
including authority to seek injunctive relief to enjoin a violation, to
bring suit to restrain violations imposing an imminent and substantial
endangerment to public health or welfare, and to recover appropriate
criminal and civil penalties. 40 CFR 70.11. In addition, section 113(e)
of the CAA sets forth penalty factors for EPA or a court to consider
for assessing penalties for civil and criminal violations of title V
permits. EPA is concerned about the potential impact of some State
privilege and immunity laws on the ability of such States to enforce
federal requirements, including those under title V of the CAA. Based
on review and consideration of the statutory and regulatory provisions
discussed above, EPA issued guidance on April 5, 1996, entitled
``Effect of Audit Immunity/Privilege Laws on States' Ability to Enforce
Title V Requirements'' to address these concerns. This guidance
outlines certain elements of State audit immunity and privilege laws
which, in EPA's view, may so hamper the State's ability to enforce as
to preclude approval of the State's title V operating permits program.
New Hampshire has adopted legislation that would provide, subject
to certain conditions, for an environmental audit ``privilege'' for
voluntary compliance evaluations performed by a regulated entity. New
Hampshire's legislation also provides, subject to certain conditions,
for a penalty waiver for violations of environmental laws when a
regulated entity discovers such violations pursuant to a voluntary
compliance evaluation and voluntarily discloses such violations to the
State and takes prompt and appropriate measures to remedy the
violations.
New Hampshire's audit privilege legislation excludes from the scope
of the privilege all ``[d]ocuments, communications, data, reports, or
other information required to be collected, developed, maintained,
reported, or otherwise made available to a regulatory agency pursuant
to an environment law.'' Such information is ``non-privileged'' under
the terms of the legislation. Thus, EPA is not listing any conditions
on New Hampshire's title V program approval for this issue because the
legislation will not preclude the State from enforcing its title V
permit program requirements consistent with the requirements of the
CAA. New Hampshire's Attorney General has submitted a legal opinion
which supports EPA's understanding that the State title V program
requirements for compliance monitoring, reporting of violations,
recordkeeping, and compliance certification, together render the
privilege inapplicable to compliance evaluations, at a title V source,
of the State's title V requirements.
New Hampshire's Attorney General Opinion also addresses the penalty
waiver provisions of the audit legislation. Section 147-E:9, II of the
legislation excludes certain violations from the scope of the penalty
waiver provision. For example, criminal acts committed knowingly,
purposefully, or recklessly are not covered by the penalty waiver
provision when disclosed to the State. Another category excluded from
the scope of the penalty waiver is violations that result in serious
harm to human health or the environment. Although the list of excluded
violations does not explicitly contain violations that result in a
significant economic benefit, violations that are required to be
disclosed by law, or violations that result in a serious risk of harm
to human health or the environment, New Hampshire's Attorney General
Opinion explains that in the context of New Hampshire's title V
operating permit program such violations could not qualify for the
penalty waiver. In essence, the Attorney General Opinion states that
violations of the terms and conditions of State-issued title V permits
are excluded from the penalty waiver provision because any such
violations would be required to be disclosed by the title V permit
itself pursuant to at least one, and possibly all, of the following
requirements in New Hampshire's program: (1) the obligation to report
promptly any deviations from the terms and conditions of the permit;
(2) the obligation to submit monitoring reports no less frequently than
semi-annually; and (3) the obligation to submit annual compliance
certifications. Hence, these requirements would preclude a title V
source from asserting that it ``elected'' (the term used in New
Hampshire's legislation) to disclose any such violations to the State,
i.e. such disclosure could not be voluntary under State law, a
precondition for the applicability of the penalty waiver provisions.
With regard to violations of the requirement to apply for a title V
permit, the Attorney General opines that a title V source could not
``elect,'' or volunteer, to disclose the application violation, and so
the penalty waiver provisions would not apply. The reasoning in the
Attorney General Opinion is as follows. A source is under a continuing
obligation, even when failing to apply for a permit on time, to submit
to the State information sufficient to enable the State to issue a
title V permit. Such information would necessarily contain, or at least
include a reference to, information relating to all construction
permits and non-title V State operating permits already issued to the
source. This information would indicate when the source became a
``major source.'' Moreover, the State already possesses extensive
computerized emissions data on each source in the State. These sources
of emissions information would enable the State to deduce that the
source had
[[Page 42225]]
failed to apply for a title V permit in a timely manner. Thus, there is
no meaningful sense in which a source could ``elect'' to disclose, or
voluntarily disclose, the application violation because the source was
required by virtue of the permit application requirement of the State's
regulations to submit the source's emissions information (or at least
reference existing permits that contain such information) from which
the State could deduce on its own that the violation occurred.
The Attorney General Opinion adds that as a practical matter New
Hampshire will be aware of a source's failure to apply for a title V
permit before the source submits a belated permit application. The
Attorney General Opinion asserts that the State has, based on its
existing emissions inventory, already identified all sources in the
State subject to title V and has notified them of their obligation to
apply for a title V permit, and will therefore independently know of
any permit application violation that occurs. The Attorney General
argues that since New Hampshire's legislation excludes from the scope
of the penalty waiver provisions those violations independently
discovered by the State, the waiver provisions would not apply to
permit application violations because the State would already know of
the violation at the time the source belatedly applied.
The Attorney General Opinion also addresses certain hypothetical
factual situations and explains why the penalty waiver and privilege
provisions of the State legislation would not apply. Those situations
involve instances in which a title V source evaluates compliance with a
title V permit term or condition in a method different from the
compliance method specified in the permit, or evaluates compliance at
more frequent time intervals than required by the title V permit. In
essence, since any violations discovered in either of the two
situations described above would be required to be reported under the
terms and conditions of the permit, disclosure of such violations could
not be voluntary and hence could not qualify for the penalty waiver or
the privilege.
New Hampshire's Attorney General Opinion concludes that the
privilege and penalty waiver provisions of New Hampshire's audit
legislation are not available to title V permit holders for violations
of title V requirements. Based on the Attorney General's discussion of
the issues as described above, EPA is not listing conditions on New
Hampshire's title V program approval with regard to these issues.
However, if New Hampshire's implementation of its title V program is
inconsistent with the Attorney General's Opinion or the State's audit
legislation is held by the New Hampshire State courts to be applicable
to title V violations, EPA reserves its rights to address what would in
that event be the State's inability to enforce its title V program
consistent with the requirements of the CAA.
The complete program submittal, the TSD, and New Hampshire's
Attorney General Opinion are available in the docket for review. The
TSD includes a detailed analysis, including a program checklist, of how
the State's program and regulations compare with EPA's requirements and
regulations.
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
permit program. Each title V program submittal must contain either a
detailed demonstration of fee adequacy or a demonstration that the fees
collected exceed $25 per ton of actual emissions per year, adjusted
from the August, 1989 consumer price index. The $25 per ton was
presumed by Congress to cover all reasonable direct and indirect costs
to an operating permit program. This minimum amount is referred to as
the ``presumptive minimum.''
New Hampshire has opted to make a presumptive minimum fee
demonstration. In the fee regulation, the State proposes an emission
based fee for calculating the operating permit program fees. This fee
is equivalent to at least the Part 70 presumptive minimum fee of $25
per ton of regulated air pollutants, adjusted per the consumer price
index (CPI). Using New Hampshire's emission based fee approach, the
State is charging a dollar per ton fee of $43.30 starting in 1995 and
adjusting it annually by the CPI and an inventory stabilization factor
(ISF). The ISF is the quotient of the total statewide stationary source
actual emissions as determined from the revised 1993 inventory divided
by the total statewide stationary source actual emissions from the
previous calendar year. If the ISF computes to a number less than 1,
then 1 shall be used as the ISF. New Hampshire's average rate is above
the presumptive minimum adjusted by the CPI.
Therefore, New Hampshire has demonstrated that the state is
collecting sufficient permit fees to meet EPA's presumptive minimum
criteria. For more information, see Attachment E of New Hampshire's
title V program submittal.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority and/or Commitments for Section 112 Implementation
New Hampshire has demonstrated in its title V program submittal
adequate legal authority to implement and enforce all section 112
requirements for hazardous air pollutants through the title V permit.
This legal authority is contained in New Hampshire's enabling
legislation and in regulatory provisions defining ``applicable
requirements'' and requiring that the permit must incorporate all
applicable requirements. EPA has determined that this legal authority
is sufficient to allow New Hampshire to issue permits that assure
compliance with all section 112 requirements.
Therefore, the State of New Hampshire's legal authority is
sufficient to allow the State to issue permits that assure compliance
with all section 112 requirements, and to carry out all section 112
activities at Part 70 sources. For further rationale on this
interpretation, please refer to the Technical Support Document
referenced above and the April 13, 1993 guidance memorandum titled
``Title V Program Approval Criteria for Section 112 Activities,''
signed by John Seitz.
b. Implementation of 112(g) Upon Program Approval
On February 14, 1995 EPA published an interpretive notice (see 60
FR 8333) that postpones the effective date of section 112(g) until
after EPA has promulgated a rule addressing that provision. The section
112(g) interpretive notice explains that EPA is still considering
whether the effective date of section 112(g) should be delayed beyond
the date of promulgation of the Federal rule 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) New Hampshire must be able to implement section 112(g)
during the period between promulgation of the Federal section 112(g)
rule and adoption of implementing State regulations. EPA believes that
New Hampshire can utilize its preconstruction permitting program to
serve as a procedural vehicle for implementing section 112(g) rule and
making these requirements Federally
[[Page 42226]]
enforceable between promulgation of the Federal section 112(g) rule and
adoption of implementing State regulations. For this reason, EPA is
approving New Hampshire's preconstruction permitting program found in
Env-A 600, Statewide Permit System, under the authority of title V and
Part 70 solely for the purpose of implementing section 112(g) during
the transition period between title V approval and adoption of a State
rule implementing EPA's section 112(g) regulations.
Since the approval would be for the single purpose of providing a
mechanism to implement section 112(g) during the transition period, the
approval would be without effect if EPA decides in the final section
112(g) rule that sources are not subject to the requirements of the
rule until State regulations are adopted. Also, since the approval
would be for the limited purpose of allowing the State sufficient time
to adopt regulations, EPA is limiting the duration of the approval to
18 months following promulgation by EPA of its section 112(g) rule.
c. Program for Straight Delegation of Section 111 and 112 Standards
Requirements for operating permit program approval, specified in 40
CFR 70.4(b), encompass section 112(l)(5) requirements for approval of a
program for delegation of hazardous air pollutant requirements under
section 112 and 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. EPA is also granting approval under section 112(l)(5) and 40 CFR
63.91 of the State's program for receiving delegation of section 112
standards that are unchanged from the Federal standards as promulgated,
and section 112 infrastructure programs such as those programs
authorized under sections 112(i)(5), 112(g), 112(j) and 112(r) to the
extent they apply to sources subject to New Hampshire's title V program
regulations. EPA is reconfirming the 40 CFR parts 60 and 61 standards
currently delegated to New Hampshire as indicated in Table I.2 In
addition, EPA is proposing to delegate all future 40 CFR part 63
standards to the extent they apply to sources subject to New
Hampshire's title V program regulations.3 EPA is delegating the 40
CFR part 63 standards as indicated in Table II to the extent they apply
to sources subject to New Hampshire's title V program regulations.
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\2\ Please note that federal rulemaking is not required for
delegation of section 111 standards.
\3\ The radionuclide National Emission Standards for Hazardous
Air Pollutant (NESHAP) is a section 112 regulation and therefore,
also an applicable requirement under the State operating permits
program for Part 70 sources. There is not yet a Federal definition
of ``major'' for radionuclide sources. Therefore, until a major
source definition for radionuclide is promulgated, no source would
be a major section 112 source solely due to its radionuclide
emissions. However, a radionuclide source may, in the interim, be a
major source under Part 70 for another reason, thus requiring a Part
70 permit. The EPA will work with the State in the development of
its radionuclide program to ensure that permits are issued in a
timely manner.
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New Hampshire has informed EPA that it intends to accept future
delegation of section 112 standards by checking the appropriate boxes
on a standardized checklist. The checklist will list applicable
regulations and will be sent by the EPA Regional Office to New
Hampshire. New Hampshire will accept delegation by checking the
appropriate box and returning the checklist to EPA Region I. The
details of this delegation mechanism are set forth in the May 30, 1996
Memorandum of Agreement between New Hampshire and EPA. This program
applies to both existing and future standards but is limited to sources
covered by the Part 70 program. The original delegation agreement
between EPA and New Hampshire was set forth in a letter to Dennis R.
Lunderville dated September 30, 1982.
d. Commitment to Implement Title IV of the Act
New Hampshire has committed to take action, following promulgation
by EPA of regulations implementing section 407 and 410 of the Act, or
revisions to either Parts 72, 74, or 76 or the regulations implementing
section 407 or 410, to either incorporate by reference or submit, for
EPA approval, New Hampshire Department of Environmental Protection
(DEP) regulations implementing these provisions.
B. Proposed Action
The EPA is proposing to grant interim approval to the operating
permits program submitted by New Hampshire on October 26, 1995. If
promulgated, the State must make the following change to receive full
approval:
1. New Hampshire does not allow for ``section 502(b)(10)''
changes at a title V source. In an August 29, 1994 (59 FR 44572)
rulemaking proposal, EPA proposed to eliminate section 502(b)(10)
changes as a mechanism for implementing operational flexibility.
However, the Agency solicited comment on the rationale for this
proposed elimination. If EPA should conclude, during a final
rulemaking, that section 502(b)(10) changes are no longer required
as a mechanism for operational flexibility, then New Hampshire will
not be required to address 502(b)(10) changes in its rule.
This interim approval, which may not be renewed, extends for a
period of up to two years. During the interim approval period, the
State is protected from sanctions for failure to have a program, and
EPA is not obligated to promulgate a Federal permits program in the
State. Permits issued under a program with interim approval have full
standing with respect to Part 70, and the 1-year time period for
submittal of permit applications by subject sources begins upon interim
approval, as does the 3-year time period for processing the initial
permit applications.
The scope of the State of New Hampshire's Part 70 program that EPA
is proposing in this notice would apply to all Part 70 sources (as
defined in the approved program) within the State of New Hampshire,
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).
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. EPA is granting approval under section 112(l)(5) and 40 CFR 63.91
of the State's program for receiving delegation of section 112
standards that are unchanged from Federal standards as promulgated.
This program for delegations only applies to sources covered by the
Part 70 program.
III. Administrative Requirements
A. Opportunity for Public Comments
The EPA is requesting comments on all aspects of the proposed
interim approval. Copies of the State's submittal and other information
relied upon for
[[Page 42227]]
the 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 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 September 13, 1996.
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
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 action proposed 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 proposes approving
preexisting 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
Administrative practice and procedure, Air pollution control,
Environmental protection, Intergovernmental relations, Operating
permits, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: July 22, 1996.
John P. DeVillars,
Regional Administrator, Region I.
Table I.-- Reconfirmation of Part 60 and 61 Delegations
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------------------------------------------------------------------------
Part 60 Subpart Categories
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D Fossil-Fuel Fired Steam Generators.
Da Electric Utility Steam Generators.
Db Industrial-Commercial-Institutional Steam
Generating Unit.
Dc Small Industrial-Commercial-Institutional Steam
Generating Unit.
E Incinerators.
Ea Municipal Waste Combustors.
I Asphalt Concrete Plants.
J Petroleum Refineries.
K Petroleum Liquid Storage Vessels.
Ka Petroleum Liquid Storage Vessels.
Kb Petroleum Liquid Storage Vessels.
L Secondary Lead Smelters.
M Secondary Brass and Bronze Production Plants.
N Basic Oxygen Process Furnaces Primary Emissions.
O Sewage Treatment Plants.
AA Steel Plants-Electric Arc Furnaces.
BB Kraft Pulp Mills.
DD Grain Elevators.
EE Surface Coating of Metal Furniture.
GG Stationary Gas Turbines.
KK Lead-Acid Battery Manufacturing.
LL Metallic Mineral Processing Plants.
QQ Graphic Arts-Rotogravure Printing.
RR Tape and Label Surface Coatings.
TT Metal Coil Surface Coating.
VV Equipment Leaks of Voc in Socmi.
WW Beverage Can Surface Coating.
XX Bulk Gasoline Terminals.
BBB Rubber Tire Manufacturing.
FFF Flexible Vinyl and Urethan Coating and Printing.
GGG Equipment Leaks of Voc in Petroleum Refineries.
HHH Synthetic Fiber Production.
JJJ Petroleum Dry Cleaners.
OOO Nonmetallic Mineral Plants.
QQQ Voc From Petroleum Refinery Waste Water Systems.
SSS Magnetic Tape Coating.
TTT Surface Coating of Plastic Parts For Business
Machines.
UUU Calciners and Dryers in the Mineral Industry.
VVV Polymetric Coating of Supporting Substrates.
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[[Page 42228]]
Part 61 Subpart Categories
------------------------------------------------------------------------
C Beryllium.
E Mercury.
J Equipment Leaks of Benzene.
M Asbestos.
V Equipment Leaks (Fugitive Emission Sources).
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Table II.--Delegation of Part 63 Standards as They Apply to New
Hampshire's Title V Operating Permits Program
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------------------------------------------------------------------------
Part 63 Subpart Categories
------------------------------------------------------------------------
A General Provisions.
B Equivalent Emission Limitation by Permit.
D Compliance Extensions for Early Reductions.
F National Emission Standards for Organic
Hazardous Air Pollutants From the Synthetic
Organic Chemical Manufacturing Industry.
G National Emission Standards for Organic
Hazardous Air Pollutants From the Synthetic
Organic Chemical Manufacturing Industry Process
Vents, Storage Vessels, Transfer Operations,
and Wastewater.
H National Emission Standards for Organic
Hazardous Air Pollutants for Equipment Leaks.
I National Emission Standards for Organic
Hazardous Air Pollutants for Certain Processes
Subject to the Negotiated Regulation for
Equipment Leaks.
M National Perchloroethylene Air Emission
Standards for Dry Cleaning Facilities.
N National Emission Standards for Chromium
Emissions from Hard and Decorative
Electroplating and Chromium Anodizing Tanks.
O Ethylene Oxide Emission Standards for
Sterilization Facilities.
Q National Emission Standards for Hazardous Air
Pollutants for Industrial Cooling Towers.
R National Emission Standards for Organic
Hazardous Air Pollutants for Source Categories:
Gasoline Distribution (Stage I).
T National Emission Standards for Halogenated
Solvent Cleaning.
W National Emission Standards for Organic
Hazardous Air Pollutants for Epoxy Resins
Production and Non-Nylon Polyamides Production.
X National Emission Standards for Organic
Hazardous Air Pollutants From Secondary Lead
Smelting.
Y National Emission Standards for Organic
Hazardous Air Pollutants for Marine Tank Vessel
Loading Operations.
CC National Emission Standards for Organic
Hazardous Air Pollutants: Petroleum Refineries.
GG National Emission Standards for Organic
Hazardous Air Pollutants for source categories:
Aerospace Manufacturing and Rework.
JJ National Emission Standards for Wood Furniture
Manufacturing Operations.
KK National Emission Standards for Printing and
Publishing.
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[FR Doc. 96-20591 Filed 8-13-96; 8:45 am]
BILLING CODE 6560-50-P
