[Federal Register Volume 61, Number 220 (Wednesday, November 13, 1996)]
[Rules and Regulations]
[Pages 58284-58294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28432]
[[Page 58283]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 69
Final Conditional Special Exemption From Clean Air Act Requirements for
the Territory of American Samoa, the Commonwealth of the Northern
Mariana Islands, and the Territory of Guam; Final Rule
Federal Register / Vol. 61, No. 220 / Wednesday, November 13, 1996 /
Rules and Regulations
[[Page 58284]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 69
[AD-FRL-5645-1]
Final Conditional Special Exemption From Requirements of the
Clean Air Act for the Territory of American Samoa, the Commonwealth of
the Northern Mariana Islands, and the Territory of Guam
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is promulgating a direct final rule conditionally
exempting the Territory of American Samoa (American Samoa), the
Commonwealth of the Northern Mariana Islands (CNMI), and the Territory
of Guam (Guam), as well as certain owners and operators of sources in
American Samoa, CNMI and Guam from the requirements of title V of the
Clean Air Act (Act). EPA is revising its September 13, 1995 proposed
rule with respect to Guam. In the proposed action, EPA granted American
Samoa and CNMI, as well as owners and operators of certain sources
within those territories, a conditional exemption from title V
requirements. In the proposal, EPA also granted Guam an extension of
time in which to adopt a title V permit program and owners or operators
of certain sources an extension of time in which to obtain title V
permits. EPA has revised the proposal and today is promulgating a
direct final rule that maintains the conditional exemptions granted to
American Samoa and CNMI and also conditionally exempts Guam from title
V of the Clean Air Act. EPA is granting these conditional exemptions
under the authority of section 325 of the Act.
DATES: The direct final rule for American Samoa, CNMI, and Guam is
effective on January 13, 1997 unless adverse or critical comments are
received by December 13, 1996. If the effective date is delayed, EPA
will publish a timely notice in the Federal Register.
ADDRESSES: Copies of the petitions, the response to comments document,
and other supporting information used in developing the final special
exemption are available for inspection during normal business hours at
the following location: Office of Pacific Islands and Native American
Programs, US EPA-Region IX, 75 Hawthorne Street, San Francisco,
California 94105.
FOR FURTHER INFORMATION CONTACT: Norm Lovelace (telephone 415/744-1599,
fax 415/744-1604), Chief, Office of Pacific Islands and Native American
Programs, or Sara Bartholomew (telephone 415/744-1250, fax 415/744-
1076), Operating Permits Section, Air and Toxics Division, at the EPA-
Region IX address listed above.
I. Background
Section 325(a) of the Act authorizes the Administrator of EPA, upon
petition by the Governor, to exempt any person or source or class of
persons in Guam, American Samoa, and CNMI from any requirement of the
Act except for requirements of Section 110 and Part D of subchapter I
of the Act (where necessary to attain and maintain the National Ambient
Air Quality Standards (NAAQS), and Section 112. Such exemption may be
granted if the Administrator finds that compliance with such
requirement is not feasible or is unreasonable due to unique
geographical, meteorological, or economic factors of such territory, or
such other local factors as the Administrator deems significant.
The Governors of American Samoa, CNMI, and Guam each submitted a
petition pursuant to section 325(a) of the Act for an exemption from
title V of the Act. Title V requires states, including American Samoa,
CNMI, and Guam, to adopt and submit to EPA a title V operating permit
program for major sources and certain other stationary sources. If any
state does not adopt an operating permit program, title V requires EPA
to apply certain sanctions within that area and to promulgate,
administer, and enforce a federal operating permit program for such
area. EPA proposed regulations to implement a federal operating permit
program on April 27, 1995 (60 FR 20804) and promulgated the final rule
on July 1, 1996, at 40 CFR part 71 (61 FR 34202) (part 71). Title V
also requires that sources located in states that do not adopt a title
V permitting program obtain a federal operating permit from the EPA.
On September 13, 1995, EPA issued a proposed rule (60 FR 47515)
(the proposal) in response to petitions from the Governors of American
Samoa, Guam and CNMI. In the proposal, EPA granted the government of
Guam a three-year extension of the deadlines for submitting a title V
program and also proposed granting certain sources on Guam a similar
three-year extension of time in which to obtain title V permits. After
the proposal, Guam submitted comments requesting an exemption and
committed to achieving several of the goals of title V by developing an
alternate operating permit program. EPA is now granting the government
of Guam an exemption from the requirement to adopt a title V program on
the condition that Guam adopt and implement a local alternate operating
permit program.
In the proposal, EPA also proposed granting American Samoa and CNMI
exemptions from the requirement to implement a title V permit program
and proposed granting owners or operators of certain sources subject to
title V a similar exemption from the requirement to apply for a title V
permit. Today's direct final rule exempts both American Samoa and CNMI
from the requirement to adopt a title V program on the condition that
American Samoa and CNMI adopt and implement programs to permit
stationary sources and programs to protect the NAAQS. The programs to
protect the NAAQS are described in the proposal and the petitions.
EPA is also granting owners or operators of certain sources on
American Samoa, CNMI, and Guam a conditional exemption from the
requirement to apply for a federal title V operating permit under part
71. This rulemaking does not waive part 71 permitting requirements for
owners or operators of solid waste incinerators required to obtain a
title V operating permit under section 129(e) of the Act or of major
sources under Section 112 of the Act required to obtain title V
permits. This rulemaking also does not waive or exempt the governments
of Guam, American Samoa, or CNMI, or owners or operators of sources
located in these territories, from complying with all other applicable
Clean Air Act provisions.
EPA is promulgating this action as a direct final rule because the
Agency views this as a noncontroversial action and anticipates no
adverse comments. In fact, the public comments received to date support
granting an exemption from title V requirements. In the Proposed Rules
Section of this Federal Register, however, EPA has also published a
proposal that allows the public 30 days to comment on the direct final
rule for American Samoa, CNMI, and Guam. If adverse comments are
received during the comment period, EPA will publish a subsequent
document in the Federal Register before the effective date of the
exemption and will withdraw the direct final rule for any territory for
which adverse comments are received. All public comments received will
then be addressed by the Agency in a subsequent final rule based on
this action serving as a proposed rule. The
[[Page 58285]]
EPA will not institute a second comment period on this action. Any
parties interested in commenting on this action should do so at this
time. If no such comments are received, the public is advised that this
action will be effective on January 13, 1997.
II. Final Action and Implications
A. Conditional Approval of Guam's Exemption Request
1. Guam's Commitment Letter
The Administrator of the Guam Environmental Protection Agency
(GEPA) sent a letter to EPA on December 18, 1995. The GEPA
Administrator committed to develop and implement an alternate air
operating permit program that addresses many of the elements of a title
V program in exchange for an exemption from title V. GEPA's commitment
letter states that Guam would develop an alternate operating permit
program that would: (1) permit all major sources; (2) incorporate all
applicable federal requirements in permit conditions; (3) incorporate
monitoring, recordkeeping and reporting requirements in permit
conditions; (4) allow for public review and comment; (5) enhance
enforcement authorities, including civil and criminal penalties; (6)
identify the resources necessary to maintain an alternate program; (7)
permit existing major sources within three years; (8) conduct regular
inspections of permitted sources; and (9) coordinate the local program
with EPA air programs.
EPA continues to believe that implementation of title V would
enhance air quality by ensuring that a comprehensive and effective
permitting program is implemented. However, in light of GEPA's new
commitment to develop an alternate operating permit program that
encourages compliance and allows public participation, EPA is allowing
Guam the opportunity to demonstrate that the proposed alternative
operating permit program can meet title V's goals. EPA is promulgating
an exemption for Guam from the requirement to develop a title V
permitting program on the condition that Guam adopt and implement the
alternate operating permit program.
2. Additional Comments
EPA received similar comments from four other commenters supporting
the Governor's petition for an exemption for Guam. Two commenters
objected to EPA's proposed requirement that Guam implement title V
within three years and requested that EPA grant an exemption from the
requirement to develop a title V permit program instead. They commented
that the costs of the title V program would be an economic burden and
would require that GEPA develop additional technical resources. They
also stated that thirty local businesses would be required to pay
$10,000 per year for the program.
EPA believes that the alternate program addresses concerns over the
program's costs by allowing Guam flexibility to develop a less
expensive program based on local priorities. The alternate air
operating permit program requires that Guam improve its air program and
obtain additional technical resources, but allows Guam flexibility to
reduce costs and address local needs. In addition, most of the local
businesses cited in the comments, including several with no emissions,
would not have been required to obtain a title V permit because they
are not major sources.
Two of the commenters also stated that air quality is pristine
because Guam is an isolated island and that title V will not improve
air quality. Guam has a significant number of major sources of criteria
pollutants and hazardous air pollutants. While Guam is unlikely to
suffer from or contribute to regional air pollution problems due to its
isolation, these major sources can contribute to localized air
pollution problems. EPA believes that a comprehensive permitting
program, such as title V, will help ensure that local air quality is
not degraded by improving compliance with applicable Clean Air Act
requirements. However, EPA is granting Guam flexibility to demonstrate
that a local alternate operating permit program would adequately
protect air quality under Guam's unique local circumstances.
Two of the commenters also stated that the title V permit program
is excessively intrusive to Guam's government because it requires that
Guam Power Authority, which is operated by Guam's government, obtain
title V permits and pay title V fees. EPA notes, however, that the
Clean Air Act requires that sources controlled by governments meet the
same air quality standards as other sources. Therefore, sources
controlled by Guam's government or the U.S. government must obtain an
operating permit under the alternate operating permit program.
Please see the response to comments document in the docket for more
details on the comments that were submitted and EPA's responses.
B. Final Conditions for the Alternate Operating Permit Programs for
American Samoa, CNMI, and Guam
The final requirements for each alternate operating permit program
address deficiencies in existing programs and generally reflect
commitments made by the petitioners. The conditions for Guam's
operating permit program are similar to the conditions set forth in the
proposal for the alternate operating permit programs for American Samoa
and CNMI. American Samoa and CNMI will also implement programs to
monitor compliance with the NAAQS and reduce emissions as necessary.
Guam is not required to implement new programs to protect ambient air
quality standards if granted a title V exemption, because a previous
waiver for Guam (see 40 CFR 69.11) imposed similar requirements. The
final conditions also include express terms clarifying that the
alternate program must require compliance certifications, include a
system of regular inspections, and provide that fees collected under
the program are not used for other purposes. The provisions clarify
that the permits must be renewed periodically. In addition, the final
rule explicitly sets forth EPA's opportunity to review permits, which
was previously included in the proposed conditions by reference to
EPA's general June 28, 1989 permit program guidelines. In order to
address EPA's concern that all owner or operators of sources subject to
title V permitting requirements eventually obtain an operating permit,
the exemptions for each territory provide instances in which the
exemption will expire by a certain date. First, the exemption will
expire two (2) years after the effective date of this rule if a
territory has not submitted an alternate operating permit program to
EPA by that time. Second, the exemption for owners or operators of
sources subject to title V requirements will expire six (6) years after
the effective date of this rule for any source subject to title V
permitting requirements that has not obtained a permit under an EPA
approved alternate permit program. If the exemption expires, the
requirements of part 71 apply. The exemptions for each territory also
include conditions when EPA will revoke the exemption in its entirety
or on a source specific basis. The exemptions for American Samoa and
CNMI have been revised to include these clarifications and additions.
Without these ``checks'' to ensure that sources will eventually be
permitted through an adequate air operating permit program, EPA does
not believe
[[Page 58286]]
that it could allow the exemption from the title V requirements that it
is granting today.
1. Inspections
Guam's conditional exemption requires that Guam implement a system
of regular inspections of permitted sources and a system to identify
any unpermitted major sources. 40 CFR Part 70 requires that states
adequately inspect and monitor sources (70.10(c)(iii)), and EPA
believes that the inspections required under title V are also essential
for the success of the alternate operating permit programs. Guam does
not currently have a program for routinely inspecting air pollution
sources, but GEPA committed to implement a system of regular
inspections as part of the alternate operating permit program in its
December 18, 1995 letter. EPA understands this commitment to mean that
Guam will provide adequate inspector staff and training and develop
appropriate internal procedures to inspect all permitted sources. EPA
also expects that Guam will develop appropriate guidelines for
responding to violations that are discovered. EPA will assist Guam by
providing guidance and manuals for inspecting permitted sources.
EPA is modifying the conditions set forth in the proposal for
American Samoa and CNMI to explicitly require that these territories
also implement a system of regular inspections. EPA believes that
inspections will be equally important for these air quality programs,
and the proposal for American Samoa and CNMI implicitly required
inspections and appropriate responses to violations to ensure
compliance with all applicable requirements. After considering Guam's
comments and the need for inspections on Guam, EPA has decided to
include this requirement as an explicit provision of each waiver.
2. Compliance Certifications
EPA is requiring that Guam's alternate operating permit program
require sources to submit compliance certifications and compliance
plans to address noncompliance. The program shall also require that
sources submit, as part of the compliance plan, a schedule to
expeditiously remedy any noncompliance or achieve compliance with
promulgated regulations that have a future compliance date. The
Governor of Guam and R.W. Beck stated that the compliance benefits of
title V will be achieved without implementing the compliance
requirements of title V. They cited an environmental audit conducted by
the Guam Power Authority (GPA) after an EPA enforcement action and
claimed that ``[t]here is no environmental benefit to be gained from a
repeat of the same exercise.''
EPA believes that a one-time confidential audit cannot achieve the
same compliance benefits as a comprehensive and ongoing permitting
program like title V. Title V improves air quality by requiring that
sources identify their emissions, all applicable requirements, and
their compliance status with each such requirement. Furthermore, permit
holders agree to remedy any noncompliance through a compliance
schedule, continue to meet applicable Clean Air Act obligations in the
future, and inform the public of their compliance status. (40 CFR
70.5(c)(8) and (9), 70.5(d), and 70.6(c)). State implementation of
title V programs has already created numerous examples of the program's
value in identifying ongoing compliance problems and prompting action
to resolve these problems. EPA is clarifying that the alternate local
programs must require that sources submit initial compliance
certifications and plans with permit applications and regular
compliance certifications at least annually thereafter to provide air
quality benefits and protect the public's right to know of any Clean
Air Act violations.
EPA is modifying the conditions set forth in the proposal for
American Samoa and CNMI to explicitly require compliance
certifications, plans, and schedules for the same reasons. The proposal
required that permits be enforceable and that they provide for
monitoring, recordkeeping, and reporting that would assure compliance
with applicable requirements. EPA believes that the conditions set
forth in the proposal would require that sources report and correct
violations to assure compliance with applicable requirements. However,
Guam's comment shows that explicit guidance is necessary to clarify
this requirement and ensure that compliance certifications, plans, and
schedules are submitted and that violations are corrected. EPA will
provide examples of approved compliance certifications so that the
petitioners may use them as models for the alternate operating permit
programs.
3. Resources
EPA is requiring that the petitioners develop appropriate
mechanisms to provide adequate funding for the local alternate air
permit programs. Most states have created a special fund to ensure that
title V operating permit programs are adequately funded and that permit
program funding is used solely for the permit program. While the
alternate programs will impose lower costs than title V programs,
adequate funding will still be necessary to develop and implement the
alternate programs. The alternate operating permit programs and the
NAAQS programs for American Samoa and CNMI must also ensure that
sufficient ongoing funding will be provided and not diverted from the
program. These safeguards are necessary to ensure that funds committed
to the permit program and used as the basis for EPA approval will be
used to support the air program.
4. EPA Review and Objection
EPA is replacing the review requirements that were included in the
proposal by reference to June 28, 1989 guidance (see 54 FR 27282) with
explicit provisions that allow EPA the opportunity to comment on and
object to permits that do not conform to the alternate operating permit
program requirements. EPA will object to draft permits that are not
consistent with the approved alternate operating permit program and the
40 CFR part 69 exemption conditions, including permits that do not
contain the correct applicable requirements and emission limits or are
not issued through the correct procedures. If EPA objects to a permit,
the permit must be revised to address EPA's concerns prior to issuance
or it will not be considered a valid federally enforceable permit that
complies with the conditions of the exemption and an alternate
operating permit program approved by EPA. In such a situation, the
source must obtain a permit that resolves EPA's objections or the
source and the permitting authority (Guam, CNMI or American Samoa) will
no longer meet the conditions of the exemption with respect to that
permit. If EPA objects to a permit, EPA will notify the permitting
authority of its objections and send a copy to the permit applicant.
The permitting authority will have 180 days to work with EPA to issue a
revised permit that resolves EPA's objections. If the territory does
not issue a permit that resolves EPA's objections within 180 days, the
exemption will be revoked for that source and the source will be
subject to the federal operating permit requirements of part 71.
EPA believes that this oversight role will lead to the issuance of
permits that both EPA and the permitting authority agree comply with
the exemption, the approved alternate operating permit program and all
applicable requirements. The petitioners all stated
[[Page 58287]]
that they currently lack the technical resources to issue comprehensive
operating permits, and EPA oversight will help them implement the
alternate operating permit program. In addition, federal review will
help prevent any perception of bias when government power plants are
permitted by essentially the same organization that operates them.
Therefore, EPA oversight will assist the implementation of the
alternate permitting programs. Finally, EPA believes that oversight
during the permit process will reduce subsequent disputes between EPA,
sources, and each territory over permit terms and conditions.
Therefore, EPA is including a condition in the exemption that EPA will
have a review period in which to object to permits that EPA believes do
not comply with the alternate program.
5. Renewals and Reopening for Cause
EPA is requiring each territory to include a provision in the
alternate operating permit program for permit renewal within five years
of issuance. Regular renewals will be necessary to incorporate any new
or revised requirements, add or remove compliance schedules, and keep
permits current. The petitioners may choose to issue permits for any
fixed duration that does not exceed five years.
EPA is also requiring that each alternate program allows each
petitioner to reopen permits for cause. For instance, an application
may contain incorrect information or a permit may contain an incorrect
applicability determination or other material mistake. In addition, a
new or revised applicable requirement may be substantially inconsistent
with a permit that would not otherwise be updated for up to five years.
Petitioners should reopen permits to incorporate new requirements in
such situations if, in their estimation, there is a substantial amount
of time remaining in the permit term. Therefore, EPA is requiring that
each territory and EPA have authority to reopen permits that are not
consistent with the Act. The program must provide for notice to the
permittee and the public when a permit is reopened in this manner.
Consistent with the requirements for EPA objection discussed above, if
EPA determines that cause exists for reopening a permit issued to a
source (i.e. the permit is inconsistent with the applicable
requirements and the terms of this exemption), and the permitting
agency does not issue a new permit that corrects the deficiency within
180 days of receiving EPA's notice, EPA will revoke the exemption and
issue a permit under part 71. EPA is basing the 180 day deadline on the
longest period allowed under section 40 CFR 70.7, which it finds is a
reasonable deadline for issuing corrected permits under the alternate
operating permit programs.
6. Revocation, Expiration or Modification of Exemption
This rulemaking establishes the conditions for which the exemption
for Guam, American Samoa, or CNMI will expire or will be revoked or
modified, and explains the appropriate administrative mechanism. First,
the exemption for any territory will expire two years after the
effective date of this rule without further rulemaking unless the
territory submits an alternate operating permit program by the date
specified in the rule. The program should substantively address each
requirement of the exemption. If a program is not submitted by the
deadlines set forth in this rule, part 71 will become effective for the
territory on that date. As set forth in Section E, below, American
Samoa and CNMI are required by this rule to conduct modeling and to
submit any State Implementation Plan (SIP) revision necessary to
address compliance with the NAAQS. For American Samoa, the exemption
will also expire if American Samoa fails to submit air quality modeling
and supporting data within two years of the effective date of this
rule. For CNMI the exemption will expire if CNMI fails to submit a SIP
to assure compliance with the NAAQS for SO2, unless CNMI
demonstrates within one year through additional modeling and site
specific meteorological data that the NAAQS for SO2 is protected.
If an alternate program is submitted by the deadline, the exemption
will continue while EPA reviews the program to determine if it
qualifies for approval. EPA will approve the program and provide notice
of the approval in the Federal Register if the program meets the
conditions of the exemption and will disapprove the program and revoke
the exemption by rulemaking if it does not. In addition, EPA may revoke
or modify the conditional exemption through rulemaking if the
permitting authority does not adequately implement and enforce the
alternate program.
EPA is including additional procedures for expiration or revocation
of the exemption in this rulemaking to assure that all sources will
eventually obtain a valid federally enforceable operating permit under
either an approved alternate operating permit program or part 71.
First, if the local agency fails to issue an operating permit under an
approved alternate program to a source within six years of the
effective date of this rulemaking, the exemption will expire for any
source without a permit and that source will become subject to the part
71 federal operating permit requirements. The six year date is based on
similar deadlines set forth in Title V of the Clean Air Act for
submittal and approval of the operating permit program and issuance of
permits to all sources. These expiration and revocation provisions will
not apply to any source that has obtained an operating permit through
an alternate operating permit program approved by EPA within the six
year deadline. This requirement provides a backstop for assuring that
all subject sources will have a means for applying for an operating
permit no later than six years from today.
These new termination/revocation provisions are necessary to fill
gaps that existed in the proposal. With these procedures EPA will
ensure that all owners or operators of subject sources that would have
been required to obtain a Title V permit will eventually be permitted
under an approved program. These provisions will also ensure that all
owners and operators of subject sources will apply for an operating
permit by a date certain so that no source goes unpermitted.
EPA may determine in the future that the implementation of a title
V permitting program or the modification of the exemption is necessary
to ensure compliance with applicable Clean Air Act requirements and to
protect air quality. If EPA determines that revocation or modification
of the exemption is necessary due to changed circumstances or other
causes, EPA will conduct a rulemaking to revoke or modify the
exemption. In this case the exemption and its conditions will remain
effective until EPA has completed its rulemaking.
7. Federal Enforceability
In order for EPA to authorize an exemption for each territory as
set forth in this rule, EPA must ensure that permits issued under the
alternate programs required by this rule are federally enforceable.
This is consistent with the title V permit program and is an important
component to assure that each territory attains and/or maintains
compliance with the NAAQS. Therefore, EPA is requiring, as a condition
of the exemptions authorized in this rule, that each territory submit a
revision to its SIP to make permits issued under an approved alternate
program federally enforceable. The SIP revision should provide that a
person shall not violate any permit condition or term in a permit that
has been issued
[[Page 58288]]
under an alternate operating permit program approved by EPA.
C. Implementation of Title V for Hazardous Air Pollutant Sources and
Solid Waste Incineration Units
This action does not waive any title V permitting requirement that
applies to major sources of hazardous air pollutants (HAPs) in American
Samoa, CNMI, or Guam and is conditioned to address special concerns
presented by the local impact of HAPs. Any source that would be subject
to title V because it is a major source under Section 112 of the Clean
Air Act or a solid waste incinerator regulated under section 129 of the
Clean Air Act must obtain a title V permit under part 71.
Any nonmajor source of hazardous air pollutants that is subject to
a standard or other requirement under Section 112 may be subject to the
requirement to obtain a title V permit. Currently, the requirement to
obtain a title V permit has been deferred for such sources, as noted in
each applicable standard 1. If at any time in the future EPA
requires these nonmajor sources of HAPs to obtain a title V permit, it
is EPA's intent that these nonmajor sources be permitted under the
local alternate permitting program authorized by today's rule. Sources
subject to Section 112 standards under 40 CFR part 63 should refer to
the applicable subpart of part 63 for the dates required for submission
of permit applications.
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\1\ On June 3, 1996, EPA published in the Federal Register (61
FR 27785) an amendment to certain hazardous air pollutant standards
for Chromium Electroplating and Chromium Anodizing Tanks (subpart
N); Ethylene Oxide Commercial Sterilization and Fumigation
Operations (subpart O); Perchloroethylene Dry Cleaning Facilities
(subpart M); and Secondary Lead Smelting (subpart X). In that
action, EPA amended the requirement in each of these rules that
required nonmajor sources (emitting or having the potential to emit
less than 10 tons per year of any hazardous air pollutant or less
than 25 tons per year of any combination of hazardous air
pollutants) to obtain Title V permits. For certain of these nonmajor
sources, the rules have been amended to allow the permitting
authority the option of deferring the requirement to obtain a title
V permit for 5 years. Certain nonmajor sources subject to subpart N
of part 63 (Chromium Anodizing Tanks) that are not located at major
sources are permanently exempted from the requirement to obtain a
title V permit consistent with 40 CFR Sec. 63.340(e)(1) (61 FR
27787, June 3, 1996). Any nonmajor batch cold solvent cleaning
machines subject to subpart T of part 63 (Halogenated Solvent
Cleaners) that are not located at major sources are permanently
exempted from the requirement to obtain a title V permit consistent
with 40 CFR Sec. 63.468(j) (59 FR 61801, December 2, 1994). For any
other nonmajor solvent cleaning machines subject to subpart T of
part 63 (Halogenated Solvent Cleaners) that are not located at major
sources, the rules have been amended to allow the permitting
authority the option of deferring the requirement to obtain a title
V permit for 5 years (59 FR 61801, December 2, 1994).
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1. Title V Permits
As noted earlier, title V requires that EPA implement a federal
operating permitting program in any area that does not have an approved
title V program (Section 502(e) of the Act, 42 U.S.C. 7661(e)). The
part 71 program at 40 CFR part 71 (61 FR 34202) became effective on
July 31, 1996. EPA's proposal of September 13, 1995 required that the
existing major sources of HAPs, and owners and operators of any new
source on Guam subject to title V because it is a major source under
section 112, or a solid waste incinerator subject to section 129,
obtain title V permits under part 71. In the proposal EPA requested
comments on whether any existing municipal waste incinerators or major
HAP sources on American Samoa and CNMI should be required to obtain
title V permits under part 71. No comments were received. EPA has
decided that the exemptions for Guam, American Samoa, and CNMI
authorized in today's action do not apply to these solid waste
incinerators and major HAP sources and that owners or operators of
these sources must obtain part 71 permits. This final rule will ensure
that section 112 standards that apply to major sources of HAPs are
appropriately implemented through the title V operating permit program.
Section 112 of the Clean Air Act recognizes that HAP sources can have a
significant impact on human health regardless of geographic location,
and section 325 of the Act explicitly prohibits waivers from section
112 requirements. Because sections 112 and 129 generally rely on an
effective title V permitting program to ensure that the standards are
implemented correctly and HAP reductions are achieved, EPA believes
that sources subject to section 129 and major sources of HAPs must have
title V permits. Several sources on Guam currently subject to Section
112 standards did not meet the deadline for submitting initial
applicability notifications to EPA. EPA believes that expeditious
compliance with title V will resolve any potential applicability
questions or compliance problems for title V sources and that waiving
title V for these sources could result in confusion and greater
emissions of HAPs. EPA believes that regulating these sources under
title V will not impose an undue burden, because, as noted above, EPA
has deferred nonmajor HAP sources from the requirement to obtain a
title V permit.
EPA will be the permitting authority and will issue title V permits
to these sources under part 71, as each of the petitioners has
demonstrated that it currently lacks the technical resources to issue a
title V permit. EPA published a Federal Register Notice on July 31,
1996 (61 FR 39877, July 31, 1996), listing the state and local
jurisdictions where a Federal Operating Permits Program became
effective on that day. This notice included Guam, American Samoa and
CNMI. Applications for major sources of HAPs and solid waste
incinerators under part 71 are due to be submitted to the permitting
authority by July 31, 1997, except for those major perchloroethylene
dry cleaning facilities, which are due by April 1, 1997.
2. Case-By-Case Maximum Achievable Control Technology (MACT)
Determinations
Section 112 MACT requirements for case-by-case MACT determinations
apply to major sources in certain situations where EPA has not
promulgated an applicable MACT standard. Section 112 (j) requires that
where EPA has missed a deadline for promulgating a section 112(d)
standard then any major source of HAPs in the applicable source
category must submit an application for a case-by-case MACT
determination within 18 months of the missed deadline. Section 112(g)
sets forth certain case-by-case MACT requirements for newly constructed
or reconstructed sources. These requirements apply to all major sources
of HAPs in American Samoa, CNMI, and Guam after the effective date of
part 71.
The regulations implementing 112(j) at 40 CFR part 63, subpart B,
apply as of the effective date of part 71 (July 31, 1996), but the
petitioners' source inventories indicate that there are no major
sources that are subject to 112(j) at this time. Should any source be
subject to this requirement, EPA will use part 71 permit applications
as the compliance mechanism for implementing these case-by-case MACT
approvals, as the petitioners have demonstrated that they lack the
technical resources to conduct such a determination.
EPA recently reopened the comment period and published a notice of
availability of a draft rule implementing Section 112(g) (61 FR 13125,
March 26, 1996). After the 112(g) regulation becomes effective, any
newly constructed or reconstructed major source of HAPs in each
territory must comply with a MACT level of control. This will be
determined on a case-by-case basis when no applicable standard has been
promulgated by EPA. Any new source subject to section 112(g) must apply
for case-by-case MACT approval after the effective date of the
regulation.
[[Page 58289]]
Other section 112 requirements, such as 112(d) MACT standards,
automatically apply to all HAP sources in American Samoa, CNMI, and
Guam. This exemption does not waive any Section 112 requirements
applicable to any sources; this rule only exempts the nonmajor sources
from the requirement to obtain a part 71 permit.
EPA's proposal required that American Samoa and CNMI develop an
implementation agreement with EPA regarding hazardous air pollutant
sources, but EPA believes that the EPA's implementation of part 71
(which includes section 129(e) solid waste incinerators and major HAP
sources) renders this agreement unnecessary as a waiver condition.
D. Effective Date of Title V Approval for Other Programs
In addition to sections 112(g) and 112(j), the implementation of
other regulations may depend on the approval date of a title V
permitting program. For instance, EPA has considered implementing 40
CFR part 64 compliance assurance monitoring through title V permitting
programs, and other future regulations may also be implemented or
triggered by the effective date of an approved title V program. In this
case, for sources that are not required to obtain a part 71 permit
under today's rule, the local alternate operating permit programs,
after approval by EPA, will implement all applicable requirements,
including any part 64 monitoring rule. This rule grants a conditional
exemption to owners and operators only from the requirement to obtain a
title V permit and to each territory from the requirement to adopt a
title V program. All sources on American Samoa, CNMI, and Guam must
comply with all other applicable Clean Air Act provisions. For any
requirement other than the case-by-case MACT requirement addressed
above that is implemented or triggered by an approved title V program,
the implementation or trigger date is July 31, 1996, the date
individual sources became subject to part 71.
E. Air Quality Modeling and SIP Submittals
In the proposal, EPA discussed potential problems with air quality
on American Samoa and CNMI and required these territories to conduct
modeling and make any SIP revision necessary to ensure compliance with
the NAAQS. EPA is retaining the requirements for American Samoa and
CNMI set forth in the proposal for air quality modeling and SIP
submittals.
III. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
B. Regulatory Flexibility Act
This action under section 325 of the Act does not impose new
requirements, but allows local agencies flexibility to reduce the
impacts of title V on small entities. Because this action does not
impose any new requirements, and merely approves requests for
additional flexibility to meet existing requirements, it does not have
a significant impact on a substantial number of small entities.
C. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995,
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 this exemption 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 exemptions requested to
reduce the cost of implementing the Clean Air Act. Accordingly, this
action will reduce costs to state governments and the private sector.
D. Small Business Regulatory Enforcement Fairness Act
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
Authority: 42 U.S.C. 7401-7671q.
List of Subjects in 40 CFR Part 69
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous air pollutants, Intergovernmental
relations, Nitrogen oxides, Operating permits, Reporting and
recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
Dated: October 28, 1996.
Carol M. Browner,
Administrator.
40 CFR part 69 is amended as follows:
PART 69--[AMENDED]
1. The authority citation for part 69 continues to read as follows:
Authority: Sec. 325, Clean Air Act, as amended (42 U.S.C. 7625-
1).
Subpart A--Guam
2. Subpart A is amended by adding Sec. 69.13 to read as follows:
Sec. 69.13 Title V conditional exemption.
(a) Conditional exemption. In response to a petition submitted by
the Governor of Guam and pursuant to section 325(a) of the Clean Air
Act (Act), the Administrator of the United States EPA (EPA) grants the
following conditional exemptions:
(1) Guam is exempted from the requirement to develop, submit for
approval, and implement an operating permit program under title V of
the Clean Air Act on the condition that Guam meets the requirements of
paragraph (b) of this section and subject to the provisions of
paragraphs (c) through (e) of this section.
(2) Except for sources listed under paragraph (a)(4) of this
section, owners or operators of sources located in Guam subject to the
operating permit requirements of title V of the Clean Air Act are
exempt from the requirement to apply for and obtain a title V operating
permit, on the condition that the owner or operator of each such source
must apply for and obtain an operating permit under an EPA approved
alternate program that meets the requirements of paragraph (b) of this
section and subject to the provisions of paragraphs (c) through (e) of
this section. The owner or operator of each such source shall apply for
and obtain a permit under the alternate operating permit program by the
deadlines set forth in the approved program, but in any event shall
obtain a permit no later than March 14, 2003. If the owner or operator
of any source has not obtained an operating permit under an alternate
operating program approved by EPA for Guam by March 14, 2003, the
exemption for such source
[[Page 58290]]
shall expire and the owner or operator of such source shall become
subject to the permitting requirements of 40 CFR part 71 on that date,
consistent with paragraph (d)(4) of this section.
(3) Upon EPA approval of an alternate operating permit program
adopted by Guam in accordance with this Sec. 69.13, a person shall not
violate any permit condition or term in a permit that has been issued
under such alternate permit program.
(4) This exemption does not apply to owners or operators of major
sources of hazardous air pollutants (HAPs) as defined under section 112
of the Clean Air Act or to owners or operators of solid waste
incinerators subject to the title V requirements of section 129(e) of
the Act. Owners or operators of major sources of HAPs or solid waste
incinerators shall be subject to the requirements of 40 CFR part 71 and
shall apply for and obtain a part 71 permit by the deadlines specified
in 40 CFR part 71. Any owner or operator of a major source of HAPs
subject to 40 CFR part 63, subpart B, shall submit a timely part 71
permit application as required by 40 CFR part 71 and 40 CFR part 63,
subpart B, requesting a case-by-case section 112(g) or 112(j) Maximum
Achievable Control Technology (MACT) determination.
(b) Requirements for the alternate operating program. Guam shall
develop and submit an alternate operating permit program (the program)
to EPA for approval. Upon approval by EPA, Guam shall implement the
program. The program, including the necessary statutory and regulatory
authority, must be submitted by March 15, 1999 for approval. The
submittal shall include the following elements:
(1) The program must contain regulations that ensure that:
(i) The permits shall include emission limits and standards, and
other terms or conditions necessary to ensure compliance with all
applicable federal requirements, as defined under 40 CFR 70.2.
(ii) The limitations, controls, and requirements in the permits
shall be permanent, quantifiable, and otherwise enforceable as a
practical matter.
(iii) Permits shall contain monitoring, recordkeeping and reporting
requirements sufficient to ensure compliance with applicable federal
requirements during the reporting period.
(iv) The program shall require that the owner or operator of each
source submit permit applications with compliance certifications
describing the source's compliance status with all applicable
requirements. The program shall also provide that each permit contain a
requirement that the owner or operator of a source submit annual
compliance certifications. The compliance certification shall contain a
compliance plan, and shall contain a schedule for expeditiously
achieving compliance if the source is not in compliance with all
applicable requirements. The program must provide that approval of a
permit with a compliance plan and schedule does not sanction
noncompliance.
(2) The program shall provide for the collection of fees from
permitted sources or other revenues in an amount that will pay for the
cost of operation of such a program and ensure that these funds are
used solely to support the program.
(3) The program shall provide for public notice and a public
comment period of at least 30 days for each permit, significant permit
modification, and permit renewal, and shall include submittal to EPA of
each permit, significant permit modification, and permit renewal.
(4) The program shall provide EPA at least 45 days from receipt of
a permit, modification, or renewal for EPA review and objection prior
to issuance. The program shall provide that if EPA objects to a permit
sent to EPA for review, Guam cannot issue such permit until the permit
is revised in a manner that resolves EPA's objections. The program
shall provide that Guam will have no more than 180 days to resolve
EPA's objections and that if the objections are not resolved within
that time period, EPA shall issue the permit under 40 CFR part 71.
(5) The program shall provide that all documents other than
confidential business information will be made available to the public.
(6) The program shall provide Guam with the authority to enforce
permits, including the authority to assess civil and criminal penalties
up to $10,000 per day per violation and to enjoin activities that are
in violation of the permit, the program, or the Act without first
revoking the permit.
(7) The program shall require that owners or operators of nonmajor
sources of hazardous air pollutants that are required to obtain title V
permits, and owners or operators of major sources of all other air
pollutants as defined at 40 CFR 70.2 that are exempted from 40 CFR part
71 under paragraph (a) of this section, obtain an operating permit
under the approved program. The program shall include a schedule for
issuing permits to all subject sources within three years of EPA
approval of the program.
(8) The program shall include a system of regular inspections of
permitted sources, a system to identify any unpermitted major sources,
and guidelines for appropriate responses to violations.
(9) The program shall provide for the issuance of permits with a
fixed term that shall not exceed five years.
(10) The program shall allow Guam or the EPA to reopen a permit for
cause. The program shall provide that if EPA provides Guam with written
notice that a permit must be reopened for cause, Guam shall issue a
revised permit within 180 days (including public notice and comment)
that sufficiently addresses EPA's concerns. The program shall provide
that if Guam fails to issue a permit that resolves EPA's concerns
within 180 days, then EPA will terminate, modify, or revoke and reissue
the permit under part 71 after providing the permittee and the public
with notice and opportunity for comment.
(c) State Implementation Plan (SIP) submittal. In conjunction with
the submittal of the alternative operating permit program, Guam shall,
no later than March 15, 1999 submit a revision to its SIP that provides
that a person shall not violate a permit condition or term in an
operating permit that has been issued under an EPA approved alternate
operating permit program adopted by Guam pursuant to the exemption
authorized in this Sec. 69.13.
(d) Expiration and revocation of the exemption. This exemption
shall expire or may be revoked under the following circumstances:
(1) If Guam fails to submit an alternate operating permit program
by March 15, 1999, the exemption shall automatically expire with no
further rulemaking and 40 CFR part 71 shall become effective for all
subject sources in Guam on that date.
(2) In the event that EPA disapproves Guam's alternate operating
permit program because the program does not meet the requirements set
forth in paragraph (b) of this section, EPA will revoke the exemption
by rulemaking.
(3) If, by March 14, 2003, the owner or operator of any subject
source has not obtained a federally enforceable operating permit under
an EPA approved program, the exemption shall automatically expire for
such source and such source shall be subject to the permitting
requirements of 40 CFR part 71. Guam will work with EPA to identify
such sources prior to expiration of the exemption under this paragraph
(d).
(4) EPA shall revoke the exemption in its entirety through
rulemaking if Guam does not adequately administer and
[[Page 58291]]
enforce an alternate operating permit program approved by EPA.
(5) EPA shall revoke the exemption by rulemaking with respect to
the owner or operator of any source if, during the 45-day review
period, EPA objects to issuance of a permit and Guam fails to resolve
EPA's objections within 180 days. EPA shall also revoke the exemption
by rulemaking for the owner or operator of any source in the event that
EPA reopens a permit for cause and Guam does not issue a permit that
resolves the concerns as set forth in EPA's notice to reopen within 180
days.
(6) EPA reserves its authority to revoke or modify this exemption
in whole or in part.
(e) Scope of the exemption. This exemption applies solely to the
requirement that an owner or operator obtain an operating permit under
title V of the Clean Air Act and the requirement that Guam implement a
title V permit program. In addition, this exemption does not apply to
owners or operators of sources set forth in paragraph (a)(4) of this
section. Owners and operators of air pollutant sources are required to
comply with all other applicable requirements of the Clean Air Act. For
purposes of complying with any applicable requirement that is triggered
or implemented by the approval of a title V permit program, the
approval date for owners or operators to which this exemption applies
shall be the date that EPA approves the alternate program for each
territory or, for owners or operators of sources that are subject to 40
CFR part 71, the approval date shall be the effective date of 40 CFR
part 71, which is July 31, 1996.
3. Subpart B is amended by revising the subpart heading and adding
Sec. 69.22 to read as follows:
Subpart B--American Samoa
Sec. 69.22 Title V conditional exemption.
(a) Conditional exemption. In response to a petition submitted by
the Governor of American Samoa (American Samoa) and pursuant to section
325(a) of the Clean Air Act (Act), the Administrator of the United
States EPA (EPA) grants the following conditional exemptions:
(1) American Samoa is exempted from the requirement to develop,
submit for approval, and implement an operating permit program under
title V of the Clean Air Act on the condition that American Samoa meets
the requirements of paragraph (b) of this section and subject to the
provisions of paragraphs (c) through (f) of this section.
(2) Except for sources listed under paragraph (a)(4) of this
section, owners or operators of sources located in American Samoa
subject to the operating permit requirements of title V of the Clean
Air Act are exempt from the requirement to apply for and obtain a title
V operating permit, on the condition that the owner or operator of each
such source must apply for and obtain an operating permit under an EPA
approved alternate program that meets the requirements of paragraph (b)
of this section and subject to the provisions of paragraphs (c) through
(f) of this section. The owner or operator of each such source shall
apply for and obtain a permit under the alternate operating permit
program by the deadlines set forth in the approved program, but in any
event shall obtain a permit no later than March 14, 2003. If the owner
or operator of any source has not obtained an operating permit under an
alternate operating program approved by EPA for American Samoa by March
14, 2003, the exemption for such source shall expire and the owner or
operator of such source shall become subject to the permitting
requirements of 40 CFR part 71 on that date, consistent with paragraph
(e)(4) of this section.
(3) Upon EPA approval of an alternate operating permit program
adopted by American Samoa in accordance with this Sec. 69.22, a person
shall not violate any permit condition or term in a permit that has
been issued under such alternate permit program.
(4) This exemption does not apply to owners or operators of major
sources of hazardous air pollutants (HAPs) as defined under section 112
of the Clean Air Act or to owners or operators of solid waste
incinerators subject to the title V requirements of section 129(e) of
the Act. Owners or operators of major sources of HAPs or solid waste
incinerators shall be subject to the requirements of 40 CFR part 71 and
shall apply for and obtain a part 71 permit by the deadlines specified
in 40 CFR part 71. Any owner or operator of a major source of HAPs
subject to 40 CFR part 63, subpart B, shall submit a timely part 71
permit application as required by 40 CFR part 71 and 40 CFR part 63,
subpart B, requesting a case-by-case 112(g) or 112(j) Maximum
Achievable Control Technology (MACT) determination.
(b) Requirements for the alternate operating program. American
Samoa shall develop and submit an alternate operating permit program
(the program) to EPA for approval. Upon approval by EPA, American Samoa
shall implement the program. The program, including the necessary
statutory and regulatory authority, must be submitted by March 15, 1999
for approval. The submittal shall include the following elements:
(1) The program must contain regulations that ensure that:
(i) The permits shall include emission limits and standards, and
other terms or conditions necessary to ensure compliance with all
applicable federal requirements, as defined under 40 CFR 70.2.
(ii) The limitations, controls, and requirements in the permits
shall be permanent, quantifiable, and otherwise enforceable as a
practical matter.
(iii) Permits shall contain monitoring, recordkeeping and reporting
requirements sufficient to ensure compliance with applicable federal
requirements during the reporting period.
(iv) The program shall require that the owner or operator of each
source submit permit applications with compliance certifications
describing the source's compliance status with all applicable
requirements. The program shall also provide that each permit contain a
requirement that the owner or operator of a source submit annual
compliance certifications. The compliance certification shall contain a
compliance plan, and shall contain a schedule for expeditiously
achieving compliance if the source is not in compliance with all
applicable requirements. The program must provide that approval of a
permit with a compliance plan and schedule does not sanction
noncompliance.
(2) The program shall provide for the collection of fees from
permitted sources or other revenues in an amount that will pay for the
cost of operation of such a program and ensure that these funds are
used solely to support the program.
(3) The program shall provide for public notice and a public
comment period of at least 30 days for each permit, significant permit
modification, and permit renewal, and shall include submittal to EPA of
each permit, significant permit modification, and permit renewal.
(4) The program shall provide EPA at least 45 days from receipt of
a permit, modification, or renewal for EPA review and objection prior
to issuance. The program shall provide that if EPA objects to a permit
sent to EPA for review, American Samoa cannot issue such permit until
the permit is revised in a manner that resolves EPA's objections. The
program will provide that American Samoa will have no more than 180
days to resolve EPA's objections and that if the objections are not
resolved within that time period, EPA shall issue the permit under 40
CFR part 71.
[[Page 58292]]
(5) The program shall provide that all documents other than
confidential business information will be made available to the public.
(6) The program shall provide American Samoa with the authority to
enforce permits, including the authority to assess civil and criminal
penalties up to $10,000 per day per violation and to enjoin activities
that are in violation of the permit, the program, or the Act without
first revoking the permit.
(7) The program shall require that owners or operators of nonmajor
sources of hazardous air pollutants that are required to obtain title V
permits, and owners or operators of major sources of all other air
pollutants as defined in 40 CFR 70.2 that are exempted from 40 CFR part
71 under paragraph (a) of this section, obtain an operating permit
under the approved program. The program shall include a schedule for
issuing permits to all subject sources within three years of EPA
approval of the program.
(8) The program shall include a system of regular inspections of
permitted sources, a system to identify any unpermitted major sources,
and guidelines for appropriate responses to violations.
(9) The program shall provide for the issuance of permits with a
fixed term that shall not exceed five years.
(10) The program shall allow American Samoa or the EPA to reopen a
permit for cause. The program shall provide that if EPA provides
American Samoa with written notice that a permit must be reopened for
cause, American Samoa shall issue a revised permit within 180 days
(including public notice and comment) that sufficiently addresses EPA's
concerns. The program shall provide that if American Samoa fails to
issue a permit that resolves EPA's concerns within 180 days, then EPA
will terminate, modify, or revoke and reissue the permit under part 71
after providing the permittee and the public with notice and
opportunity for comment.
(c) Ambient air quality program. American Samoa shall implement the
following program to address the National Ambient Air Quality Standards
(NAAQS) as a condition of the waiver:
(1) American Samoa shall collect complete meteorological data and
complete refined air quality modeling for the Pago Pago Harbor and
submit such data and modeling results to EPA by March 15, 1999.
(2) American Samoa shall address any NAAQS exceedances demonstrated
through the modeling results with revisions to its SIP that shall be
submitted by March 14, 2000. The plan shall ensure compliance with the
NAAQS is achieved by March 14, 2002.
(d) State Implementation Plan (SIP) submittal. In conjunction with
the submittal of the alternative operating permit program, American
Samoa shall, no later than March 15, 1999, submit a revision to its SIP
that provides that a person shall not violate a permit condition or
term in an operating permit that has been issued under an EPA approved
alternate operating permit program adopted by American Samoa pursuant
to the exemption authorized in this Sec. 69.22.
(e) Expiration and revocation of the exemption. This exemption
shall expire or may be revoked under the following circumstances:
(1) If American Samoa fails to submit the required alternate
operating permit program or modeling (and supporting data) by March 15,
1999, the exemption shall automatically expire with no further
rulemaking and 40 CFR part 71 shall become effective for all subject
sources in American Samoa on that date. The exemption will also expire
with no further rulemaking in the event that American Samoa fails to
submit a SIP revision by March 14, 2000, consistent with paragraph
(c)(2) of this section.
(2) In the event that EPA disapproves American Samoa's alternate
operating permit program because the program does not meet the
requirements set forth in paragraph (b) of this section, EPA will
revoke the exemption by rulemaking.
(3) If, by March 14, 2003, the owner or operator of any subject
source has not obtained a federally enforceable operating permit under
an EPA approved program, the exemption shall automatically expire for
such source and such source shall be subject to the permitting
requirements of 40 CFR part 71. American Samoa will work with EPA to
identify such sources prior to expiration of the exemption under this
paragraph (d).
(4) EPA shall revoke the exemption in its entirety through
rulemaking if American Samoa does not adequately administer and enforce
an alternate operating permit program approved by EPA.
(5) EPA shall revoke the exemption by rulemaking with respect to
the owner or operator of any source if, during the 45-day review
period, EPA objects to issuance of a permit and American Samoa fails to
resolve EPA's objections within 180 days. EPA shall also revoke the
exemption by rulemaking for the owner or operator of any source in the
event that EPA reopens a permit for cause and American Samoa does not
issue a permit that resolves the concerns as set forth in EPA's notice
to reopen within 180 days.
(6) EPA reserves its authority to revoke or modify this exemption
in whole or in part.
(f) Scope of the exemption. This exemption applies solely to the
requirement that an owner or operator obtain an operating permit under
title V of the Clean Air Act and the requirement that American Samoa
implement a title V permit program. In addition, this exemption does
not apply to owners or operators of sources set forth in paragraph
(a)(4) of this section. Owners and operators of air pollutant sources
are required to comply with all other applicable requirements of the
Clean Air Act. For purposes of complying with any applicable
requirement that is triggered or implemented by the approval of a title
V permit program, the approval date for owners or operators to which
this exemption applies shall be the date that EPA approves the
alternate program for each territory or, for owners or operators of
sources that are subject to 40 CFR part 71, the approval date shall be
the effective date of 40 CFR part 71, which is July 31, 1996.
4. Subpart C is amended by revising the subpart heading and adding
Sec. 69.32 to read as follows:
Subpart C--Commonwealth of the Northern Mariana Islands
Sec. 69.32 Title V conditional exemption.
(a) Conditional exemption. In response to a petition submitted by
the Governor of The Commonwealth of the Northern Mariana Islands (CNMI)
and pursuant to section 325(a) of the Clean Air Act (Act), the
Administrator of the United States EPA (EPA) grants the following
conditional exemptions:
(1) CNMI is exempted from the requirement to develop, submit for
approval, and implement an operating permit program under title V of
the Clean Air Act on the condition that CNMI meets the requirements of
paragraph (b) of this section and subject to the provisions of
paragraphs (c) through (f) of this section.
(2) Except for sources listed under paragraph (a)(4) of this
section, owners or operators of sources located in CNMI subject to the
operating permit requirements of title V of the Clean Air Act are
exempt from the requirement to apply for and obtain a title V operating
permit, on the condition that the owner or operator of each such source
must apply for and obtain an operating permit under an EPA approved
alternate program that meets the requirements of
[[Page 58293]]
paragraph (b) of this section and subject to the provisions of
paragraphs (c) through (f) of this section. The owner or operator of
each such source shall apply for and obtain a permit under the
alternate operating permit program by the deadlines set forth in the
approved program, but in any event shall obtain a permit no later than
March 14, 2003. If the owner or operator of any source has not obtained
an operating permit under an alternate operating program approved by
EPA for CNMI by March 14, 2003, the exemption for such source shall
expire and the owner or operator of such source shall become subject to
the permitting requirements of 40 CFR part 71 on that date, consistent
with paragraph (e)(3) of this section.
(3) Upon EPA approval of an alternate operating permit program
adopted by CNMI in accordance with this Sec. 69.32, a person shall not
violate any permit condition or term in a permit that has been issued
under such alternate permit program.
(4) This exemption does not apply to owners or operators of major
sources of hazardous air pollutants (HAPs) as defined under section 112
of the Clean Air Act or to owners or operators of solid waste
incinerators subject to the title V requirements of section 129(e) of
the Act. Owners or operators of major sources of HAPs or solid waste
incinerators shall be subject to the requirements of 40 CFR part 71 and
shall apply for and obtain a part 71 permit by the deadlines specified
in 40 CFR part 71. Any owner or operator of a major source of HAPs
subject to 40 CFR part 63, subpart B, shall submit a timely part 71
permit application as required by 40 CFR part 71 and 40 CFR part 63,
subpart B, requesting a case-by-case section 112(g) or 112(j) Maximum
Achievable Control Technology (MACT) determination.
(b) Requirements for the alternate operating program. CNMI shall
develop and submit an alternate operating permit program (the program)
to EPA for approval. Upon approval by EPA, CNMI shall implement the
program. The program, including the necessary statutory and regulatory
authority, must be submitted by March 15, 1999 for approval. The
submittal shall include the following elements:
(1) The program must contain regulations that ensure that:
(i) The permits shall include emission limits and standards, and
other terms or conditions necessary to ensure compliance with all
applicable federal requirements, as defined under 40 CFR 70.2.
(ii) The limitations, controls, and requirements in the permits
shall be permanent, quantifiable, and otherwise enforceable as a
practical matter.
(iii) Permits shall contain monitoring, recordkeeping and reporting
requirements sufficient to ensure compliance with applicable federal
requirements during the reporting period.
(iv) The program shall require that the owner or operator of each
source submit permit applications with compliance certifications
describing the source's compliance status with all applicable
requirements. The program shall also provide that each permit contain a
requirement that the owner or operator of a source submit annual
compliance certifications. The compliance certification shall contain a
compliance plan, and shall contain a schedule for expeditiously
achieving compliance if the source is not in compliance with all
applicable requirements. The program must provide that approval of a
permit with a compliance plan and schedule does not sanction
noncompliance.
(2) The program shall provide for the collection of fees from
permitted sources or other revenues in an amount that will pay for the
cost of operation of such a program and ensure that these funds are
used solely to support the program.
(3) The program shall provide for public notice and a public
comment period of at least 30 days for each permit, significant permit
modification, and permit renewal, and shall include submittal to EPA of
each permit, significant permit modification, and permit renewal.
(4) The program shall provide EPA at least 45 days from receipt of
a permit, modification, or renewal for EPA review and objection prior
to issuance. The program shall provide that if EPA objects to a permit
sent to EPA for review, CNMI cannot issue such permit until the permit
is revised in a manner that resolves EPA's objections. The program will
provide that CNMI will have no more than 180 days to resolve EPA's
objections and that if the objections are not resolved within that time
period, EPA shall issue the permit under 40 CFR part 71.
(5) The program shall provide that all documents other than
confidential business information will be made available to the public.
(6) The program shall provide CNMI with the authority to enforce
permits, including the authority to assess civil and criminal penalties
up to $10,000 per day per violation and to enjoin activities that are
in violation of the permit, the program, or the Act without first
revoking the permit.
(7) The program shall require that owners or operators of nonmajor
sources of hazardous air pollutants that are required to obtain title V
permits, and owners or operators of major sources of all other air
pollutants as defined at 40 CFR 70.2 that are exempted from 40 CFR part
71 under paragraph (a) of this section, obtain an operating permit
under the approved program. The program shall include a schedule for
issuing permits to all subject sources within three years of EPA
approval of the program.
(8) The program shall include a system of regular inspections of
permitted sources, a system to identify any unpermitted major sources,
and guidelines for appropriate responses to violations.
(9) The program shall provide for the issuance of permits with a
fixed term that shall not exceed five years.
(10) The program shall allow CNMI or the EPA to reopen a permit for
cause. The program shall provide that if EPA provides CNMI with written
notice that a permit must be reopened for cause, CNMI shall issue a
revised permit within 180 days (including public notice and comment)
that sufficiently addresses EPA's concerns. The program shall provide
that if CNMI fails to issue a permit that resolves EPA's concerns
within 180 days, then EPA will terminate, modify, or revoke and reissue
the permit under part 71 after providing the permittee and the public
with notice and opportunity for comment.
(c) Ambient air quality program. CNMI shall implement the following
program to protect attainment of National Ambient Air Quality Standards
(NAAQS) as a condition of the waiver:
(1) CNMI shall enforce its January 19, 1987 Air Pollution Control
(APC) regulations, including the requirement that all new or modified
sources comply with the NAAQS and Prevention of Significant
Deterioration (PSD) increments.
(2) CNMI may conduct air emissions modeling, using EPA guidelines,
for power plants located on Saipan to assess EPA's preliminary
determination of non-compliance with the NAAQS for sulfur dioxide
(SO2). CNMI shall complete and submit any additional modeling to
EPA by March 16, 1998 to determine whether existing power plants cause
or contribute to violation of the NAAQS and PSD increments in the APC
regulations and 40 CFR 52.21.
(3) If CNMI's additional modeling, based on EPA guidelines,
predicts exceedances of the NAAQS for SO2, or if CNMI elects to
accept EPA's preliminary determination that the NAAQS for SO2 have
been exceeded,
[[Page 58294]]
CNMI shall submit a revised SIP that ensures compliance with the NAAQS
for SO2. CNMI shall submit the proposed revision to the SIP by
March 16, 1998 or, if CNMI elects to conduct additional modeling, by
March 15, 1999. CNMI shall take appropriate corrective actions through
the SIP to demonstrate compliance with the NAAQS for SO2 by March
14, 2001.
(d) State Implementation Plan (SIP) submittal. In conjunction with
the submittal of the alternative operating permit program, CNMI shall,
no later than March 15, 1999 submit a revision to its SIP that provides
that a person shall not violate a permit condition or term in an
operating permit that has been issued under an EPA approved alternate
operating permit program adopted by CNMI pursuant to the exemption
authorized in this Sec. 69.32.
(e) Expiration and revocation of the exemption. This exemption
shall expire or may be revoked under the following circumstances:
(1) If CNMI fails to submit the required alternate operating permit
program or any required SIP revision by March 15, 1999, the exemption
shall automatically expire with no further rulemaking and 40 CFR part
71 shall become effective for all subject sources in CNMI on that date,
consistent with paragraph (c)(3) of this section.
(2) In the event that EPA disapproves CNMI's alternate operating
permit program because the program does not meet the requirements set
forth in paragraph (b) of this section, EPA will revoke the exemption
by rulemaking.
(3) If, by March 14, 2003, the owner or operator of any subject
source has not obtained a federally enforceable operating permit under
an EPA approved program, the exemption shall automatically expire for
such source and such source shall be subject to the permitting
requirements of 40 CFR part 71. CNMI will work with EPA to identify
such sources prior to expiration of the exemption under this paragraph
(e).
(4) EPA shall revoke the exemption in its entirety through
rulemaking if CNMI does not adequately administer and enforce an
alternate operating permit program approved by EPA.
(5) EPA shall revoke the exemption by rulemaking with respect to
the owner or operator of any source if, during the 45-day review
period, EPA objects to issuance of a permit and CNMI fails to resolve
EPA's objections within 180 days. EPA shall also revoke the exemption
by rulemaking for the owner or operator of any source in the event that
EPA reopens a permit for cause and CNMI does not issue a permit that
resolves the concerns as set forth in EPA's notice to reopen within 180
days.
(6) EPA reserves its authority to revoke or modify this exemption
in whole or in part.
(f) Scope of the exemption. This exemption applies solely to the
requirement that an owner or operator obtain an operating permit under
title V of the Clean Air Act and the requirement that CNMI implement a
title V permit program. In addition, this exemption does not apply to
owners or operators of sources set forth in paragraph (a)(4) of this
section. Owners and operators of air pollutant sources are required to
comply with all other applicable requirements of the Clean Air Act. For
purposes of complying with any applicable requirement that is triggered
or implemented by the approval of a title V permit program, the
approval date for owners or operators to which this exemption applies
shall be the date that EPA approves the alternate program for each
territory or, for owners or operators of sources that are subject to 40
CFR part 71, the approval date shall be the effective date of 40 CFR
part 71, which is July 31, 1996.
[FR Doc. 96-28432 Filed 11-12-96; 8:45 am]
BILLING CODE 6560-50-P
