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62748 Federal Register / Vol, 60, No. 235 / Thursday December 7 1995 / Rules and Regulations

NEW JERSEY-CARBON MONOXIDE-Continued

,1 This date is November 15, 1990, unless otherwise noted.

[FR Doc. 95-29818 Filed 12-6-95; 8:45 am]

BILUNG CODE 6560-50-P

40 CFR Parts 52 and 81

[FL63-1-7143a; FRL-6340-7]

Approval and Promulgation of

Implementation Plans and Designation

of Areas for Air Quality Planning

Purposes; State of Florida Change in

National Policy Regarding Applicability

of Conformity Requirements to

Redesignation Requests

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: On February 7 1995, the State

of Florida, through the Florida

Department of Environmental Protection

(FDEP), submitted a maintenance plan

and a request to redesignate the Tampa

area from marginal nonattamment to

attainment for ozone (03). The Tampa

03 nonattamment area consists of

Hillsborough and Pinellas Counties.

Under the Clean Air Act as amended in

1990 (CAA), designations can be revised

if sufficient data are available to warrant

such revisions and the CAA

redesignation requirements are satisfied.

In this action, EPA is approving

Florida's request because it meets the

maintenance plan and redesignation

requirements set forth in the CAA, and

EPA is also approving the 1990 base

year emission inventory for the Tampa

area.

DATES: This action will be effective

February 5, 1996, unless adverse or

critical comments are received by

January 8, 1996. If the effective date is

delayed, timely notice will be published

in the Federal Register.

ADDRESSES: Written comments on this

action should be addressed to Joey

LeVasseur, at the EPA Regional Office

listed below.

Copies of the documents relative to

this action are available for public

inspection during normal business

hours at the following locations. The

interested persons wanting to examine

these documents should make an

appointment with the appropriate office

at least 24 hours before the visiting day.

Air and Radiation Docket and

Information Center (Air Docket 6102),

U.S. Environmental Protection

Agency, 401 M Street, SW

Washington, DC 20460.

Environmental Protection Agency,

Region 4 Air Programs Branch, 345

Courtland Street, NE, Atlanta, Georgia

30365.

Florida Department of Environmental

Regulation, Twin Towers Office

Building, 2600 Blair Stone Road,

Tallahassee, Florida 32399-2400.

Hillsborough County Environmental

Protection Commission, 1410 North

21st Street, Tampa, Florida 33605.

Pinellas County Department of

Environmental Management, Division

of Air Quality 300 S. Garden Avenue,

Clearwater, Florida 34616.

FOR FURTHER INFORMATION CONTACT: Joey

LeVasseur, Regulatory Planning and

Development Section, Air Programs

Branch, Air, Pesticides & Toxics

Management Division, Region 4

Environmental Protection Agency, 345

Courtland Street, NE, Atlanta, Georgia

30365. The telephone number is 404/

347-3555 ext.4215. Reference file FL63-

1-7143a.

SUPPLEMENTARY INFORMATION: The Clean

Air Act, as amended in 1977 (1977 Act)

required areas that were designated

nonattainment based on a failure to

meet the 03 national ambient air quality

standard (NAAQS) to develop SIPs with

sufficient control measures to

expeditiously attain and maintain the

standard. The Tampa-St. PetersburgClearwater area (Tampa), comprised of

Hillsborough and Pinellas Counties, was

designated under section 107 of the

1977 Act as nonattamment with respect

to the 03 NAAQS on March 3, 1978. [43

FR 8964, 40 CFR 81.310] In accordance

with section 110 of the 1977 Act, the

State submitted a part D 03 SIP on April

30, 1979, which was supplemented on

August 27 1979, and January 23, 1980,

which EPA conditionally approved on

March 18, 1980, and fully approved on

May 14, 1981, as meeting the

requirements of section 110 and part D

of the 1977 Act.

On November 15, 1990, the CAA

Amendments of 1990 were enacted

(1990 Amendments). [Pub. L. 101-549,

104 Stat. 2399, codified at 42 U.S.C.

7401-7671q] The nonattainment

designation of Tampa was continued by

operation of law pursuant to section

107(d)(1)(C)(i) of the 1990 Amendments.

Furthermore, it was classified as

marginal for 03 according to section

181(a)(1). (See 56 FR 56694 (Nov 6,

1991) and 57 FR 56762 (Nov 30, 1992),

codified at 40 CFR 81.310).

Tampa more recently has ambient

monitoring data that show no violations

of the 03 NAAQS, during the period

1990 through 1994. In addition, there

have been no exceedances reported for

the 1995 03 season. Therefore, in an

effort to comply with the 1990

Amendments and to ensure continued

attainment of the NAAQS, Florida

submitted an 0 3,maintenance SIP for

the Tampa area on February 7 1995,

and also requested redesignation of the

area to attainment with respect to the 03

NAAQS.

The 1990 Amendments revised

section 107(d)(1)(E) to provide five

specific requirements that an area must

meet in order to be redesignated from

nonattainment to attainment.

1. The area must have attained the

applicable NAAQS;

2. The area must meet all relevant

requirements under section 110 and part

D of the CAA,

3. The area must have a fully

approved SIP under section 110(k) of

the CAA,

4. The air quality improvement must

be permanent and enforceable; and

5. The area must have a fully

approved maintenance plan pursuant to

section 175A of the CAA.

The Florida redesignation request for

the Tampa area meets the five

requirements of section 107(d)(3)(E),

noted above. The following is a brief

description of how the State has

fulfilled each of these requirements.

Because the maintenance plan is a

critical element of the redesignation

request, EPA will discuss its evaluation

of the maintenance plan under its

analysis of the redesignation request.

1. Attainment of the 03 NAAQS

The Florida request is based on an

analysis of quality assured 03 air quality

data which is relevant to the

maintenance plan and to the

redesignation request. The ambient 03

data for the calendar years 1990 through

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1992 shows an exceedance rate of less

than 1.0 per year of the 03 NAAQS in

the Tampa area. (See 40 CFR 50.9 and

Appendix H). In addition, there have

been no ambient air exceedances in

1993, 1994 or to date in 1995 for 03.

Because the Tampa area has complete

quality-assured data showing no

violations of the standard over the most

recent consecutive three calendar year

period, the Tampa area has met the first

statutory criterion of attainment of the

03 NAAQS. Florida has committed to

continue monitoring in this area in

accordance with 40 CFR part 58.

2. Meeting Applicable Requirements of

Section 110 and Part D

On May 14, 1981, EPA fully approved

Florida's SIP for the Tampa area as

meeting the requirements of section

110(a)(2) and part D of the 1977 Act (46

FR 26640). The 1990 Amendments,

however, modified section 110(a)(2)

and, under part D, revised section 172

and added new requirements for all

nonattamment areas. Therefore, for

purposes of redesignation, to meet the

requirement that the SIP contain all

applicable requirements under the CAA,

EPA has reviewed the SIP to ensure that

it contains all measures that were due

under the 1990 Amendments prior to or

at the time the State submitted its

redesignation request. EPA interprets

section 107(d)(3)(E)(v) to mean that for

a redesignation request to be approved,

the state has met all requirements that

applied to the subject area prior to the

submission of a complete redesignation

request. Requirements of the CAA that

come due subsequently continue to be

applicable at those later dates (see

section 175A(c)) and, if the

redesignation is disapproved, the state

remains obligated to fulfill those

requirements.

A. Section 110 Requirements

Although section 110 was amended

by the 1990 Amendments, the Tampa

SIP meets the requirements of amended

section 110(a)(2). A number of the

requirements did not change in

substance and, therefore, EPA believes

that the pre-amendment SIP met these

requirements. As to those requirements

that were amended, (see 57 FR 27936

and 23939, June 23, 1993), many are

duplicative of other requirements of the

CAA. EPA has analyzed the SIP and

determined that it is consistent with the

requirements of amended section

110(a)(2).

B. Part D Requirements

Before Tampa may be redesignated to

attainment, it also must have fulfilled

the applicable requirements of part D.

Under part D, an area's classification

indicates the requirements to which it

will be subject. Subpart I of part D sets

forth the basic nonattainment

requirements applicable to all

nonattainment areas, classified as well

as nonclassifiable. Subpart 2 of part D

establishes additional requirements for

nonattainment areas classified under

table 1 of section 181(a), The Tampa

area was classified as marginal (See 56

FR 56694, codified at 40 CFR 81.530).

Therefore, in order to be redesignated to

attainment, the State must meet the

applicable requirements of subpart I of

part D, specifically sections 172(c) and

176, and is subject to requirements of

subpart 2 of part D.

B.1. Subpart 1 of part l--Section 172(c)

Plan Provisions

Under section 172(b), the

Administrator established that States

containing nonattainment areas shall

submit a plan or plan revision meeting

the applicable requirements of section

172(c) no later than three years after an

area is designated as nonattainment, i.e.,

unless EPA establishes an earlier date.

EPA had not determined that these

requirements were applicable to

classified 03 nonattainment areas on or

before February 7 1995, the date that

the State of Florida submitted a

complete redesignation request for the

Tampa area. Therefore, the State was

not required to meet these requirements

for purposes of redesignation. EPA has

determined that the section 172(c)(2)

reasonable further progress (RFP)

requirement was not applicable to the

Tampa redesignation. Also the section

172(c)(9) contingency measures and

additional section 172(c)(1) non-RACT

reasonable available control measures

(RACM) beyond what may already be

required in the SIP are no longer

necessary.

The section 172(c)(3) emissions

inventory requirement has been met by

the submission and approval (in this

action) of the 1990 base year inventory

required under subpart 2 of part D,

section 182(a)(1).

As for the section 172(c)(5) NSR

requirement, EPA has determined that

areas being redesignated need not

comply with the NSR requirement prior

to redesignation provided that the area

demonstrates maintenance of the

standard without part D NSR in effect.

See memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation, dated October 14, 1994,

entitled Part D New Source Review (part

D NSR) Requirements for Areas

Requesting Redesignation to

Attainment. The rationale for this view

is described fully in that memorandum,

and is based on the Agency's authority

to establish de mmnimis exceptions to

statutory requirements. See Alabama

Power Co. v. Castle, 636 F 2d 323, 360-

61 (D.C. Cir. 1979). However, the State

of Florida does have a fully approved

part D NSR rule.

Finally for purposes of redesignation,

the Tampa SIP was reviewed to ensure

that all requirements of section

110(a)(2), containing general SIP

elements, were satisfied. As noted

above, EPA believes the SIP satisfies all

of those requirements.

B.2. Subpart 1 of Part D-Section 176

Conformity Plan Provisions

Section 176(c) of the CAA requires

States to revise their SIPs to establish

criteria and procedures to ensure that

Federal actions, before they are taken

conform to the air quality planning

goals in the applicable State SIP The

requirement to determine conformity

applies to transportation plans,

programs and projects developed,

funded or approved under Title 23

U.S.C. or the Federal Transit-Act

("transportation conformity"), as well as

to all other Federal actions ("general

conformity"). Section 176 further

provides that the conformity revisions

to be submitted by the States must be

consistent with Federal conformity

regulations that the CAA required EPA

to promulgate. Congress provided for

the State revisions to be submitted one

year after the date for promulgation of

final EPA conformity regulations. When

that date passed without such

promulgation, EPA s General Preamble

for the Implementation of Title I

informed States that its conformity

regulations would establish a submittal

date (see 57 FR 13498, 13557 (April 16,

1992)).

EPA promulgated final transportation

conformity regulations on November 24,

1993 (58 FR 62118), and general

conformity regulations on November 30,

1993 (58 FR 63214). These conformity

rules require that States adopt both

transportation and general conformity

provisions in the SIP for areas

designated nonattainment or subject to

a maintenance plan approved under

CAA section 175A. Pursuant to 40 CFR

51.396 of the transportation conformity

rule and 40 CFR 51,851 of the general

conformity rule, the State of Florida is

required to submit a SIP revision

containing transportation conformity

criteria and procedures consistent with

those established in the Federal rule by

November 25, 1994. Similarly the State

of Florida is required to submit a SIP

revision containing general conformity

criteria and procedures consistent with

those established in the Federal rule by

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62750 Federal Register / Vol. 60, No. 235 / Thursday December 7 1995 / Rules and Regulations

December 1, 1994. The conformity rules

for Florida have not yet been approved.

Although this redesignation request

was submitted to EPA after the due

dates for the SIP revisions for

transportation conformity [58 FR 62188]

and general conformity [58 FR 632141

rules, EPA believes it is reasonable to

interpret the conformity requirements as

not being applicable requirements for

purposes of evaluating the redesignation

request under section 107(d). The

rationale for this is based on a

combination of two factors. First, the

requirement to submit SIP revisions to

comply with the conformity provisions

of the Act continues to apply to areas

after redesignation to attainment.

Therefore, the State remains obligated to

adopt the transportation and general

conformity rules even after

redesignation and would risk sanctions

for failure to do so. While redesignation

of an area to attainment enables the area

to avoid further compliance with most

requirements of section 110 and part D,

since those requirements are linked to

the nonattainment status of an area, the

conformity requirements apply to both

nonattainment and maintenance areas.

Second, EPA s federal conformity rules

require the performance of conformity

analyses in the absence of state-adopted

rules. Therefore, a delay in adopting

State rules does not relieve an area from

the obligation to implement conformity

requirements.

Because areas are subject to the

conformity requirements regardless of

whether they are redesignated to

attainment and must implement

conformity under Federal rules if State

rules are not yet adopted, EPA believes

it is reasonable to view these

requirements as not being applicable

requirements for purposes of evaluating

a redesignation request.

Therefore, with this notice, EPA is

modifying its national policy regarding

the interpretation of the provisions of

section 107(d)(3)(E) concerning the

applicable requirements for purposes of

reviewing an ozone redesignation

request. Under this new policy for the

reasons just discussed, EPA believes

that the ozone redesignation request for

the Tampa area may be approved

notwithstanding the lack of submitted

and approved state transportation and

general conformity rules.

B.3. Subpart 2 of Part D-Section 182(a)

Requirements

The CAA was amended on November

15, 1990, Public Law 101-549, 104 Stat.

2399, codified at 42 U.S.C. 7401-7671q.

EPA was required to classify 03

nonattainment areas according to the

severity of their problem. The Tampa

area was designated as marginal 03

nonattainment (See 40 CFR 81.310).

Because this area is marginal, the area

must meet section 182(a) of the CAA.

EPA has analyzed the SIP and

determined that it is consistent with the

requirements of amended section 182.

Below is a summary of how the area has

met the requirements of these sections.

(1) Emissions Inventory

The CAA required an inventory of all

actual emissions from all sources, as

described in section 172(c)(3) by

November 15, 1992. On November 16,

1992, FDEP submitted an emission

inventory for the Tampa area. This

notice is approving the base year

inventory for the Tampa area.

(2) Reasonably Available Control

Technology (RACT)

To be redesignated, all SIP revisions

required by section 182(a)(2)(A) and

182(b)(2) concerning RACT

requirements must have been submitted

to EPA and fully approved. Florida has

met all RACT requirements.

(3) Emissions Statements

Section 182(a)(3) of the CAA required

a SIP submission by November 15, 1992,

to require stationary sources of NOx and

VOCs to provide statements of actual

emissions. Florida submitted an annual

emissions statement SIP revision on

November 13, 1992. This revision was

approved in the Federal Resister on

August 4, 1994.

3. Fully Approved SIP Under Section

110(k) of the CAA

Based on the approval of provisions

under the pre-amended CAA and EPA s

prior approval of SIP revisions under

the 1990 Amendments, EPA has

determined that the Tampa area has a

fully approved SIP under section 110(k),

which also meets the applicable

requirements of section 110 and part D

as discussed above.

4. Improvement in Air Quality Due to

Permanent and Enforceable Measures

Under the pre-amended CAA, EPA

approved the Florida SIP control

strategy for the Tampa nonattainment

area, satisfied that the rules and the

emission reductions achieved as a result

of those rules were enforceable. The

control measures to which the emission

reductions are attributed are VOC RACT

regulations, the Federal Motor Vehicle

Control Program (FMVCP), and lower

Reid Vapor Pressure (RVP). VOC

emissions from stage I sources were

reduced by 40% in 1990 due to VOC

RACT. The FMVCP reduced VOC

emissions from motor vehicles by 14.2%

from 1988 to 1990. The reduction in

RVP from 10.8 psi in 1988 to 9.0 psi in

1990 has reduced summertime VOC

mobile source emissions by 30.8%.

In association with its emission

inventory discussed below the State of

Florida has demonstrated that actual

enforceable emission reductions are

responsible for the air quality

improvement and that the VOG

emissions in the base year are not

artificially low due to local economic

downturn. EPA finds that the

combination of existing EPA-approved

state and federal measures contribute to

the permanence and enforceability of

reduction in ambient 03 levels that have

allowed the area to attain the NAAQS.

5. Fully Approved Maintenance Plan

Under Section 175A

Section 175A of the CAA sets forth

the elements of a maintenance plan for

areas seeking redesignation from

nonattainment to attainment. The plan

must demonstrate continued attainment

of the applicable NAAQS for at least ten

years after the Administrator approves a

redesignation to attainment. Eight years

after the redesignation, the State must

submit a revised maintenance plan

which demonstrates attainment for the

ten years following the initial ten-year

period. To provide for the possibility of

future NAAQS violations, the

maintenance plan must contain

contingency measures, with a schedule

for implementation, adequate to assure

prompt correction of any air quality

problems. In this notice, EPA is

approving the State of Florida's

maintenance plan for the Tampa area

because EPA finds that Florida's

submittal meets the requirements of

section 175A.

A. Emissions Inventory-Base Year

Inventory

On November 16, 1992, the State of

Florida submitted comprehensive

inventories of VOC, NOx, and CO

emissions from the Tampa area. The

inventories include blogenic, area,

stationary and mobile sources using

1990 as the base year for calculations to

demonstrate maintenance. The 1990

inventory is considered representative

of attainment conditions because the

NAAQS was not violated during 1990.

EPA is approving the 1990 base year

inventory in this document.

The State submittal contains the

detailed invefitorydata and summaries

by county and source category The

comprehensive base year emissions

inventory was submitted in the NEDS

format. Finally this inventory was

prepared in accordance with EPA

-guidance. It also contains summary

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tables of the base year and projected regarding the base year inventory for the

maintenance year inventories. EPA's Tampa area.

TSD contains more in-depth details

VOC EMISSIONS INVENTORY SUMMARY

[Tons per day]

1990 1994 1997 2000 2005

Stationary Point ........................................................................................ 16.59 24.52 25.16 25.86 26.64

Stationary Area ........................................................................................ 101.00 104.61 109.44 114.34 120.13

On-Road Mobile ....................................................................................... 166.12 90.96 87.97 84.73 8743

Non-Road Mobile ..................................................................................... 51.41 55.36 57.56 59.76 62.58

Biogenics .................................................................................................. 97.89 97.89 97.89 97.89 97.89

Total ............................................................................................... 433.01 373.07 378.02 382.59 394.67

NO. EMISSIONS INVENTORY SUMMARY

[Tons per day]

1990 1994 1997 2000 2005

Stationary Point ........................................................................................ 319.76 336.02 317.83 320.02 338.84

Stationary Area ........................................................................................ 9.96 10.67 11.08 11.48 12.08

On-Road Mobile ....................................................................................... 121.47 109.89 114.00 111.80 113.25

Non-Road Mobile ..................................................................................... 41.60 44.61 47.01 49.40 52.61

Total ............................................................................................... 492.79 501.19 489.92 492.70 516.78

CO EMISSIONS INVENTORY SUMMARY

[Tons per day]

1990

Stationary Point ................................................................................................................................................................................... 33.49

Stationary Area .................................................................................................................................................................................... 16.36

On-Road Mobile ................................................................................................................................................................................... 942.60

Non-Road Mobile ................................................................................................................................................................................. 365.54

Total ...................................................................................................

1357.99

B. Demonstration of MaintenanceProjected Inventories

Total VOC and NOx emissions were

projected from 1990 base year out to

2005, with interim years of 1994, 1997

and 2000. These projected invenlories

were prepared in accordance with EPA

guidance. The projections show that

VOC emissions are expected to decrease

38.34 tons or 8.85% from the level of

the base year inventory during this time

period. The NOx emissions do show a

slight increase of 23.99 tons or 4.87%

from 1990 to 2005, but the State has

demonstrated as discussed below that

the projected increases will not

adversely affect the maintenance of the

03 NAAQS.

The Empirical Kinetics Modeling

Approach (EKMA) was used to

demonstrate the impact of NOx

emission increases on maximum 03

formation. The EKMA analysis showed

that the projected future mix of

emissions will not cause a violation of

the NAAQS. EPA EKMA guidance

documents were used in developing

model inputs. The model was run using

1988 meteorological conditions and

monitored 03, NOx and nonmethane

organic compound (NMOC)

concentration data for May 16, 1988,

June 3, 1988, and June 23, 1988, and

was.run in the EKMA calculate mode.

These days had observed 03 maximum

concentrations of 0.118, 0.113, and

0.115 parts per million (ppm)

respectively. The monitored NMOC/

NOx ratios of 6.876, 8.298, and 5.180

were used as input. The EKMA

predicted a minimum decrease in 03

concentration of 1.5% from 1990 to

2005.

The model output indicated a

continual decrease in the maximum

model-predicted 03 with each increase

in NOx emissions over the 1990 base

case inventory. Additionally the

modeling indicated that the mix of

emissions as indicated in the 2005

inventory (11.4% VOC reductions and

4.8% NOx increase over the 1990

inventory) produced lower 03 levels

than the base case. Thus, the analysis

indicates that, not withstanding the

projected increase in NOx emissions,

the Tampa area should continue to

maintain the standard throughout the

maintenance period.

C. Contingency Plan

The level of VOC emissions in the

Tampa area will largely determine its

ability to stay in compliance with the 03

NAAQS in the future. Despite the

State's best efforts to demonstrate

continued compliance with the NAAQS,

the ambient air pollutant concentrations

may exceed or violate the NAAQS.

Therefore, Florida has provided

contingency measures with a schedule

for implementation in the event of a

future 03 air quality problem. In the

case of a violation of the 03 NAAQS, the

plan contains a contingency to

implement additional control measures

such as reinstatement of NSR, less

volatile or reformulated gasoline,

expansion of control strategies to

adjacent counties for VOC and/or NOx

and to new CTG categories, or an

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enhanced vehicle emissions inspection

program. A complete description of

these contingency measures and their

triggers can be found in the State's

submittal. EPA finds that the

contingency measures provided in the

State submittal meet the requirements of

section 175A(d) of the CAA.

D. Subsequent Maintenance Plan

Revisions

In accordance with section 175A(b) of

the CAA, the State has agreed to submit

a revised maintenance SIP eight years

after the area is redesignated to

attainment. Such revised SIP will

provide for maintenance for an

additional ten years.

Final Action

In this action, EPA is approving the

Tampa area 03 maintenance plan

submitted on February 7 1995, because

it meets the requirements of section

175A. In addition, the Agency is

approving the request and redesignating

the Tampa nonattainment area to

attainment, because the State has

demonstrated compliance with the

requirements of section 107(d)(3)(E) for

redesignation. EPA is also approving the

1990 base year emissions inventory for

the Tampa area submitted on November

16, 1992. The EPA is publishing this

action without prior proposal because

the Agency views this as a

noncontroversial amendment and

anticipates no adverse comments.

However, in a separate document in this

Federal Register publicatior, the EPA is

proposing to approve the SIP revision

should adverse or critical comments be

filed. This action will be effective

February 5, 1996, unless, within 30 days

of its publication, adverse or critical

comments are received. If the EPA

receives such comments, this action will

be withdrawn before the effective date

by publishing a subsequent document

that will withdraw the final action. All

public comments received will then be

addressed in a subsequent final rule

based on this action serving as a

proposed rule. The 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 February 5,

1996.

The 03 SIP is designed to satisfy the

requirements of part D of the CAA and

to provide for attainment and

maintenance of the 03 NAAQS. This

final redesignation should not be

interpreted as authorizing the State to

delete, alter, or rescind any of the VOC

or NOX emission limitations and

restricdons contained in the approved

03 SIP Changes to 03 SIP VOC

regulations rendering them less

stringent than those contained in the

EPA approved plan cannot be made

unless a revised plan for attainment and

maintenance is submitted to and

approved by EPA. Unauthorized

relaxations, deletions, and changes

could result in both a finding of nonimplementation [section 173(b) of the

CAAI and in a SIP deficiency call made

pursuant to section 110(a)(2)(H) of the

CAA.

Under section 307(b)(1) of the Act, 42

U.S.C. 7607 (b)(1), petitions for judicial

review of this action must be filed in the

United States Court of Appeals for the

appropriate circuit by February 5, 1996.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2) of the Act, 42 U.S.C. 7607

(b)(2).)

This action has been classified as a

Table 3 action for signature by the

Regional Administrator under the

procedures published in the Federal

Register on January 19, 1989 (54 FR

2214-2225), as revised by a July 10,

1995 memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation. The Office of Management

and Budget (OMB) has exempted this

regulatory action from E.O. 12866

review.

Nothing in this action shall be

construed as permitting or allowing or

establishing a precedent for any future

request for a revision to any SIP Each

request for revision to the SIP shall be

considered separately in light of specific

technical, economic, and environmental

factors and in relation to relevant

statutory and regulatory requirements.

Under the Regulatory Flexibility Act,

5 U.S.C. section 600 et seq., EPA must

prepare a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C

sections 603 and 604. Alternatively,

EPA may certify that the rule will not

have a significant economic impact on

a substantial number of small entities.

Small entities include small businesses,

small not-for-profit enterprises, and

government entities with jurisdiction

over populations of less than 50,000.

The Office of Management and Budget

has exempted this rule from the

requirements of section 3 of Executive

Order 12291.

SIP approvals under section 110 and

subchapter I, part D of the CAA do not

create any new requirements, but

simply approve requirements that the

state is already imposing. Therefore,

because the federal SIP-approval does

not impose any new requirements, I

certify that it does not have a significant

impact on small entities. Moreover, due

to the nature of the federal-state

relationship under the CAA, preparation

of a regulatory flexibility analysis would

constitute federal inquiry into the

economic reasonableness of state action.

The CAA forbids EPA to base its actions

concerning SIPs on such grounds.

Union Electric Co. v U.S. E.P.A., 427

U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C.

sections 7410 (a)(2) and 7410 (k)(3).

Redesignation of an area to attainment

under section 107(d)(3)(E) of the CAA

does not impose any new requirements

on small entities. Redesignation is an

action that affects the status of a

geographical area and does not impose

any regulatory requirements on sources.

The Administrator certifies that the

approval of the redesignation request

will not affect a substantial number of

small entities.

Unfunded Mandates

Under sections 202, 203, and 205 of

the Unfunded Mandates Reform Act of

1995 ("Unfunded Mandates Act"),

signed into law on March 22, 1995, EPA

must undertake various actions in

association with proposed or final rules

that include a Federal mandate that may

result in estimated costs of $100 million

or more to the private sector, or to State,

local, or tribal governments in the

aggregate.

Through submission of this state

implementation plan or plan revision,

the State and any affected local or tribal

governments have elected to adopt the

program provided for under section 110

of the Clean Air Act. These rules may

bind State, local and tribal governments

to perform certain actions and also

require the private sector to perform

certain duties. To the extent that the

rules being approved by this action will

impose no new requirements; such

sources are already subject to these

regulations under State law.

Accordingly no additional costs to

State, local, or tribal governments, or to

the private sector, result from this

action. EPA has also determined that

this final action does not include a

mandate that may result in estimated

costs of $100 million or more to State,

local, or tribal governments in the

aggregate or to the private sector.

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Federal Register / Vol. 60, No. 235 / Thursday December 7 1995 / Rules and Regulations 62753

List of Subjects

40 CFR Part 52

Environmental protection, Air

pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by

reference; Intergovernmental relations,

Nitrogen Dioxide, Ozone.

40 CFR Part 81

Air pollution control, National parks,

Wilderness areas.

Dated: October 19, 1995.

Patrick M. Tobm,

Acting Regional Administrator.

Chapter I, title 40, Code of Federal

Regulations, is amended as follows:

PART 52-[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42.U.S.C. 7401-7671q.

Subpart K-Flonda

2. Section 52.520, is amended by

adding paragraph (c)(89) to read as

follows:

§ 52.520 Identification of plan.

(c)

(89) The maintenance plan for Tampa,

Florida, submitted by the Florida

Department of Environmental Protection

on February 7 1995.

(i) Incorporation by reference. Tampa

Redesignation Request and Attainment/

Maintenance Plan for the Tampa Bay

Florida Ozone Nonattainment Area

including Emissions Inventory

Summary and Projections adopted on

November 16, 1994.

(ii) Other material. None.

PART 81--[AMENDED]

Subpart C--Section 107 Attainment

Status Designations

1. The authority citation for part 81

continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

2. In § 81.310 the "Florida-Ozone"

table is amended by removing the entry

for "Tampa-St. Petersburg-Clearwater

Area;" and by adding entries for

Hillsborough and Pinellas Counties in

alphabetical order; and by revising the

entry "Rest of State" to read

"Statewide."

§81.310 Florida. *t

FLORIDA-OZONE

Designation Classification Designated Area Date 1 Type Date 1 Type

Statewide ............................................................................................................ .......................... Unclassifiable/ ...................................... Attainment

Hillsborough County ............................................................................................ February 5, 1996.

Pinellas County ................................................................................................... February 5, 1996.

1This date is November 15, 1990, unless otherwise noted.

[FR Doc. 95-29817 Filed 12-6-95; 8:45 am]

BILLING CODE 6560-80-P

40 CFR Part 70

[AD-FRL-6341-7]

Clean Air Act Interim Approval of

Operating Permits Program; San Diego

Air Pollution Control District, California

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY* The EPA is promulgating

direct final interim approval of the title

V operating permits program submitted

by the California Air Resources Board,

on behalf of the San Diego Air Pollution

Control District (San Diego or District),

for the purpose of complying with

federal requirements for an approvable

state program to issue operating permits

to all major stationary sources and to

certain other sources. In addition,

today's action promulgates direct final

approval of San Diego's mechanism for

receiving delegation of section 112

standards as promulgated.

DATES: This direct final rule is effective

on February 5, 1996 unless adverse or

critical comments are received by

January 8, 1996. If the effective date is

delayed, a timely notice will be

published in the Federal Register.

ADDRESSES: Copies of the District's

submittal and other supporting

information used in developing this

direct final rule are available for public

inspection (docket number CA SD-95-

1-OPS) during normal business hours at

the following location: Operating

Permits Section (A-5-2), Air and Toxics

Division, U.S. Environmental Protection

Agency Region X, 75 Hawthorne

Street, San Francisco, CA 94105.

FOR FURTHER INFORMATION CONTACT:

Celia Bloomfield itelephone 415/744-

1249), Operating Permits Section (A-5-

2), Air and Toxics Division, U.S.

Environmental Protection Agency

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

Title V of the 1990 Clean Air Act

Amendments (sections 501-507 of the

Clean Air Act (Act)), and implementing

regulations at 40 Code of Federal

Regulations (CFR) part 70 (part-70),

require that states develop and submit

operating permits programs to EPA by

November 15, 1993, and that EPA act to

approve or disapprove each program

within 1 year after receiving the

submittal. The EPA's program review

occurs pursuant to section 502 of the

Act and the part 70 regulations, which

together outline criteria for approval or

disapproval. Where a program

substantially but not fully, meets the

requirements of part 70, EPA may grant

the program interim approval for a

period of up to 2 years. If EPA has not

fully approved a program by 2 years

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after the November 15, 1993 date, or by

the end of an interim program, it must

establish and implement a federal

proam.

The EPA is publishing this action

without prior proposal because the

Agency views this as a noncontroversial

action and anticipates no adverse.

comments. However, in a separate

document in this Federal Register

publication, the EPA is proposing

interim approval of the operating permit

program submitted by San Diego should

adverse or critical comments be filed.

If EPA receiwes adverse or critical

comments, this action will be

withdrawn before the effective date by

publishing a subsequent document that

will withdraw the final action. All

public comments received will then be

addressed in a subsequent final rule

based on this action serving as the

proposed rule. The EPA will not

institute a second comment period. 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 February 5, 1996.

B. Federal Oversight and Sanctions

This interim approval, which may not

be renewed, extends until February 9,

1998. During this interim approval

period, San Diego is protected from

sanctions, and EPA is not obligated to

promulgate, administer and enforce a

federal operating permits program in the

District. Permits issued under a program

with interim approval have full standing

with respect to part 70, and the 1-year

time period for submittal of permit

applications by subject sources begins

upon the effective date of this interim

approval, as does the 3-year time period

for processing the initial permit

applications. if San Diego fails to submit a complete

corrective program for full approval by

August 7 1997 EPA will start an 18-

month clock for mandatory sanctions. If

San Diego 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 San

Diego has corrected the deficiency by

submitting a complete corrective

program. Moreover, if the Administrator

finds a lack of good faith on the part of

the District, both sanctions under

section 179(b) will apply after the

expiration of the 18-month period until

the Administrator determines that San

Diego has come into compliance. In any

case, if, six months after application of

the first sanction, the District still has

not submitted a corrective program that

EPA has found complete, a second

sanction will be required.

If EPA disapproves San Diego'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

San Diego has submitted a revised

program and EPA has determined that it

corrected the deficiencies that prompted

the disapproval. Moreover, if the

Administrator finds a lack of good faith

on the part of the District, both

sanctions under section 179(b) shall

apply after the expiration of the 18-

month period until the Administrator

determines that San Diego has come

into compliance. In all cases, if, six

months after EPA applies the first

sanction, the District has not submitted

a revised program that EPA has

determined corrects the deficiencies, a

second sanction is required.

In addition, discretionary sanctions

may be applied where warranted any

time after the expiration of an interim

approval period if San Diego has not

timely submitted a complete corrective

program or EPA has disapproved its

submitted corrective program.

Moreover, if EPA has not granted full

approval to the District's program by the

expiration of this interim approval and

that expiration occurs after November

15, 1995, EPA must promulgate,

administer and enforce a federal permits

program for San Diego upon interim

approval expiration.

II. Direct Final Action and Implications

A. Analysis of State Submission

The analysis contained in this notice

focuses on specific elements of San

Diego's title V operating permits

program that must be corrected to meet

the minimum requirements of part 70.

The full program submittal; the

Technical Support Document (TSD),

which contains a detailed analysis of

the submittal; and other relevant

materials are available for inspection as

part of the public docket (CA-SD-95-1-

OPS). The docket may be viewed during

regular business hours at the address

listed above.

1. Support Materials

San Diego's title V program was

submitted by the California Air

Resources Board (CARB) on April 22,

1994 and found to be complete on June

9, 1994. On April 4, 1995, the District

amended the regulatory portion of its

submittal. On October 10, 1995, EPA

received from CARB, on behalf of the

District, a revised fee program and an

updated program description. Enabling

legislation for the State of California and

the Attorney General's legal opinion

were submitted by CARB for all districts

in California and therefore were not

included separately in San Diego's

submittal. The San Diego submission

does contain a Governor's letter

requesting source category-limited

interim approval, District implementing

and supporting regulations, and all

other program documentation required

by section 70.4. An implementation

agreement is currently being developed

between San Diego and EPA.

2. Regulations and Program

Implementation

San Diego's title V implementing

regulation, District Regulation XIV was

first adopted on January 18, 1994. After

preliminary review of Regulation XIV

EPA identified numerous regulatory

deficiencies and communicated the

potential disapproval issues to San

Diego in letters dated September 6, 1994

and December 13, 1994. In response,

San Diego revised Regulation XIV The

amended regulation was adopted on

March 7 1995 and submitted to EPA by

CARB, on behalf of the District, on April

4, 1995. San Diego's program

description was also revised to reflect

the changes made to Regulation XIV

EPA is therefore evaluating and acting

on the March 7 1995 version of

Regulation XIV

San Diego's title V implementing

regulations substantially meet the

requirements of 40 CFR part 70, sections

70.2 and 70.3 for applicability- sections

70.4, 70.5, and 70.6 for permit content,

including operational flexibility; section

70.7 for public participation and permit

modifications; section 70.5 for criteria

that define insignificant activities;

section 70.5 for complete application

forms; and section 70.11 for

enforcement authority. Although the

regulations substantially meet part 70

requirements, there are a few

deficiencies in the program that are

outlined under section II.B.1. below as

interim approval issues and further

described in the TSD.

a. Insignificant Activities

Section 70.5(c) states that EPA may

approve, as part of a state program, a list

of insignificant activities and emissions

levels which need not be included in

permit applications. Section 70.5(c) also

states that an application for a part 70

permit may not omit information

needed to determine the applicability

of, or to impose, any applicable

requirement, or to evaluate appropriate

fee amounts. Section 70.4(b)(2) requires

states to include in their part 70

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programs any criteria used to determine

insignificant activities or emission

levels for the purpose of determining

complete applications. Under part 70, a

state must request and EPA may

approve as part of that state's program

any activity or emission level that the

state wishes to consider insignificant.

Part 70, however, does not establish

appropriate emission levels for

insignificant activities, relying instead

on a case-by-case determination of

appropriate levels based on the

particular circumstances of the part 70

program under review.

San Diego submitted an extensive list

of insignificant activities that the

District determined to be insignificant

based on having "relatively low

potential to emit" (Regulation XIV

Appendix A). While the potential to

emit criterion is an acceptable

mechanism for identifying insignificant

units, the District did not provide

emissions level cut-offs for many of the

listed units. For instance, Regulation

XIV Appendix A(p)(17) exempts most

refrigeration units regardless of size.

Such units, if they have a charge rate of

50 pounds or more of a Class I or II

ozone-depleting compound, would be

subject to applicable requirements and

could not be considered insignificant.

EPA believes that in order to have fully

approvable insignificant activities

provisions, the listed units should not

confuse the regulated community's

obligation to provide all information

needed to determine the applicability

of, or to impose, any applicable

requirement.

For interim approval, EPA is relying

on several rules in Regulation XIV that

affect the scope and usage of

insignificant activities. Specifically

Rule 1401(a) ensures that the District's

permit exemption rule, Rule 11, will not

interfere with title V applicability

determinations. Similarly Rule

1401(b)(4) ensures that emissions from

insignificant units will be included in

all title V applicability determinations.

In addition, Rules 1411, 1414(f)(1),

1414(0(3)(iii) (A)&(B), 1414(f)(4) and the

application "Completeness Criteria"

guidance document require the permit

application to include all information

necessary to determine whether and

how an applicable requirement applies

at a source, regardless if a unit qualifies

as insignificant. Finally Rules

1401(b)(4) and 1401(c)(24) prohibit

activities that are subject to an

applicable requirement (other than two

specified generic facility-wide

requirements) from qualifying as an

insignificant activity. For full approval,

San Diego must revise its list of

insignificant activities for title V

permitting as discussed in section

II.B.1.5. of this notice.

b. Variances

San Diego s Hearing Board has the

authority to issue variances from

requirements imposed by State and

local law. See California Health and

Safety Code sections 42350 et seq. In the

legal opinion submitted for California

operating permit programs, California's

Attorney General states that "[t]he

variance process is not part of the Title

V permitting process and does not affect

federal enforcement for violations of the

requirements set forth in a Title V

permit." (Emphasis in original.)

EPA regards the State and District

variance provisions as wholly external

to the program submitted for approval

under part 70, and consequently, is not

taking action on those provisions of

State and local law. EPA has no

authority to approve provisions of state

or local law, such as the variance

provisions referred to, that are

inconsistent with the Act. EPA does not

recognize the ability of a permitting

authority to grant relief from the duty to

comply with a federally enforceable part

70 permit, except where such relief is

granted through procedures allowed by

part 70. A part 70 permit may be issued

or revised (consistent with part 70

permitting procedures) to incorporate

those terms of a variance that are

consistent with applicable

requirements. A part 70 permit may also

incorporate, via part 70 permit issuance

or modification procedures, the

schedule of compliance set forth in a

variance. However, EPA reserves the

right to pursue enforcement of

applicable requirements

notwithstanding the existence of a

compliance schedule in a permit to

operate. This is consistent with 40 CFR

§ 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."'

c. Reporting of Permit Deviations

Part 70 requires prompt reporting of

deviations from permit requirements,

and San Diego has not defined

"prompt" in its program. Section

70.6(a)(3)(iii)(B) requires the permitting

authority to define prompt in relation to

the degree and type of deviations likely

to occur and the applicable

requirements. 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 section

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.

d. Temporary Authorization

San Diego s title V regulation provides

for the issuance of a "temporary

authorization" which allows a source to

operate without an operating permit.

Temporary authorizations are not

required by part 70, but they exist in

San Diego s title V program in order to

maintain consistency with the District's

existing local permitting program. San

Diego structured its temporary

authorization mechanism to ensure that

the issuance of temporary

authorizations would not interfere with

any of the requirements established

under part 70. Specifically temporary

authorizations may only be issued to

sources that have met the requirements

of section 112(g) or the preconstruction

permitting requirements under parts C

or D of title I; i.e., the same scope of

sources that do not have to submit

applications for title V permits or title

V permit modifications until 12 months

after commencing operation (section

70.5(a)(1)(ii)). Furthermore, possession

of a temporary authorization does not

affect a source's obligation to submit a

title V permit application, and the

temporary authorization expires on the

date that a complete title V permit

application is due.

e. Enhanced New Source Review

San Diego's title V permit program

provides for enhanced preconstruction

review an optional process that allows

sources to satisfy both new source

review and title V permit modification

requirements at the same time. Any

modification processed pursuant to San

Diego's enhanced preconstruction

review procedures may be incorporated

into the title V permit as an

administrative permit amendment.

These enhanced procedures obviate the

need to undergo two application, public

notice, and permit issuance/revision

processes for the same change.

Federal Register / Vol. 60,

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f. Applicability

EPA found during its review of the

San Diego title V program that the

District's applicability provisions are

consistent with part 70 and fully

approvable, but that there is atypical

language which warrants a brief

discussion in this notice. First, the

requirement to count fugitive hazardous

air pollutant emissions in major source

determinations is contained in the

definition of "potential to emit" rather

than the definition of "major stationary

source." The term "potential to emit" is

used to define "major stationary

source." (See Regulation XIV Rules

1401(c)(25) and (36).)

Second, a broad applicability

exemption for all non-major stationary

sources (Rule 1401(b)(1)) appears at first

glance. to be in conflict with the part 70

requirement to permit non-malor

affected sources and solid waste

incineration units subject to section

129(e) of the Act (section 70.3(b)).

However, San Diego's regulation

provides that the applicability

exemptions in Rule 1401(b)(1) apply

only when referenced in the

applicability section (Rule 1401(a)(2)

and (3)); i.e., to non-major sources

subject to sections 111 or 112 of the Act.

(See Regulation XIV Rule 1401(a)(2-4).)

San Diego's program description

confirms this reading (section III.B.l.b.,

p.2). In any case, if EPA completes a

rulemaking that would require a nonmajor source to obtain a title V permit,

the non-major stationary source

exemption would not apply for that

source (Rule 1401(b)(1)).

g. Federally Mandated New Source

Review

In order to have an approvable title V

program, permits must assure

compliance with all federal applicable

requirements. The part 70 definition of "applicable requirement" includes "any

term or condition of any

preconstruction permits issued pursuant

to regulations approved or promulgated

through rulemaking under title I,

including parts C or D, of the Act;"

(section 70.2, definition of "applicable

requirement," subsection (2)) i.e., major

and minor new source review and

prevention of significant deterioration

requirements.

Rather than citing parts C or D of title

I, San Diego's definition of "federally

enforceable requirement" states that

requirements imposed by "federally

mandated new source review" or

prevention of significant deterioration

regulations are applicable requirements.

The use of the term "federally mandated

new source review" is unclear. Under

San Diego's definition, "federally

mandated new source review" is linked

to "emission thresholds specified in

federal law or in the approved State

Implementation Plan (SIP)." (See

Regulation XIV Rule 1401(c)(19).) The

District has a SIP-approved minor new

source review program that is triggered

by any emissions increase, which could

be construed as an emissions threshold

of zero, and therefore all NSR, major

and minor, is federally mandated. (See

Regulation II, Rule 10(a).) Yet, San

Diego has contended that minor NSR is

not always federally mandated, leaving

the term "federally mandated new

source review" subject to conflicting

interpretations.

The District must revise either the

definition of "federally mandated new

source review" or the definition of

"federally enforceable requirement" to

clearly include minor new source

review as an applicable requirement

under title V However, San Diego's

program is approvable for an interim

period because the District's approved

SIP contains a minor new source review

program, and San Diego's definition of

"federally enforceable requirement"

also includes "[any standard or other

requirement provided for in the State

Implementation Plan" (Regulation XIV

Rule 1401(c)(18)(i)). Rules 10 and 21 of

San Diego's portion of the California SIP

constitute the District's minor (and

major) NSR program. (See June 22, 1994

letter from Richard Smith, San Diego

Air Pollution Control District, to Ron

Friesen, California Air Resources

Board.) Since Rules 10 and 21 are in San

Diego's SIP the requirement to obtain,

and the specific conditions of, a minor

NSR permit are federally enforceable.

EPA has discussed this interim

approach with San Diego, and the

District agrees that SIP-approved Rules

10 and 21 provide for a federally

enforceable minor NSR program.

However, EPA and San Diego disagree

about whether Rule 21 extends federal

enforceability to all terms and

conditions of minor NSR permits. EPA

believes that, until San Diego's SIP is

revised to state otherwise, Rule 21

makes all terms and conditions of minor

NSR permits federally enforceable. San

Diego believes that minor NSR permit

terms that do not originate from the SIP

or other federal law or regulations are

not made federally enforceable by Rule

21. As an interim solution until San

Diego's SIP is revised or this

disagreement is resolved, the District

has agreed to designate in the part 70

permit certain minor NSR permit terms

as "District-only minor NSR" and

stipulate that those terms so listed will

be reviewed and, as necessary be

deleted, revised, or incorporated as

federally-enforceable terms of the part

70 permit on or before a specified

deadline (not later than the renewal of

the permit).

3. Permit Fee Demonstration

Section 502(b)(3) of the Act requires

that each permitting authority collect

fees sufficient to cover all reasonable

direct and indirect costs required to

develop and administer its title V

operating permits program. Each title V

program submittal must contain either a

detailed demonstration of fee adequacy

or a demonstration that aggregate fees

collected from title V sources meet or

exceed $25 per ton per year (adjusted

annually based on the Consumer Price

Index (CPI), relative to 1989 CPI). The

$25 per ton amount is presumed, for

program approval, to be sufficient to

cover all reasonable program costs and

is thus referred to as the "presumptive

minimum" (40 CFR 70.9(b)(2)(i)).

San Diego has opted to make a

presumptive minimum fee

demonstration. The District's fees are

based on the actual direct and indirect

costs of evaluating and issuing a title V

permit. In addition to employing a cost

recovery approach, the District will

charge an initial title V permit

application fee of $2,200 per permitted

source (Rule 40, Section (s)). San Diego

estimates an average implementation

cost, and hence fees, of $320,000 per

year for tle first 5 years of the program.

The presumptive minimum is

calculated at $309,300 per year by

multiplying an estimated 10,000 tons of

pollutants emitted each year in San

Diego by the CPI adjusted presumptive

dollar amount of $30.93. San Diego will

therefore be collecting fees in an amount

that exceeds the presumptive minimum.

4. Provisions Implementing the

Requirements of Other Titles of the Act

a. Authority and Commitments for

Section 112 Implementation

San Diego has demonstrated in its

title V program submittal adequate legal

authority to implement and enforce all

section 112 requirements through the

title V permit. This legal authority is

contained in the State of California

enabling legislation and in regulatory

provisions defining federal "applicable

requirements" and requiring each

permit to incorporate conditions that

assure compliance with all applicable

requirements. EPA has determined that

this legal authority is sufficient to allow

San Diego to issue permits that assure

compliance with all section 112

requirements. For further discussion,

please refer to the TSD accompanying

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this action and the April 13, 1993

guidance memorandum entitled, "Title

V Program Approval Criteria for Section

112 Activities," signed by John Seitz.

b. Authority for Title IV Implementation

On March 7 1995, San Diego

incorporated by reference part 72, the

federal acid tarn permitting regulations.

The incorporation by reference was

codified in Rule 1412 of Regulation XIV

and submitted to EPA on April 4, 1995.

B. Proposed Interim Approval and

Implications

1. Title V Operating Permits Program

The EPA is promulgating direct final

interim approval to the operating

permits program submitted by the

California Air Resources Board, on

behalf of the San Diego Air Pollution

Control District, on April 22, 1994 and

amended on April 4, 1995 and October

10, 1995; Areas in which San Diego's

program is deficient and requires

corrective action prior to full approval

are as follows:

(1) California State law currently

exempts agricultural production sources

from permit requirements. CARB has

requested source category-limited

interim approval for all California

districts. In order for San Diego's

program to receive full approval (and to

avoid a disapproval upon the expiration

of this interim approval), the California

Legislature must revise the Health and

Safety Code to eliminate the exemption

of agricultural production sources from

the requirement to obtain a permit.

(2) Part 70 requires that any

significant change in monitoring permit

terms or conditions be processed as a

significant permit modification. Rule

1401(c)(43), definition of "Significant

Permit Modification," must be revised

accordingly. (See section 70.7(e)(4).)

(3) San Diego's treatment of affected

state notification is unclear in the

program submittal. Part 70 requires that

air permitting authorities provide notice

to all affected states of all proposed

permits, minor and significant permit

modifications, and renewals (section

70.8(b)(1)). The term "affected state" is

defined in section 70.2 as a contiguous

state whose air quality may be affected

or a state within 50 miles of a permitted

source. EPA is also undergoing a

rulemaking action that will allow Native

American lands to be treated as a state.

(See 59 FR 43956, 43962 (Aug. 25,

1994); 58 FR 54364 (Oct. 21, 1993).)

San Diego s program does not define

"affected state," and it does not specify

any affected state notification

procedures. It does provide, however,

the requirement to notify affected states

in the case of minor or significant

permit modifications. In addition, San

Diego has indicated that it currently has

cooperative permitting agreements with

Native American tribes.

EPA is not concerned about the notice

deficiencies with respect to states that

border California because of San Diego's

coastal location. On the other hand, in

order to receive full approval on this

issue, San Diego's program must ensure

that Native American tribes will be

adequately notified and consulted once

such tribes apply for treatment as

affected states. If San Diego's existing

cooperative permitting practices meet

the affected state notification

requirements set out in section 70.8(b),

the District may submit them to EPA for

incorporation into its title V program to

satisfy the affected state notice

requirements. As an alternative to upfront adoption of affected state notice

provisions or incorporation of existing

practices, EPA will accept a

commitment from San Diego to: (1)

Initiate rule revisions upon notification

from EPA that an affected tribe has

applied for state status; and (2) provide

affected state notice to tribes upon a

tribe's filing for state status, that is, prior

to the District's adoption of affected

state notice rules.

(4) Revise Rule 1410(h)(7), paragraph

2 to require permit reopening

procedures for any inactive status

permit that is modified to reflect new

applicable requirements upon being

converted to active status if there are 3

years or more remaining on the term of

its 5-year permit. (See section

70.7(f)(1)(i).)

(5) Remove any activities from the

District's list of insignificant activities

that are subject to a unit-specific

applicable requirement and adjust/add

size cut-offs to ensure that the listed

activities are truly insignificant. (See

sections 70.4(b)(2) and 70.5(c).)

(6) Remove the reference to Rules

1401 (j) and (k) in Rule 1401(i). This

reference to minor and significant

permit modifications in the provisions

for administrative permit amendments

could be read to be inconsistent with

the definition of "significant permit

modification" (Rule 1401(c)(43)), which

correctly defaults unspecified changes

to the significant permit modification

process. In addition, the phrase "These

shall include the following" in the

administrative permit amendment

section (Rule 1410(i)) creates ambiguity

about whether the list of administrative

permit amendments is exhaustive or

open ended. Because part 70, section

70.7(d)(vi) requires that administrative

permit amendments be specifically

approved as part of the title V program,

the word "include" in the above phrase

must also be removed.

(7) The District must revise either the

definition of "federally mandated new

source review" or the definition of

"federally enforceable requirement" to

clearly include minor new source

review as an applicable requirement

under title V

This interim approval, which may not

be renewed, extends for a period of up

to two years. During the interim

approval period, San Diego is protected

from sanctions for failure to have a

program, and EPA is not obligated to

promulgate a federal permits program in

the District. Permits issued under a

program with interim approval have full

standing with respect to part 70, and the

one-year time period for submittal of

permit applications by subject sources

begins upon interim approval, as does

the three-year time period for processing

the initial permit applications.

The scope of San Diego's part 70

program that EPA is acting on in this

notice applies to all part 70 sources (as

defined in the approved program)

within San Diego's jurisdiction. The

approved program does not apply to any

part 70 sources over which an Indian

tribe has jurisdiction. See, e.g., 59 FR

55813, 55815-18 (Nov. 9, 1994). The

term "Indian tribe" is defined under the

Act as "any Indian tribe, band, nation,

or other organized group or community,

including any Alaska Native village,

which is federally recognized as eligible

for the special programs and services

provided by the United States to Indians

because of their status as Indians." See

section 302(r) of the CAA, see also 59

FR 43956, 43962 (Aug. 25, 1994); 58 FR

54364 (Oct. 21, 1993).

2. State Preconstruction Permit Program

Implementing Section 112(g)

The EPA has published an

interpretive notice in the Federal

Register regarding section 112(g) of the

Act (60 FR 9333; February 14, 1995) that

postpones the effective date of section

112(g) until after EPA has promulgated

a rule addressing that provision. The

interpretive notice also explains that

EPA is considering whether the effective

date of section 112(g) should be delayed

beyond the date of promulgation of the

federal rule so as to allow states time to

adopt rules implementing the federal

rule, and that EPA will provide for any

such additional delay in the final

section 112(g) rulemaking. Unless and

until EPA provides for such an

addition~al postponement of section

112(g), San Diego must be able to

implement section 112(g) during the

period between promulgation of the

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federal section 112(g) rule and adoption

of implementing State regulations. For this reason, EPA is approving the

use of San Diego's preconstruction

review program as a mechanism to

implement section 112(g) during the

transition period between promulgation

of the section 112(g) rule and adoption

by San Diego of rules specifically

designed to implement section 112(g).

However, since the sole purpose of this

approval is to confirm that the District

has a mechanism to implement section

112(g) during the transition period, the

approval itself will be without effect if

EPA decides in the final section 112(g)

rule that there will be no transition

period. The EPA is limiting the duration

of this approval to 18 months following

promulgation by EPA of the section

112(g) rule.

3. Program for Delegation of Section 112

Standards as Promulgated

Requirements for approval, specified

in 40 CFR section 70.4(b), encompass

section 112(l)(5) requirements for

approval of a program for delegation of

section 112 standards as promulgated by

EPA as they apply to part 70 sources.

Section 112(l)(5) requires that a state's

program contain adequate authorities,

adequate resources for implementation,

and an expeditious compliance

schedule, which are also requirements

under part 70. Therefore, EPA is also

promulgating approval under section

112(l)(5) and 40 CFR part 63.91 of San

Diego's program for receiving delegation

of section 112 standards that are

unchanged from federal standards as promulgated. California Health and

Safety Code section 39658 provides for

automatic adoption by CARB of section

112 standards upon promulgation by

EPA. Section 39666 of the Health and

Safety Code requires that districts then

implement and enforce these standards.

Thus, when section 112 standards are

automatically adopted pursuant to

section 39658, San Diego will have the

authority necessary to accept delegation

of these standards without further

regulatory action by the District. The

details of this mechanism and the

means for finalizing delegation of

standards will be set forth in an

implementation agreement between San

Diego and EPA. This program applies to

both existing and future standards but is

limited to sources covered by the part

70 program.

IlH. Administrative Requirements

A. Docket

Copies of San Diego s submittal and

other information relied upon for this

direct final action is contained in docket

number CA-SD-95-1-OPS maintained

at the EPA Regional Office. The docket

is an organized and complete file of all

the information submitted to, or

otherwise considered by EPA in the

development of this direct final

rulemaking. The docket is available for

public inspection at the location listed

under the ADDRESSES section of this

document.

B. 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.

C. 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 costeffective and least burdensome

alternative that achieves the oblectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval

action promulgated today does not

include a federal mandate that may

result in estimated costs of $100 million

or more to either state, local, or tribal

governments in the aggregate, or to the

private sector. This federal action

approves pre-existing requirements

under state or local law and imposes no

new federal requirements. Accordingly

no additional costs to state, local, or

tribal governments, or to the private

sector, result from this action.

D. Executive Order 12866

The Office of Management and Budget

has exempted this action from review

under Executive Order 12866.

List of Subjects in 40 CFR Part 70

Environmental protection,

Administrative practice and procedure,

Air pollution control, Environmental

protection, Intergovernmental relations,

Operating permits,.Reporting and

recordkeeping requirements.

Dated: November 8, 1995.

Felicia Marcus,

Regional Administrator.

Part 70, title 40 of the Code of Federal

Regulations is amended as follows:

PART 70-[AMENDED]

1. The authority citation for part 70

continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

2. Appendix A to part 70 is amended

by adding paragraph (x) to the entry for

California to read as follows:

Appendix A to Part 70-Approval

Status of State and Local Operating

Permits Programs

The following district program was

submitted by the California Air

Resources Board on behalf of:

(x) San Diego Air Pollution Control

District: submitted on April 22, 1994

and amended on April 4, 1995 and

October 10, 1995; approval effective on

February 5, 1996, unless adverse or

critical comments are received by

January 8, 1996.

[FR Doc. 95-29836 Filed 12-06-95; 8:45 am]

BILLING CODE 6560-60-P

40 CFR Part 70

Clean Air Act Interim Approval of

Operating Permits Program; Mariposa

Air Pollution Control District, California

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY- The EPA is promulgating

direct final interim approval of the title

V operating permits program submitted

by the California Air Resources Board

(CARB), on behalf of the Mariposa Air

Pollution Control District (Mariposa or

District), for the purpose of complying

with federal requirements for an

approvable state program to issue

operating permits to all major stationary

sources and to certain other sources. In

addition, today's action promulgates

direct final approval of Mariposa's

mechanism for receiving delegation of

section 112 standards as promulgated.

DATES: This direct final rule is effective

on February 5, 1996 unless adverse or

critical comments are received by

January 8, 1996. If the effective date is

delayed, a timely notice will be

published in the Federal Register.

ADDRESSES: Copies of the District's

submittal and other supporting

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