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Citation: 60 Fed. Reg. 62748 1995

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

NEW JERSEY-CARBON MONOXIDE-Continued

,1This 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 forAir Quality Planning Purposes; State of Florida Change in National Policy Regarding Applicability ofConformity Requirements to Redesignation Requests

AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule.

SUMMARY: On February 7 1995, the State ofFlorida, through the Florida Department ofEnvironmental 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 AirAct as amended in 1990 (CAA), designations can berevised ifsufficient 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 actionwill be effective February 5, 1996, unless adverse or critical comments are received by January 8, 1996. Ifthe effective date is delayed, timely notice willbe published in the Federal Register. ADDRESSES: Written comments on this action should be addressed to Joey LeVasseur, at theEPA Regional Office listed below.

Copies ofthe 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 (AirDocket 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 ofEnvironmental

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 ofAir Quality 300 S. Garden Avenue, Clearwater, Florida 34616. FOR FURTHER INFORMATION CONTACT: Joey LeVasseur, Regulatory Planning and Development Section, AirPrograms 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. TheTampa-St. PetersburgClearwater area (Tampa), comprised of Hillsborough and Pinellas Counties, was designated under section 107 ofthe 1977 Act asnonattamment with respect to the 03 NAAQS on March 3, 1978. [43 FR8964, 40 CFR 81.310] In accordance with section 110 ofthe 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 ofsection 110 and part D ofthe 1977 Act.

On November 15, 1990, the CAA Amendments of 1990 were enacted (1990 Amendments). [Pub. L. 101-549, 104 Stat. 2399, codified at42 U.S.C. 7401-7671q] The nonattainment 

### designation ofTampa was continued by operation oflaw pursuant to section 107(d)(1)(C)(i) ofthe 1990 Amendments. Furthermore, it was classified as marginal for 03 

### according to section 181(a)(1). (See 56FR 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 noviolations ofthe 03 

### NAAQS, during the period 1990 through 1994. In addition, there havebeen noexceedances reported for the 1995 03 

### season. Therefore, in an effort to comply withthe 1990 Amendments and to ensure continued attainment ofthe NAAQS, Florida submitted an 0 3

### ,maintenance SIP for the Tampa area on February 7 1995, and also requested redesignation ofthe

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 meetin order to beredesignated from nonattainment to attainment.

1. The area must have attained the applicable NAAQS;

2. The area must meetall relevant requirements under section 110 and part D ofthe CAA,

3. The area must have a fully approved SIPunder 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 ofthe CAA.

The Florida redesignation request for theTampa areameets the five requirements ofsection 107(d)(3)(E), noted above. The following is abrief description ofhow the State has fulfilled each of these requirements. Because themaintenance plan is a critical element ofthe redesignation request, EPA will discuss its evaluation ofthe maintenance plan under its analysis ofthe redesignation request.
1. Attainment ofthe 03 NAAQS

The Florida request isbased on an analysis ofquality assured 03 air quality datawhich 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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### Federal Register / Vol. 60, No. 235 I Thursday December 7 1995 / Rules and Regulations 

### 62749

1992 shows an exceedance rate ofless than 1.0 peryear ofthe 03 

### NAAQS in the Tampa area. (See 40 CFR 50.9 and Appendix H). Inaddition, there have been no ambient air exceedances in 1993, 1994 orto date in 1995 for03. Because theTampa area has complete quality-assured data showing no violations ofthe standard over themost recent consecutive three calendar year period, the Tampa area has met the first statutory criterion ofattainment ofthe
03 

### NAAQS. Florida has committed to continue monitoring in this area in accordance with 40 CFRpart 58.
2. Meeting Applicable Requirements of Section 110 andPartD

On May 14, 1981, EPA fully approved Florida's SIP for the Tampa areaas meeting the requirements ofsection 110(a)(2) and part D ofthe 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 ofredesignation, tomeet the requirement thatthe SIP contain all applicable requirements under the CAA, EPA has reviewed the SIP to ensure that it contains allmeasures that were due under the 1990 Amendments prior to or at the timethe State submitted its redesignation request.EPA interprets section 107(d)(3)(E)(v) to mean that for

a redesignation request tobe approved, the statehas met allrequirements that applied to the subject area prior to the submission ofacomplete redesignation request. Requirements ofthe CAA that

come due subsequently continue to be applicable at those later dates (see section 175A(c)) and, ifthe redesignation is disapproved, the state remains obligated to fulfillthose requirements.
A. Section 110Requirements

Although section 110 was amended 

### by the 1990 Amendments, the Tampa SIP meetstherequirements ofamended section 110(a)(2). A number ofthe requirements didnot change in substance and, therefore, EPA believes that the pre-amendment SIP metthese requirements. As to those requirements that were amended, (see57 FR 27936 and 23939, June 23, 1993), many are duplicative ofother requirements ofthe CAA. EPA hasanalyzed the SIPand determined that it is consistent withthe requirements ofamended section 110(a)(2).


### B. Part DRequirements
Before Tampa may be redesignated to 

### attainment, it also must have fulfilled the applicable requirements ofpart D. Under part D, an area's classification indicates the requirements to which it will be subject. Subpart I ofpart D sets forth the basic nonattainment requirements applicable to all nonattainment areas, classified as well

asnonclassifiable. Subpart 2ofpart D establishes additional requirements for nonattainment areas classified under table 1of section 181(a), The Tampa

area was classified as marginal (See 56 FR56694, codified at40 CFR 81.530). Therefore, in order tobe redesignated to attainment,the State mustmeet the applicable requirements ofsubpart I of part D, specifically sections 172(c)and 176, and is subject to requirements of subpart 2 ofpart D.

B.1. Subpart 1 ofpart 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 ofsection 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 ofFlorida submitted a complete redesignation request for the Tampa area. Therefore, the State was notrequired to meet these requirements forpurposes ofredesignation. 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) ofthe 1990 baseyear inventory required under subpart 2ofpart D, section 182(a)(1).

As for the section 172(c)(5) NSR requirement, EPA has determined that

areas beingredesignated need not comply with theNSR requirement prior to redesignation provided that the area demonstrates maintenance ofthe standard without part DNSR in effect. See memorandum from Mary Nichols, Assistant Administrator forAirand Radiation, dated October 14, 1994, entitled Part DNew Source Review (part DNSR)Requirements forAreas 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 demmnimisexceptions to statutory requirements. SeeAlabama PowerCo.v. Castle,636 F 2d 323, 360- 61 (D.C. Cir. 1979). However, the State ofFlorida does have a fully approved part D NSR rule.

Finally for purposes ofredesignation, the Tampa SIP was reviewed toensure thatall requirements ofsection 110(a)(2), containing general SIP elements, were satisfied. As noted above, EPAbelieves the SIPsatisfies all ofthose requirements.
B.2. Subpart 1ofPart D-Section 176 Conformity Plan Provisions

Section 176(c) ofthe CAA requires States torevise their SIPs to establish criteria andprocedures to ensure that Federal actions, before theyare 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 allother Federal actions ("general conformity"). Section 176 further provides that the conformity revisions tobe submitted by the States must be consistent withFederal 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 ofTitle I informed Statesthat its conformity regulations would establish a submittal date (see 57FR 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

amaintenance plan approved under CAA section 175A. Pursuant to 40 CFR 51.396 ofthe transportation conformity rule and 40 CFR 51,851 ofthe general conformity rule, the State ofFlorida is required to submit a SIPrevision containingtransportation conformity criteria and procedures consistent with those established in the Federal rule by November 25, 1994. Similarly the State ofFloridaisrequired to submit a SIP revision containing general conformity criteria andprocedures consistent with those established inthe Federal rule by No. 235 / Thursday December 7 1995 / Rules and Regulations 62749 Federal Register / Vol. 60,

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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 SIPrevisions for transportation conformity [58 FR 62188] and general conformity [58 FR 632141 rules, EPA believes it is reasonable to interpret the conformity requirements as notbeing applicable requirements for purposes ofevaluating theredesignation request under section 107(d). The rationale for this is based on a combination oftwo factors. First, the requirement to submit SIP revisions to comply with the conformity provisions ofthe 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 ofan area to attainment enables the area to avoid further compliance with most requirements ofsection 110 and part D, since those requirements are linked to the nonattainment status ofan area, the conformity requirements apply to both nonattainment and maintenance areas. Second, EPA s federal conformity rules require the performance ofconformity analyses in the absence ofstate-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 underFederal rules ifState rules are not yet adopted, EPAbelieves it is reasonable to view these requirements as notbeing applicable requirements for purposes ofevaluating

a redesignation request.

Therefore, with this notice, EPA is modifying its national policy regarding the interpretation ofthe 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, EPAbelieves 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 ofPart 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 oftheir problem. The Tampa 

### area was designated asmarginal 03 nonattainment (See 40 CFR 81.310). Because this area is marginal, the area must meet section 182(a) ofthe CAA. EPA has analyzed the SIP and determined that it is consistent with the requirements ofamended section 182. Below is a summary ofhow the area has
met the requirements ofthese sections.
(1) Emissions Inventory

The CAA required an inventory ofall 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 SIPrevisions 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) ofthe CAA required

a SIP submission by November 15, 1992,
to require stationary sources ofNOx 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) ofthe CAA

Based on the approval ofprovisions under the pre-amended CAA and EPA s prior approval ofSIP revisions under the 1990 Amendments, EPA has determined that the Tampa area has a fully approved SIP under section 110(k), which also meetsthe applicable requirements ofsection 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 ofthose rules were enforceable. The control measures to which theemission reductions are attributed are VOC RACT regulations, theFederal 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 andthat the VOG emissions in thebase year are not artificially low due to local economic downturn. EPA findsthat the combination ofexisting 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. FullyApproved Maintenance Plan UnderSection 175A

Section 175A ofthe CAA sets forth 

### the elements of amaintenance plan for

areas seeking redesignation from nonattainment to attainment. The plan must demonstrate continued attainment ofthe applicable NAAQS for at least ten years after the Administrator approves a redesignation to attainment. Eight years after theredesignation, the State must submit a revised maintenance plan which demonstrates attainment for the
ten years following the initial ten-year period. To provide forthe possibility of future NAAQS violations, the maintenance plan must contain contingency measures, with a schedule for implementation, adequate to assure prompt correction ofany air quality problems. In this notice,EPA is approving the State ofFlorida's maintenance plan for the Tampa area because EPA finds that Florida's submittal meetsthe requirements of section 175A.

A. EmissionsInventory-Base Year Inventory

On November 16, 1992, the State of Florida submitted comprehensive inventories ofVOC, 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 ofattainment conditions because the NAAQS was not violated during 1990. EPA isapproving the 1990base 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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### Federal Register / Vol. 60, No. 235 / Thursday December 7 1995 / Rules and Regulations 62751

tables ofthe base year and projected regarding the base year inventory for the maintenance yearinventories. EPA's Tampa area. TSD contains more in-depth details

VOC EMISSIONS INVENTORY SUMMARY [Tons perday]

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 StationaryArea

.................................................................................................................................................................................... 16.36 On-Road Mobile

................................................................................................................................................................................... 942.60 Non-Road Mobile

................................................................................................................................................................................. 365.54

Total

.......................................................................................................................................................................................... 1357.99

B.DemonstrationofMaintenanceProjected 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 or8.85% from the level of the base year inventory during this time period. The NOx emissions do show a slight increase of23.99 tons or 4.87% from 1990 to 2005, but the State has demonstrated as discussed belowthat the projected increases will not adversely affect the maintenance ofthe 03 NAAQS.

TheEmpirical Kinetics Modeling Approach (EKMA) was used to demonstrate the impact ofNOx emission increases on maximum 03 formation. The EKMA analysis showed thatthe projected future mix of emissions will not cause aviolation of the NAAQS. EPA EKMA guidance documents were used in developing model inputs. Themodel wasrun 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 inthe EKMA calculate mode. These days had observed 03maximum concentrations of0.118, 0.113, and 0.115 parts per million (ppm) respectively. The monitored NMOC/ NOx ratios of6.876, 8.298, and 5.180

were used as input. The EKMA predicted aminimum decrease in 03 concentration of1.5% from 1990 to 2005.

The model output indicated a continual decrease in the maximum model-predicted 03 with each increase in NOx emissions overthe 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 overthe 1990 inventory) produced lower 03 levels than thebase case. Thus, the analysis 

### indicates that, notwithstanding the projected increase in NOx emissions, theTampa area should continue to maintain the standard throughout the maintenance period.

C. Contingency Plan

The level ofVOC emissions in the Tampa area willlargely determine its ability to stay in compliance with the 03 

### NAAQS in the future. Despite the State'sbest efforts to demonstrate continued compliance withthe NAAQS, the ambient airpollutant concentrations may exceed orviolate the NAAQS. Therefore, Florida has provided contingency measures with aschedule for implementation inthe event ofa future 03 

### air quality problem. In the

case ofaviolation ofthe 03 

### NAAQS, the plan contains a contingency to implement additional controlmeasures such as reinstatement ofNSR, less volatile or reformulated gasoline, expansion ofcontrol strategies to adjacent counties for VOC and/or NOx and to new CTG categories, oran

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### 62752 Federal Register / Vol. 60, No. 235 / Thursday December 7 1995 / Rules and Regu.lations
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 submittalmeet the requirements of section 175A(d) ofthe CAA.
D.SubsequentMaintenancePlan Revisions

In accordance with section 175A(b) of the CAA, the State has agreed to submit

arevised maintenance SIP eight years after the area isredesignated to attainment. Such revised SIPwill provide formaintenance for an additional ten years. FinalAction

In this action, EPAis approving the Tampa area 03maintenance plan submitted onFebruary 7 1995, because itmeets the requirements ofsection 175A. In addition, the Agency is approving the request andredesignating 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 onNovember 16, 1992. The EPA is publishing this action withoutprior proposalbecause the Agency views this asa noncontroversial amendment and anticipates no adversecomments. However, ina separate document in this FederalRegister publicatior, the EPA is 

### proposing to approve the SIP revision should adverse orcritical comments be filed.This action willbe effective February 5,1996, unless, within 30 days ofits publication, adverse orcritical comments are received. Ifthe EPA receives such comments, this action will be withdrawn before the effective date by publishing asubsequent document thatwill withdraw the final action. All public comments received will then be addressed ina subsequent finalrule based onthis action serving as a proposed rule. The EPA will not institute asecond comment period on this action. Any parties interested in commenting onthis action should do so at this time. Ifno such comments are received, the public is advised that this action willbe effective February 5, 1996.

The 03 

### SIPis designed to satisfy the requirements ofpart D ofthe CAA and to provide for attainment and maintenance ofthe 03

### NAAQS. This final redesignation shouldnot be interpreted as authorizing the State to delete, alter, or rescind any oftheVOC

orNOX 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 arevised plan for attainment and maintenance is submitted to and approved by EPA. Unauthorized relaxations, deletions, and changes could result in both a finding ofnonimplementation [section 173(b) ofthe CAAI and in a SIPdeficiency call made pursuant to section 110(a)(2)(H) ofthe CAA.

Under section 307(b)(1) oftheAct, 42 U.S.C. 7607 (b)(1), petitions forjudicial review ofthis action must be filed in the United States Court ofAppeals for the appropriate circuit by February 5, 1996. Filing apetition for reconsideration by the Administrator ofthis final rule does
not affect the finality ofthis rule for
purposes ofjudicial 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) ofthe Act, 42 U.S.C. 7607 (b)(2).)

This action has been classified as a Table 3 action for signatureby 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 forAir 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 aspermitting orallowing or establishing a precedent forany future request for a revision to any SIP Each request for revision to the SIP shall be considered separately in lightofspecific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

Under theRegulatory FlexibilityAct, 5 U.S.C. section 600 etseq., EPA must prepare a regulatory flexibility analysis assessingthe impact ofany proposed or final rule on small entities. 5U.S.C sections 603 and 604. Alternatively, EPAmay certify that the rule will not have a significant economic impact on

a substantial number ofsmall entities. Small entities include smallbusinesses, small not-for-profit enterprises, and government entities with jurisdiction

over populations ofless than 50,000. The Office ofManagement and Budget has exempted this rule from the requirements ofsection 3 ofExecutive Order 12291. 

### SIP approvals under section 110 and subchapter I,part Dofthe CAA donot create any new requirements, but simply approve requirements that the
state is already imposing. Therefore, because the federal SIP-approval does
notimpose anynew requirements, I certify thatit doesnot have a significant impact on small entities.Moreover, due to the nature ofthe federal-state relationship under the CAA, preparation of aregulatory flexibility analysis would constitute federal inquiry into the economic reasonableness ofstate action. The CAA forbids EPA tobase itsactions concerning SIPson such grounds. UnionElectricCo.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 areato attainment under section 107(d)(3)(E) ofthe CAA doesnot impose any newrequirements

on small entities. Redesignation is an action that affects the status ofa geographical area and does notimpose any regulatory requirements on sources. The Administrator certifies thatthe approval ofthe 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 onMarch 22, 1995,EPA mustundertake various actions in association with proposed or final rules that include aFederal mandate thatmay result in estimated costs of$100 million

or moreto the private sector, orto State, local, or tribal governments in the aggregate.

Through submission ofthis state implementation plan orplan revision, the State and any affected local ortribal governments have elected to adopt the program provided forunder section 110 ofthe Clean AirAct. These rules may bind State, localand tribal governments to perform certain actions and also require the private sector toperform certain duties. To the extent that the rules being approved bythis actionwill impose nonew requirements; such

sources are already subject to these regulations under State law. Accordingly no additional costs to State, local, or tribal governments, orto the private sector,result from this action. EPA has also determined that this final action doesnot include a mandate that may result inestimated
costs of$100 million ormore to State, local, ortribal governments in the aggregate or to the private sector. No. 235 / Thursday December 7 1995 / Rules and Regulations 62752 Federal Register / Vol. 60,

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

List ofSubjects

40 CFR Part 52 

### Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference; Intergovernmental relations, Nitrogen Dioxide, Ozone.

40 CFRPart 81 

### Air pollution control, National parks, Wilderness areas.

Dated: October 19, 1995. 

### PatrickM. Tobm, ActingRegionalAdministrator.

Chapter I, title 40, CodeofFederal 

### Regulations,is amended asfollows:

PART 52-[AMENDED]

1.The authority citation forpart 52 continues toread 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 Identificationof plan.



### (c) (89) The maintenance plan for Tampa, Florida, submitted by the Florida Department ofEnvironmental 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 Date1 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 AirActInterim 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 ofthe title V operating permits program submitted by the California AirResources Board,

on behalfofthe San Diego AirPollution Control District (San Diego or District), for the purpose ofcomplying 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 ofSan Diego's mechanism for receiving delegation ofsection 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. Ifthe effective date is delayed, atimely notice will be published in the Federal Register. ADDRESSES: Copies ofthe 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), Airand Toxics Division, U.S. Environmental Protection Agency Region X, 75 Hawthorne Street, San Francisco, CA 94105.
FOR FURTHER INFORMATION CONTACT: CeliaBloomfield 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 ofthe 1990 Clean Air Act Amendments (sections 501-507 ofthe Clean Air Act (Act)), and implementing regulations at 40 Code ofFederal Regulations (CFR) part 70 (part-70), require that states develop and submit operating permits programs to EPA by November 15, 1993, and thatEPA act to approve or disapprove each program within 1 year after receiving the submittal. The EPA's program review

occurs pursuant to section 502 ofthe Act and the part 70 regulations, which together outline criteria for approval or disapproval. Where a program substantially but not fully, meets the requirements ofpart 70, EPA may grant the program interim approval for a period ofup to 2years. IfEPA has not fully approved a program by 2 years

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after the November 15, 1993 date, orby the end ofan interim program, it must establish and implement a federal proam.

TheEPA is publishing this action withoutprior proposalbecause the Agency viewsthis as a noncontroversial action and anticipates noadverse. comments. However, in a separate document in this FederalRegister publication, the EPAis proposing interim approval ofthe operating permit program submittedby SanDiego should adverse orcritical comments be filed.

IfEPAreceiwes 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 onthis action serving as the proposed rule.The EPA will not institute a second comment period. Any parties interested incommenting on this action should do so at this time. Ifno such comments arereceived, the public is advised that this action will be effective onFebruary 5,1996.
B.FederalOversightandSanctions

This interim approval, which may not berenewed, extends until February 9, 1998. During thisinterim approval period, San Diego is protected from sanctions, and EPA is notobligated to promulgate, administer and enforce a federal operating permits program inthe District.Permits issued under a program with interim approval have full standing with respect topart 70, and the 1-year time period for submittal of permit applications by subject sourcesbegins upon the effective date ofthisinterim approval, as doesthe 3-yeartime period forprocessing the initial permit applications.

ifSan Diego fails to submit acomplete corrective program for full approval by August 7 1997 EPA will start an 18- month clock for mandatory sanctions. If SanDiego then fails to submit a corrective program thatEPA finds complete before the expiration ofthat 18-month period, EPAwillbe required to apply one ofthe sanctions in section 179(b) oftheAct, which will remain in effect until EPA determines that San Diego has corrected the deficiency by submitting a complete corrective program. Moreover, ifthe Administrator finds alack ofgood faith on the part of theDistrict, both sanctionsunder section 179(b) will apply after the expiration ofthe 18-monthperiod until the Administrator determines that San Diego hascome 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 willbe required.

IfEPA disapproves San Diego's complete corrective program, EPA will be required to apply one ofthe section 179(b) sanctions on the date 18months after theeffective date ofthe disapproval, unless prior to that-date San Diego has submitted arevised program and EPA has determined thatit corrected the deficiencies that prompted the disapproval. Moreover, ifthe Administrator finds a lack ofgood faith

on the part ofthe District, both sanctions under section 179(b) shall apply after the expiration ofthe 18- month period until theAdministrator determines that San Diego has come into compliance. In all cases, if, six months after EPA applies the first sanction, the Districthas not submitted

arevised program that EPA has determined corrects the deficiencies, a second sanction isrequired.

In addition, discretionary sanctions may be applied where warranted any time after the expiration ofan interim approval period ifSan Diego has not timely submitted a complete corrective program orEPA has disapproved its submitted corrective program. Moreover, ifEPA hasnot granted full approval to the District's program by the expiration ofthisinterim approval and thatexpiration occurs after November 15, 1995, EPA must promulgate, administer and enforce afederal permits program for San Diego upon interim approval expiration.

II.Direct Final Action andImplications


### A. AnalysisofStateSubmission

Theanalysis contained in thisnotice focuses on specific elements ofSan Diego's title V operating permits program that mustbecorrected to meet the minimum requirements ofpart 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 ofthe public docket (CA-SD-95-1- OPS).The docket may beviewed during regular business hours atthe address listed above.
1. Support Materials

San Diego's titleV program was submitted bythe California Air Resources Board (CARB) on April 22, 1994 and found tobe complete onJune 9, 1994. On April 4,1995, the District amended the regulatory portion ofits submittal. On October 10, 1995, EPA received from CARB, on behalfofthe District, a revised feeprogram and an updated program description. Enabling legislation for the State ofCalifornia and the Attorney General's legal opinion

were submitted by CARB for all districts in California and therefore were not included separately in SanDiego's submittal. The San Diego submission does contain aGovernor's letter requesting source category-limited interim approval, District implementing and supporting regulations, and all other program documentation required by section 70.4. Animplementation agreement is currently being developed between San Diego and EPA.
2.Regulations and Program Implementation

San Diego's titleV implementing regulation, District Regulation XIV was first adopted on January 18, 1994. After preliminary review ofRegulation XIV EPA identified numerous regulatory deficiencies and communicated the potential disapproval issues to San Diego inletters 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, onbehalfofthe District, onApril 4, 1995. San Diego's program 

### descriptionwas also revised to reflect the changes made to Regulation XIV EPA is therefore evaluating and acting

onthe March 7 1995 version of Regulation XIV

San Diego's titleVimplementing regulations substantially meet the requirements of40 CFRpart 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 forpublic participation and permit modifications; section 70.5 forcriteria 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 afew 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, aspart ofa state program, a list ofinsignificant activities and emissions levelswhich need notbe included in permit applications. Section 70.5(c) also states thatan application for a part 70 permit may not omit information needed to determine the applicability of, orto impose, any applicable requirement, or to evaluate appropriate fee amounts. Section 70.4(b)(2) requires states to include in theirpart 70 62754 Federal Register / Vol. 60, No. 235 / Thursday December 7 1995 / Rules and Regulations

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programs any criteria used to determine insignificant activities oremission levels for the purpose of determining complete applications. Under part 70, a state must request and EPA may approve as part ofthat state's program any activity oremission level that the
state wishesto 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 ofthe part 70
program under review.

San Diego submitted an extensive list ofinsignificant activities thatthe 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, theDistrict did not provide emissions level cut-offs formany ofthe listed units. For instance, Regulation XIV Appendix A(p)(17) exempts most refrigeration units regardless of size. Such units, iftheyhave acharge rate of 50 pounds or more ofa Class I orII ozone-depleting compound, would be subject to applicable requirements and could not be considered insignificant. EPA believes that in orderto 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, orto 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 theDistrict'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 ifa unit qualifies

asinsignificant. 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. ofthis notice.
b.Variances

San Diego s Hearing Board has the authority to issue variances from requirements imposed by State and local law. SeeCalifornia Health and Safety Code sections 42350 et seq.In the legal opinion submitted forCalifornia operating permit programs, California's Attorney General states that "[t]he variance process is not part ofthe Title Vpermitting process and does not affect federal enforcement forviolations ofthe requirements set forth ina Title V permit." (Emphasis inoriginal.)

EPA regards the Stateand District variance provisions aswholly 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 ofstate

or local law, such as the variance provisions referred to,that are inconsistent with the Act. EPAdoes not recognize the ability ofa permitting authority to grant relieffrom theduty to comply with a federally enforceable part 70 permit, except where such reliefis granted through procedures allowed by part 70. A part 70 permit may be issued

orrevised (consistent withpart 70 permitting procedures) to incorporate thoseterms ofa variance that are consistent with applicable requirements. Apart 70 permit may also incorporate, via part 70 permit issuance

or modification procedures, the schedule ofcompliance set forth in a variance. However, EPA reserves the right to pursue enforcement of applicable requirements notwithstanding the existence ofa compliance schedule in a permit to operate. This is consistent with 40 CFR §70.5(c)(8)(iii)(C), which states that a schedule ofcompliance "shall be supplemental to, and shall not sanction noncompliance with, theapplicable requirements on whichit isbased."'

c. Reporting ofPermit 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 ofdeviations likely
to occur and the applicable requirements. Although the permit program regulations should define prompt forpurposes ofadministrative 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 twoto ten days ofthe deviation. Two to ten days is sufficient time inmost cases to protect public health and safety aswell

asto provide a forewarning of potential problems. For sources with alow level ofexcess emissions, a longer time period may beacceptable. However, prompt reporting mustbe more frequent than the semiannual reporting requirement, given thisis adistinct reporting obligation under section 70.6(a)(3)(iii)(A). Where "prompt" is definedin the individual permit butnot in the program regulations, EPA may veto permits that do not contain sufficiently promptreporting of deviations.
d.Temporary Authorization

San Diego stitle Vregulation provides forthe issuance ofa "temporary authorization" which allows a source to operate withoutan operating permit. Temporary authorizations are not required by part 70,but they exist in San Diego stitleV program in order to maintain consistency with the District's existing local permitting program. San Diego structured itstemporary authorization mechanism to ensure that the issuance oftemporary authorizations would notinterfere with any ofthe requirements established under part 70. Specifically temporary authorizations may only be issued to

sources that have met the requirements ofsection 112(g)or the preconstruction permitting requirements under parts C

orD oftitle I;i.e., the same scope of

sources that do nothave to submit applications fortitle Vpermits or title Vpermit modifications until 12 months after commencing operation (section 70.5(a)(1)(ii)). Furthermore, possession ofatemporary authorization does not affect a source's obligation to submit a title Vpermit application, and the temporary authorization expires on the date that acomplete title Vpermit application is due.

e. Enhanced New SourceReview

San Diego's titleV permit program provides for enhanced preconstruction review an optional process thatallows

sources to satisfy both new source review and title Vpermit modification requirements atthe same time.Any modification processed pursuant to San Diego's enhanced preconstruction review procedures may be incorporated into the title Vpermit asan administrative permit amendment. These enhanced procedures obviate the needtoundergo 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 ofthe San Diego title Vprogram 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 emissionsin major source determinations is contained in the definition of"potential to emit" rather than the definition of "major stationary source." Theterm "potential to emit" is used to define "major stationary source." (SeeRegulation XIV Rules 1401(c)(25) and (36).)

Second, abroad 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) ofthe 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 ofthe 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, ifEPA completes a rulemaking that would require anonmajor 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 orderto 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 orcondition ofany preconstruction permits issued pursuant to regulations approved or promulgated through rulemaking undertitle I, including parts C or D, ofthe Act;" (section 70.2, definition of"applicable requirement," subsection (2)) i.e., major and minornew source review and prevention ofsignificant deterioration requirements.

Rather than citing parts C or D oftitle 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 ofthe 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 anyemissionsincrease,which could be construed as an emissions threshold ofzero, 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 eitherthe definition of "federally mandated new

source review" orthe definition of "federally enforceable requirement" to clearly include minornew 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 minornew 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 ofthe California SIP constitute the District's minor (and major) NSR program. (See June 22, 1994 letter from Richard Smith, San Diego AirPollution Control District, to Ron Friesen, California Air Resources Board.) Since Rules 10 and 21 are in San Diego's SIP therequirement to obtain, and the specific conditions of, a minor NSR permit are federally enforceable.

EPA has discussed this interim approach with SanDiego, 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 ofminorNSR permits. EPA believes that, until San Diego's SIP is revised to state otherwise, Rule 21 makes all terms and conditions ofminor 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 isrevised orthis disagreement is resolved, the District has agreed to designate in the part 70 permit certain minorNSR permitterms

as "District-only minor NSR" and stipulate that those terms so listed will bereviewed and, asnecessary be 

### deleted, revised, or incorporated as federally-enforceable terms ofthe part 70 permit on orbefore a specified deadline (notlater than the renewal of the permit).
3.Permit Fee Demonstration

Section 502(b)(3) ofthe Actrequires 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 offee adequacy

or a demonstration that aggregate fees collected from title Vsources meet or exceed $25 pertonper year (adjusted annually based on the Consumer Price Index (CPI), relative to 1989 CPI).The $25 per ton amount is presumed, for program approval, tobe sufficient to

cover all reasonable program costs and is thus referred to asthe "presumptive minimum" (40CFR 70.9(b)(2)(i)).

San Diego has opted tomake a presumptive minimum fee demonstration. The District's fees are based on the actual direct and indirect
costs ofevaluating and issuing a titleV permit. Inaddition to employing a cost recovery approach, the District will charge an initial title Vpermit 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 5years ofthe program. The presumptive minimum is calculated at $309,300 peryear by multiplying an estimated 10,000 tons of pollutants emitted each year in San Diego bythe CPI adjusted presumptive dollar amount of$30.93. San Diego will 

### therefore be collecting feesin an amount that exceeds the presumptive minimum.
4. Provisions Implementing the Requirements ofOther Titles oftheAct

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 titleV permit. This legal authority is contained inthe State ofCalifornia enabling legislation and inregulatory provisions defining federal "applicable requirements" and requiring each permit to incorporate conditions that

assure compliance with all applicable requirements. EPA has determined that thislegal authorityis sufficient to allow SanDiegoto issuepermits thatassure compliance with all section 112 requirements. For further discussion, please refer to the TSD accompanying No. 235 / Thursday December 7 1995 / Rules and Regulations 

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this action and the April 13, 1993 guidancememorandum entitled, "Title VProgram Approval Criteria for Section 112 Activities," signed byJohn Seitz.

b.Authority for Title IV Implementation

On March 7 1995, San Diego incorporated by reference part 72, the federal acidtarn permittingregulations. The incorporation by reference was codified in Rule 1412 ofRegulation XIV and submitted to EPA on April 4, 1995.

B. Proposed InterimApprovaland Implications

1.Title VOperating Permits Program

The EPA is promulgating direct final interim approval to the operating permits program submitted by the California AirResources Board, on behalf ofthe San Diego AirPollution 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 thisinterim approval), the California Legislature must revise theHealth and Safety Code to eliminate the exemption ofagricultural production sources from the requirement to obtain a permit.

(2) Part 70 requires that any significant change in monitoringpermit
terms orconditions be processed as a significant permitmodification. Rule 1401(c)(43), definition of"Significant Permit Modification," must berevised accordingly. (See section 70.7(e)(4).)

(3) San Diego's treatment ofaffected
state notification is unclear in the program submittal. Part 70 requires that air permitting authorities provide notice
to all affected states ofall proposed permits, minor and significant permit modifications, and renewals (section 70.8(b)(1)). Theterm "affected state" is defined in section 70.2 as a contiguous
state whose air quality may be affected

or a state within 50 miles ofa 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 doesnot specify
any affected state notification procedures. It does provide, however, the requirement to notify affected states in the case ofminor 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 withrespect to states that border California because ofSan 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 tribeswill be adequately notified and consulted once such tribes apply fortreatment as affected states. IfSan 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 ofaffected state notice provisions or incorporation ofexisting practices, EPA will accept a commitment from San Diegoto: (1) Initiate rule revisions upon notification from EPA that an affected tribe has applied for state status; and (2) provide affected state notice to tribesupon a tribe's filing for state status, that is, prior
to the District's adoption ofaffected
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 ifthere are 3 years ormore remaining on the term of its 5-year permit. (See section 70.7(f)(1)(i).)

(5) Remove any activities from the District's listof 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 listof 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 ofthe title V program, 

### the word "include" in the above phrase must alsobe removed.

(7)The District must revise either the definition of "federally mandated new
source review" orthe definition of "federally enforceable requirement" to clearly include minornew source review as an applicable requirement under titleV

This interim approval, whichmay not be renewed, extends for a period ofup to two years. During the interim approval period, San Diego isprotected from sanctions forfailure to have a program, and EPAis notobligated to promulgate afederal permits program in the District. Permits issued under a program with interim approval have full standing with respectto 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 initialpermit applications.

The scope ofSan Diego'spart 70 program thatEPA is acting on in this notice applies to allpart 70 sources (as defined in the approved program) within San Diego's jurisdiction. The approved program doesnot apply to any part 70 sources overwhich an Indian tribe hasjurisdiction. 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 anyAlaska Native village, which is federally recognized as eligible for the special programs and services provided by the United States to Indians because oftheir status as Indians." See section 302(r) ofthe CAA, seealso 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) ofthe Act 

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

### postpones the effective date ofsection 112(g) until after EPAhas promulgated

a rule addressing that provision. The interpretive notice also explains that EPA is considering whether the effective date ofsection 112(g) should be delayed beyond the date ofpromulgation ofthe federal rule so as to allow states time to adopt rules implementing the federal rule, and thatEPA will provide for any such additional delay in the final section 112(g) rulemaking. Unless and until EPA provides for such an addition~alpostponement ofsection 112(g), San Diego must be ableto implement section 112(g) during the period between promulgation ofthe

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### federal section 112(g) rule and adoption of implementing State regulations.

For thisreason, EPA is approving the

use ofSan Diego's preconstruction review program as a mechanism to implement section 112(g) during the transition period between promulgation ofthe section 112(g) rule and adoption by SanDiego ofrules specifically designed to implement section 112(g). However, since the sole purpose ofthis approval is to confirm that the District has a mechanism to implement section 112(g) during the transition period, the approval itselfwill be without effect if EPA decides in the final section 112(g) rule thatthere will be notransition period. The EPA is limiting the duration ofthis approval to 18 

### months following promulgation by EPA ofthe section 112(g) rule.

3. Program for Delegation ofSection 112 Standards asPromulgated

Requirements for approval, specified in 40 CFR section 70.4(b), encompass section 112(l)(5) requirements for approval ofa 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 ofSan Diego's program for receiving delegation ofsection 112 standards that are unchanged from federal standards as promulgated. California Health and Safety Code section 39658 provides for automatic adoption by CARB ofsection 112 standards upon promulgation by EPA. Section 39666 ofthe 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 ofthese standards without further regulatory action by the District. The details ofthis 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 ofSan 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 EPARegional Office. The docket is an organized and complete file of all the information submitted to, or otherwise considered by EPA in the development ofthis direct final rulemaking. The docket is available for public inspection at the location listed under the ADDRESSES section ofthis document.

B. RegulatoryFlexibility Act
The EPA s actions under section 502 ofthe Act do not create any new requirements, but simply address operating permits programs submitted
to satisfy the requirements of40 CFR part 70. Because this action does not impose any new requirements, it does
not have a significant impact on a substantial number ofsmall entities.

C. UnfundedMandates

Under section 202 ofthe Unfunded Mandates Reform Act of1995 ("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 afederal mandate that may result in estimated costs to state, local, or tribal governments-in the aggregate; or to the private sector, of $100 million ormore. Under section 205, EPA must select the most costeffective and least burdensome alternative that achieves the oblectives ofthe rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments thatmay 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, orto the private sector. This federal action
approves pre-existing requirements under state orlocal law and imposes no
new federal requirements. Accordingly

no additional costs to state, local, or tribal governments, orto the private sector, result from this action.

D.Executive Order12866

The Office ofManagement and Budget has exempted this action from review under Executive Order 12866.

Listof Subjects in 40 CFRPart 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 ofthe Code ofFederal Regulations is amended asfollows:

PART 70-[AMENDED]

1. The authority citation for part 70 continues to read as follows:

Authority: 42 U.S.C. 7401, etseq. 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 onbehalf of:

(x) SanDiegoAirPollution 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 AirAct 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 ofthe title V operating permits program submitted by the California Air Resources Board (CARB), on behalf ofthe Mariposa Air Pollution Control District (Mariposa or District), for thepurpose ofcomplying 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 ofMariposa'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. Ifthe effective date is delayed, atimely notice will be published in the Federal Register. ADDRESSES: Copies ofthe District's submittal and other supporting 

### 62758 Federal Register / Vol. 60,

HeinOnline -- 60 Fed. Reg. 62758 1995