[Federal Register Volume 60, Number 85 (Wednesday, May 3, 1995)]
[Rules and Regulations]
[Pages 21720-21724]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10825]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[AD-FRL-5200-7]


 Clean Air Act Final Interim Approval of Operating Permits 
Program for Nineteen California Air Pollution Control Districts

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final interim approval.

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SUMMARY: The EPA is promulgating interim approval of the Operating 
Permits Program submitted by the California Air Resources Board on 
behalf of Amador County Air Pollution Control District (APCD), Butte 
County APCD, Calaveras County APCD, Colusa County APCD, El Dorado 
County APCD, Feather River Air Quality Management District (AQMD), 
Great Basin Unified APCD, Imperial County APCD, Kern County APCD, 
Lassen County APCD, Mendocino County APCD, Modoc County APCD, North 
Coast Unified AQMD, Northern Sierra AQMD, Northern Sonoma County APCD, 
Placer County APCD, Siskiyou County APCD, Tuolumne County APCD, and 
Yolo-Solano AQMD, California (districts) 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.

EFFECTIVE DATE: June 2, 1995.

ADDRESSES: Copies of the nineteen districts' submittals and other 
supporting information used in developing the final interim approval 
are available for inspection during normal business hours at the 
following location: Operating Permits Section, A-5-2, Air and Toxics 
Division, U.S. EPA-Region IX, 75 Hawthorne Street, San Francisco, 
California 94105.

FOR FURTHER INFORMATION CONTACT: For information, please contact: Sara 
Bartholomew, Operating Permits Section, A-5-2, Air and Toxics Division, 
U.S. EPA-Region IX, 75 Hawthorne Street, San Francisco, California 
94105, (415) 744-1170.

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 (the Act)), and implementing regulations at 40 Code 
of Federal Regulations (CFR) part 70 require that States develop and 
submit operating permits programs to EPA by November 15, 1993, and that 
EPA act to approve or disapprove each program within 1 year after 
receiving the submittal. The EPA's program review occurs pursuant to 
section 502 of the Act and the part 70 regulations, which together 
outline criteria for approval or disapproval. Where a program 
substantially, but not fully, meets the requirements of part 70, EPA 
may grant the program interim approval for a period of up to 2 years. 
If EPA has not fully approved a program by 2 years after the November 
15, 1993 date, or by the end of an interim program, it must establish 
and implement a Federal program.
    On December 8, 1994, EPA proposed interim approval of the operating 
permits programs for Amador County APCD, Butte County APCD, Calaveras 
County APCD, Colusa County APCD, El Dorado County APCD, Feather River 
AQMD, Great Basin Unified APCD, Imperial County APCD, Kern County APCD, 
Lassen County APCD, Mendocino County APCD, Modoc County APCD, North 
Coast Unified AQMD, Northern Sierra AQMD, Northern Sonoma County APCD, 
Placer County APCD, Siskiyou County APCD, Tuolumne County APCD, and 
Yolo-Solano AQMD, California. See 54 FR 63289. The EPA received public 
comment on the proposal, and is responding to those comments in this 
document and in a separate ``Response to Comments'' document that is 
[[Page 21721]] available in the docket. The EPA also compiled a 
Technical Support Document (TSD) for each of the nineteen districts, 
which describes each operating permits program in greater detail.
    In this notice EPA is taking final action to promulgate interim 
approval of the operating permits program for Amador County APCD, Butte 
County APCD, Calaveras County APCD, Colusa County APCD, El Dorado 
County APCD, Feather River AQMD, Great Basin Unified APCD, Imperial 
County APCD, Kern County APCD, Lassen County APCD, Mendocino County 
APCD, Modoc County APCD, North Coast Unified AQMD, Northern Sierra 
AQMD, Northern Sonoma County APCD, Placer County APCD, Siskiyou County 
APCD, Tuolumne County APCD, and Yolo-Solano AQMD, California.

II. Final Action and Implications

A. Analysis of State Submission

    EPA received two comment letters on the proposed rulemaking for the 
districts, one from the National Environmental Development Associations 
Clean Air Regulatory Project (``NEDA/CARP''), and one from the American 
Forest & Paper Association (``AF&PA''), both dated January 9, 1995. The 
issues discussed in the December 8, 1994 proposal were not changed as a 
result of public comment with the exception of the implementation of 
section 112(g) from the effective date of the title V program. EPA's 
final action is being revised from the proposed notice with respect to 
this issue. This change is discussed below along with other issues 
raised during the public comment period.
1. 112(g) Implementation
    NEDA/CARP and AF&PA both submitted comments regarding EPA's 
proposed approval of the nineteen California districts' preconstruction 
permitting programs for the purpose of implementing section 112(g) 
during the transition period between title V approval and adoption of a 
District rule implementing EPA's section 112(g) regulations. In 
opposition to the proposed action, the commenters argued that the 
nineteen districts should not, and cannot, implement section 112(g) 
until: (1) EPA has promulgated a section 112(g) regulation; and (2) the 
District has a section 112(g) program in place.
    EPA received many comments nationally on this issue, and agrees 
that it is not reasonable to expect the states and districts to 
implement section 112(g) before a rule is issued. EPA has therefore 
published an interpretive notice in the Federal Register regarding 
section 112(g) of the Act: 60 FR 8333 (February 14, 1995). This notice 
outlines EPA's revised interpretation of 112(g) applicability prior to 
EPA's issuing the final 112(g) rule. The notice states that major 
source modifications, constructions, and reconstructions will not be 
subject to 112(g) requirements until the final rule is promulgated. EPA 
expects to issue the 112(g) final rule in September 1995.
    The notice further explains that EPA is considering whether the 
effective date of section 112(g) should be delayed beyond the date of 
promulgation of the Federal rule so as to allow States and Districts 
time to adopt rules implementing the Federal rule, and that EPA will 
provide for any such additional delay in the final section 112(g) 
rulemaking. Unless and until EPA provides for such an additional 
postponement of section 112(g), the nineteen districts must be able to 
implement section 112(g) during the period between promulgation of the 
Federal section 112(g) rule and adoption of implementing District 
regulations.
    For this reason, EPA is proposing to approve the nineteen 
districts' preconstruction review programs as a mechanism to implement 
section 112(g) during the transition period between promulgation of the 
section 112(g) rule and adoption by the nineteen districts of rules 
specifically designed to implement section 112(g). However, since 
approval is intended solely to confirm that the districts have 
mechanisms 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 its approval of the use of preconstruction 
programs to implement 112(g) to 12 months following promulgation by EPA 
of the section 112(g) rule.
2. Insignificant Activities
    NEDA/CARP and AF&PA both assert that EPA lacks the legal footing to 
reject the districts' present ``insignificant levels,'' and that EPA 
has no authority to hold out ``suggested'' emission levels as a 
threshold for receiving full approval.
    EPA disagrees that it lacks authority to reject inappropriate or 
unsupported insignificance levels, or to articulate on a program-by-
program basis levels that it definitely would accept. Part 70 allows 
States to deem certain activities or emission levels insignificant if 
they are listed in the program submitted to EPA and approved by EPA, 
but does not grant States authority to create new exemptions without 
EPA approval. Section 70.4(b)(2) requires the submittal of criteria 
used to determine insignificant activities, and Sec. 70.5(c) does not 
allow States to create an insignificant activities permit exemption if 
the exemption will interfere with the imposition of applicable 
requirements or the collection of fees. In addition, part 70 explicitly 
authorizes EPA to approve insignificant activities based on emission 
levels (Sec. 70.5(c)). EPA has the legal authority to reject district 
provisions which contravene these part 70 requirements.
    As stated in the proposal, most of the nineteen programs provided 
EPA with no criteria or information on the level of emissions of 
activities on the districts' exemption lists. In addition, the specific 
insignificant activities provisions submitted by the districts have 
raised concerns with EPA regarding the districts' ability to ensure 
that applicable requirements are included in permits. None of the 
nineteen districts provided EPA with a demonstration to the contrary. 
For these reasons, the nineteen districts' lists of insignificant 
activities are not acceptable.
    In the proposed rulemaking EPA suggested insignificance levels that 
the Agency would find acceptable even without a further demonstration. 
Neither of the commenters specifically addressed these sugested 
insignificance levels. EPA would like to note that the nineteen 
districts have the flexibility to modify their regulations and submit 
criteria for EPA approval of new exemptions, as long as each district 
demonstrates, or EPA is otherwise satisfied, that such alternative 
emission levels are insignificant compared to the level of emissions 
and types of units that are permitted or subject to applicable 
requirements.
3. Public Petitions to EPA
    NEDA/CARP and AF&PA both registered their concern regarding the 
public petition requirements, notification and other procedural 
requirements, stating that they believe these requirements will thwart 
efforts in California to develop market incentive approaches to 
emissions reductions.
    Provisions for public participation, notification and public 
petitions are required under title V of the Clean Air Act (CAA 
502(b)(6) for public participation, and CAA 505(b)(2) for public 
petitions), and are therefore included in part 70, the regulations that 
implement title V. EPA believes public participation does not preclude 
a district from developing market based incentive programs. 
[[Page 21722]] 
4. Compliance Certification
    NEDA/CARP and AF&PA both contend that EPA has misread its own rule 
in requiring that the full text of the responsible official's 
certification be included in both the application content and permit 
content. They argue that the provision of Sec. 70.5(d) sets out the 
terms and conditions for any certification of an application form, 
report or compliance made pursuant to the rules, but does not establish 
a signatory statement that must be attested to by the responsible 
official to the exclusion of all other statements (emphasis in comment 
letters).
    EPA disagrees with the above comment. Section 70.5 requires that: 
``This certification * * * shall state that, based on information and 
belief formed after reasonable inquiry, the statements and information 
in the document are true, accurate, and complete'' (emphasis added). 
This indicates that it is not sufficient merely for the responsible 
official to sign the certification; the certificate must state that he 
or she considered the issue carefully. The statement must contain the 
essential elements of Sec. 70.5(d), and include the words quoted above. 
EPA does not rule out having a pre-printed statement on the certificate 
for convenience.
5. Deviation Reporting
    NEDA/CARP and AF&PA both contend that it is necessary for EPA to 
revise several of its earlier interim approval notices, in which the 
Agency conditioned final approval on including a definition of 
``prompt'' in the state operating permits program, in order to provide 
a consistent application of the appropriate interpretation of its 
rules.
    In the proposed interim approval notice EPA stated that the 
nineteen districts' regulations should define the meaning of ``prompt'' 
as used in the requirement found at 40 CFR 70.6(a)(3)(iii)(B), which 
requires ``prompt'' reporting of deviations from applicable 
requirements. The Agency indicated that an acceptable alternative to 
defining in the regulation what constitutes ``prompt'' is to define 
``prompt'' in each individual permit.
    NEDA/CARP and AF&PA both support this approach. EPA has 
consistently asserted that this is an acceptable alternative to 
defining ``prompt'' in the body of the permitting regulations, and sees 
no need to revisit past interim approval actions to clarify this 
interpretation of the definition of what constitutes ``prompt'' 
reporting of deviations from applicable requirements.
6. Potential to Emit
    In the proposed rulemaking, EPA required Amador and Tuolumne 
counties to revise the definition of ``potential to emit'' in their 
rules to clarify that only federally-enforceable limitations may be 
considered in determining a source's potential to emit. NEDA/CARP and 
AF&PA both argue that limitations based on state requirements, as well 
as federally-enforceable limitations, should be considered in 
determining the potential to emit.
    EPA's requirement that Amador and Tuolumne revise their definitions 
of the term ``potential to emit'' is based upon the definition of that 
term found in 40 CFR 70.2. Section 70.2 defines ``potential to emit'' 
as the maximum capacity of a stationary source to emit any air 
pollutant under its physical and operational design. The definition 
further provides, however, that a physical and operational limit on 
potential to emit is considered to be part of the source's design if it 
is enforceable by EPA. Since the Amador and Tuolumne rules do not 
conform to this critical definition, the districts must revise their 
programs to clarify that only federally enforceable restrictions can 
provide a legal limitation on a source's potential to emit.

B. Final Action

    The EPA is promulgating interim approval of the operating permits 
programs submitted by the California Air Resources Board on behalf of 
Amador County APCD (complete submittal received on December 27, 1993), 
Butte County APCD (complete submittal received on December 16, 1993), 
Calaveras County APCD (complete submittal received on October 31, 
1994), Colusa County APCD (complete submittal received on February 24, 
1994), El Dorado County APCD (complete submittal received on November 
16, 1993), Feather River AQMD (complete submittal received on November 
16, 1993), Great Basin Unified APCD (complete submittal received on 
January 12, 1994), Imperial County APCD (complete submittal received on 
March 12, 1994), Kern County APCD (complete submittal received on 
November 16, 1993), Lassen County APCD (complete submittal received on 
January 12, 1994), Mendocino County APCD (complete submittal received 
on December 27, 1993), Modoc County APCD (complete submittal received 
on December 27, 1993), North Coast Unified AQMD (complete submittal 
received on February 24, 1994), Northern Sierra AQMD (complete 
submittal received on June 6, 1994), Northern Sonoma County APCD 
(complete submittal received on January 12, 1994), Placer County APCD 
(complete submittal received on December 27, 1993), Siskiyou County 
APCD (complete submittal received on December 6, 1993), Tuolumne County 
APCD (complete submittal received on November 16, 1993), and Yolo-
Solano AQMD (complete submittal received on October 14, 1994), 
California.
    The nineteen districts must make the changes specified in the 
proposed rulemaking, under II.C., District Title V Interim Approval 
Issues Common to All Nineteen Districts and Section III., Individual 
District Title V Interim Approval Issues, in order to be granted full 
approval.
    The scope of the nineteen districts' part 70 programs approved in 
this notice applies to all part 70 sources (as defined in the approved 
program) within the districts, except any sources of air pollution over 
which an Indian Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-
55818 (Nov. 9, 1994). The term ``Indian Tribe'' is defined under the 
Act as ``any Indian tribe, band, nation, or other organized group or 
community, including any Alaska Native village, which is Federally 
recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.'' 
See section 302(r) of the CAA; see also 59 FR 43956, 43962 (Aug. 25, 
1994); 58 FR 54364 (Oct. 21, 1993).
    This interim approval, which may not be renewed, extends until June 
3, 1997. During this interim approval period, the nineteen districts 
are protected from sanctions, and EPA is not obligated to promulgate, 
administer and enforce a Federal operating permits program in any of 
these districts. 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 any of the nineteen districts fails to submit a complete 
corrective program for full approval by December 3, 1996, EPA will 
start an 18-month clock for mandatory sanctions. If any of the 
districts then fail to submit a corrective program that EPA finds 
complete before the expiration of that 18-month period, EPA will apply 
sanctions to that district as required by section 502(d)(2) of the Act, 
which will remain in effect until EPA determines that the district has 
[[Page 21723]] corrected the deficiency by submitting a complete 
corrective program.
    If EPA disapproves any of the nineteen districts' complete 
corrective program, EPA will apply sanctions to that district or 
districts as required by section 502(d)(2) on the date 18 months after 
the effective date of the disapproval, unless prior to that date the 
district or districts has submitted a revised program and EPA has 
determined that the district or districts corrected the deficiencies 
that prompted the disapproval.
    In addition, discretionary sanctions may be applied where warranted 
any time after the expiration of an interim approval period if any of 
the nineteen districts 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 any of the nineteen 
districts' programs 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 those districts 
lacking full approval, upon interim approval expiration.
    Requirements for approval, specified in 40 CFR 70.4(b), encompass 
section 112(l)(5) requirements for approval of a program for delegation 
of section 112 standards as promulgated by EPA as they apply to part 70 
sources. Section 112(l)(5) requires that the State or District's 
program contain adequate authorities, adequate resources for 
implementation, and an expeditious compliance schedule, which are also 
requirements under part 70. Therefore, the EPA is also promulgating 
approval under section 112(l)(5) and 40 CFR 63.91 of the nineteen 
districts' programs for receiving delegation of section 112 standards 
that are unchanged from Federal standards as promulgated. This program 
for delegations only applies to sources covered by the part 70 program.

III. Administrative Requirements

A. Docket

    Copies of the nineteen districts' submittals and other information 
relied upon for the final interim approval, including two public 
comments received and reviewed by EPA on the proposal, are contained in 
docket number CA-NONGR19-94-01-OPS, maintained at the EPA Regional 
Office. The docket is an organized and complete file of all the 
information submitted to, or otherwise considered by, EPA in the 
development of this final interim approval. The docket is available for 
public inspection at the location listed under the ADDRESSES section of 
this document.

B. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.
    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. Regulatory Flexibility Act

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Dated: April 21, 1995.
John Wise,
Acting 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 the entry for 
California in alphabetical order to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *
California
    The following district programs were submitted by the California 
Air Resources Board on behalf of:
    (a) Amador County Air Pollution Control District (APCD) (complete 
submittal received on September 30, 1994); interim approval effective 
on June 2, 1995; interim approval expires June 3, 1997.
    (b) [Reserved]
    (c) Butte County APCD (complete submittal received on December 16, 
1993); interim approval effective on June 2, 1995; interim approval 
expires June 3, 1997.
    (d) Calaveras County APCD (complete submittal received on October 
31, 1994); interim approval effective on June 2, 1995; interim approval 
expires June 3, 1997.
    (e) Colusa County APCD (complete submittal received on February 24, 
1994); interim approval effective on June 2, 1995; interim approval 
expires June 3, 1997.
    (f) El Dorado County APCD (complete submittal received on November 
16, 1993); interim approval effective on June 2, 1995; interim approval 
expires June 3, 1997.
    (g) Feather River Air Quality Management District (AQMD) (complete 
submittal received on December 27, 1993); interim approval effective on 
June 2, 1995; interim approval expires June 3, 1997.
    (h) [Reserved]
    (i) Great Basin Unified APCD (complete submittal received on 
January 12, 1994); interim approval effective on June 2, 1995; interim 
approval expires June 3, 1997.
    (j) Imperial County APCD (complete submittal received on March 24, 
1994); interim approval effective on June 2, 1995; interim approval 
expires June 3, 1997.
    (k) Kern County APCD (complete submittal received on November 16, 
1993); interim approval effective on June 2, 1995; interim approval 
expires June 3, 1997.
    (l) [Reserved]
    (m) Lassen County APCD (complete submittal received on January 12, 
1994); interim approval effective on June 2, 1995; interim approval 
expires June 3, 1997.
    (n) [Reserved]
    (o) Mendocino County APCD (complete submittal received on December 
27, 1993); interim approval effective on June 2, 1995; interim approval 
expires June 3, 1997.
    (p) Modoc County APCD (complete submittal received on December 27, 
1993); interim approval effective on June 2, 1995; interim approval 
expires June 3, 1997.
    (q) [Reserved]
    (r) [Reserved]
    (s) North Coast Unified AQMD (complete submittal received on 
February 24, 1994); interim approval effective on June 2, 1995; interim 
approval expires June 3, 1997.
    (t) Northern Sierra AQMD (complete submittal received on June 6, 
1994); interim approval effective on June 2, 1995; interim approval 
expires June 3, 1997.
    (u) Northern Sonoma County APCD (complete submittal received on 
January 12, 1994); interim approval effective on June 2, 1995; interim 
approval expires June 3, 1997.
    (v) Placer County APCD (complete submittal received on December 27, 
1993); interim approval effective on June 2, 1995; interim approval 
expires June 3, 1997.
    (w) [Reserved] [[Page 21724]] 
    (x) [Reserved]
    (y) [Reserved]
    (z) [Reserved]
    (aa) [Reserved]
    (bb) [Reserved]
    (cc) Siskiyou County APCD (complete submittal received on December 
6, 1993); interim approval effective on June 2, 1995; interim approval 
expires June 3, 997.
    (dd) [Reserved]
    (ee) [Reserved]
    (ff) Tuolumne County APCD (complete submittal received on November 
16, 1993); interim approval effective on June 2, 1995; interim approval 
expires June 3, 1997.
    (gg) [Reserved]
    (hh) Yolo-Solano AQMD (complete submittal received on October 14, 
1994); interim approval effective on June 2, 1995; interim approval 
expires June 3, 1997.
* * * * *
[FR Doc. 95-10825 Filed 5-2-95; 8:45 am]
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