Federal Register / Vol. 60, No. 94 / Tuesday, May 16, 1995 / Proposed Rules 26013

Because it expects the impact of this

proposal to be minimal, the Coast Guard

certifies under 5 U.S.C. 605(b) that this

proposal, if adopted, will not have a

significant economic impact on a

substantial number of small entities.

Collection of Information

This proposal contains no collection

of information requirements under the

Paperwork Reduction Act (44 U.S.C.

3501 et seq.).

Federalism Assessment

The Coast Guard has analyzed this

proposal in accordance with the

principles and criteria of Executive

Order 12612, and has determined that

this proposal does not have sufficient

federalism implications to warrant the

preparation of a Federalism Assessment.

Environmental Assessment

The Coast Guard considered the

environmental impact of this proposal

and concluded that, under section 2.B.2

of Commandant Instruction M16475.1B,

as revised by 59 FR 38654; July 29,

1994, this proposal is categorically

excluded from further environmental

documentation as an action required to

protect the public and the environment.

List of Subjects in 33 CFR Part 165

Harbors, Marine safety, Navigation

(Water), Records and recordkeeping,

Security measures, Vessels, Waterways.

For the reasons set out in the

preamble, The Coast Guard proposes to

amend Subpart F of Part 165 of Title 33,

Code of Federal Regulations, as follows:

PART 165—[AMENDED]

1. The authority citation for Part 165

continues to read as follows:

Authority: 33 U.S.C. 1231; 50 U.S.C. 191;

49 CFR 1.46 and 33 CFR 1.05–1(g), 6.04–1,

6.04–6, and 160.5.

2. A new § 165.205 is added to read

as follows:

§ 165.205 Ohio River at Cincinnati, OH;

regulated navigation area.

(a) Location. The following is a

regulated navigation area (RNA): The

waters of the Ohio River between mile

466.0 and mile 473.0.

(b) Activation. The restrictions in

paragraphs (c) (1) through (4) of this

section are in effect from one-half hour

before sunset to one-half hour after

sunrise when the Cincinnati, Ohio, Ohio

River Gauge is at or above the 45 foot

level. The Captain of the Port,

Louisville, Kentucky will publish a

notice in the Local Notice to Mariners

and will make announcements by Coast

Guard Marine Information Broadcasts

whenever the river level measured at

the gauge activates or terminates the

navigation restrictions in this section.

(c) Regulations. (1) Transit through

the RNA by all downbound vessels

towing cargoes regulated by Title 46

Code of Federal Regulations

Subchapters D and O with a tow length

exceeding 600 feet excluding the tow

boat is prohibited.

(2) No vessel shall loiter, anchor, stop,

remain or drift without power at

anytime within the navigation channel

of the RNA.

(3) All commercial vessels shall

continually monitor VHF–FM channel

13 on their radiotelephone while in or

approaching the RNA.

(4) Between Ohio River miles 466.0

and 467.0, downbound vessels shall

make a broadcast in the blind, on VHF–

FM channel 13 announcing their

presence in the RNA.

Dated: April 14, 1995.

Paul M. Blayney,

Rear Admiral, U.S. Coast Guard Commander,

Second Coast Guard District, St. Louis, MO.

[FR Doc. 95–11890 Filed 5–15–95; 8:45 am]

BILLING CODE 4910–14–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 70

[AD–FRL–5206–3]

Clean Air Act Proposed Interim

Approval of the Operating Permits

Program; Monterey Bay Unified Air

Pollution Control District, California

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The EPA proposes interim

approval of the Operating Permits

Program submitted by the Monterey Bay

Unified Air Pollution Control District

(Monterey or District) for the purpose of

complying with federal requirements for

an approvable state program to issue

operating permits to all major stationary

sources, and to certain other sources.

DATES: Comments on this proposed

action must be received in writing by

June 15, 1995.

ADDRESSES: Comments should be

addressed to Regina Spindler, Mail

Code A–5–2, U.S. Environmental

Protection Agency, Region IX, Air and

Toxics Division, 75 Hawthorne Street,

San Francisco, CA 94105.

Copies of the District submittal and

other supporting information used in

developing the proposed interim

approval are available for inspection

during normal business hours at the

following location: U.S. Environmental

Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, CA

94105.

FOR FURTHER INFORMATION CONTACT:

Regina Spindler (telephone: 415/744–

1251), Mail Code A–5–2, U.S.

Environmental Protection Agency,

Region IX, Air and Toxics Division, 75

Hawthorne Street, San Francisco, CA

94105.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

As required under title V of the Clean

Air Act (Act) as amended (1990), EPA

has promulgated rules that define the

minimum elements of an approvable

state operating permits program and the

corresponding standards and

procedures by which EPA will approve,

oversee, and withdraw approval of state

operating permits programs (see 57 FR

32250 (July 21, 1992)). These rules are

codified at 40 CFR part 70 (part 70).

Title V requires states to develop, and

submit to EPA, programs for issuing

these operating permits to all major

stationary sources and to certain other

sources.

The Act requires that states develop

and submit title V 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.

II. Proposed Action and Implications

A. Analysis of State Submission

The analysis contained in this notice

focuses on specific elements of

Monterey’s title V operating permits

program that must be corrected to meet

the minimum requirements of 40 CFR

part 70. The full program submittal, the

Technical Support Document (TSD),

which contains a detailed analysis of

the submittal, and other relevant

materials are available for inspection as

part of the public docket. The docket

may be viewed during regular business

hours at the address listed above.
26014 Federal Register / Vol. 60, No. 94 / Tuesday, May 16, 1995 / Proposed Rules

1. Title V Program Support Materials

Monterey’s original title V program

was submitted by the California Air

Resources Board (CARB) on December

6, 1993. Additional material was

submitted on February 2, 1994 and

April 7, 1994. The submittal was found

to be complete on February 4, 1994. The

Governor’s letter requesting source

category-limited interim approval,

California enabling legislation, and

Attorney General’s legal opinion were

submitted by CARB for all districts in

California and therefore were not

included separately in Monterey’s

submittal. The Monterey submission

does contain a complete program

description, District implementing and

supporting regulations, and all other

program documentation required by

§ 70.4. An implementation agreement is

currently being developed between

Monterey and EPA.

The EPA determined in its evaluation

of Monterey’s program that Rule 218,

the District’s permitting regulation,

contained several deficiencies that were

cause for disapproval of the program.

The EPA described these deficiencies

and the corrections necessary to make

the program eligible for interim

approval in a letter from Felicia Marcus,

EPA Region IX Administrator, to Abra

Bennett, Monterey Air Pollution Control

Officer (APCO), dated July 22, 1994. In

response, Monterey adopted a revised

regulation which was submitted by

CARB on the District’s behalf on

October 13, 1994. Section 70.4(e)(2)

gives EPA the option of extending the

review period for a title V program

submission if the program is materially

changed during the initial one-year

review. Because the revisions to

Monterey’s program were regulatory and

affect critical elements of part 70, such

as applicability, permit applications,

and permit content, the program

required additional review and analysis.

The EPA considered the program to be

materially changed and therefore

decided to exercise the § 70.4(e)(2)

option and extend its review period by

six months. This extension moves the

deadline for EPA’s final action on

Monterey’s title V operating permits

program from December 6, 1994, which

is one year after receipt of the original

program submittal, to June 6, 1995.

2. Title V Operating Permit Regulations

and Program Implementation

Monterey’s regulations adopted or

revised to implement title V include

Rule 218, Title V: Federal Operating

Permits, adopted November 17, 1993

and revised on September 21, 1994;

Rule 308, Title V: Federal Operating

Permit Fees, adopted November 17,

1993; and Rule 201, Sources Not

Requiring Permits, adopted September

1, 1974, as revised on April 21, 1993.

The regulations substantially meet the

requirements of 40 CFR part 70, §§ 70.2

and 70.3 for applicability; §§ 70.4, 70.5,

and 70.6 for permit content, including

operational flexibility; section 70.7 for

public participation and minor permit

modifications; section 70.5 for criteria

that define insignificant activities;

section 70.5 for complete application

forms; and section 70.11 for

enforcement authority. Although the

regulations substantially meet part 70

requirements, there are several

deficiencies in the program that are

outlined under section II.B. below as

interim approval issues and further

described in the Technical Support

Document.

a. Applicability and Duty To Apply

While the ‘‘major source’’ definition

in Monterey’s title V program meets the

applicability requirements of part 70,

the District rule provides that sources

with actual emissions below certain

thresholds are exempt from the

obligation to obtain a title V permit until

three years after program approval (Rule

218, section 1.3.3). Ordinarily, part 70

requires that sources apply within one

year of program approval. A District

may, however, request interim approval

of a source category-limited program

that defers the obligation to obtain a

permit for a certain category or

categories of sources. Monterey’s source

category-limited program defers sources

with actual emissions below 60% of the

criteria pollutant and 10 ton per year

hazardous air pollutant (HAP) major

source thresholds and 72% of the 25 ton

per year HAP threshold. Two years after

EPA grants interim approval to the

source category-limited program, these

deferred sources must either have

federally enforceable conditions that

limit their potential to emit to below

major source thresholds or will be

required to apply for a title V permit.

The EPA’s policy on source categorylimited interim approval is set forth in

a document entitled, ‘‘Interim Title V

Program Approvals,’’ signed on August

2, 1993 by John Seitz, Director of the

Office of Air Quality Planning and

Standards. This policy requires that a

district that requests interim approval of

a source category-limited program

demonstrate that there are compelling

reasons why the district cannot address

all sources in the interim. Additionally,

the district must demonstrate that the

source category-limited program will

apply to at least 60 percent of all part

70 sources and cover sources that are

responsible for at least 80 percent of the

aggregate emissions from part 70

sources (60/80 test).

In an addendum to Monterey’s

revised title V program submittal, dated

October 25, 1994, from Fred Thoits,

Engineering Division Chief to Felicia

Marcus, Region IX Administrator,

Monterey demonstrated to EPA’s

satisfaction that it meets this 60/80 test.

With regard to the demonstration of

compelling reasons, the District asserts

that while many small sources in the

District meet title V applicability criteria

based on their potential emissions, these

sources’ actual emissions are well below

the major source threshold. The District

reasons that it is a more productive use

of its limited resources during the initial

three year transition period to issue title

V permits to the larger sources that are

clearly intended to be permitted under

title V and to establish a prohibitory

rule and synthetic minor permit

program that sources with lower actual

emissions may use to establish federally

enforceable limits on their potential

emissions. The EPA believes that these

are compelling reasons for

implementing a source category-limited

interim program.

b. Insignificant Activities

Section 70.4(b)(2) requires states to

include in their part 70 programs any

criteria used to determine insignificant

activities or emission levels for the

purpose of determining complete

applications. Section 70.5(c) states that

an application for a part 70 permit may

not omit information needed to

determine the applicability of, or to

impose, any applicable requirement, or

to evaluate appropriate fee amounts.

Section 70.5(c) also states that EPA may

approve, as part of a state program, a list

of insignificant activities and emissions

levels which need not be included in

permit applications. Under part 70, a

state must request and EPA must

approve as part of that state’s program

any activity or emission level that the

state wishes to consider insignificant.

Part 70, however, does not establish

appropriate emission levels for

insignificant activities, relying instead

on a case-by-case determination of

appropriate levels based on the

particular circumstances of the part 70

program under review.

Monterey submitted District Rule 201,

its current permit exemption rule, as its

list of insignificant activities. It is clear

that Rule 201 was not developed with

the purpose of defining insignificant

activities under the District’s title V

program in mind; the applicability

provisions of the rule state that the

exemptions apply to the requirements of
Federal Register / Vol. 60, No. 94 / Tuesday, May 16, 1995 / Proposed Rules 26015

Rule 200, the District requirements for

obtaining Authority to Construct

permits and non-federally enforceable

Permits to Operate. Monterey did not

provide EPA with criteria used to

develop the exemptions list,

information on the level of emissions

from the activities, nor with a

demonstration that these activities are

not likely to be subject to an applicable

requirement. Therefore, EPA cannot

propose full approval of the list as the

basis for determining insignificant

activities.

For other state and district programs,

EPA has proposed to accept, as

sufficient for full approval, emission

levels for insignificant activities of 2

tons per year for criteria pollutants and

the lesser of 1000 pounds per year,

section 112(g) de minimis levels, or

other title I significant modification

levels for hazardous air pollutants

(HAP) and other toxics (40 CFR

52.21(b)(23)(i)). The EPA believes that

these levels are sufficiently below the

applicability thresholds of many

applicable requirements to assure that

no unit potentially subject to an

applicable requirement is left off a title

V application. The EPA is requesting

comment on the appropriateness of

these emission levels for determining

insignificant activities in Monterey.

This request for comment is not

intended to restrict the ability of other

states and districts to propose, and EPA

to approve, different emission levels if

the state or district demonstrates that

such alternative emission levels are

insignificant compared to the level of

emissions from and types of units that

are permitted or subject to applicable

requirements.

c. Variances

Monterey has authority under State

and local law to issue a variance from

State and local requirements. Sections

42350 et sec. of the California Health

and Safety Code and District Regulation

VI, Article 2 allow the District to grant

relief from enforcement action for

permit violations. The EPA regards

these provisions as wholly external to

the program submitted for approval

under part 70, and consequently, is

proposing to take no action on these

provisions of State and local law.

The EPA has no authority to approve

provisions of state or local law, such as

the variance provisions referred to, that

are inconsistent with the Act. The EPA

does not recognize the ability of a

permitting authority to grant relief from

the duty to comply with a federally

enforceable part 70 permit, except

where such relief is granted through

procedures allowed by part 70. A part

70 permit may be issued or revised

(consistent with part 70 permitting

procedures) to incorporate those terms

of a variance that are consistent with

applicable requirements. A part 70

permit may also incorporate, via part 70

permit issuance or modification

procedures, the schedule of compliance

set forth in a variance. However, EPA

reserves the right to pursue enforcement

of applicable requirements

notwithstanding the existence of a

compliance schedule in a permit to

operate. This is consistent with 40 CFR

§ 70.5(c)(8)(iii)(C), which states that a

schedule of compliance ‘‘shall be

supplemental to, and shall not sanction

noncompliance with, the applicable

requirements on which it is based.’’

d. Definition of Title I Modification

Among the several criteria that

Monterey includes in its definition of

‘‘Significant Permit Modification’’ is the

provision that it involve any

‘‘significant change as specified in the

EPA’s title I regulations in 40 CFR parts

51, 52, 50, 61 and 63.’’ The EPA might

interpret the reference to title I

regulations in part 51 to include

changes reviewed under a minor source

preconstruction review program

(‘‘minor NSR changes’’). However,

Monterey’s inclusion of the term

‘‘significant change’’ as well as the

statement in its program description

that title I modifications include

modifications that are ‘‘major under

federal NSR, * * * major under PSD

resulting in a ‘significant’ net emissions

increase, or a modification at a major

HAPs source resulting in a ‘de minimis’

increase of HAPs’’ clearly indicates that

Monterey does not interpret ‘‘title I

modification’’ to include ‘‘minor NSR

changes.’’ Part 70 requires all

modifications under title I of the Act to

be processed as significant permit

modifications (§ 70.7(e)(2)(i)(A)(5)). The

EPA is currently in the process of

determining the proper definition of

‘‘title I modification.’’ As further

explained below, EPA has solicited

public comment on whether the phrase

‘‘modification under any provision of

title I of the Act’’ in 40 CFR

70.7(e)(2)(i)(A)(5) should be interpreted

to mean literally any change at a source

that would trigger permitting authority

review under regulations approved or

promulgated under title I of the Act.

This would include state

preconstruction review programs

approved by EPA as part of the State

Implementation Plan under section

110(a)(2)(C) of the Clean Air Act.

On August 29, 1994, EPA proposed

revisions to the interim approval criteria

in 40 CFR 70.4(d) to, among other

things, allow state programs with a more

narrow definition of ‘‘title I

modification’’ to receive interim

approval (59 FR 44572). The Agency

explained its view that the better

reading of ‘‘title I modification’’

includes minor NSR, and solicited

public comment on the proper

interpretation of that term (59 FR

44573). The Agency stated that if, after

considering the public comments, it

continued to believe that the phrase

‘‘title I modification’’ should be

interpreted as including minor NSR

changes, it would revise the interim

approval criteria as needed to allow

states with a narrower definition to be

eligible for interim approval.

The EPA hopes to finalize its

rulemaking revising the interim

approval criteria under 40 CFR 70.4(d)

expeditiously. If EPA establishes in its

rulemaking that the definition of ‘‘title

I modification’’ can be interpreted to

exclude changes reviewed under minor

NSR programs, Monterey’s definition of

‘‘significant permit modification’’ and

interpretation of ‘‘title I modification’’

would be fully consistent with part 70.

Conversely, if EPA establishes through

the rulemaking that the definition of

‘‘title I modification’’ must include

changes reviewed under minor NSR,

Monterey’s definition and interpretation

will become a basis for interim

approval. If the definition and

interpretation become a basis for interim

approval as a result of EPA’s

rulemaking, Monterey would be

required to revise its definition and

interpretation to conform to the

requirements of part 70.

Accordingly, today’s proposed

approval does not identify Monterey’s

definition of ‘‘significant permit

modification’’ and interpretation of

‘‘title I modification’’ as necessary

grounds for either interim approval or

disapproval. Again, although EPA has

reasons for believing that the better

interpretation of ‘‘title I modification’’ is

the broader one, EPA does not believe

that it is appropriate to determine

whether this is a program deficiency

until EPA completes its rulemaking on

this issue.

3. Permit Fee Demonstration

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

that each permitting authority collect

fees sufficient to cover all reasonable

direct and indirect costs required to

develop and administer its title V

operating permits program. Each title V

program submittal must contain either a

detailed demonstration of fee adequacy

or a demonstration that aggregate fees

collected from title V sources meet or

exceed $25 per ton per year (adjusted
26016 Federal Register / Vol. 60, No. 94 / Tuesday, May 16, 1995 / Proposed Rules

annually based on the Consumer Price

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

$25 per ton amount is presumed, for

program approval, to be sufficient to

cover all reasonable program costs and

is thus referred to as the ‘‘presumptive

minimum,’’ (40 CFR 70.9(b)(2)(i)).

Monterey’s title V fee rule (Rule 308)

requires all title V sources to pay an

application fee, an evaluation fee of

$80.00 per hour for every District staff

hour necessary to complete the title V

permit evaluation, and an emissionsbased fee of $14.44 per ton of emissions,

as calculated by the District. This

emissions-based fee will be adjusted

annually based upon the CPI. In

addition to these title V fees, title V

sources must continue to pay existing

District permit fees. These fees

combined result in collection of an

average of $92.00 per ton per year, an

amount that is well above the

presumptive minimum. Monterey

expects revenues of $73,600 in the first

year of the program and revenues of

$200,000 in the second and ensuing

years. Monterey’s fee schedule was

developed based on an estimation of

workload associated with

administration of the title V program.

4. Provisions Implementing the

Requirements of Other Titles of the Act

a. Authority and Commitments for

Section 112 Implementation

Monterey has demonstrated in its title

V program submittal adequate legal

authority to implement and enforce all

section 112 requirements through the

title V permit. This legal authority is

contained in the State of California

enabling legislation and in regulatory

provisions defining ‘‘federally

enforceable requirements’’ and requiring

each permit to incorporate conditions

that assure compliance with all such

federally enforceable requirements.

Monterey has supplemented this legal

authority with a commitment to

implement and enforce section 112

requirements and to adopt additional

regulations as needed to issue permits

that implement and enforce the

requirements of section 112. This

commitment is contained in a letter

from Abra Bennett, Air Pollution

Control Officer to Debbie Jordan, Chief

of the Operating Permits Section at EPA,

Region IX, dated April 7, 1994. The EPA

has determined that the legal authority

and commitments are sufficient to allow

Monterey to issue permits that assure

compliance with all section 112

requirements. For further discussion,

please refer to the Technical Support

Document accompanying this action

and the April 13, 1993 guidance

memorandum entitled, ‘‘Title V Program

Approval Criteria for Section 112

Activities,’’ signed by John Seitz.

b. Authority and Commitments for Title

IV Implementation

Monterey committed in a letter from

Abra Bennett, Air Pollution Control

Officer, dated April 7, 1994, to submit

a complete acid rain program to EPA by

January 1, 1995. The letter stated the

District’s intentions to adopt part 72,

EPA’s acid rain regulation, by reference;

to use EPA acid rain application forms;

to revise District regulations as

necessary to accommodate federal

revisions; and to meet all acid rain

deadlines contained in part 72.

Monterey incorporated part 72 (except

provisions applicable to phase I units

and permitting of acid rain units by

EPA) by reference into District

Regulation II, Rule 219 on November 23,

1994. Rule 219 was subsequently

submitted to EPA along with proof of

board adoption.

B. Proposed Interim Approval and

Implications

The EPA is proposing to grant interim

approval to the operating permits

program submitted by CARB on behalf

of the Monterey Bay Unified Air

Pollution Control District on December

6, 1993, supplemented on February 2,

1994 and April 7, 1994, and revised by

the submittal made on October 13, 1994.

If EPA were to finalize this proposed

interim approval, it would extend for

two years following the effective date of

final interim approval, and could not be

renewed. During the interim approval

period, Monterey would be protected

from sanctions, and EPA would not be

obligated to promulgate, administer and

enforce a federal permits program for

the District. Permits issued under a

program with interim approval have full

standing with respect to part 70, and the

1-year time period for submittal of

permit applications by subject sources

begins upon the effective date of interim

approval, as does the 3-year time period

for processing the initial permit

applications.

Following final interim approval, if

the District failed to submit a complete

corrective program for full approval by

the date 6 months before expiration of

the interim approval, EPA would start

an 18-month clock for mandatory

sanctions. If Monterey then failed to

submit a corrective program that EPA

found complete before the expiration of

that 18-month period, EPA would be

required to apply one of the sanctions

in section 179(b) of the Act, which

would remain in effect until EPA

determined that the District had

corrected the deficiency by submitting a

complete corrective program. Moreover,

if the Administrator found a lack of

good faith on the part of the District,

both sanctions under section 179(b)

would apply after the expiration of the

18-month period until the

Administrator determined that the

District had come into compliance. In

any case, if, six months after application

of the first sanction, the District still had

not submitted a corrective program that

EPA found complete, a second sanction

would be required.

If, following final interim approval,

EPA were to disapprove Monterey’s

complete corrective program, EPA

would be required to apply one of the

section 179(b) sanctions on the date 18

months after the effective date of the

disapproval, unless prior to that date the

District had submitted a revised

program and EPA had determined that

it corrected the deficiencies that

prompted the disapproval. Moreover, if

the Administrator found a lack of good

faith on the part of the District, both

sanctions under section 179(b) would

apply after the expiration of the 18-

month period until the Administrator

determined that the District had come

into compliance. In all cases, if, six

months after EPA applied the first

sanction, Monterey had not submitted a

revised program that EPA had

determined corrected the deficiencies

that prompted disapproval, a second

sanction would be required.

In addition, discretionary sanctions

may be applied where warranted any

time after the end of an interim approval

period if a district has not timely

submitted a complete corrective

program or EPA has disapproved a

submitted corrective program.

Moreover, if EPA has not granted full

approval to a district program by the

expiration of an interim approval and

that expiration occurs after November

15, 1995, EPA must promulgate,

administer and enforce a federal permits

program for that district upon interim

approval expiration.

1. Monterey’s Title V Operating Permits

Program

If EPA finalizes this interim approval,

Monterey must make the following

changes, or changes that have the same

effect, to receive full approval (all

required revisions are to District Rule

218 unless otherwise noted):

(1) Revise section 1.3 to require that,

regardless of the source’s actual or

potential emissions, acid rain sources

and solid waste incineration units

required to obtain a permit pursuant to

section 129(e) of the Act may not be

exempted from the requirement to
Federal Register / Vol. 60, No. 94 / Tuesday, May 16, 1995 / Proposed Rules 26017

obtain a permit pursuant to Rule 218.

Section 70.3(b) requires that major

sources, affected sources (acid rain

sources), and solid waste incinerators

may not be exempted from the program.

Monterey’s deferral for certain major

sources other than acid rain sources and

solid waste incinerators is allowable

under John Seitz’s ‘‘Interim Approval

Guidance,’’ dated August 2, 1993.

(2) Revise section 2.1.4 of the

definition of ‘‘Administrative Permit

Amendments’’ as follows:

‘‘requires more frequent monitoring or

reporting for the stationary source; or’’

Increasing monitoring requirements

could be a significant change to these

requirements. Significant changes in

monitoring must be processed as

significant permit modifications.

(§ 70.7(d)(1)(iii), § 70.7(e)(4))

(3) Revise the definition of ‘‘Federally

Enforceable Requirement’’ in section

2.12 to include any standard or other

requirement provided for in the State

Implementation Plan approved or

promulgated by EPA. This revision is

necessary to make the section 2.12

definition consistent with the part 70

definition of ‘‘Applicable requirement’’

and with the Rule 218, section 4.2.4

requirement that each permit require

compliance with any standard or

requirement set forth in the applicable

implementation plan.

(4) Revise section 2.18.4 of the

definition of ‘‘Minor Permit

Modification’’ to require that a minor

permit modification may not establish

or change a permit condition used to

avoid a federally enforceable

requirement to which the source would

otherwise be subject.

(§ 70.7(e)(2)(i)(A)(4))

(5) Revise section 3.1.6.12 to require

that the compliance certification within

the permit application include a

statement indicating the source’s

compliance status with any applicable

enhanced monitoring and compliance

certification requirements of the Act.

(§ 70.5(c)(9)(iv))

(6) Revise section 3.1.6.13 as follows

to be consistent with § 70.5(c)(8)(iii)(C):

* * * a schedule of compliance approved

by the District hearing board that identifies

remedial measures, including an enforceable

sequence of actions, with specific increments

of progress, a final compliance date, testing

and monitoring methods, recordkeeping

requirements, and a schedule for submission

of certified progress reports to the USEPA

and the APCO at least every 6 months. This

schedule of compliance shall resemble and

be at least as stringent as that contained in

any judicial consent decree or administrative

order to which the source is subject; and

* * *

(7) Provide a demonstration that

activities that are exempt from

permitting under Rule 218 (pursuant to

Rule 201, the District’s permit

exemption list) are truly insignificant

and are not likely to be subject to an

applicable requirement. Alternatively,

Rule 218 may restrict the exemptions to

activities that are not likely to be subject

to an applicable requirement and emit

less than District-established emission

levels. The District should establish

separate emission levels for HAP and for

other regulated pollutants and

demonstrate that these emission levels

are insignificant compared to the level

of emissions from and type of units that

are required to be permitted or subject

to applicable requirements. Revise Rule

218 to require that insignificant

activities that are exempted because of

size or production rate be listed in the

permit application. Revise Rule 218 to

require that an application may not omit

information needed to determine the

applicability of, or to impose, any

applicable requirement, or to evaluate

the fee amount required. (§ 70.5(c),

§ 70.4(b)(2))

(8) Revise section 3.5.3 to provide that

the APCO shall also give public notice

‘‘by other means if necessary to assure

adequate notice to the affected public.’’

(§ 70.7(h)(1))

(9) Revise Rule 218 to include the

contents of the public notice as

specified by § 70.7(h)(2).

(10) Revise Rule 218 to provide that

the District shall keep a record of the

commenters and of the issues raised

during the public participation process

so that the Administrator may fulfill her

obligation to determine whether a

citizen petition may be granted.

(§ 70.7(h)(5))

(11) The EPA must be provided with

45 days to review the version of the

permit that incorporates any public

comments and that the District proposes

to issue. Rule 218 indicates that the

District intends to provide for

concurrent public and EPA review of

the draft permit. Therefore, the District

must revise the rule to provide that EPA

will have an additional 45 days to

review the proposed permit if it is

revised as a result of comments received

from the public. (§ 70.8(a)(1))

(12) Revise Rule 218 to define and

provide for giving notice to affected

states per §§ 70.2 and 70.8(b). Although

emissions from Monterey may not

currently be affecting any neighboring

states, Native American tribes may in

the future apply for treatment as states

for air program purposes and if granted

such status would be entitled to affected

state review under title V. (See EPA’s

proposed Tribal Air Rule at 59 FR

43956, August 25, 1995.)

(13) Revise section 3.7.1 to require

that the permit shall be reopened under

the circumstances listed in sections

3.7.1.1 to 3.7.1.3. (§ 70.7(f)(1))

(14) Revise section 3.8.2 to provide,

consistent with section 70.7(e)(2)(iv),

that the District shall take action on a

minor permit modification application

within 90 days of receipt of the

application or 15 days after the end of

the 45-day EPA review period,

whichever is later. Currently, the

District rule provides that the permit be

issued within 90 days after the

application is deemed complete (section

3.3.2 provides 30 days from receipt for

a completeness determination) or 60

days after written notice and

concurrence from EPA, whichever is

later. The EPA will not necessarily

provide written notice and concurrence

on minor permit modifications and the

District rule does not address what

action is taken should EPA not provide

written notice. (§ 70.7(e)(2)(iv))

(15) Revise section 3.8.2 to provide

that the action taken on a minor permit

modification application in the

timeframes discussed above in (14) shall

be one of the following:

(a) Issue the permit modification as

proposed;

(b) Deny the permit modification

application;

(c) Determine that the requested

modification does not meet the minor

permit modification criteria and should

be reviewed under the significant

modification procedures; or

(d) Revise the draft permit

modification and transmit to the

Administrator the new proposed permit

modification.

The current District rule states that

the minor permit modification shall be

completed within the timeframes

discussed above in (14), but does not

specify that the District must take one

of the actions listed above.

(§ 70.7(e)(2)(iv))

2. California Enabling Legislation—

Legislative Source Category Limited

Interim Approval Issue

Because California State law currently

exempts agricultural production sources

from permit requirements, the California

Air Resources Board has requested

source category-limited interim

approval for all California districts. The

EPA is proposing to grant source

category-limited interim approval to the

operating permits program submitted by

the California Air Resources Board on

behalf of Monterey on December 6,

1993. In order for this program to

receive full approval (and to avoid a

disapproval upon the expiration of this

interim approval), the California
26018 Federal Register / Vol. 60, No. 94 / Tuesday, May 16, 1995 / Proposed Rules

Legislature must revise the Health and

Safety Code to eliminate the exemption

of agricultural production sources from

the requirement to obtain a permit.

The above described program and

legislative deficiencies must be

corrected before Monterey can receive

full program approval. For additional

information, please refer to the TSD,

which contains a detailed analysis of

Monterey’s operating permits program

and California’s enabling legislation.

3. District Preconstruction Permit

Program Implementing Section 112(g)

The EPA has published an

interpretive notice in the Federal

Register regarding section 112(g) of the

Act (60 FR 8333; February 14, 1995).

The interpretive notice explains that

EPA is considering whether the effective

date of section 112(g) should be delayed

beyond the date of promulgation of the

federal rule so as to allow states time to

adopt rules implementing the federal

rule, and that EPA will provide for any

such additional delay in the final

section 112(g) rulemaking. Unless and

until EPA provides for such an

additional postponement of section

112(g), Monterey 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 use of Monterey’s

preconstruction review program as a

mechanism to implement section 112(g)

during the transition period between

promulgation of the section 112(g) rule

and adoption by Monterey of rules

specifically designed to implement

section 112(g).

However, since the sole purpose of

this approval is to confirm that the

District has a mechanism to implement

section 112(g) during the transition

period, the approval itself will be

without effect if EPA decides in the

final section 112(g) rule that there will

be no transition period. The EPA is

limiting the duration of this proposed

approval to 12 months following

promulgation by EPA of the section

112(g) rule.

4. Program for Delegation of Section 112

Standards as Promulgated

Requirements for approval, specified

in 40 CFR 70.4(b), encompass section

112(l)(5) requirements for approval of a

program for delegation of section 112

standards as promulgated by EPA as

they apply to part 70 sources. Section

112(l)(5) requires that the state’s

program contain adequate authorities,

adequate resources for implementation,

and an expeditious compliance

schedule, which are also requirements

under part 70. Therefore, EPA is also

proposing to grant approval under

section 112(l)(5) and 40 CFR 63.91 of

Monterey’s program for receiving

delegation of section 112 standards that

are unchanged from federal standards as

promulgated. California Health and

Safety Code section 39658 provides for

automatic adoption by CARB of section

112 standards upon promulgation by

EPA. Section 39666 of the Health and

Safety Code requires that districts then

implement and enforce these standards.

Thus, when section 112 standards are

automatically adopted pursuant to

section 39658, Monterey will have the

authority necessary to accept delegation

of these standards without further

regulatory action by the District. The

details of this mechanism and the

means for finalizing delegation of

standards will be set forth in a

Memorandum of Agreement between

Monterey and EPA, expected to be

completed prior to approval of

Monterey’s section 112(l) program for

delegation of unchanged federal

standards. This program applies to both

existing and future standards but is

limited to sources covered by the part

70 program.

III. Administrative Requirements

A. Request for Public Comments

The EPA is requesting comments on

all aspects of this proposed interim

approval. Copies of the District’s

submittal and other information relied

upon for the proposed interim approval

are contained in a docket maintained at

the EPA Regional Office. The docket is

an organized and complete file of all the

information submitted to, or otherwise

considered by, EPA in the development

of this proposed interim approval. The

principal purposes of the docket are:

(1) To allow interested parties a

means to identify and locate documents

so that they can effectively participate

in the approval process, and

(2) to serve as the record in case of

judicial review. The EPA will consider

any comments received by June 15,

1995.

B. Executive Order 12866

The Office of Management and Budget

has exempted this action from Executive

Order 12866 review.

C. Regulatory Flexibility Act

The EPA’s actions under section 502

of the Act do not create any new

requirements, but simply address

operating permits programs submitted

to satisfy the requirements of 40 CFR

part 70. Because this action does not

impose any new requirements, it does

not have a significant impact on a

substantial number of small entities.

D. Unfunded Mandates Act

Under Section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a federal mandate that

may result in estimated costs to state,

local, or tribal governments in the

aggregate; or to the private sector, of

$100 million or more. Under Section

205, EPA must select the most costeffective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the

proposed approval action promulgated

today does not include a federal

mandate that may result in estimated

costs of $100 million or more to either

state, local, or tribal governments in the

aggregate, or to the private sector. This

federal action approves pre-existing

requirements under state or local law,

and imposes no new federal

requirements. Accordingly, no

additional costs to state, local, or tribal

governments, or to the private sector,

result from this action.

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.

Authority: 42 U.S.C. 7401–7671q.

Dated: May 2, 1995.

John Wise,

Acting Regional Administrator.

[FR Doc. 95–11794 Filed 5–15–95; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[MM Docket No. 95–62, RM–8601]

Radio Broadcasting Services; Linden,

TX

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: The Commission requests

comments on a petition filed by Cass