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

List of Subjects

40 CFR Part 52

Environmental protection, Air

pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by

reference, Intergovernmental relations,

Nitrogen Dioxide, Ozone.

40 CFR Part 81

Air pollution control, National parks,

Wilderness areas.

Dated: October 19, 1995.

Patrick M. Tobin,

Acting Regional Administrator.

Chapter I, title 40, Code of Federal

Regulations, is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42.U.S.C. 7401–7671q.

Subpart K—Florida

2. Section 52.520, is amended by

adding paragraph (c)(89) to read as

follows:

§ 52.520 Identification of plan.

* * * * *

(c) * * *

(89) The maintenance plan for Tampa,

Florida, submitted by the Florida

Department of Environmental Protection

on February 7, 1995.

(i) Incorporation by reference. Tampa

Redesignation Request and Attainment/

Maintenance Plan for the Tampa Bay

Florida Ozone Nonattainment Area

including Emissions Inventory

Summary and Projections adopted on

November 16, 1994.

(ii) Other material. None.

PART 81—[AMENDED]

Subpart C—Section 107 Attainment

Status Designations

1. The authority citation for part 81

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

2. In § 81.310 the ‘‘Florida-Ozone’’

table is amended by removing the entry

for ‘‘Tampa-St. Petersburg-Clearwater

Area;’’ and by adding entries for

Hillsborough and Pinellas Counties in

alphabetical order; and by revising the

entry ‘‘Rest of State’’ to read

‘‘Statewide.’’

§ 81.310 Florida.

* * * * *

FLORIDA-OZONE

Designated Area

Designation Classification

Date 1 Type Date 1 Type

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

Attainment

.................... ....................

* * * * * * *

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

1996.

.......................... .................... ....................

* * * * * * *

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

1996.

.......................... .................... ....................

* * * * * * *

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

* * * * *

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

BILLING CODE 6560–50–P

40 CFR Part 70

[AD–FRL–5341–7]

Clean Air Act Interim Approval of

Operating Permits Program; San Diego

Air Pollution Control District, California

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The EPA is promulgating

direct final interim approval of the title

V operating permits program submitted

by the California Air Resources Board,

on behalf of the San Diego Air Pollution

Control District (San Diego or District),

for the purpose of complying with

federal requirements for an approvable

state program to issue operating permits

to all major stationary sources and to

certain other sources. In addition,

today’s action promulgates direct final

approval of San Diego’s mechanism for

receiving delegation of section 112

standards as promulgated.

DATES: This direct final rule is effective

on February 5, 1996 unless adverse or

critical comments are received by

January 8, 1996. If the effective date is

delayed, a timely notice will be

published in the Federal Register.

ADDRESSES: Copies of the District’s

submittal and other supporting

information used in developing this

direct final rule are available for public

inspection (docket number CA SD–95–

1–OPS) during normal business hours at

the following location: Operating

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

Division, U.S. Environmental Protection

Agency, Region IX, 75 Hawthorne

Street, San Francisco, CA 94105.

FOR FURTHER INFORMATION CONTACT:

Celia Bloomfield (telephone 415/744–

1249), Operating Permits Section (A–5–

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

Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

Title V of the 1990 Clean Air Act

Amendments (sections 501–507 of the

Clean Air Act (Act)), and implementing

regulations at 40 Code of Federal

Regulations (CFR) part 70 (part 70),

require that states develop and submit

operating permits programs to EPA by

November 15, 1993, and that EPA act to

approve or disapprove each program

within 1 year after receiving the

submittal. The EPA’s program review

occurs pursuant to section 502 of the

Act and the part 70 regulations, which

together outline criteria for approval or

disapproval. Where a program

substantially, but not fully, meets the

requirements of part 70, EPA may grant

the program interim approval for a

period of up to 2 years. If EPA has not

fully approved a program by 2 years
62754 Federal Register / Vol. 60, No. 235 / Thursday, December 7, 1995 / Rules and Regulations

after the November 15, 1993 date, or by

the end of an interim program, it must

establish and implement a federal

program.

The EPA is publishing this action

without prior proposal because the

Agency views this as a noncontroversial

action and anticipates no adverse

comments. However, in a separate

document in this Federal Register

publication, the EPA is proposing

interim approval of the operating permit

program submitted by San Diego should

adverse or critical comments be filed.

If EPA receives adverse or critical

comments, this action will be

withdrawn before the effective date by

publishing a subsequent document that

will withdraw the final action. All

public comments received will then be

addressed in a subsequent final rule

based on this action serving as the

proposed rule. The EPA will not

institute a second comment period. Any

parties interested in commenting on this

action should do so at this time. If no

such comments are received, the public

is advised that this action will be

effective on February 5, 1996.

B. Federal Oversight and Sanctions

This interim approval, which may not

be renewed, extends until February 9,

1998. During this interim approval

period, San Diego is protected from

sanctions, and EPA is not obligated to

promulgate, administer and enforce a

federal operating permits program in the

District. Permits issued under a program

with interim approval have full standing

with respect to part 70, and the 1-year

time period for submittal of permit

applications by subject sources begins

upon the effective date of this interim

approval, as does the 3-year time period

for processing the initial permit

applications.

If San Diego fails to submit a complete

corrective program for full approval by

August 7, 1997, EPA will start an 18-

month clock for mandatory sanctions. If

San Diego then fails to submit a

corrective program that EPA finds

complete before the expiration of that

18-month period, EPA will be required

to apply one of the sanctions in section

179(b) of the Act, which will remain in

effect until EPA determines that San

Diego has corrected the deficiency by

submitting a complete corrective

program. Moreover, if the Administrator

finds a lack of good faith on the part of

the District, both sanctions under

section 179(b) will apply after the

expiration of the 18-month period until

the Administrator determines that San

Diego has come into compliance. In any

case, if, six months after application of

the first sanction, the District still has

not submitted a corrective program that

EPA has found complete, a second

sanction will be required.

If EPA disapproves San Diego’s

complete corrective program, EPA will

be required to apply one of the section

179(b) sanctions on the date 18 months

after the effective date of the

disapproval, unless prior to that date

San Diego has submitted a revised

program and EPA has determined that it

corrected the deficiencies that prompted

the disapproval. Moreover, if the

Administrator finds a lack of good faith

on the part of the District, both

sanctions under section 179(b) shall

apply after the expiration of the 18-

month period until the Administrator

determines that San Diego has come

into compliance. In all cases, if, six

months after EPA applies the first

sanction, the District has not submitted

a revised program that EPA has

determined corrects the deficiencies, a

second sanction is required.

In addition, discretionary sanctions

may be applied where warranted any

time after the expiration of an interim

approval period if San Diego has not

timely submitted a complete corrective

program or EPA has disapproved its

submitted corrective program.

Moreover, if EPA has not granted full

approval to the District’s program by the

expiration of this interim approval and

that expiration occurs after November

15, 1995, EPA must promulgate,

administer and enforce a federal permits

program for San Diego upon interim

approval expiration.

II. Direct Final Action and Implications

A. Analysis of State Submission

The analysis contained in this notice

focuses on specific elements of San

Diego’s title V operating permits

program that must be corrected to meet

the minimum requirements of part 70.

The full program submittal; the

Technical Support Document (TSD),

which contains a detailed analysis of

the submittal; and other relevant

materials are available for inspection as

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

OPS). The docket may be viewed during

regular business hours at the address

listed above.

1. Support Materials

San Diego’s title V program was

submitted by the California Air

Resources Board (CARB) on April 22,

1994 and found to be complete on June

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

amended the regulatory portion of its

submittal. On October 10, 1995, EPA

received from CARB, on behalf of the

District, a revised fee program and an

updated program description. Enabling

legislation for the State of California and

the Attorney General’s legal opinion

were submitted by CARB for all districts

in California and therefore were not

included separately in San Diego’s

submittal. The San Diego submission

does contain a Governor’s letter

requesting source category-limited

interim approval, District implementing

and supporting regulations, and all

other program documentation required

by section 70.4. An implementation

agreement is currently being developed

between San Diego and EPA.

2. Regulations and Program

Implementation

San Diego’s title V implementing

regulation, District Regulation XIV, was

first adopted on January 18, 1994. After

preliminary review of Regulation XIV,

EPA identified numerous regulatory

deficiencies and communicated the

potential disapproval issues to San

Diego in letters dated September 6, 1994

and December 13, 1994. In response,

San Diego revised Regulation XIV. The

amended regulation was adopted on

March 7, 1995 and submitted to EPA by

CARB, on behalf of the District, on April

4, 1995. San Diego’s program

description was also revised to reflect

the changes made to Regulation XIV.

EPA is therefore evaluating and acting

on the March 7, 1995 version of

Regulation XIV.

San Diego’s title V implementing

regulations substantially meet the

requirements of 40 CFR part 70, sections

70.2 and 70.3 for applicability; sections

70.4, 70.5, and 70.6 for permit content,

including operational flexibility; section

70.7 for public participation and permit

modifications; section 70.5 for criteria

that define insignificant activities;

section 70.5 for complete application

forms; and section 70.11 for

enforcement authority. Although the

regulations substantially meet part 70

requirements, there are a few

deficiencies in the program that are

outlined under section II.B.1. below as

interim approval issues and further

described in the TSD.

a. Insignificant Activities

Section 70.5(c) states that EPA may

approve, as part of a state program, a list

of insignificant activities and emissions

levels which need not be included in

permit applications. Section 70.5(c) also

states that an application for a part 70

permit may not omit information

needed to determine the applicability

of, or to impose, any applicable

requirement, or to evaluate appropriate

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

states to include in their part 70
Federal Register / Vol. 60, No. 235 / Thursday, December 7, 1995 / Rules and Regulations 62755

programs any criteria used to determine

insignificant activities or emission

levels for the purpose of determining

complete applications. Under part 70, a

state must request and EPA may

approve as part of that state’s program

any activity or emission level that the

state wishes to consider insignificant.

Part 70, however, does not establish

appropriate emission levels for

insignificant activities, relying instead

on a case-by-case determination of

appropriate levels based on the

particular circumstances of the part 70

program under review.

San Diego submitted an extensive list

of insignificant activities that the

District determined to be insignificant

based on having ‘‘relatively low

potential to emit’’ (Regulation XIV,

Appendix A). While the potential to

emit criterion is an acceptable

mechanism for identifying insignificant

units, the District did not provide

emissions level cut-offs for many of the

listed units. For instance, Regulation

XIV, Appendix A(p)(17) exempts most

refrigeration units regardless of size.

Such units, if they have a charge rate of

50 pounds or more of a Class I or II

ozone-depleting compound, would be

subject to applicable requirements and

could not be considered insignificant.

EPA believes that in order to have fully

approvable insignificant activities

provisions, the listed units should not

confuse the regulated community’s

obligation to provide all information

needed to determine the applicability

of, or to impose, any applicable

requirement.

For interim approval, EPA is relying

on several rules in Regulation XIV that

affect the scope and usage of

insignificant activities. Specifically,

Rule 1401(a) ensures that the District’s

permit exemption rule, Rule 11, will not

interfere with title V applicability

determinations. Similarly, Rule

1401(b)(4) ensures that emissions from

insignificant units will be included in

all title V applicability determinations.

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

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

application ‘‘Completeness Criteria’’

guidance document require the permit

application to include all information

necessary to determine whether and

how an applicable requirement applies

at a source, regardless if a unit qualifies

as insignificant. Finally, Rules

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

activities that are subject to an

applicable requirement (other than two

specified generic facility-wide

requirements) from qualifying as an

insignificant activity. For full approval,

San Diego must revise its list of

insignificant activities for title V

permitting as discussed in section

II.B.1.5. of this notice.

b. Variances

San Diego’s Hearing Board has the

authority to issue variances from

requirements imposed by State and

local law. See California Health and

Safety Code sections 42350 et seq. In the

legal opinion submitted for California

operating permit programs, California’s

Attorney General states that ‘‘[t]he

variance process is not part of the Title

V permitting process and does not affect

federal enforcement for violations of the

requirements set forth in a Title V

permit.’’ (Emphasis in original.)

EPA regards the State and District

variance provisions as wholly external

to the program submitted for approval

under part 70, and consequently, is not

taking action on those provisions of

State and local law. EPA has no

authority to approve provisions of state

or local law, such as the variance

provisions referred to, that are

inconsistent with the Act. EPA does not

recognize the ability of a permitting

authority to grant relief from the duty to

comply with a federally enforceable part

70 permit, except where such relief is

granted through procedures allowed by

part 70. A part 70 permit may be issued

or revised (consistent with part 70

permitting procedures) to incorporate

those terms of a variance that are

consistent with applicable

requirements. A part 70 permit may also

incorporate, via part 70 permit issuance

or modification procedures, the

schedule of compliance set forth in a

variance. However, EPA reserves the

right to pursue enforcement of

applicable requirements

notwithstanding the existence of a

compliance schedule in a permit to

operate. This is consistent with 40 CFR

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

schedule of compliance ‘‘shall be

supplemental to, and shall not sanction

noncompliance with, the applicable

requirements on which it is based.’’

c. Reporting of Permit Deviations

Part 70 requires prompt reporting of

deviations from permit requirements,

and San Diego has not defined

‘‘prompt’’ in its program. Section

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

authority to define prompt in relation to

the degree and type of deviations likely

to occur and the applicable

requirements. Although the permit

program regulations should define

prompt for purposes of administrative

efficiency and clarity, an acceptable

alternative is to define prompt in each

individual permit. The EPA believes

that prompt should generally be defined

as requiring reporting within two to ten

days of the deviation. Two to ten days

is sufficient time in most cases to

protect public health and safety as well

as to provide a forewarning of potential

problems. For sources with a low level

of excess emissions, a longer time

period may be acceptable. However,

prompt reporting must be more frequent

than the semiannual reporting

requirement, given this is a distinct

reporting obligation under section

70.6(a)(3)(iii)(A). Where ‘‘prompt’’ is

defined in the individual permit but not

in the program regulations, EPA may

veto permits that do not contain

sufficiently prompt reporting of

deviations.

d. Temporary Authorization

San Diego’s title V regulation provides

for the issuance of a ‘‘temporary

authorization’’ which allows a source to

operate without an operating permit.

Temporary authorizations are not

required by part 70, but they exist in

San Diego’s title V program in order to

maintain consistency with the District’s

existing local permitting program. San

Diego structured its temporary

authorization mechanism to ensure that

the issuance of temporary

authorizations would not interfere with

any of the requirements established

under part 70. Specifically, temporary

authorizations may only be issued to

sources that have met the requirements

of section 112(g) or the preconstruction

permitting requirements under parts C

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

sources that do not have to submit

applications for title V permits or title

V permit modifications until 12 months

after commencing operation (section

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

of a temporary authorization does not

affect a source’s obligation to submit a

title V permit application, and the

temporary authorization expires on the

date that a complete title V permit

application is due.

e. Enhanced New Source Review

San Diego’s title V permit program

provides for enhanced preconstruction

review, an optional process that allows

sources to satisfy both new source

review and title V permit modification

requirements at the same time. Any

modification processed pursuant to San

Diego’s enhanced preconstruction

review procedures may be incorporated

into the title V permit as an

administrative permit amendment.

These enhanced procedures obviate the

need to undergo two application, public

notice, and permit issuance/revision

processes for the same change.
62756 Federal Register / Vol. 60, No. 235 / Thursday, December 7, 1995 / Rules and Regulations

f. Applicability

EPA found during its review of the

San Diego title V program that the

District’s applicability provisions are

consistent with part 70 and fully

approvable, but that there is atypical

language which warrants a brief

discussion in this notice. First, the

requirement to count fugitive hazardous

air pollutant emissions in major source

determinations is contained in the

definition of ‘‘potential to emit’’ rather

than the definition of ‘‘major stationary

source.’’ The term ‘‘potential to emit’’ is

used to define ‘‘major stationary

source.’’ (See Regulation XIV, Rules

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

Second, a broad applicability

exemption for all non-major stationary

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

glance to be in conflict with the part 70

requirement to permit non-major

affected sources and solid waste

incineration units subject to section

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

However, San Diego’s regulation

provides that the applicability

exemptions in Rule 1401(b)(1) apply

only when referenced in the

applicability section (Rule 1401(a)(2)

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

subject to sections 111 or 112 of the Act.

(See Regulation XIV, Rule 1401(a)(2–4).)

San Diego’s program description

confirms this reading (section III.B.1.b.,

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

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

the non-major stationary source

exemption would not apply for that

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

g. Federally Mandated New Source

Review

In order to have an approvable title V

program, permits must assure

compliance with all federal applicable

requirements. The part 70 definition of

‘‘applicable requirement’’ includes ‘‘any

term or condition of any

preconstruction permits issued pursuant

to regulations approved or promulgated

through rulemaking under title I,

including parts C or D, of the Act;’’

(section 70.2, definition of ‘‘applicable

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

and minor new source review and

prevention of significant deterioration

requirements.

Rather than citing parts C or D of title

I, San Diego’s definition of ‘‘federally

enforceable requirement’’ states that

requirements imposed by ‘‘federally

mandated new source review’’ or

prevention of significant deterioration

regulations are applicable requirements.

The use of the term ‘‘federally mandated

new source review’’ is unclear. Under

San Diego’s definition, ‘‘federally

mandated new source review’’ is linked

to ‘‘emission thresholds specified in

federal law or in the approved State

Implementation Plan (SIP).’’ (See

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

District has a SIP-approved minor new

source review program that is triggered

by any emissions increase, which could

be construed as an emissions threshold

of zero, and therefore all NSR, major

and minor, is federally mandated. (See

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

Diego has contended that minor NSR is

not always federally mandated, leaving

the term ‘‘federally mandated new

source review’’ subject to conflicting

interpretations.

The District must revise either the

definition of ‘‘federally mandated new

source review’’ or the definition of

‘‘federally enforceable requirement’’ to

clearly include minor new source

review as an applicable requirement

under title V. However, San Diego’s

program is approvable for an interim

period because the District’s approved

SIP contains a minor new source review

program, and San Diego’s definition of

‘‘federally enforceable requirement’’

also includes ‘‘[a]ny standard or other

requirement provided for in the State

Implementation Plan’’ (Regulation XIV,

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

San Diego’s portion of the California SIP

constitute the District’s minor (and

major) NSR program. (See June 22, 1994

letter from Richard Smith, San Diego

Air Pollution Control District, to Ron

Friesen, California Air Resources

Board.) Since Rules 10 and 21 are in San

Diego’s SIP, the requirement to obtain,

and the specific conditions of, a minor

NSR permit are federally enforceable.

EPA has discussed this interim

approach with San Diego, and the

District agrees that SIP-approved Rules

10 and 21 provide for a federally

enforceable minor NSR program.

However, EPA and San Diego disagree

about whether Rule 21 extends federal

enforceability to all terms and

conditions of minor NSR permits. EPA

believes that, until San Diego’s SIP is

revised to state otherwise, Rule 21

makes all terms and conditions of minor

NSR permits federally enforceable. San

Diego believes that minor NSR permit

terms that do not originate from the SIP

or other federal law or regulations are

not made federally enforceable by Rule

21. As an interim solution until San

Diego’s SIP is revised or this

disagreement is resolved, the District

has agreed to designate in the part 70

permit certain minor NSR permit terms

as ‘‘District-only minor NSR’’ and

stipulate that those terms so listed will

be reviewed and, as necessary, be

deleted, revised, or incorporated as

federally-enforceable terms of the part

70 permit on or before a specified

deadline (not later than the renewal of

the permit).

3. Permit Fee Demonstration

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

that each permitting authority collect

fees sufficient to cover all reasonable

direct and indirect costs required to

develop and administer its title V

operating permits program. Each title V

program submittal must contain either a

detailed demonstration of fee adequacy

or a demonstration that aggregate fees

collected from title V sources meet or

exceed $25 per ton per year (adjusted

annually based on the Consumer Price

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

$25 per ton amount is presumed, for

program approval, to be sufficient to

cover all reasonable program costs and

is thus referred to as the ‘‘presumptive

minimum’’ (40 CFR 70.9(b)(2)(i)).

San Diego has opted to make a

presumptive minimum fee

demonstration. The District’s fees are

based on the actual direct and indirect

costs of evaluating and issuing a title V

permit. In addition to employing a cost

recovery approach, the District will

charge an initial title V permit

application fee of $2,200 per permitted

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

estimates an average implementation

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

year for the first 5 years of the program.

The presumptive minimum is

calculated at $309,300 per year by

multiplying an estimated 10,000 tons of

pollutants emitted each year in San

Diego by the CPI adjusted presumptive

dollar amount of $30.93. San Diego will

therefore be collecting fees in an amount

that exceeds the presumptive minimum.

4. Provisions Implementing the

Requirements of Other Titles of the Act

a. Authority and Commitments for

Section 112 Implementation

San Diego has demonstrated in its

title V program submittal adequate legal

authority to implement and enforce all

section 112 requirements through the

title V permit. This legal authority is

contained in the State of California

enabling legislation and in regulatory

provisions defining federal ‘‘applicable

requirements’’ and requiring each

permit to incorporate conditions that

assure compliance with all applicable

requirements. EPA has determined that

this legal authority is sufficient to allow

San Diego to issue permits that assure

compliance with all section 112

requirements. For further discussion,

please refer to the TSD accompanying
Federal Register / Vol. 60, No. 235 / Thursday, December 7, 1995 / Rules and Regulations 62757

this action and the April 13, 1993

guidance memorandum entitled, ‘‘Title

V Program Approval Criteria for Section

112 Activities,’’ signed by John Seitz.

b. Authority for Title IV Implementation

On March 7, 1995, San Diego

incorporated by reference part 72, the

federal acid rain permitting regulations.

The incorporation by reference was

codified in Rule 1412 of Regulation XIV

and submitted to EPA on April 4, 1995.

B. Proposed Interim Approval and

Implications

1. Title V Operating Permits Program

The EPA is promulgating direct final

interim approval to the operating

permits program submitted by the

California Air Resources Board, on

behalf of the San Diego Air Pollution

Control District, on April 22, 1994 and

amended on April 4, 1995 and October

10, 1995. Areas in which San Diego’s

program is deficient and requires

corrective action prior to full approval

are as follows:

(1) California State law currently

exempts agricultural production sources

from permit requirements. CARB has

requested source category-limited

interim approval for all California

districts. In order for San Diego’s

program to receive full approval (and to

avoid a disapproval upon the expiration

of this interim approval), the California

Legislature must revise the Health and

Safety Code to eliminate the exemption

of agricultural production sources from

the requirement to obtain a permit.

(2) Part 70 requires that any

significant change in monitoring permit

terms or conditions be processed as a

significant permit modification. Rule

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

Permit Modification,’’ must be revised

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

(3) San Diego’s treatment of affected

state notification is unclear in the

program submittal. Part 70 requires that

air permitting authorities provide notice

to all affected states of all proposed

permits, minor and significant permit

modifications, and renewals (section

70.8(b)(1)). The term ‘‘affected state’’ is

defined in section 70.2 as a contiguous

state whose air quality may be affected

or a state within 50 miles of a permitted

source. EPA is also undergoing a

rulemaking action that will allow Native

American lands to be treated as a state.

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

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

San Diego’s program does not define

‘‘affected state,’’ and it does not specify

any affected state notification

procedures. It does provide, however,

the requirement to notify affected states

in the case of minor or significant

permit modifications. In addition, San

Diego has indicated that it currently has

cooperative permitting agreements with

Native American tribes.

EPA is not concerned about the notice

deficiencies with respect to states that

border California because of San Diego’s

coastal location. On the other hand, in

order to receive full approval on this

issue, San Diego’s program must ensure

that Native American tribes will be

adequately notified and consulted once

such tribes apply for treatment as

affected states. If San Diego’s existing

cooperative permitting practices meet

the affected state notification

requirements set out in section 70.8(b),

the District may submit them to EPA for

incorporation into its title V program to

satisfy the affected state notice

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

provisions or incorporation of existing

practices, EPA will accept a

commitment from San Diego to: (1)

Initiate rule revisions upon notification

from EPA that an affected tribe has

applied for state status; and (2) provide

affected state notice to tribes upon a

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

to the District’s adoption of affected

state notice rules.

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

2 to require permit reopening

procedures for any inactive status

permit that is modified to reflect new

applicable requirements upon being

converted to active status if there are 3

years or more remaining on the term of

its 5-year permit. (See section

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

(5) Remove any activities from the

District’s list of insignificant activities

that are subject to a unit-specific

applicable requirement and adjust/add

size cut-offs to ensure that the listed

activities are truly insignificant. (See

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

(6) Remove the reference to Rules

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

reference to minor and significant

permit modifications in the provisions

for administrative permit amendments

could be read to be inconsistent with

the definition of ‘‘significant permit

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

correctly defaults unspecified changes

to the significant permit modification

process. In addition, the phrase ‘‘These

shall include the following’’ in the

administrative permit amendment

section (Rule 1410(i)) creates ambiguity

about whether the list of administrative

permit amendments is exhaustive or

open ended. Because part 70, section

70.7(d)(vi) requires that administrative

permit amendments be specifically

approved as part of the title V program,

the word ‘‘include’’ in the above phrase

must also be removed.

(7) The District must revise either the

definition of ‘‘federally mandated new

source review’’ or the definition of

‘‘federally enforceable requirement’’ to

clearly include minor new source

review as an applicable requirement

under title V.

This interim approval, which may not

be renewed, extends for a period of up

to two years. During the interim

approval period, San Diego is protected

from sanctions for failure to have a

program, and EPA is not obligated to

promulgate a federal permits program in

the District. Permits issued under a

program with interim approval have full

standing with respect to part 70, and the

one-year time period for submittal of

permit applications by subject sources

begins upon interim approval, as does

the three-year time period for processing

the initial permit applications.

The scope of San Diego’s part 70

program that EPA is acting on in this

notice applies to all part 70 sources (as

defined in the approved program)

within San Diego’s jurisdiction. The

approved program does not apply to any

part 70 sources over which an Indian

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

55813, 55815–18 (Nov. 9, 1994). The

term ‘‘Indian tribe’’ is defined under the

Act as ‘‘any Indian tribe, band, nation,

or other organized group or community,

including any Alaska Native village,

which is federally recognized as eligible

for the special programs and services

provided by the United States to Indians

because of their status as Indians.’’ See

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

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

54364 (Oct. 21, 1993).

2. State Preconstruction Permit Program

Implementing Section 112(g)

The EPA has published an

interpretive notice in the Federal

Register regarding section 112(g) of the

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

postpones the effective date of section

112(g) until after EPA has promulgated

a rule addressing that provision. The

interpretive notice also explains that

EPA is considering whether the effective

date of section 112(g) should be delayed

beyond the date of promulgation of the

federal rule so as to allow states time to

adopt rules implementing the federal

rule, and that EPA will provide for any

such additional delay in the final

section 112(g) rulemaking. Unless and

until EPA provides for such an

additional postponement of section

112(g), San Diego must be able to

implement section 112(g) during the

period between promulgation of the
62758 Federal Register / Vol. 60, No. 235 / Thursday, December 7, 1995 / Rules and Regulations

federal section 112(g) rule and adoption

of implementing State regulations.

For this reason, EPA is approving the

use of San Diego’s preconstruction

review program as a mechanism to

implement section 112(g) during the

transition period between promulgation

of the section 112(g) rule and adoption

by San Diego of rules specifically

designed to implement section 112(g).

However, since the sole purpose of this

approval is to confirm that the District

has a mechanism to implement section

112(g) during the transition period, the

approval itself will be without effect if

EPA decides in the final section 112(g)

rule that there will be no transition

period. The EPA is limiting the duration

of this approval to 18 months following

promulgation by EPA of the section

112(g) rule.

3. Program for Delegation of Section 112

Standards as Promulgated

Requirements for approval, specified

in 40 CFR section 70.4(b), encompass

section 112(l)(5) requirements for

approval of a program for delegation of

section 112 standards as promulgated by

EPA as they apply to part 70 sources.

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

program contain adequate authorities,

adequate resources for implementation,

and an expeditious compliance

schedule, which are also requirements

under part 70. Therefore, EPA is also

promulgating approval under section

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

Diego’s program for receiving delegation

of section 112 standards that are

unchanged from federal standards as

promulgated. California Health and

Safety Code section 39658 provides for

automatic adoption by CARB of section

112 standards upon promulgation by

EPA. Section 39666 of the Health and

Safety Code requires that districts then

implement and enforce these standards.

Thus, when section 112 standards are

automatically adopted pursuant to

section 39658, San Diego will have the

authority necessary to accept delegation

of these standards without further

regulatory action by the District. The

details of this mechanism and the

means for finalizing delegation of

standards will be set forth in an

implementation agreement between San

Diego and EPA. This program applies to

both existing and future standards but is

limited to sources covered by the part

70 program.

III. Administrative Requirements

A. Docket

Copies of San Diego’s submittal and

other information relied upon for this

direct final action is contained in docket

number CA-SD–95–1–OPS maintained

at the EPA Regional Office. The docket

is an organized and complete file of all

the information submitted to, or

otherwise considered by, EPA in the

development of this direct final

rulemaking. The docket is available for

public inspection at the location listed

under the ADDRESSES section of this

document.

B. Regulatory Flexibility Act

The EPA’s actions under section 502

of the Act do not create any new

requirements, but simply address

operating permits programs submitted

to satisfy the requirements of 40 CFR

part 70. Because this action does not

impose any new requirements, it does

not have a significant impact on a

substantial number of small entities.

C. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a federal mandate that

may result in estimated costs to state,

local, or tribal governments in the

aggregate; or to the private sector, of

$100 million or more. Under section

205, EPA must select the most costeffective and least burdensome

alternative that achieves the 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 approval

action promulgated today does not

include a federal mandate that may

result in estimated costs of $100 million

or more to either state, local, or tribal

governments in the aggregate, or to the

private sector. This federal action

approves pre-existing requirements

under state or local law, and imposes no

new federal requirements. Accordingly,

no additional costs to state, local, or

tribal governments, or to the private

sector, result from this action.

D. Executive Order 12866

The Office of Management and Budget

has exempted this action from review

under Executive Order 12866.

List of Subjects in 40 CFR Part 70

Environmental protection,

Administrative practice and procedure,

Air pollution control, Environmental

protection, Intergovernmental relations,

Operating permits, Reporting and

recordkeeping requirements.

Dated: November 8, 1995.

Felicia Marcus,

Regional Administrator.

Part 70, title 40 of the Code of Federal

Regulations is amended as follows:

PART 70—[AMENDED]

1. The authority citation for part 70

continues to read as follows:

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

2. Appendix A to part 70 is amended

by adding paragraph (x) to the entry for

California to read as follows:

Appendix A to Part 70—Approval

Status of State and Local Operating

Permits Programs

* * * * *

The following district program was

submitted by the California Air

Resources Board on behalf of:

(x) San Diego Air Pollution Control

District: submitted on April 22, 1994

and amended on April 4, 1995 and

October 10, 1995; approval effective on

February 5, 1996, unless adverse or

critical comments are received by

January 8, 1996.

* * * * *

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

BILLING CODE 6560–50–P

40 CFR Part 70

[AD–FRL–5341–9]

Clean Air Act Interim Approval of

Operating Permits Program; Mariposa

Air Pollution Control District, California

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The EPA is promulgating

direct final interim approval of the title

V operating permits program submitted

by the California Air Resources Board

(CARB), on behalf of the Mariposa Air

Pollution Control District (Mariposa or

District), for the purpose of complying

with federal requirements for an

approvable state program to issue

operating permits to all major stationary

sources and to certain other sources. In

addition, today’s action promulgates

direct final approval of Mariposa’s

mechanism for receiving delegation of

section 112 standards as promulgated.

DATES: This direct final rule is effective

on February 5, 1996 unless adverse or

critical comments are received by

January 8, 1996. If the effective date is

delayed, a timely notice will be

published in the Federal Register.

ADDRESSES: Copies of the District’s

submittal and other supporting