Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Rules and Regulations 2527

Subpart UU—Vermont

7. Section 52.2370 is amended by

adding paragraph (c)(21) to read as

follows:

§ 52.2370 Identification of plan.

* * * * *

(c) * * *

(21) Revisions to the State

Implementation Plan submitted by the

Vermont Air Pollution Control Division

on August 9, 1993.

(i) Incorporation by reference.

(A) Letter dated August 9, 1993 from

the Vermont Air Pollution Control

Division submitting revisions to the

Vermont State Implementation Plan.

Vermont resubmitted Vermont’s rule

entitled ‘‘Registration of Air

Contaminant Sources,’’ Sections 5–801

through 5–806 and the SIP narrative

entitled ‘‘State of Vermont Air Quality

Implementation Plan, February 1993’’ to

meet the emission statement

requirements of the Clean Air Act

Amendments of 1990.

(B) Letter dated February 4, 1993 from

the Vermont Air Pollution Control

Division submitting revisions to the

Vermont State Implementation Plan

which included Vermont’s rule entitled

‘‘Registration of Air Contaminant

Sources,’’ Sections 5–801 through 5–806

and the SIP narrative entitled ‘‘State of

Vermont Air Quality Implementation

Plan, February 1993’’ to meet the

emission statement requirements of the

Clean Air Act Amendments of 1990.

Sections 5–801 through 5–806 were

previously adopted by Vermont and

became effective on April 20, 1988.

(C) Section 5–801 ‘‘Definitions,’’

section 5–802 ‘‘Requirement for

Registration,’’ section 5–803

‘‘Registration Procedure,’’ section 5–804

‘‘False or Misleading Information,’’

section 5–805 ‘‘Commencement or

Recommencement of Operation,’’ and

section 5–806 ‘‘Transfer of Operation’’

effective on April 20, 1988.

(ii) Additional materials.

(A) Vermont’s SIP narrative entitled

‘‘State of Vermont Air Quality

Implementation Plan, February 1993’’

which addresses emission statement

requirements not covered by sections 5–

801 through 5–806.

(B) Letter dated October 5, 1994 from

the Vermont Air Pollution Control

Division which clarifies Vermont

procedures in developing the emission

statement information.

(C) Nonregulatory portions of the

submittal.

8. In § 52.2381 Table 52.2381 is

amended by adding a new entry to

existing state citation ‘‘section 5–801’’

and adding new state citations ‘‘5–802

through 5–806’’ to read as follows:

§ 52.2381 EPA-approved Vermont State

regulations.

* * * * *

TABLE 52.2381.—EPA-APPROVED RULES AND REGULATIONS

State citation, title and subject Date adopted by state

Date approved

by EPA Federal Register citation Section52.2370

Comments and unapproved

sections

* * * * * * *

Section 5–801, Definitions ...... 4/20/88 Jan. 10, 1995 ... [Insert FR citation from published date].(c)(21) ..........

* * * * * * *

Section 5–802, Requirement

for Registration.

4/20/88 Jan. 10, 1995 ... [Insert FR citation from published date].(c)(21) ..........

* * * * * * *

Section 5–803, Registration

Procedure.

4/20/88 Jan. 10, 1995 ... [Insert FR citation from published date].(c)(21) ..........

* * * * * * *

Section 5–804, False or Misleading Information.4/20/88 Jan. 10, 1995 ... [Insert FR citation from published date].(c)(21) ..........

* * * * * * *

Section 5–805, Commencement or Recommencement

of Operation.

4/20/88 Jan. 10, 1995 ... [Insert FR citation from published date].

(c)(21) ..........

* * * * * * *

Sections 5–806, Transfer of

Operation.

4/20/88 Jan. 10, 1995 ... [Insert FR citation from published date].(c)(21).

[FR Doc. 95–567 Filed 1–9–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 70

[NM002; FRL–5136–1]

Clean Air Act Interim Approval of

Operating Permits Program; City of

Albuquerque Environmental Health

Department, Air Pollution Control

Division

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The EPA is promulgating

interim approval of the operating

permits program submitted by the New

Mexico Governor’s designee, Mr.

Lawrence Rael, for the City of

Albuquerque as Chief Administrative

Officer, and for Bernalillo County as the

administrative head of the

Albuquerque/Bernalillo County

Operating Permits Program, for the
2528 Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Rules and Regulations

purpose of complying with Federal

requirements for an approvable program

to issue operating permits to all major

stationary sources, and to certain other

sources with the exception of Indian

Lands.

DATES: This direct final rule is effective

on March 13, 1955 unless adverse or

critical comments are received by

February 9, 1995.

ADDRESSES: Written comments on this

action should be addressed to Ms. Jole

C. Luehrs, Chief, New Source Review

Section, at the EPA Region 6 Office

listed. Copies of the City’s submittal and

other supporting information used in

developing the final rule are available

for inspection during normal business

hours at the following locations.

Interested persons wanting to examine

these documents should make an

appointment with the appropriate office

at least 24 hours before visiting day.

Environmental Protection Agency,

Region 6, Air Programs Branch (6T–

AN), 1445 Ross Avenue, suite 700,

Dallas, Texas 75202–2733. City of

Albuquerque/Bernalillo County,

Environmental Health Department, One

Civic Plaza, NW., room 3023,

Albuquerque, New Mexico 87103.

FOR FURTHER INFORMATION CONTACT:

Adele D. Cardenas, New Source Review

Section, Environmental Protection

Agency, Region 6, 1445 Ross Avenue,

suite 700, Dallas, Texas 75202–2733,

telephone 214–665–7210.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

In title V of the 1990 Clean Air Act

Amendments (sections 501–507 of the

Clean Air Act (‘‘the Act’’)), the EPA has

promulgated rules which define the

minimum elements of an approvable

State/local operating permits program,

and the corresponding standards and

procedures by which the EPA will

approve, oversee, and withdraw

approval of a State/local operating

permits program (see 57 FR 32250 (July

21, 1992)). These rules are codified at 40

Code of Federal Regulations (CFR) part

70. Title V requires States/local areas 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/local

areas develop and submit these

programs to the EPA by November 15,

1993, and that the EPA act to approve

or disapprove each program within one

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 and disapproval.

Where a program substantially, but not

fully, meets the requirements of part 70,

the EPA may grant the program interim

approval for a period of up to two years.

If the EPA has not fully approved a

program by two years after the date of

November 15, 1993, 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 EPA

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 permits program submitted by

the City of Albuquerque/Bernalillo

County should adverse or critical

comments be filed. Under the

procedures established in the May 10,

1994, Federal Register, this action will

be effective on March 13, 1995 unless,

by February 9, 1995 adverse or critical

comments are received.

II. Proposed Action and Implications

If the EPA receives such comments,

this action will be withdrawn before the

effective date by publishing a

subsequent document that will

withdraw the final action. All public

comments received will then be

addressed in a subsequent final rule

based on this action serving as a

proposed rule. The EPA will not

institute a second comment period. 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 March 13, 1995.

A. Analysis of City/County Submission

1. Support Materials

Pursuant to section 502(d) of the Act,

the State/local area is required to

develop and submit to the

Administrator an operating permits

program under State or local law or

under an interstate compact meeting the

requirements of title V of the Act.

Bernalillo County and the City of

Albuquerque within the County are

granted the authority to administer a

local air pollution control program by

the New Mexico Air Quality Control

Act. The Air Pollution Control Division

(APCD) of the City of Albuquerque

Environmental Health Department

requested in the original submittal,

under the signature of Governor Bruce

King, approval with full authority to

administer the City of Albuquerque/

Bernalillo County Operating Permits

Program, prepared by APCD, in all areas

of Bernalillo County in the State of New

Mexico with the exception of Indian

lands.

Pursuant to NMSA 1978 section 74–

2–1 et seq. (Repl. Pamph. 1993),

Bernalillo County and the City of

Albuquerque have created a joint local

authority, the Albuquerque/Bernalillo

County Air Quality Control Board, to

adopt regulations, administer and

enforce the State Air Quality Control

Act, the City Joint Air Quality Control

Ordinance and the Air Quality Control

Board Regulations within Bernalillo

County.

The City of Albuquerque/Bernalillo

County submitted their final operating

permits program to the EPA Regional

Office on April 4, 1994. The title V

program covering the City and County

was signed by the Governor’s designee

Mr. Lawrence Rael, for the City of

Albuquerque as Chief Administrative

Officer and for Bernalillo County as the

administrative head of the

Albuquerque/Bernalillo County

Operating Permits Program, for the

purpose of complying with Federal

requirements.

In the APCD operating permits

program submittal, the City of

Albuquerque/Bernalillo County does

not assert jurisdiction over Indian lands

or reservations. To date, no tribal

government in New Mexico has

authority to administer an independent

air program in the County of Bernalillo.

Upon promulgation of the Indian air

regulations, Indian tribes will then be

able to apply as States, and receive the

authority from the EPA to implement an

operating permits program under title V

of the Act. The EPA will, where

appropriate, conduct a Federal title V

operating permits program in

accordance with forthcoming EPA

regulations, for those Indian tribes

which do not apply for treatment as

States under the Act.

The City of Albuquerque/Bernalillo

County submittal provided an operating

permits program plan which outlines

items in the following sections: Item II—

‘‘Operating Permits Program

Description,’’ addresses 40 CFR

70.4(b)(1) by describing how APCD

intends to carry out its responsibilities

under the part 70 regulations. The

program description addresses the

following areas: (A) Organizational

structure, (B) Regulations, guidelines,

policies and procedures, and (C) Future

regulatory actions (40 CFR 70.4(b)(3)(i)

and (v)). The program description has

been deemed to be appropriate for

meeting the requirement of 40 CFR

70.4(b)(1).

Pursuant to 40 CFR 70.4(b)(3), the

Governor or his designee is required to
Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Rules and Regulations 2529

submit a legal opinion from the

Attorney General (or the attorney for the

State or local air pollution control

agency that has independent legal

counsel) demonstrating adequate

authority to carry out all aspects of a

title V operating permits program. The

Albuquerque City Attorney submitted a

Final City Attorney’s Opinion and a

First and Second Supplemental City

Attorney’s Opinion on behalf of both the

City of Albuquerque and Bernalillo

County.

This is because, as explained in the

Second Supplemental City Attorney’s

Opinion, the City Attorney provides

legal advice to the City pursuant to City

Ordinance 1–20–1 R.O. 1974, and the

City Attorney, with the consent of

Bernalillo County, is independent

counsel for the joint Albuquerque/

Bernalillo County Air Quality Control

Board. The administrative agency for

this joint board is the City

Environmental Health Department, as

provided in Albuquerque/Bernalillo

County AQC regulations 2.12 and 1.13.

The APCD, a subdivision of the City

Environmental Health Department, was

given the responsibility of preparing

and implementing the City/County title

V program. Therefore, under the

authority of NMSA 1978 section 74–2–

1, et seq., and consistent with his role

as independent counsel for the City of

Albuquerque/Bernalillo County Air

Quality Control Board and the City

Environmental Health Department, the

City Attorney in his First and Second

Supplemental City Attorney’s Opinion

addressed the required authority to

implement the City/County’s title V

operating permits program.

As explained in the Second

Supplemental City Attorney’s Opinion,

the City Amended Ordinance and the

County Amended Ordinance do not

repeat the felony violation language of

Air Quality Control (AQC) Act section

74–2–14.C verbatim. This is because of

a New Mexico Constitutional

requirement that felony violations must

be initiated and prosecuted by the State

Attorney General or the State District

Attorney. State law requires all

violations of City and County

ordinances to be prosecuted in

Metropolitan Court, for which the New

Mexico Constitution limits jurisdiction

to non-felony cases. Therefore, the City

and County ordinances do not state that

the felony violations detailed in AQC

Act section 74–2–14.C are also

ordinance violations. Since State statute

requires that felonies committed within

the City and County be initiated and

prosecuted by the State Attorney

General or District Attorney, this is not

an obstacle to part 70 approval.

The legal opinions submitted by the

City Attorney demonstrate adequate

legal authority as required by Federal

law and regulation to implement and

enforce a part 70 operating permits

program except with regard to criminal

fine authority as discussed below. The

City Attorney, in Albuquerque’s Final

City Attorney’s Opinion, acknowledged

that the EPA had determined that a

statutory revision would be required to

render the State’s criminal fine

authority consistent with the

requirements of 40 CFR 70.11 (a)(3)(ii).

The State statutes and City and

County ordinances cited in the Final

City Attorney’s Opinion for

Albuquerque/Bernalillo County

authorize the imposition of criminal

fines in the amounts of only $1,000 and

$5,000 for misdemeanor and felony

violations, respectively, rather than the

$10,000 per violation amounts required

by 40 CFR 70.11(a)(3)(ii) for knowing

violations of applicable requirements,

permit conditions and fee and filing

requirements. Further, those statutes

and ordinances do not appear to

authorize the fine amounts to be

imposed per day per violation as

required by 40 CFR 70.11(a)(3)(ii).

Although these defects in criminal fine

authority preclude the EPA from

granting full approval of the City/

County’s operating permits program at

this time, the EPA may grant interim

approval, subject to the State, City and

County obtaining and submitting to the

EPA the needed criminal fine authority

within 18 months after the

Administrator’s approval of the

Albuquerque/Bernalillo County title V

program pursuant to 40 CFR 70.4(f)(2).

This will need to be accomplished

through statutory revisions by the State

of New Mexico and revisions to the City

Joint AQC Board Ordinance and the

County Joint AQC Board Ordinance by

the City and County consistent with the

amendments to State statute, and

submission of those revisions to the

EPA within the prescribed 18-month

period.

As noted in the City Attorney’s cover

letter accompanying Albuquerque’s

First Supplemental City Attorney’s

Opinion, the State statute which

provides for the delegation of authority

from the State to Albuquerque/

Bernalillo County for the City/County’s

operating permits program, New Mexico

Statutes Annotated (NMSA) 1978

section 74–2–4, provides that any

ordinances adopted by the City/County

must be consistent with the substantive

provisions of State statute and provide

for standards and regulations not lower

than those required by regulations

adopted by the New Mexico

Environmental Improvement Board.

Therefore, as explained in the abovementioned City Attorney’s cover letter,

the City/County rely on the

interpretation of the State Attorney

General contained in the Attorney

General’s Opinion and Supplemental

Attorney General’s Opinion submitted

with the New Mexico Operating Permits

Program, with respect to a number of

issues discussed below.

The City/County rely on the State’s

Supplemental Attorney General’s

Opinion submitted as part of the New

Mexico Operating Permits Program and

contained in the EPA’s docket for the

New Mexico part 70 program, in their

interpretation of NMSA 1978 section

74–2–14.E with regard to the underlying

criminal fine authority required by 40

CFR 70.11(a)(3)(iii) for tampering and

false statement. The Albuquerque

Supplemental City Attorney’s Opinion

and accompanying cover letter also

reflect that the City and County rely on

the requirements of NMSA 1978 section

74–2–4 for their interpretation of the

identical City Amended Ordinance,

section 6–16–17.B, and the identical

County Amended Ordinance, section

17.B, consistent with State statute.

The EPA is also relying on the State’s

interpretation of its statute, NMSA 1978

section 74–2–14.E set out in New

Mexico’s Supplemental Attorney

General’s Opinion referenced above, as

demonstrating that New Mexico law

allows criminal fines of at least $10,000

per day for each act of tampering and for

each false statement as required by 40

CFR 70.11(a)(3)(iii), and on the City and

County interpretation of their identical

provisions in the City and County

Amended Ordinances reflected in

Albuquerque’s First Supplemental City

Attorney’s Opinion consistent with this

statutory interpretation as meeting the

Federal requirement.

40 CFR 70.4(b)(3)(i) requires that a

State/local agency demonstrate adequate

legal authority to issue permits and

assure compliance with each applicable

requirement of 40 CFR part 70. Both the

New Mexico regulation, Air Quality

Control Regulation (AQCR) 770.III.C.1.d

and the Albuquerque/Bernalillo County

regulation, Air Quality Control (AQC)

41.03(C)(1)(d), state that ‘‘the

department may impose conditions

regulating emissions during start-up and

shutdown.’’ The EPA is relying on the

State’s interpretation of this language,

discussed in the State’s Supplemental

Attorney General’s Opinion referenced

above, and the City/County

interpretation of their corresponding

regulation as set out in Albuquerque’s

First Supplemental City Attorney’s

Opinion, in interpreting this language to
2530 Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Rules and Regulations

allow the permitting authority to impose

requirements which exceed title V

applicable requirements, but not to

waive any title V requirements for title

V sources.

40 CFR 70.4(b)(4) requires the

submission of relevant permitting

program documentation not contained

in the regulations, such as permit forms

and relevant guidance to assist in the

City’s implementation of its permits

program. The City of Albuquerque/

Bernalillo County address this

requirement in the operating permits

program plan part of the submittal

under Section IV—Appendices B, C and

H.

2. Regulations and Program

Implementation

The City of Albuquerque/Bernalillo

County have submitted Air Quality

Control (AQC) regulation No. 41—

‘‘Operating Permit Regulations’’ and

AQC No. 21—‘‘Fee Regulations,’’ for

implementing the City of Albuquerque/

Bernalillo County part 70 program as

required by 40 CFR 70.4(b)(2). Sufficient

evidence of their procedurally correct

adoption was submitted in the final

submittal on April 4, 1994. Copies of all

applicable State and local statutes and

regulations which authorize the part 70

program, including those governing

State/City administrative procedures,

were submitted with the City’s program.

The City of Albuquerque/Bernalillo

County also submitted a list of

insignificant activities with the

submittal for the EPA’s review and

approval with the City/County operating

permits program. This list, which

underwent the City/County public

participation process during the

operating permits regulation hearing, is

being approved by the Regional Office

with this document. The list can be

found in the submittal under Item II—

‘‘Operating Permits Program

Description,’’ Attachment II–3—‘‘List of

Insignificant Activities.’’

The City of Albuquerque/Bernalillo

County operating permits regulations

followed the State of New Mexico

operating permits regulation AQCR 770.

The State’s regulations follow part 70

very closely with a few exceptions. The

cross-reference chart submitted with the

State’s operating permits program

submission can also be used for

reviewing the City/County’s program

due to the close similarity of the State

and City/County permit regulations. The

New Mexico submittal addresses the

cross-reference chart under Item VI—

‘‘Various Provisions’’, Attachment VI–1,

indicating where each paragraph of the

part 70 regulation is addressed in AQCR

770. The City submitted AQC 41, the

Operating Permits Regulations for the

City, as Attachment I in the Final City

Attorney’s Opinion. The following

requirements, set out in the EPA’s part

70 operating permits program review,

are addressed in the operating permits

program plan and in AQC 41—

Attachment I of the City/County’s

submittal as follows: (A) Applicability

criteria, including any criteria used to

determine insignificant activities or

emissions levels (40 CFR 70.4(b)(2)):

AQC 41.02, ‘‘List of Insignificant

Activities’’; (B) Provisions for

continuing permits or permit terms if a

timely and complete application is

submitted, but action is not taken on a

request prior to permit expiration (40

CFR 70.4(b)(10)): AQC 41.04(A)(4); (C)

Provisions for action on permit

applications (40 CFR 70.4(b)(6)): AQC

41.04(A)(3); (D) Provisions for permit

content (including 40 CFR 70.4(b)(16)):

all applicable requirements: AQC

41.03(C)(1); a fixed term: AQC

41.03(C)(2); monitoring and related

recordkeeping and reporting

requirements: AQC 41.03(C)(3) through

(5); source compliance requirements:

AQC 41.03(C)(7); (E) Operational

flexibility provisions (40 CFR

70.4(b)(12)): AQC 41.03(C)(8); (F)

Provisions for permit issuance,

renewals, reopenings and revisions,

including public, the EPA and affected

State review to be accomplished in an

expeditious manner (40 CFR 70.4(b)(13)

and (16)): AQC 41.04; and (G) If the

permitting authority allows off-permit

changes, provisions assuring

compliance with sections 70.4(b)(14)

and (15): AQC 41(C)(9). The AQC

regulations in section 41.04(H) provide

that applicants can receive variances

from non-Federal conditions only. The

City/County prevent any source from

receiving a variance from any AQC 41

or part 70 requirement. The City of

Albuquerque/Bernalillo County’s

definition of ‘‘title I modification’’ does

not include changes reviewed under a

minor new source preconstruction

review program (‘‘minor NSR changes’’).

The EPA is currently in the process of

determining the proper definition of

that phrase. 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 and

regulations addressing source changes

that trigger the application for National

Emission Standard for Hazardous Air

Pollutants (NESHAP) established

pursuant to section 112 of the Act prior

to the 1990 Amendments.

For the reasons set forth in the EPA’s

proposed rulemaking to revise the

interim approval criteria of 40 CFR part

70 (59 FR 44572, August 29, 1994), the

EPA believes the phrase ‘‘modification

under any provision of title I of the Act’’

in 40 CFR 70.7(e)(2)(i)(A)(5) is best

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/local

preconstruction review programs

approved by EPA as part of the State

Implementation Plan under section

110(a)(2)(C) of the Act and regulations

addressing source changes that trigger

the application of NESHAPs established

pursuant to section 112 of the Act prior

to the 1990 amendments, and would

include minor NSR changes not covered

under the City of Albuquerque/

Bernalillo County operating permits

program’s definition of ‘‘title I

modification’’.

On August 29, 1994, the EPA

proposed revisions to its criteria for

interim approval of State/local operating

permits programs under 40 CFR 70.4(d)

to allow State/local operating permits

programs with a narrower definition of

‘‘title I modification’’ like the City of

Albuquerque/Bernalillo County’s to

receive interim approval (59 FR 44572).

The EPA also solicited public comment

on the proper interpretation of ‘‘title I

modification.’’ (59 FR 44572, 44573).

The EPA stated that if, after considering

the public comments, it continued to

believe that the phrase ‘‘title I

modifications’’ should be interpreted as

including minor NSR changes, it would

revise the interim approval criteria as

needed to grant States/locals that

adopted a narrower definition, interim

approval.

The EPA intended to finalize its

revisions to the interim approval criteria

under 40 CFR 70.4(d) before taking final

action on part 70 operating permits

programs submitted by the State/locals.

However, it will not be possible to delay

approval of operating permits programs

until final action has been taken on

EPA’s proposed revisions to the part 70

interim approval criteria. This is

because publication of the proposed

revisions was delayed until August 29,

1994, and the EPA received several

requests to extend the public comment
Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Rules and Regulations 2531

1EPA originally established a 30-day public

comment period for the August 29, 1994, proposal.

In response to several requests for extension,

however, EPA agreed to allow an additional thirty

days for public comments. See 59 FR 52122

(October 14, 1994).

2Section 502(d) requires, in relevant part, that

‘‘[n]ot later than 1 year after receiving a program,

and after notice and opportunity for public

comment, the Administrator shall approve or

disapprove such program, in whole or in part.’’

3At the present time, therefore, the EPA is not

construing 40 CFR sections 70.7(e)(2)(i)(A)(3) and

70.7(e)(2)(i)(A)(5) to prohibit Albuquerque/

Bernalillo County from allowing minor NSR

changes to be processed as minor permit

modifications.

4State programs with a narrower ‘‘title I

modification’’ definition that are acted upon by

EPA after an Agency decision that such a narrower

definition is inappropriate would be considered

deficient, but would be eligible for interim approval

under revised 40 CFR section 70.4(b).

period until November 27, 1994.1 Given

the importance of the issues in that

rulemaking to States/locals, sources and

the public, but mindful of the need to

take action quickly, the EPA agreed to

extend the comment period until

October 28, 1994 (see 59 FR 52122

(October 14, 1994)). Consequently, final

action to revise the interim approval

criteria will not occur before the

deadline for EPA action on State/local

operating permits programs such as the

City of Albuquerque/Bernalillo

County’s, that were submitted on or

before November 15, 1993.2 The EPA

believes it would be inappropriate to

delay action on the City of

Albuquerque/Bernalillo County’s

operating permits program, perhaps for

several months, until final action is

taken on the proposed revisions to the

part 70 interim approval criteria. The

EPA also believes it would be

inappropriate to grant interim approval

to the City of Albuquerque/Bernalillo

County on this issue before final action

is taken to revise the current interim

approval criteria of 40 CFR 70.4(b) to

provide a legal basis for such an interim

approval. Until the revision to the

interim approval criteria is

promulgated, the EPA’s choices are to

either fully approve or disapprove the

narrower ‘‘title I modification’’

definition in States/locals such as the

City of Albuquerque/Bernalillo County.

For the reasons set forth below, the EPA

believes that disapproving such

operating permits programs at this time

based solely on this issue would be

inappropriate.

First, the EPA has not yet

conclusively determined that a narrower

definition of ‘‘title I modification’’ is

incorrect and thus a basis for

disapproval (or even interim approval).

The EPA has received numerous

comments on this issue as a result of the

August 29, 1994, Federal Register

document, and the EPA cannot and will

not make a final decision on this issue

until it has evaluated all comments on

that proposed rulemaking. Second, the

EPA believes that the City of

Albuquerque/Bernalillo County

Operating Permits Program should not

be disapproved because the EPA itself

has not yet been able to resolve this

issue through rulemaking. Moreover,

disapproving operating permits

programs from States/locals such as the

City of Albuquerque/Bernalillo County

that submitted their operating permits

programs to the EPA on or before the

November 15, 1993, statutory deadline,

could lead to the unfair result that these

States/locals would receive

disapprovals, while States/locals which

were late in submitting operating

permits programs could take advantage

of revised interim approval criteria

should those criteria become final. In

effect, States/locals would be severely

penalized for having made timely

operating permits program submissions

to the EPA. Finally, disapproval of a

State/local operating permits program

for a potential problem that primarily

affects permit revision procedures

would delay the issuance of part 70

permits, hampering State/local/Federal

efforts to improve environmental

protection through the operating

permits program.

For the reasons mentioned above, the

EPA is approving the City of

Albuquerque/Bernalillo County

Operating Permits Program’s use of the

narrower definition of ‘‘title I

modification’’ at this time.3 However,

should the EPA in the interim approval

criteria rulemaking make a final

determination that such a narrow

definition of ‘‘title I modification’’ is

incorrect and that a revision of the

interim approval criteria is warranted,

the EPA will propose further action on

City of Albuquerque/Bernalillo County’s

operating permits program so that the

City/County’s definition of ‘‘title I

modification’’ could become grounds for

interim approval requiring revision

prior to the EPA’s granting of full

approval to that program.4 An operating

permits program like the City of

Albuquerque/Bernalillo County’s that

receives full approval of its narrower

‘‘title I modification’’ definition pending

completion of the EPA’s rulemaking

must ultimately be placed on an equal

footing with programs of States/locals

that receive interim approval in later

months under any revised interim

approval criteria because of the same

issue. Converting the full approval on

this issue to an interim approval after

the EPA completes its rulemaking

would avoid this inequity. The EPA

anticipates that an action to convert the

full approval on the ‘‘title I

modification’’ issue to an interim

approval would be effected through an

additional rulemaking, so as to ensure

that there is adequate notice of the

change in approval status.

3. Permit Fee Demonstration

In AQC 21, the City/County’s fee

regulation, the City/County board

established fees for criteria air

pollutants which are below the

presumptive minimum set out in 40

CFR 70.9(b)(2)(iv). The City/County

regulation allows for a fee of $22.00 per

ton for criteria pollutants based on

allowable emissions at major sources as

defined in AQC Number 41—

‘‘Operating Permits’’ regulations. For

facilities which are also major for

hazardous air pollutants (HAP), the fees

are $250 per ton for the 189 HAPs listed

in title III of the 1990 Amendments.

These fees, when converted using the

EPA criteria, result in the collection of

an average of $29.84 per ton for title V

sources. The City/County board, after

careful review, determined that these

fees would support the title V permit

program costs as required by 40 CFR

70.9(a). The City of Albuquerque/

Bernalillo County explain in their fee

demonstration that they chose this fee

structure because it allowed for program

costs to be covered without unduly

penalizing any industry, and the fees

generated would meet, but not likely

exceed, program costs. The APCD will

conduct a periodic review of the

program fee schedule. The City of

Albuquerque/Bernalillo County fee

demonstration shows that this fee

schedule meets the requirements for an

operating permits program in the City of

Albuquerque and Bernalillo County.

The APCD will collect $292,518 dollars

per year to support all applicable part

70 activities for the City/County. The

APCD projects the direct cost to fund

the operation of the title V program to

be approximately $195,000 dollars per

year, and the indirect cost to be

approximately $97,500. The APCD

anticipates increasing its air quality staff

by 6.3 new full time employees, a total

of 1⁄3 of the existing air program staff.

Any changes in the fees would need to

be made by APCD through the

Albuquerque/Bernalillo County Air

Control Board.

4. Provisions Implementing the

Requirements of Other Titles of the Act

The City of Albuquerque/Bernalillo

County acknowledge that their request

for approval of a part 70 program is also

a request for approval of a program for
2532 Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Rules and Regulations

delegation of unchanged section 112

standards under the authority of section

112(l) as they apply to part 70 sources.

Upon receiving approval under section

112(l), the City of Albuquerque/

Bernalillo County may receive

delegation of any new authority

required by section 112 of the Act

through the delegation process.

The City of Albuquerque/Bernalillo

County have the option at any time to

request, under section 112(l) of the Act,

delegation of section 112 requirements

in the form of City regulations which

the City/County demonstrate are

equivalent to the corresponding section

112 provisions promulgated by the EPA.

At this time, the City/County plan to use

the mechanism of incorporation by

reference to adopt unchanged Federal

section 112 requirements into their

regulations.

The radionuclide NESHAP is a

section 112 regulation and therefore,

also an applicable requirement under

the City/County operating permits

program for part 70 sources. There is not

yet a Federal definition of ‘‘major’’ for

radionuclide sources. Therefore, until a

major source definition for

radionuclides is promulgated, no source

would be a major section 112 source

solely due to its radionuclide emissions.

However, a radionuclide source may, in

the interim, be a major source under

part 70 for another reason, thus

requiring a part 70 permit. The EPA will

work with the City/County in the

development of their radionuclide

program to ensure that permits are

issued in a timely manner.

Section 112(g) of the Act requires that,

after the effective date of a permits

program under title V, no person may

construct, reconstruct or modify any

major source of any HAPs unless the

State/local agency determines that the

maximum achievable control

technology (MACT) emission limitation

under section 112(g) will be met. Such

determination must be made on a caseby-case basis where no applicable

limitations have been established by the

Administrator. During the transition

period from the title V effective date to

the date the City/County have taken

appropriate action to implement the

final section 112(g) Federal rule,

proposed on April 1994 (59 FR 15504),

(either by adoption of the unchanged

Federal rule or approval of an existing

State rule under section 112(l)), the City

of Albuquerque/Bernalillo County

intend to implement section 112(g) of

the Act through the City/County’s

preconstruction process using a twopronged approach.

Immediately upon approval of their

operating permits program, the City/

County intend to implement section

112(g) through their existing

preconstruction rule, AQC Regulation

20. This rule was previously approved

by the EPA to implement the

preconstruction requirements of title I of

the Act.

The second phase of the City/

County’s section 112(g) implementation

approach during the transition period is

expected to be based on the City/County

board’s adoption of the New Mexico

State rule, AQCR 755, into their existing

City/County regulations, AQC

Regulation 20 and Regulation 41. The

New Mexico State rule, AQCR 755

clarifies the requirements set out in the

proposed Federal section 112(g) rule

and its preamble.

The City/County anticipate that the

incorporation of the language of the

State rule into City/County AQC

Regulations 20 and 41 will be effective

by mid-March 1995. When final, this

incorporation is expected to enhance

the mechanism contained in

Albuquerque’s existing preconstruction

rule, AQC Regulation 20, for the

implementation of section 112(g). If the

New Mexico State rule AQCR 755 is not

finally incorporated by the City/County,

or is incorporated with substantial

changes from the State rule as

promulgated, the City/County rule, AQC

Regulation 20 will continue to provide

authority for the implementation of

Federal section 112(g). After the final

Federal section 112(g) rule is

promulgated, the City/County will be

required to formally revise their rules

accordingly.

The City of Albuquerque/Bernalillo

County commit to appropriately

implementing the existing and future

requirements of sections 111, 112, and

129 of the Act, and all MACT standards

promulgated in the future, in a timely

manner. This includes a commitment to

implement both promulgated section

112 Federal standards and section 112

requirements such as section 112(g) that

are not federally promulgated standards.

The City of Albuquerque/Bernalillo

County commit to having an acid rain

program in place by April 1995. The

EPA acknowledges that this date, which

is later than the January 1, 1995, date set

out in the EPA policy, is a result of the

fact that Albuquerque/Bernalillo County

will rely on the State’s regulations for

the development of their final acid rain

regulations. Therefore, the City/County

rule adoption process requires that they

await final action on the State’s rules

prior to taking final action on their acid

rain rules. This is consistent with the

requirement of NMSA section 74–2–4,

that the City/County requirements be no

less stringent than the corresponding

State requirements. The State will meet

the January 1995 date as required in

policy drafted by the Acid Rain

Division, and the City of Albuquerque/

Bernalillo County will have their acid

rain program in place by April 1995.

The City/County commit to submitting

copies of their draft acid rain rules,

regulations and guidance for review and

comment to meet the Federal

implementation date to issue permits by

December 1997.

5. Enforcement Provisions

The APCD’s operating permits

program submittal addressed the

enforcement requirements of 40 CFR

70.4(b)(4)(ii) and 70.4(b)(5) in the

operating permit program plan, Section

IV(E)—‘‘Operating Permit Program

Enforcement Procedures.’’ A copy of the

signed Memorandum of Understanding

between the EPA Region 6 and the

APCD is kept in the Region 6 file room.

This document, which is a product of

negotiations between the EPA Region 6

and the APCD, was signed prior to the

submittal date of the operating permits

program. The Operating Permits

Program Plan, Sections IV(D), IV(E) and

IV(F) of the City/County’s submittal,

addresses the following issues: (A)

Compliance tracking and enforcement

plan (40 CFR 70.4(b)(4)(ii) and

70.4(b)(5)); (B) Commitment to submit

enforcement information (40 CFR

70.4(b)(9)); and (C) Enforcement

authority (40 CFR 70.4(b)(2) and

70.4(b)(3)(vii)).

6. Technical Support Document

The results of this review are shown

in the document entitled ‘‘Technical

Support Document,’’ which is available

in the docket at the locations noted

above. The technical support

documentation shows that all operating

permits program requirements of part 70

and relevant guidance were met by the

submittal for the APCD, except with

regard to criminal fine authority.

7. Summary

The City of Albuquerque/Bernalillo

County submitted to the EPA, an

operating permits program under a

cover letter dated March 25, 1994, from

the New Mexico Governor’s designee

Mr. Lawrence Rael, for the City of

Albuquerque as Chief Administrative

Officer and for Bernalillo County as the

administrative head of the

Albuquerque/Bernalillo County

Operating Permits Program. This

program was submitted for the purpose

of complying with Federal requirements

regarding an operating permits program.

The submittal has adequately addressed

all sixteen (16) elements required for
Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Rules and Regulations 2533

full approval as discussed in part 70,

except with regard to criminal fine

authority. The City of Albuquerque/

Bernalillo County addressed

appropriately all requirements

necessary to receive interim approval of

the City/County’s operating permits

program pursuant to title V, the 1990

Amendments and 40 CFR part 70.

B. Options for Approval/Disapproval

and Implications

The EPA is promulgating interim

approval of the operating permits

program submitted by the City of

Albuquerque for Albuquerque/

Bernalillo County on April 4, 1994.

Interim approvals under section 502(g)

of the Act do not create any new

requirements, but simply approve

requirements that the State/local area is

already imposing. The City/County

must make the following changes for

this program to receive full approval:

Following the State’s correction of the

statutory defect in criminal fine

authority, correct the corresponding

defects in City and County Ordinances

for Albuquerque and Bernalillo County.

In addition to raising the criminal fine

amounts to at least $10,000 for all

offenses listed in 40 CFR 70.11(a)(3)(ii),

statutory and ordinance revisions must

provide authority for the imposition of

those fines on a per day per violation

basis, as required by 40 CFR

70.11(a)(3)(ii).

Evidence of these statutory and

ordinance revisions and their

procedurally correct adoption must be

submitted to the EPA within 18 months

of the EPA’s approval of the

Albuquerque/ Bernalillo County

Operating Permits Program. This

interim approval, which may not be

renewed, extends for a period of two

years. During the interim approval

period, the City of Albuquerque/

Bernalillo County are protected from

sanctions for failure to have a program,

and the EPA is not obligated to

promulgate a Federal permit program in

the City of Albuquerque/ Bernalillo

County. 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.

If this interim approval is converted

to a disapproval, it will not affect any

existing City/County requirements

applicable to small entities. Federal

disapproval of the City of Albuquerque/

Bernalillo County submittal would not

affect its local enforceability. Moreover,

the EPA’s disapproval of the submittal

would not impose a new Federal

requirement. Therefore, the EPA

certifies that such a disapproval action

would not have a significant impact on

a substantial number of small entities

because it would not remove existing

City requirements or substitute a new

Federal requirement.

III. Proposed Rulemaking Action

In this action, the EPA is

promulgating interim approval of the

operating permits program submitted by

the City of Albuquerque for

Albuquerque/Bernalillo County. The

program was submitted to EPA by the

Governor’s designee for the City/County

for the purpose of complying with

Federal requirements found in title V of

the 1990 Amendments, and in 40 CFR

part 70, which mandate that States/local

areas develop, and submit to the EPA,

programs for issuing operating permits

to all major stationary sources, and to

certain other sources with the exception

of Indian Lands.

Requirements for title V approval,

specified in 40 CFR 70.4(b), encompass

section 112(l)(5) requirements for

approval of a program for delegation of

Federal section 112 standards as they

apply to part 70 sources. Section

112(l)(5) requires that the State/local

program contain adequate authorities,

adequate resources for implementation,

and an expeditious compliance

schedule, which are also requirements

under part 70. Therefore, as part of this

interim approval, the EPA is also

promulgating approval of the City/

County program under section 112(l)(5)

and 40 CFR 63.91 for the purpose of the

City/County 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.

The EPA’s policy is to apply sanctions

to State/local programs if the Governor

or his designee fails to submit a

corrected program for full approval

within 18 months after the due date for

the submittal. If the City/County fail to

submit a complete corrected program for

full approval by June 10, 1996, the EPA

will start an 18-month clock for

mandatory sanctions. If the City/County

program fail to submit a complete

program before the expiration of that 18-

month period, the EPA would impose

sanctions. If the EPA disapproves the

City/County’s corrective program, and

has not determined that the City/County

have corrected the deficiency within 18

months after the disapproval, then the

EPA must impose mandatory sanctions.

In either case, if the City/County have

not come into compliance, EPA applies

the first sanction. In addition,

discretionary sanctions may be applied

where warranted any time after the end

of the interim approval period if the

City/County have not submitted a

complete corrective program or EPA has

disapproved a corrective program. If the

EPA has not granted full approval to the

City/County program by January 10,

1997, the EPA must promulgate,

administer, and enforce a Federal

operating permits program for the City

of Albuquerque Environmental Health

Department, Air Pollution Control

Division.

The EPA has reviewed this submittal

of the Albuquerque/ Bernalillo County

Operating Permits Program and is

promulgating interim approval. Certain

defects in the State’s statutory criminal

fine authority and the City/County

ordinances preclude the EPA from

granting full approval of the City/

County’s operating permits program.

The EPA is promulgating interim

approval of the City/County operating

permits program, and the State, City and

County will need to obtain the needed

criminal fine authority within 18

months after the Administrator’s

approval of this program pursuant to 40

CFR 70.4 in order for the City of

Albuquerque/Bernalillo County’s title V

program to be eligible for full approval.

IV. Administrative Requirements

A. Request for Public Comments

The EPA is requesting comments on

all aspects of this final rule. Copies of

the City/County’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, the EPA in the

development of this proposed

rulemaking. 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

rulemaking process, and

(2) to serve as the record in case of

judicial review. The EPA will consider

any comments received by February 9,

1995.

B. Executive Order 12866

The Office of Management and Budget

has exempted this regulatory action

from Executive Order 12866 review.

C. Regulatory Flexibility Act

Under the Regulatory Flexibility Act,

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

prepare a regulatory flexibility analysis
2534 Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Rules and Regulations

assessing the impact of any proposed or

final rule on small entities (5 U.S.C. 603

and 604). Alternatively, the EPA may

certify that the rule will not have a

significant impact on a substantial

number of small entities. Small entities

include small businesses, small not-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000.

Operating permits program approvals

under section 502 of the Act do not

create any new requirements, but

simply approve requirements that the

City/County are already imposing.

Therefore, because the Federal operating

permits program approval does not

impose any new requirements, I certify

that it does not have a significant impact

on any small entities affected. Moreover,

due to the nature of the Federal-State

relationship under the Act, preparation

of a regulatory flexibility analysis would

constitute Federal inquiry into the

economic reasonableness of State/local

action. The Act forbids the EPA from

basing its actions concerning operating

permits programs on such grounds

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

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

7410(a)(2)).

List of Subjects in 40 CFR Part 70

Environmental protection,

Administrative practice and procedures,

Intergovernmental relations, Operating

permits.

Dated: December 23, 1994.

A. Stanley Meiburg,

Acting Regional Administrator (6A).

40 CFR part 70 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 (b) to the entry for

New Mexico to read as follows:

Appendix A to Part 70—Approval

Status of State and Local Operating

Permits Programs

* * * * *

New Mexico

* * * * *

(b) City of Albuquerque

Environmental Health Department, Air

Pollution Control Division: submitted

on April 4, 1994; effective on March 13,

1995; interim approval expires August

10, 1996.

* * * * *

[FR Doc. 95–547 Filed 1–9–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 271

[FRL–5136–2]

Kentucky; Final Authorization of

Revisions to State Hazardous Waste

Management Program

AGENCY: Environmental Protection

Agency.

ACTION: Immediate final rule.

SUMMARY: Kentucky has applied for final

authorization of revisions to its

hazardous waste program under the

Resource Conservation and Recovery

Act (RCRA). Kentucky’s revisions

consist of the provisions contained in

Non-HSWA Clusters IV and V. These

requirements are listed in Section B of

this notice. The Environmental

Protection Agency (EPA) has reviewed

Kentucky’s applications and has made a

decision, subject to public review and

comment, that Kentucky’s hazardous

waste program revisions satisfy all of

the requirements necessary to qualify

for final authorization. Thus, EPA

intends to approve Kentucky’s

hazardous waste program revisions.

Kentucky’s applications for program

revisions are available for public review

and comment.

DATES: Final authorization for

Kentucky’s program revisions shall be

effective March 13, 1995 unless EPA

publishes a prior Federal Register

action withdrawing this immediate final

rule. All comments on Kentucky’s

program revision applications must be

received by the close of business

February 9, 1995.

ADDRESSES: Copies of Kentucky’s

program revision applications are

available during normal business hours

at the following addresses for inspection

and copying: Kentucky Department for

Environmental Protection, Division of

Waste Management, Fort Boone Plaza,

Building 2, 18 Reilly Road, Frankfort,

Kentucky 40601 (502) 564–6716; U.S.

EPA Region IV, Library, 345 Courtland

Street, NE, Atlanta, Georgia 30365; (404)

347–4216. Written comments should be

sent to Al Hanke at the address listed

below.

FOR FURTHER INFORMATION CONTACT:

Al Hanke, Chief, State Programs

Section, Waste Programs Branch, Waste

Management Division, U.S.

Environmental Protection Agency, 345

Courtland Street, NE, Atlanta, Georgia

30365; (404) 347–2234.

SUPPLEMENTARY INFORMATION:

A. Background

States with final authorization under

Section 3006(b) of the Resource

Conservation and Recovery Act

(‘‘RCRA’’ or ‘‘the Act’’), 42 U.S.C.

6926(b), have a continuing obligation to

maintain a hazardous waste program

that is equivalent to, consistent with,

and no less stringent than the Federal

hazardous waste program. In addition,

as an interim measure, the Hazardous

and Solid Waste Amendments of 1984

(Public Law 98–616, November 8, 1984,

hereinafter ‘‘HSWA’’) allows States to

revise their programs to become

substantially equivalent instead of

equivalent to RCRA requirements

promulgated under HSWA authority.

States exercising the latter option

receive ‘‘interim authorization’’ for the

HSWA requirements under Section

3006(g) of RCRA, 42 U.S.C. 6926(g), and

later apply for final authorization for the

HSWA requirements.

Revisions to State hazardous waste

programs are necessary when Federal or

State statutory or regulatory authority is

modified or when certain other changes

occur. Most commonly, State program

revisions are necessitated by changes to

EPA’s regulations in 40 CFR Parts 260–

268 and 124 and 270.

B. Kentucky

Kentucky initially received final

authorization for its base RCRA program

effective on January 31, 1985. Kentucky

has received authorization for revisions

to its program on December 19, 1988,

March 20, 1989, May 15, 1989, and

November 30, 1992. On August 3, 1994,

Kentucky submitted program revision

applications for additional program

approvals. Today, Kentucky is seeking

approval of its program revisions in

accordance with 40 CFR 271.21(b)(3).

EPA has reviewed Kentucky’s

applications and has made an

immediate final decision that

Kentucky’s hazardous waste program

revisions satisfy all of the requirements

necessary to qualify for final

authorization. Consequently, EPA

intends to grant final authorization for

the additional program modifications to

Kentucky. The public may submit

written comments on EPA’s immediate

final decision up until February 9, 1995.

Copies of Kentucky’s application for

these program revisions are available for

inspection and copying at the locations

indicated in the ADDRESSES section of

this notice.

Approval of Kentucky’s program

revisions shall become effective March

13, 1995, unless an adverse comment

pertaining to the State’s revisions

discussed in this notice is received by

the end of the comment period.

If an adverse comment is received

EPA will publish either (1) a withdrawal

of the immediate final decision or (2) a

notice containing a response to