Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Proposed Rules 14921

Minnesota Mining and Manufacturing

Corporation; Replogle Globes, Inc.,

Candle Corporation of America, Nalco

Chemical Company, Parisian Novelty

Company, Meyercord Corporation,

Wallace Computer Services, Inc. and

General Packaging Products, Inc. This

action lists the FIP revisions USEPA is

proposing to approve and provides an

opportunity to request a public hearing.

A detailed rationale for approving these

requests is presented in the final rules

section of this Federal Register, where

USEPA is approving the revision

requests as a direct final rule without

prior proposal because USEPA views

these as noncontroversial revisions and

anticipates no adverse comments. If no

adverse comments or requests for a

public hearing are received in response

to that direct final rule, no further

activity is contemplated in relation to

this proposed rule. If USEPA receives

adverse comments or a public hearing

request, the direct final rule will be

withdrawn. The USEPA will institute a

second comment period on this notice

only if a public hearing is requested.

Any parties interested in commenting

on this notice should do so at this time.

If a request for a public hearing is

received, USEPA will publish a notice

in the Federal Register announcing a

public hearing. The final rule on this

proposed action will address all

comments received.

DATES: Comments on this proposal must

be received by April 20, 1995. A public

hearing, if requested, will be held in

Chicago, Illinois. Requests for a public

hearing should be submitted to J. Elmer

Bortzer by April 20, 1995.

ADDRESSES: Written comments and

requests for a public hearing on this

proposed action should be addressed to:

J. Elmer Bortzer, Chief, Regulation

Development Section (AR–18J),

Environmental Protection Agency,

Region 5, 77 West Jackson Boulevard,

Chicago, Illinois 60604.

Comments should be strictly limited

to the subject matter of this proposal.

DOCKET: Pursuant to section 307(d)(1)(B)

of the Clean Air Act (Act), 42 U.S.C.

7607(d)(1)(B), this action is subject to

the procedural requirements of section

307(d). Therefore, USEPA has

established a public docket for this

action, A–94–39, which is available for

public inspection and copying between

8 a.m. and 4 p.m., Monday through

Friday, at the following addresses. We

recommend that you contact Fayette

Bright before visiting the Chicago

location and Rachel Romine before

visiting the Washington, D.C. location.

A reasonable fee may be charged for

copying.

The United States Environmental

Protection Agency, Region 5, Regulation

Development Branch, Eighteenth Floor,

Southeast, 77 West Jackson Boulevard,

Chicago, Illinois, 60604, (312) 886–

6069.

United States Environmental

Protection Agency, Docket No. A–94–

39, Air Docket (LE–131), Room M1500,

Waterside Mall, 401 M Street SW.,

Washington, D.C. 20460, (202) 245–

3639.

FOR FURTHER INFORMATION CONTACT:

Steven Rosenthal, Regulation

Development Branch (AR–18J), U.S.

Environmental Protection Agency,

Region 5, 77 West Jackson Boulevard,

Chicago, Illinois 60604, (312) 886–6052.

SUPPLEMENTARY INFORMATION: For

additional information see the direct

final rule published in the rules section

of this Federal Register.

Dated: February 28, 1995.

Carol M. Browner,

Administrator.

[FR Doc. 95–6004 Filed 3–20–95; 8:45 am]

BILLING CODE 6560–50–M

40 CFR Part 70

[AD–FRL–5174–4]

Title V Clean Air Act Proposed Interim

Approval of Operating Permits

Program; District of Columbia

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed interim approval.

SUMMARY: EPA is proposing interim

approval of the operating permits

program submitted by the District of

Columbia. This program was submitted

by the District for the purpose of

complying with federal requirements

which mandate that states develop, and

submit to EPA, programs for issuing

operating permits to all major stationary

sources, and to certain other sources.

The rationale for proposing interim

approval is set forth in this notice;

additional information is available at

the address indicated below. This action

is being taken in accordance with the

provisions of the Clean Air Act.

DATES: Comments on this proposed

action must be received in writing by

April 20, 1995.

ADDRESSES: Comments should be

submitted to Jennifer Abramson at the

Region III address indicated. Copies of

the District’s submittal and other

supporting information used in

developing the proposed interim

approval are available for inspection

during normal business hours at the

following location: Air, Radiation, and

Toxics Division, U.S. Environmental

Protection Agency, Region III, 841

Chestnut Building, Philadelphia, PA

19107.

FOR FURTHER INFORMATION CONTACT:

Jennifer M. Abramson (3AT23), Air,

Radiation and Toxics Division, U.S.

Environmental Protection Agency,

Region III, 841 Chestnut Building,

Philadelphia, PA 19107, (215) 597–

2923.

SUPPLEMENTARY INFORMATION:

I. Background

As required under Title V of the Clean

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

has promulgated rules which define the

minimum elements of an approvable

state operating permits program and the

corresponding standards and

procedures by which EPA will approve,

oversee, and withdraw approval of state

operating permits programs (see 57 FR

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

codified at 40 Code of Federal

Regulations (CFR) part 70. Title V

requires states to develop, and submit to

EPA, programs for issuing these

operating permits to all major stationary

sources and to certain other sources.

The CAA requires that states develop

and submit these programs to EPA by

November 15, 1993, and that EPA act to

approve or disapprove each program

within 1 year after receiving the

submittal. EPA’s program review occurs

pursuant to section 502 of the CAA and

part 70, which together outline criteria

for approval or disapproval. Where a

program substantially, but not fully,

meets the requirements of Part 70, EPA

may grant the program interim approval

for a period of up to 2 years. If EPA has

not fully approved a program by 2 years

after the November 15, 1993 date, or by

the end of an interim program, EPA

must establish and implement a federal

operating permits program.

Following final interim approval, if

the District fails to submit a complete

corrective program for full approval by

6 months before the interim approval

period expires, EPA would start an 18-

month clock for mandatory sanctions. If

the District then failed to submit a

complete corrective program before the

expiration of that 18-month period, EPA

would be required to apply one of the

sanctions in section 179(b) of the CAA.

Such a sanction would remain in effect

until EPA determined that the District

had corrected the deficiency by

submitting a complete corrective

program. Moreover, if the Administrator

found a lack of good faith on the part

of the District, both sanctions under

section 179(b) would apply after the
14922 Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Proposed Rules

expiration of the 18-month period until

the Administrator determined that the

District had come into compliance. In

any case, if, six months after application

of the first sanction, the District still had

not submitted a corrective program that

EPA found complete, a second sanction

would be required.

If, following final interim approval,

EPA disapproved the District’s complete

corrective program, EPA would be

required to apply one of the section

179(b) sanctions on the date 18 months

after the effective date of the

disapproval, unless prior to that date the

District had submitted a revised

program and EPA had determined that

this program corrected the deficiencies

that prompted the disapproval.

Moreover, if the Administrator found a

lack of good faith on the part of the

District, both sanctions under section

179(b) would apply after the expiration

of the 18-month period until the

Administrator determined that the

District had come into compliance. In

all cases, if, six months after EPA

applied the first sanction, the District

had not submitted a revised program

that EPA had determined corrected the

deficiencies that prompted disapproval,

a second sanction would be required.

In addition, discretionary sanctions

may be applied where warranted any

time after the end of an interim approval

period if the District has not timely

submitted a complete corrective

program or EPA has disapproved a

submitted corrective program.

Moreover, if EPA has not granted full

approval to a District program by the

expiration of an interim approval

period, EPA must promulgate,

administer and enforce a federal

operating permits program for the

District upon the date the interim

approval period expires.

On January 13, 1994, the District of

Columbia submitted an operating

permits program for review by EPA. The

submittal was supplemented by

additional materials on March 11, 1994,

and was found to be administratively

complete pursuant to 40 CFR 70.4(e)(1).

The submittal includes an

Administrator’s letter, a description of

the District’s title V program, permitting

regulations, a Corporation Counsel’s

legal opinion, permitting program

documentation, a permit fee

demonstration, a description of

compliance tracking and enforcement

program, and provisions implementing

the requirements of other titles of the

CAA.

II. Summary and Analysis of the

District’s Submittal

The analysis contained in this notice

focuses on the major portions of the

District’s operating permits program

submittal: regulations and program

implementation, variances, fees, support

materials, and provisions implementing

the requirements of titles III and IV of

the CAA. Specifically, this notice

addresses the deficiencies in the

District’s submittal which will need to

be corrected prior to full approval by

EPA. These deficiencies as well as other

issues related to the District’s operating

permit program are discussed in detail

in the Technical Support Document

(TSD). The full program submittal and

the TSD are available for review as part

of the public docket. The docket may be

viewed during regular business hours at

the EPA Region III office listed in the

ADDRESSES section of this document.

A. Regulations and Program

Implementation

The District of Columbia’s operating

permit program is primarily defined by

regulations adopted as chapter 3 of

subtitle I of title 20 of the District of

Columbia Municipal Regulations (20

DCMR). Provisions for enforcement

authority are located in other Chapters

of subtitle I of 20 DCMR. The following

analysis of the District’s operating

permit regulations corresponds directly

with the format and structure of part 70.

Section 70.2 Definitions

The District’s regulations

substantially meet the requirements of

40 CFR 70.2 for definitions. The

following changes must be made to

chapter 3 in order to fully meet the

requirements of 40 CFR 70.2.

1. The § 399.1 definition of ‘‘Fugitive

emissions’’ is entitled ‘‘Emissions

emissions’’. This typographical error

must be corrected to clarify the meaning

of the term fugitive emissions as the

term is used in the chapter 3 operating

permits regulations.

2. The § 399.1 definition of ‘‘Title I

modification or modification under any

provision of Title I of the Act’’ does not

expressly include changes reviewed

under a minor source preconstruction

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

EPA is currently in the process of

determining the proper definition of this

term. 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 a State

Implementation Plan (SIP) under

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

On August 29, 1994, EPA proposed

revisions to the interim approval criteria

in 40 CFR 70.4(d) to, among other

things, allow state programs with a more

narrow definition of ‘‘Title I

modifications’’ to receive interim

approval (59 FR 44572). EPA explained

its view that the preferred reading of

‘‘Title I modifications’’ includes minor

NSR, and solicited public comment on

the proper interpretation of that term

(59 FR 44573). EPA stated that if, after

considering the public comments, it

continued to believe that the term ‘‘Title

I modifications’’ should be interpreted

as including minor NSR changes, it

would revise the interim approval

criteria as needed to allow states with a

narrower definition to be eligible for

interim approval.

EPA hopes to finalize its rulemaking

revising the interim approval criteria

under 40 CFR 70.4(d) expeditiously. If

EPA establishes in its rulemaking that

the definition of ‘‘Title I modifications’’

can be interpreted to exclude changes

reviewed under minor NSR programs,

the District’s definition of ‘‘Title I

modification or modification under any

provision of Title I of the Act’’ would

be fully consistent with part 70.

Conversely, if EPA establishes through

the rulemaking that the definition must

include changes reviewed under minor

NSR, the District’s definition of ‘‘Title I

modification or modification under any

provision of Title I of the Act’’ will not

fully meet the 40 CFR 70.2 requirements

for definitions. If the impact of this

deficiency becomes a basis for interim

approval as a result of EPA’s

rulemaking, the District would be

required to revise the section 399.1

definition to conform to the

requirements of part 70.

Accordingly, this proposed approval

does not identify the District’s

definition of ‘‘Title I modification or

modification under any provision of

Title I of the Act’’ as necessary grounds

for either interim approval or

disapproval. Again, although EPA has

reasons for believing that the better

interpretation of ‘‘Title I modifications’’

is the broader one, EPA does not believe

that it is appropriate to determine

whether this is a program deficiency

until EPA completes its rulemaking on

this issue.

Section 70.5 Permit Applications

The District’s regulations

substantially meet the requirements of
Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Proposed Rules 14923

40 CFR 70.5 for permit applications.

The following changes must be made to

Chapter 3 in order to fully meet the

requirements of 40 CFR 70.5:

1. Section 301.1(b)(6)(B) must be

modified to clarify that applications for

permit renewal must contain both a

compliance plan, as required by

§ 301.3(h), and a compliance

certification, as required by § 301.3(i).

2. The District must revise

§ 301.3(c)(1) to ensure that all regulated

air pollutant emissions which are

subject to applicable requirements,

including emissions from nonmajor

sources subject to section 111 or 112 of

the CAA, and sources solely subject to

Part 60, Subpart AAA—Standards of

Performance for new Residential Wood

Heaters and Part 61, Subpart M—

National Emissions Standard for

Hazardous Air Pollutants (NESHAP) for

Asbestos, section 61.145, Standard for

Demolition and Renovation, will be

described in permit applications.

During the interim period, the District

will be expected to require sources to

prepare permit applications which

include all information needed to

determine the applicability of any

applicable requirement, in accordance

with § 301.3.

Accordingly, the District will also be

expected to issue permits to major

sources that include all applicable

requirements, in accordance with

§ 302.1.

3. Section 301.3(g) must be revised to

correct the misreferenced sections of the

District’s regulations which address

alternate operating scenarios and

emissions trading.

4. Section 301.3(h)(3)(C) must be

revised to clarify that any schedule of

compliance shall be supplemental to

and shall not sanction noncompliance

with the applicable requirements on

which it is based.

Sections 70.4 and 70.6 Permit Content

The District’s regulations

substantially meet the requirements of

40 CFR 70.4 and 40 CFR 70.6 for permit

content. The following changes must be

made to Chapter 3 in order to fully meet

the requirements of 40 CFR 70.4 and 40

CFR 70.6:

1. Section 302.1(k) must be revised to

clarify that terms and conditions for the

trading or averaging of emissions must

meet all applicable requirements and

the requirements of the operating

permits program.

2. Section 302.3(e)(6) must be

renumbered to § 302.3(f) to be consistent

with the structure of 40 CFR 70.6(c)(6).

Such a change is needed to clarify that

the permit will include provisions

required by the Mayor to ensure

compliance.

3. Section 302.4(e) must be revised to

clarify that requests for coverage under

a general permit must meet the permit

application requirements of Title V of

the Clean Air Act, and include all

information necessary to assure

compliance with the general permit.

4. The section 302.8 provisions

regarding operational flexibility must be

restructured to clarify that the three

types of operational flexibility (Section

502(b)(10) changes, emissions trading

under SIP, and emissions trading for the

purposes of complying with federally

enforceable emissions cap) are available

only when the conditions specified in

40 CFR 70.4(b)(12) are met.

5. Section 302.8(b) must be revised to

clarify that compliance with emissions

trading provisions in a permit will be

determined according to requirements

of the applicable SIP/ Federal

Implementation Plan (FIP) or applicable

requirement authorizing the emissions

trade.

Section 70.7 Permit Issuance,

Renewal, Reopenings, and Revisions

The District’s regulations

substantially meet the requirements of

40 CFR 70.7 for permit issuance,

renewal, reopenings, and revisions. The

following changes must be made to

Chapter 3 in order to fully meet the

requirements of 40 CFR 70.7:

1. The provisions of § 303.1(f) and

§ 303.1(e)(2) authorize an extension of 5

days from the permit issuance deadlines

required in part 70. Sections 303.1(f)

and 303.1(d)(1) must be revised to

ensure that the Part 70 permit issuance

deadlines will be met.

2. Section 303.3(a) language must be

modified to clarify that public

participation and EPA and affected state

review will apply to the entire draft

renewal permit, including those

portions which are incorporated by

reference.

3. Section 303.5(d)(1) prescribes the

use of significant permit modification

procedures for changes meeting certain

criteria. So that all types of changes will

be assigned a specified permit revision

track, § 303.5(d)(1) must be revised to

also require the use of the significant

permit modification procedure for any

type of change which does not qualify

for either a minor permit modification

or an administrative amendment.

4. The District must revise § 303.10 to

provide for sending notice to persons on

a mailing list developed by the

permitting authority, including those

people who request, in writing, to be on

the list.

5. Section 303.10(a)(1)(B) must be

revised to require the notice to include

procedures to request a hearing in the

event that a hearing has not been

scheduled. Although not specified in

the Chapter 3 regulations, the District

must provide an opportunity to request

a hearing if one has not been scheduled

during the interim period.

6. Section 303.10 must be revised to

include a provision that requires notice

of a public hearing at least 30 days in

advance of the hearing. Although not

specified in the Chapter 3 regulations,

the District must provide notice of a

public hearing at least 30 days in

advance of the hearing during the

interim period.

Section 70.9 Fee Determination and

Certification

The District’s regulations

substantially meet the requirements of

40 CFR 70.9 for fee determination and

certification. The following changes

must be made to Chapter 3 in order to

fully meet the requirements of 40 CFR

70.9:

1. Section 305.2(b) must be revised to

clarify that the August 1989 CPI value

of 124.6 will not be used for the

purposes of calculating the CPI fee

adjustment and that the appropriate

value of 122.15, the average 1989 CPI

value, will be used instead.

2. Section 305.1 requires sources to

pay an annual presumptive minimum

fee ‘‘or the equivalent over some other

period’’. Although appearing in section

502(b)(3)(A) of the CAA, the language

‘‘or the equivalent over some other

period’’ as written into this section may

allow for wide variations in the amount

and timing of fee payments and could

frustrate enforcement of the fee payment

requirement. If the District intends to

provide sources with the flexibility to

pay fees pursuant to a pay schedule

other than the annual presumptive

minimum, section 305.1 must be revised

to ensure that such equivalent fee

schedule is enforceable as a practical

matter. If the District does not intend to

allow sources to pay fees other than the

annual presumptive minimum, the

section 305.1 language ‘‘or the

equivalent over some other period’’

should be removed.

Section 70.11 Enforcement Authority

The District’s regulations

substantially meet the requirements of

40 CFR 70.11 for requirements for

enforcement authority. The following

changes must be made to subtitle I of 20

DCMR in order to fully meet the

requirements of 40 CFR 70.11:

1. The enforcement provisions cited

in the Corporation Counsel’s opinion as
14924 Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Proposed Rules

meeting the enforcement requirements

of part 70 do not satisfy the

requirements of § 70.11(a)(1) and (2).

The District must either revise the

Corporation Counsel’s opinion to

reference existing provisions in District

of Columbia law which satisfy the

requirements of 70.11(a) (1) and (2), or

specifically establish authorities to

restrain or enjoin immediately permit

violators presenting substantial

endangerment, and to seek injunctive

relief for program and permit violations

without the need for prior revocation of

the permit. Whichever approach the

District takes, the District’s regulations

must clearly establish that such

enforcement authority extends to

chapter 3.

2. The District must clarify that civil

fines are recoverable for the violation of

any applicable requirement, any permit

condition, any fee or filing requirement,

any duty to allow or carry out

inspection, entry of monitoring

activities or, any regulation or orders

issued by the Mayor. The District must

either amend the Subtitle I of 20 DCMR

to specifically address the types of

violations for which civil fines are

recoverable, or otherwise have the

Corporation Counsel demonstrate that

section 100.6 applies to each of the

specific types of violations mentioned

in § 70.11(a)(3)(i).

3. As required by 40 CFR 70.11(a)(3),

the District must establish civil

enforcement authority for the collection

of penalties in a maximum amount of

not less than $10,000 per day per

violation. Such civil penalties must be

recoverable for the types of violations

discussed in § 70.11(a)(3)(i).

4. With respect to the § 100.6 civil

enforcement authority, the District must

clarify that mental state is not allowed

as an element of proof for civil

violations. The District must either

establish regulatory provisions for strict

liability or provide a demonstration

from the Corporation Counsel that

mental state is not allowed as an

element of proof for civil violations.

5. The District must clarify that

criminal fines are recoverable for any

knowing violations of applicable

requirements, permit conditions, or fee

or filing requirements. Criminal fines

must also be recoverable against any

person who knowingly makes any false

material statement, representation or

certification in any forms, in any notice

or report required by a permit, or who

knowingly renders inaccurate any

required monitoring device or method.

The District must either amend the

subtitle I of 20 DCMR to specifically

address the types of knowing violations

for which criminal fines are recoverable

or have the Corporation Counsel

demonstrate that section 105.1 applies

to each of the specific types of knowing

violations mentioned in § 70.11(a)(3)(ii)

and (iii).

6. Section 105.1 provides criminal

enforcement authority for the recovery

of fines in an amount not to exceed

$10,000. Pursuant to the requirements of

§ 70.11(a)(3)(i), the District must revise

the provisions pertaining to criminal

enforcement so to authorize the

collection of penalties in a maximum

amount of not less than § 10,000 per day

per violation. Such criminal penalties

must be recoverable for the types of

knowing violations discussed in

§ 70.11(a)(3)(ii) and (iii).

B. Variances

The District of Columbia has the

authority to issue a variance from

requirements imposed by the District

under the ‘‘District of Columbia Air

Pollution Control Act of 1984’’ (APCA).

Under specific circumstances and

following a specified procedure, section

103 of the APCA authorizes the Mayor

to grant or deny requests for relief from

APCA requirements. EPA regards this

provision as wholly external to the

program submitted for approval under

part 70, and consequently is proposing

to take no action on this provision of the

District’s law. EPA has no authority to

approve provisions of District law, such

as the variance provisions referred to,

which are inconsistent with the CAA.

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. EPA

reserves the right to enforce the terms of

the part 70 permit where the permitting

authority purports to grant relief from

the duty to comply with a Part 70

permit in a manner inconsistent with

Part 70 procedures.

C. Permit Fee Demonstration

Section 305 of the District’s

regulations requires owners or operators

of part 70 sources to pay annual fees of

twenty-five dollars ($25), adjusted by

the CPI index, times the total tons of the

actual emissions of each regulated

pollutant (for presumptive fee

calculation) emitted from part 70

sources, or an equivalent amount. All

fees, penalties, and interest collected

shall be deposited by the Mayor in a

special District of Columbia Treasury

fund, subject to appropriation, to carry

out part 70 activities solely. The

District’s fee calculation, based on 1990

inventory data, shows that revenues will

be able to cover the estimated costs of

the program.

In chapter V. of the submittal entitled

‘‘Permitting Program Documentation’’,

the District estimates revenues and costs

associated with the implementation of

its operating permits program. However,

the District’s projection of revenues is

based on the August 1989 CPI value of

124.6 rather than the average 1989 CPI

value of 122.15 required under the

concept of presumptive minimum.

Although Chapter V. demonstrates that

revenues would have been adequate

using the August 1989 value, section

305 requires the District to use the

average 1989 value in calculating the

CPI adjustment which will result in the

collection of greater revenues. Until the

District submits a revised fee rule

accompanied by a detailed fee

demonstration, the average 1989 value

of 122.15 must be employed in the

implementation of the chapter 3

operating permits program.

In addition to revenues obtained from

the payment of emissions-based fees,

the District’s chapter V. projection of

revenues includes revenues received

from annual $200 operating fees

assessed to each of the District’s 38

sources. Because the imposition of the

annual $200 operating fee is not

authorized under any provision of the

chapter 3 regulations, EPA cannot be

certain that such fees will be paid.

Accordingly, EPA has subtracted the

revenue estimates from operating fees

from total projected revenues for

purposes of evaluating the adequacy of

the District’s fee program. The estimates

of revenues from the authorized

collection of emissions-based fees reveal

that the District’s program will have

adequate funding to cover the direct and

indirect costs of implementing the

permit program during each of the first

four years.

D. Support Materials

The District’s part 70 operating

permits program submittal substantially

meets the requirements of 40 CFR 70.4

for an attorney general’s legal opinion.

Among the several issues required to be

addressed in the attorney general’s

opinion, part 70 requires each opinion

to demonstrate adequate authority for

judicial review of final permit actions.

Specifically, § 70.4(b)(3)(xi) requires the

legal opinion to demonstrate authority

to ensure that if the final permit action

being challenged is the permitting

authority’s failure to issue or deny a

permit within the required timeframes,

a petition for judicial review may be

filed any time before the permitting

authority issues or denies the permit.

Section XX. of the Corporation
Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Proposed Rules 14925

Counsel’s opinion cites DCMR 303.11 as

the authority which fulfills this

requirement. In doing so, it appears that

the Corporation Counsel interprets

District law such that each day which

the Mayor fails to issue or deny a permit

(after the permit issuance deadline)

constitutes a new final action date for

purposes of the 90-day judicial review

petition deadline. However, the

District’s 303.11 regulations are vague in

this regard and do not prohibit petitions

for the Mayor’s failure to act from being

filed after the Mayor issues or denies the

permit. The District must amend DCMR

303.11 to clarify that when the Mayor

fails to issue or deny a permit within the

required deadline, this failure can be

challenged up until the time before the

permitting authority denies the permit

or issues the final permit.

The District’s part 70 operating

permits program substantially meets the

requirements of 40 CFR 70.4 for a

statement of adequate resources.

Chapter VIII. of the District’s submittal

indicates that the Compliance and

Enforcement Branch (CEB) of the

District’s Air Resources Management

Division (ARMD) manages compliance

and enforcement activities in the

District. In chapters II., and V., the

submittal indicates that title V fee

revenues will support the hiring of 4

engineers in the Engineering and

Planning Branch (EPB) of the ARMD

who will perform engineering functions

inclusive of permitting, inspections,

compliance monitoring and reporting.

Chapter II. of the submittal indicates

that the EPB will collaborate with the

CEB to carry out compliance and

enforcement functions.

In order to fully meet the 40 CFR 70.4

requirement for a statement of adequate

resources, the District must clarify the

specific responsibilities and procedures

for coordination regarding EPB and CEB

involvement in compliance and

enforcement activities for part 70

sources. The District must also

demonstrate that compliance and

enforcement activities (not including

court costs or other costs associated

with an enforcement action) will be

fully supported by title V fees, including

resources allocated to support CEB

involvement in compliance and

enforcement activities, if applicable.

The District’s part 70 operating

permits program submittal substantially

meets the requirements of 40 CFR 70.4

for compliance tracking and

enforcement. In order to fully meet the

40 CFR 70.4 requirement for compliance

tracking and enforcement, the District

must submit additional information

regarding how the District will monitor

and track source compliance (e.g.,

inspection/enforcement strategies,

description of system to be used prior

to/in conjunction with Aerometric

Information Retrieval System (AIRS)/

AIRS Facility Subsystem (AFS)

enhancements, etc.) or reference any

agreement the District has with EPA that

provides this information. The District

must also clarify that information

related to the District’s enforcement

actions will be submitted to EPA at least

annually.

E. Provisions Implementing the

Requirements of Title III

Implementing Title III Standards

Through Title V Permits

Under the ‘‘District of Columbia Air

Pollution Control Act of 1984’’, D.C.

Law 5–165 as amended by D.C. Law 9–

162, D.C. Code § 6–906 and Title 20,

District of Columbia Municipal

Regulations (20 DCMR), Chapter 3, the

District of Columbia has demonstrated

in its Title V program submittal broad

legal authority to incorporate into

permits and enforce all applicable

requirements; however, the District has

also indicated that additional regulatory

authority may be necessary to carry out

specific CAA section 112 activities. The

District has therefore supplemented its

broad legal authority with a

commitment ‘‘to adopt and implement

expeditiously any additional regulations

that might be needed to incorporate

such requirements into operating

permits.’’ This is stated in the Operating

Permit Program submittal, Chapter IX,

entitled ‘‘Provisions Implementing the

Requirements of Other Titles of the

Act’’, paragraph B. EPA has determined

that this commitment, in conjunction

with the District of Columbia’s broad

statutory authority, adequately assures

compliance with all the CAA’s section

112 requirements. EPA regards this

commitment as an acknowledgement by

the District of Columbia of its obligation

to obtain further legal authority as

needed to issue permits that assure

compliance with the CAA’s section 112

applicable requirements. This

commitment does not substitute for

compliance with part 70 requirements

that must be met at the time of program

approval.

EPA is interpreting the above legal

authority and commitment to mean that

the District of Columbia is able to carry

out all of the CAA’s section 112

activities. For further rationale on this

interpretation, please refer to the TSD

accompanying this rulemaking which is

located in the public docket and the

April 13, 1993 guidance memorandum

titled ‘‘Title V Program Approval

Criteria for Section 112 Activities,’’

signed by John Seitz, Director, Office of

Air Quality Planning and Standards,

Office of Air and Radiation, USEPA.

Implementation of 112(g) Upon Program

Approval

EPA is proposing to approve the

District’s Chapter 3 operating permits

program for the purpose of

implementing section 112(g) during the

transition period between federal

promulgation of a section 112(g) rule

and District adoption of 112(g)

implementing regulations. EPA had

until recently interpreted the CAA to

require sources to comply with section

112(g) beginning on the date of approval

of the Title V program regardless of

whether EPA had completed its section

112(g) rulemaking. EPA has since

revised this interpretation of the CAA as

described in a February 14, 1995

Federal Register notice (see 60 FR

83333). The revised interpretation

postpones the effective date of section

112(g) until after EPA has promulgated

a rule addressing that provision. The

rationale for the revised interpretation is

set forth in detail in the February 14,

1995 interpretive notice.

The section 112(g) interpretive notice

explains that EPA is still considering

whether the effective date of section

112(g) should be delayed beyond the

date of promulgation of the federal rule

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), the

District must be able to implement

section 112(g) during the transition

period between promulgation of the

federal section 112(g) rule and adoption

of implementing District regulations.

EPA believes that, although the

District currently lacks a program

designed specifically to implement

section 112(g), the District’s Chapter 3

permit program will serve as an

adequate implementation vehicle during

a transition period because it will allow

the District to select control measures

that would meet MACT on a case-bycase basis, as defined in section 112,

and incorporate these measures into

federally enforceable source-specific

permits. Section 112(g) requirements for

case-by-case MACT determinations are

governed by the provisions of 20 DCMR,

sections 301.1(a)(3), 303.9, and the

section 399.1 definition of ‘‘Applicable

requirement’’. However, in accordance

with the provisions of section 112(g),

the section 301.1(a)(3) requirement to

obtain an operating permit or permit

revision within twelve (12) months after
14926 Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Proposed Rules

commencing operation must instead be

satisfied prior to construction during the

transition period.

This proposed approval clarifies that

the operating permits program is

available as a mechanism to implement

section 112(g) during the transition

period between promulgation of the

section 112(g) rule and adoption by the

District of Columbia of rules established

to implement section 112(g). EPA is

proposing to limit the duration of this

approval to an outer limit of 18 months

following promulgation by EPA of the

section 112(g) rule. Comment is

solicited on whether 18 months is an

appropriate period taking into

consideration the District’s procedures

for adoption of regulations.

However, since this proposed

approval is for the single purpose of

providing 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 sources are

not subject to the requirements of the

rule until State regulations are adopted.

Although section 112(l) generally

provides the authority for approval of

state air toxics programs, title V and

section 112(g) provide authority for this

limited approval because of the direct

linkage between implementation of

section 112(g) and Title V. If the District

of Columbia does not wish to

implement section 112(g) through its

Chapter 3 permit program and can

demonstrate that an alternative means of

implementing section 112(g) exists

during the transition period, EPA may,

in the final action approving the District

of Columbia’s Part 70 program, approve

the alternative instead.

Program for Straight Delegation of

Section 112 Standards

Requirements for approval, specified

in 40 CFR 70.4(b), encompass section

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

program for delegation of section 112

standards promulgated by EPA as they

apply to part 70 sources. Section

112(l)(5) requires that the state programs

contain adequate authorities, adequate

resources for implementation, and an

expeditious compliance schedule,

which are also requirements under part

70. Therefore, EPA is also proposing to

grant approval under section 112(l)(5)

and 40 CFR 63.91 of the District of

Columbia’s program for receiving

delegation of section 112 standards that

are unchanged from the federal

standards as promulgated. For EPApromulgated rules which are applicable

to sources in the District, the District

intends to request delegation after

adopting the rules by incorporation by

reference. The details of this delegation

mechanism will be established prior to

delegating any section 112 standards

under the District’s approved section

112(l) program for straight delegation.

This program applies to both existing

and future standards but is limited to

sources covered by the Part 70 program.

F. Title IV Provisions/Commitments

As part of the program submittal, the

District of Columbia committed to

submit all missing portions of the title

IV acid rain program by January 1, 1995.

On February 3, 1995, the District

submitted a letter notifying EPA that the

January 1, 1995 date would not be met.

In this letter, the District committed to

having acid rain regulations in place by

November 15, 1995 and provided a brief

schedule for adoption of the necessary

regulatory authorities.

III. Request for Public Comments

EPA is soliciting public comments on

the issues discussed in this notice or on

other relevant matters. These comments

will be considered before taking final

action. Interested parties may

participate in this federal rulemaking

action by submitting written comments

to the EPA Regional office listed in the

ADDRESSES section of this document.

Proposed Action

EPA is proposing to grant interim

approval to the operating permits

program submitted by the District of

Columbia on January 13, 1994. The

scope of the District’s Part 70 program

applies to all Part 70 sources (as defined

in the program) within the District,

except for sources of air pollution over

which an Indian Tribe has jurisdiction.

See, e.g., 59 FR 55813, 55815–55818

(Nov. 9, 1994). The term ‘‘Indian Tribe’’

is defined under the CAA 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). Prior to full

approval by EPA, the District must make

the following changes:

1. Rename section 399.1 definition of

‘‘Emissions emissions’’ to ‘‘Fugitive

emissions’’.

2. If EPA establishes through

rulemaking that the definition of ‘‘Title

I modifications’’ must include changes

reviewed under minor NSR, the

District’s definition of ‘‘Title I

modification or modification under any

provision of title I of the Act’’ will not

fully meet the 40 CFR 70.2 requirements

for definitions. If the impact of this

deficiency becomes a basis for interim

approval as a result of EPA’s

rulemaking, the District must revise its

section 399.1 definition of the term

‘‘Title I modification or modification

under any provision of title I of the Act’’

to conform to the requirements of part

70. At that time, EPA will determine the

required timeframe, up to two years, to

correct the deficiency.

3. Modify section 301.1(b)(6)(B) to

clarify that applications for permit

renewal must contain both a compliance

plan, as required by section 301.3(h),

and a compliance certification, as

required by section 301.3(i).

4. Revise section 301.3(c)(1) to ensure

that all applicable requirements will be

described in permit applications.

5. Revise section 301.3(g) to correct

misreferenced sections of the District’s

regulations which address alternate

operating scenarios and emissions

trading.

6. Revise section 301.3(h)(3)(C) to

clarify that any schedule of compliance

shall be supplemental to and shall not

sanction noncompliance with the

applicable requirements on which it is

based.

7. Revise section 302.1(k) to clarify

that terms and conditions for the trading

or averaging of emissions must meet all

applicable requirements and the

requirements of the operating permits

program.

8. Renumber section 302.3(e)(6) to

302.3(f).

9. Revise section 302.4(e) to clarify

that requests for coverage under a

general permit must meet the permit

application requirements of title V of

the Clean Air Act, and include all

information necessary to assure

compliance with the general permit.

10. Restructure section 302.8 for

operational flexibility in accordance the

structure of part 70 operational

flexibility provisions.

11. Revise section 302.8(b) to clarify

that compliance with emissions trading

provisions in a permit will be

determined according to requirements

of the applicable SIP/FIP or applicable

requirement authorizing the emissions

trade.

12. Revise sections 303.1(f) and

303.1(d)(1) to ensure that the part 70

permit issuance deadlines will be met.

13. Modify section 303.3(a) to clarify

that public participation and EPA and

affected state review will apply to the

entire draft renewal permit, including

those portions which are incorporated

by reference.

14. Revise section 303.5(d)(1) to

require the use of the significant permit
Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Proposed Rules 14927

modification procedure for any type of

change which does not qualify as either

a minor permit modification or an

administrative amendment.

15. Revise section 303.10 to provide

for sending notice to persons on a

mailing list developed by the permitting

authority, including those people who

request in writing to be on the list.

16. Revise section 303.10(a)(1)(B) to

require the notice to include procedures

to request a hearing in the event that a

hearing has not been scheduled.

17. Revise section 303.10 to include a

provision that requires notice of a

public hearing at least 30 days in

advance of the hearing.

18. Revise section 305.2(b) to clarify

that the August 1989 CPI value of 124.6

will not be used for the purposes of

calculating the CPI fee adjustment and

that the appropriate value of 122.15, the

average 1989 CPI value, will be used

instead.

19. Revise section 305.1 to ensure that

provisions for equivalent fee schedules

are enforceable as a practical matter or

remove section 305.1 language ‘‘or the

equivalent over some other period’’.

20. Revise the Corporation Counsel’s

opinion to reference existing provisions

in District of Columbia law which

satisfy the requirements of § 70.11(a)(1)

and (2), or establish authorities to

restrain or enjoin immediately permit

violators presenting substantial

endangerment, and to seek injunctive

relief for program and permit violations

without the need for prior revocation of

the permit.

21. Amend subtitle I of 20 DCMR to

specifically address the types of

violations for which civil fines are

recoverable, or otherwise have the

Corporation Counsel demonstrate that

section 100.6 applies to each of the

specific types of violations mentioned

in § 70.11(a)(3)(i).

22. Establish civil enforcement

authority for the collection of penalties

in a maximum amount of not less than

$10,000 per day per violation.

23. Establish regulatory provisions for

strict civil liability, or provide a

demonstration from the Corporation

Counsel that mental state is not allowed

as an element of proof for civil

violations.

24. Amend Subtitle I of 20 DCMR to

specifically address the types of

knowing violations for which criminal

fines are recoverable, or have the

Corporation Counsel demonstrate that

section 105.1 applies to each of the

specific types of knowing violations

mentioned in § 70.11(a)(3)(ii) and (iii).

25. Revise criminal enforcement

provisions to authorize the collection of

penalties in a maximum amount of not

less than $10,000 per day per violation.

26. Amend DCMR 303.11 to clarify

that when the Mayor fails to issue or

deny a permit within the required

deadline, this failure can be challenged

any time before the permitting authority

denies the permit or issues the final

permit.

27. Clarify the specific responsibilities

and procedures for coordination

regarding EPB and CEB involvement in

compliance and enforcement activities

for part 70 sources. Such a clarification

must demonstrate that compliance and

enforcement activities (not including

court costs or other costs associated

with an enforcement action) will be

fully supported by title V fees.

28. Submit additional information

regarding how the District will monitor

and track source compliance or

reference any agreement the District has

with EPA that provides this

information.

29. Clarify that information on the

District’s enforcement activities will be

submitted to EPA at least annually.

This interim approval, which may not

be renewed, extends for a period of up

to 2 years. During the interim approval

period, the District is protected from

sanctions for failure to have a fully

approved title V, part 70 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 1-year time

period for submittal of permit

applications by subject sources begins

upon interim approval, as does the 3-

year time period for processing the

initial permit applications.

Requirements for approval, specified

in 40 CFR 70.4(b), encompass the CAA’s

section 112(l)(5) requirements for

approval of a program for delegation of

section 112 standards applicable to Part

70 sources as promulgated by EPA.

Section 112(l)(5) requires that the State’s

program contain adequate authorities,

adequate resources for implementation,

and an expeditious compliance

schedule, which are also requirements

under part 70. Therefore, EPA is also

proposing under section 112(l)(5) and

40 CFR 63.91 to grant approval of the

District’s program for receiving

delegation of section 112 standards that

are unchanged from federal standards as

promulgated. This program for

delegations only applies to sources

covered by the part 70 program.

The Office of Management and Budget

has exempted this action from Executive

Order 12866 review.

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 to propose interim approval

of the District of Columbia’s operating

permits program pursuant to title V of

the CAA and 40 CFR part 70 does not

impose any new requirements, it does

not have a significant impact on a

substantial number of small entities.

List of Subjects in 40 CFR Part 70

Environmental protection,

Administrative practice and procedure,

Air pollution control, Intergovernmental

relations, Operating permits, Reporting

and recordkeeping requirements.

Authority: 42 U.S.C. 7401–7671q.

Dated: March 9, 1995.

Stanley L. Laskowski,

Acting Regional Administrator.

[FR Doc. 95–6929 Filed 3–20–95; 8:45 am]

BILLING CODE 6560–50–P