3766 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

with the enhanced I/M performance

standard for NOX. If a violation of the

ozone NAAQS occurs in the Toledo or

Dayton area(s), the exemption from the

requirements of section 182(f) of the Act

in the applicable area(s) shall no longer

apply.

X. Procedural Background

Nothing in this action shall be

construed as permitting or allowing or

establishing a precedent for any future

request for a revision to any state

implementation plan. Each request for

revision to the state implementation

plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

This action has been classified as a

Table 2 action by the Regional

Administrator under the procedures

published in the Federal Register on

January 19, 1989 (54 FR 2214–2225), as

revised by an October 4, 1993

memorandum from Michael H. Shapiro,

Acting Assistant Administrator for Air

and Radiation. The Office of

Management and Budget exempted this

regulatory action from Executive Order

12866 review.

XI. Regulatory Process

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., USEPA must

prepare a regulatory flexibility analysis

assessing the impact of any proposed or

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

and 604). Alternatively, USEPA 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. Today’s

exemptions do not create any new

requirements, but allow suspension of

the indicated requirements for the life of

the exemptions. Therefore, because the

approval does not impose any new

requirements, I certify that it does not

have a significant impact on any small

entities affected.

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by March 20, 1995.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See Section

307(b)(2)).

List of Subjects in 40 CFR Part 52

Air pollution control,

Intergovernmental relations, Nitrogen

oxides, Ozone, Reporting and record

keeping requirements, Volatile organic

compounds.

Dated: January 5, 1995.

Valdas V. Adamkus,

Regional Administrator.

Part 52, chapter 1, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Supart KK—Ohio

2. Section 52.1879 is amended by

adding new paragraph (f) to read as

follows:

§ 52.1879 Review of new sources and

modifications.

* * * * *

(f) Approval—USEPA is approving

two exemption requests submitted by

the Ohio Environmental Protection

Agency on September 20, 1993, and

November 8, 1993, for the Toledo and

Dayton ozone nonattainment areas,

respectively, from the requirements

contained in Section 182(f) of the Clean

Air Act. This approval exempts the

Lucas, Wood, Clark, Greene, Miami, and

Montgomery Counties from the

requirements to implement reasonably

available control technology (RACT) for

major sources of nitrogen oxides (NOX),

nonattainment area new source review

(NSR) for new sources and

modifications that are major for NOX,

and the NOX-related requirements of the

general and transportation conformity

provisions. For the Dayton ozone

nonattainment area, the Dayton local

area has opted for an enhanced

inspection and maintenance (I/M)

programs. Upon final approval of this

exemption, the Clark, Greene, Miami,

and Montgomery Counties shall not be

required to demonstrate compliance

with the enhanced I/M performance

standard for NOX. If a violation of the

ozone NAAQS is monitored in the

Toledo or Dayton area(s), the

exemptions from the requirements of

Section 182(f) of the Act in the

applicable area(s) shall no longer apply.

3. Section 52.1885 is amended by

adding new paragraph (r) to read as

follows:

§ 52.1885 Control Strategy: Ozone.

* * * * *

(r) Approval—USEPA is approving

two exemption requests submitted by

the Ohio Environmental Protection

Agency on September 20, 1993, and

November 8, 1993, for the Toledo and

Dayton ozone nonattainment areas,

respectively, from the requirements

contained in Section 182(f) of the Clean

Air Act. This approval exempts the

Lucas, Wood, Clark, Greene, Miami, and

Montgomery Counties from the

requirements to implement reasonably

available control technology (RACT) for

major sources of nitrogen oxides (NOX),

nonattainment area new source review

(NSR) for new sources and

modifications that are major for NOX,

and the NOX-related requirements of the

general and transportation conformity

provisions. For the Dayton ozone

nonattainment area, the Dayton local

area has opted for an enhanced

inspection and maintenance (I/M)

program. Upon final approval of this

exemption, the Clark, Greene, Miami,

and Montgomery Counties shall not be

required to demonstrate compliance

with the enhanced I/M performance

standard for NOX. If a violation of the

ozone NAAQS is monitored in the

Toledo or Dayton area(s), the

exemptions from the requirements of

Section 182(f) of the Act in the

applicable area(s) shall no longer apply.

[FR Doc. 95–1254 Filed 1–18–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 70

[WY–001; FRL–5134–4]

Clean Air Act Final Interim Approval of

Operating Permits Program; State of

Wyoming

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final interim approval.

SUMMARY: The EPA is promulgating

interim approval of the Operating

Permits Program submitted by the State

of Wyoming for the purpose of

complying with Federal requirements

for an approvable State Program to issue

operating permits to all major stationary

sources, and to certain other sources.

EFFECTIVE DATE: February 21, 1995.

ADDRESSES: Copies of the State’s

submittal and other supporting

information used in developing the final

interim approval are available for

inspection during normal business

hours at the following location: U.S.

Environmental Protection Agency,
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3767

Region 8, 999 18th Street, suite 500,

Denver, Colorado 80202.

FOR FURTHER INFORMATION CONTACT:

Laura Farris, 8ART–AP, U.S.

Environmental Protection Agency,

Region 8, 999 18th Street, suite 500,

Denver, Colorado 80202, (303) 294–

7539.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

Title V of the 1990 Clean Air Act

Amendments (sections 501–507 of the

Clean Air Act (‘‘the Act’’)), and

implementing regulations at 40 Code of

Federal Regulations (CFR) part 70 (part

70) require that States develop and

submit operating permits programs to

EPA by November 15, 1993, and that

EPA act to approve or disapprove each

program within 1 year after receiving

the submittal. The EPA’s program

review occurs pursuant to section 502 of

the Act and the part 70 regulations,

which together outline criteria for

approval or disapproval. Where a

program substantially, but not fully,

meets the requirements of part 70, EPA

may grant the program interim approval

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

not fully approved a program by 2 years

after the November 15, 1993 date, or by

the end of an interim program, it must

establish and implement a Federal

program.

On September 23, 1994, EPA

published a direct final rule in the

Federal Register promulgating interim

approval of the Operating Permits

Program for the State of Wyoming

(PROGRAM). See 59 FR 48802. The EPA

received adverse comments on the

direct final rule, which are summarized

and addressed below. As stated in the

Federal Register notice, if adverse or

critical comments were received by

October 24, 1994, the effective date

would be delayed and timely notice

would be published in the Federal

Register. Therefore, due to receiving

adverse comments within the comment

period, EPA withdrew the final rule (59

FR 60561, Nov. 25, 1994), and a

proposed rule also published in the

Federal Register on September 23, 1994

served as the proposed rule for this

action. EPA will not institute a second

comment period on this document.

In this rulemaking EPA is taking final

action to promulgate interim approval of

the Wyoming PROGRAM, and correct a

typographical error contained in 59 FR

48802 (see section II.B. below).

II. Final Action and Implications

A. Analysis of State Submission

The Governor of Wyoming submitted

an administratively complete title V

Operating Permit Program for the State

of Wyoming on November 19, 1993. The

Wyoming PROGRAM, including the

operating permit regulations (Section 30

of the Wyoming Air Quality Standards

and Regulations (WAQSR)),

substantially meets the requirements of

40 CFR 70.2 and 70.3 with respect to

applicability; 40 CFR 70.4, 70.5, and

70.6 with respect to permit content

including operational flexibility; 40 CFR

70.5 with respect to complete

application forms and criteria which

define insignificant activities; 40 CFR

70.7 with respect to public participation

and minor permit modifications; and 40

CFR 70.11 with respect to requirements

for enforcement authority.

A letter sent to the State dated May

10, 1994, identified areas in which the

Wyoming PROGRAM was deficient and

the corrective actions that were to be

completed either prior to interim

PROGRAM approval or prior to full

PROGRAM approval. In a letter dated

June 7, 1994, which included an

Attorney General’s opinion dated June

6, 1994, the State addressed all EPA

issues that would have prevented EPA

from issuing interim approval of the

Wyoming PROGRAM. The State must

address those issues that require

corrective action prior to full

PROGRAM approval within 18 months

of EPA’s interim approval of the

Wyoming PROGRAM.

At the time of this notice, the State

had not made an affirmative showing of

legal authority to regulate sources

within the exterior boundaries of Indian

Reservations in Wyoming under the Act.

Therefore, interim approval of the

Wyoming PROGRAM will not extend to

lands within the exterior boundaries of

Indian Reservations. Until the State

makes such a showing, part 70 sources

within the exterior boundaries of Indian

Reservations in Wyoming will be

subject to the federal operating permit

program to be promulgated in 40 CFR

part 71, or subject to the program of any

Tribe delegated such authority under

section 301(d) of the Act. The EPA

anticipates promulgating an Indian Air

Regulation, at which time how the State

defines Indian lands could become an

approval issue.

B. Response to Comments

The comments received on the

September 23, 1994 direct final rule in

the Federal Register promulgating

interim approval of the Wyoming

PROGRAM, and EPA’s response to those

comments, are as follows:

Comment #1: The commenter objected

to EPA’s proposed approval of

Wyoming’s preconstruction permitting

program for purpose of implementing

section 112(g) of the Act during the

transition period between title V

program approval and adoption of a

State rule implementing EPA’s section

112(g) regulations. The commenter

argued that there is no legal basis for

delegating to Wyoming the section

112(g) program until EPA has

promulgated a section 112(g) regulation

and the State has a section 112(g)

program in place. In addition, the

commenter argued that the Wyoming

program fails to address critical

threshold questions of when an

emission increase is greater than de

minimis and when, if it is, it has been

offset satisfactorily.

EPA Response: EPA disagrees with

the commenter’s contention that section

112(g) cannot take effect until after EPA

has promulgated implementing

regulations. The statutory language in

section 112(g)(2) prohibits the

modification, construction, or

reconstruction of a hazardous air

pollutant (HAP) source after the

effective date of a title V program unless

maximum achievable control

technology (MACT) (determined on a

case-by-case basis, if necessary) is met.

The plain meaning of this provision is

that implementation of section 112(g) is

a title V requirement of the Act and that

the prohibition takes effect upon EPA’s

approval of the State’s PROGRAM

regardless of whether EPA or a state has

promulgated implementing regulations.

The EPA has acknowledged that states

may encounter difficulties

implementing section 112(g) prior to the

promulgation of final EPA regulations

and has provided guidance on the

112(g) process (see April 13, 1993

memorandum entitled, ‘‘Title V Program

Approval Criteria for Section 112

Activities’’ and June 28, 1994

memorandum entitled, ‘‘Guidance for

Initial Implementation of Section

112(g),’’ signed by John Seitz, Director

of the Office of Air Quality Planning

and Standards.) In addition, EPA has

issued guidance, in the form of a

proposed rule, which may be used to

determine whether a physical or

operational change at a source is not a

modification either because it is below

de minimis levels or because it has been

offset by a decrease of more hazardous

emissions. See 59 FR 15004 (April 1,

1994). EPA believes the proposed rule

provides sufficient guidance to

Wyoming and its sources until such

time as EPA’s section 112(g) rulemaking
3768 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

is finalized and subsequently adopted

by the State.

The EPA is aware that Wyoming lacks

a program designed specifically to

implement section 112(g). However,

Wyoming does have a preconstruction

review program that can serve as a

procedural vehicle for establishing a

case-by-case MACT or offset

determination and making these

requirements federally enforceable. The

EPA approval of Wyoming’s

preconstruction review program

clarifies that it may be used for this

purpose during the transition period to

meet the requirements of section 112(g).

The EPA believes that Wyoming’s

preconstruction review program will be

adequate because it will allow Wyoming

to select control measures that would

meet MACT, as defined in section 112

of the Act, and incorporate these

measures into a federally enforceable

preconstruction permit. Wyoming’s

preconstruction permitting program

allows permit requirements to be

established for all air contaminants

(which is broadly defined at Section 21

of the WAQSR) and includes all of the

HAPs listed in Section 112(b) of the Act.

Another consequence of the fact that

Wyoming lacks a program designed

specifically to implement section 112(g)

is that the applicability criteria found in

its preconstruction review program may

differ from the criteria in section 112(g).

EPA will expect Wyoming to utilize the

statutory provisions of section 112(g)

and the proposed rule as guidance in

determining when case-by-case MACT

or offsets are required. As noted in the

June 28, 1994 guidance, EPA intends to

defer wherever possible to a State’s

judgement regarding applicability

determinations. This deference must be

subject to obvious limitations. For

instance, a physical or operational

change resulting in a net increase in

HAP emissions above 10 tons per year

could not be viewed as a de minimis

increase under any interpretation of the

Act. The EPA would expect Wyoming to

be able to issue a preconstruction permit

containing a case-by-case determination

of MACT in such a case even if review

under its own preconstruction review

program would not be triggered.

Comment #2: The commenter

questioned the need for Wyoming’s title

V program enforcement authority to be

based on State law defining civil

individual and corporate liability and

asserted that EPA’s requirement that the

State program include strict liability for

corporate officers, directors or agents in

civil actions is not compelled by the

Clean Air Act Amendments of 1990.

EPA Response: The Wyoming

Environmental Quality Act (WEQA)

states in section 35–11–901(a) that ‘‘Any

person who violates, or any director,

officer or agent of a corporate permittee

who willfully and knowingly

authorizes, orders or carries out the

violation of any provision of this act

* * * is liable to either a penalty of not

to exceed ten thousand dollars

($10,000.00) for each day during which

violation continues * * *.’’ On its face,

section 35–11–901(a) establishes a more

stringent burden of proof for civil

violations for corporate directors,

officers, or agents than for other

persons. Based on EPA’s position that

this distinction is inconsistent with title

V of the Act and part 70, EPA stated in

the Federal Register notice proposing

interim approval of the Wyoming

PROGRAM that section 35–11–901(a)

needs to be revised to include language

that provides strict liability for

corporate officers, directors or agents in

civil actions.

The commenter stated that ‘‘the

federal statutory standard for approval

of state permit programs does not

require strict corporate liability in civil

actions. Under 42 U.S.C. 7661a(b)(5)(E),

Congress mandated only that states

seeking approval of permit programs

have ‘‘adequate authority’’ to ‘‘enforce

permits * * * including authority to

recover civil penalties in a maximum

amount of not less than $10,000 per day

of violation.’’ There is nothing in the

State’s statutory or regulatory scheme

that suggests that Wyoming lacks either

the will or the ability to impose civil

penalties to enforce operating permits,

as mandated by the Act. EPA’s

insistence on statute revision is,

therefore, an example of Agency

overreaching.’’

However, section 502(b)(5)(E) of the

Act requires the EPA to promulgate

‘‘* * * regulations establishing the

minimum elements of a permit program

to be administered by any air pollution

control agency. These elements shall

include each of the following: * * * (5)

A requirement that the permitting

authority have adequate authority to:

* * * (E) enforce permits, permit fee

requirements, and the requirement to

obtain a permit, including authority to

recover civil penalties in a maximum

amount of not less than $10,000 per day

for each violation, and appropriate

criminal penalties * * *.’’

Pursuant to section 502(b)(5)(E), EPA

promulgated 40 CFR 70.11(a)(3) which

requires that the state’s part 70 programs

contain the enforcement authority ‘‘To

assess or sue to recover in court civil

penalties * * * according to the

following: (i) Civil penalties shall be

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 or monitoring

activities or, any regulation or orders

issued by the permitting authority.

These penalties shall be recoverable in

a maximum amount of not less than

$10,000 per day per violation. State law

shall not include mental state as an

element of proof for civil violations.’’

It is well established that the Act

imposes a strict liability standard for

assessing compliance violations. United

States v. JBA Motorcars, 839 F. Supp.

1572 (D.C.Fla. 1993). Further, strict

liability is essential to meet the purpose

of the Act to protect and improve the

quality of the nation’s air. United States

v. B & W Investment Properties, No. 94–

1892, (7th Cir. Oct. 24, 1994), LEXIS

29713.

Wyoming’s provision which requires

a mental state as an element of proof for

corporate civil violations is inconsistent

with the general purpose of the Act.

More specifically, Wyoming’s provision

is inconsistent with the basic framework

for effective enforcement of the title V

program established at 40 CFR

70.11(a)(3)(i) which does not distinguish

between corporate and personal

liability. The commenter’s objection to a

requirement clearly articulated in part

70 should have been raised in a

challenge to the rule itself, rather than

in the context of an action to approve

a state program pursuant to that rule.

Finally, it is EPA’s view that requiring

a mental state as an element of proof for

civil violations significantly hinders

corporate compliance enforcement. As

such, the provisions are insufficient to

meet section 40 CFR 70.4(b)(3)(i) which

requires Wyoming to issue permits and

assure compliance with each applicable

requirement and the requirements of

part 70.

Based on the above, it is EPA’s

position that section 35–11–901(a) of

the WEQA must be revised to require

strict liability for civil violations for

corporate entities. Because this

provision is inconsistent with the Act

and the regulations thereunder and

adversely affects the Permitting

Authority’s ability to enforce title V

requirements against corporate entities,

this issue is a basis for granting

Wyoming interim approval for the

PROGRAM. Accordingly, Wyoming’s

PROGRAM must be revised to reflect

strict liability for corporate entities to

receive full PROGRAM approval.

Comment #3: The commenter objected

to EPA’s proposed action related to

Wyoming’s special rule exempting

Research and Development (R&D)

facilities and contended that EPA has

not offered a compelling basis for
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3769

changing the Agency’s current rules

governing R&D facilities.

EPA Response: The part 70 final rule

(57 FR 32250, July 21, 1992) provides no

special treatment or exemption from

applicability for R&D facilities. The

preamble to the proposed part 70 rule

took comment on how to interpret the

section 501(2) definition of ‘‘major

source’’ (see 56 FR 21724, May 10,

1991). The preamble included a

statement that aggregation of sources by

Standard Industrial Classification (SIC)

code at the source site to determine

whether a source would be major is the

approach intended by Congress and that

aggregation by SIC code should be done

in a manner consistent with New Source

Review (NSR) procedures. The preamble

further clarified that NSR procedures

include the requirement that any

equipment used to support the main

activity at a site would also be

considered as part of the same major

source regardless of the 2-digit SIC code

for that equipment.

The preamble to the final rule (57 FR

32264) stated that ‘‘Although EPA is not

exempting R&D operations from title V

requirements at this time, in many cases

states will have the flexibility to treat an

R&D facility as separate from the

manufacturing facility with which it is

co-located.’’ EPA wishes to clarify that

this is the case only where the R&D

facility is not a support facility. If the

R&D facility is a support facility (colocated with a separate source, under

common ownership or control and 50%

of the output of the R&D facility was

used by the main activity), the

emissions from this R&D facility must

be included, along with all other

emissions at the source, to determine if

the source is ‘‘major’’ and thus

applicable to Section 30 of the Wyoming

rule. Prior to full PROGRAM approval,

Wyoming must revise their rule to be

consistent with part 70.

Comment #4: The commenter objected

to EPA’s dismissal of the Wyoming

variance provision as not having any

effect on the compliance requirements

of the source or on enforcement actions

against a source that has obtained such

a variance from the State.

EPA Response: The EPA recognizes

that Wyoming has the authority to use

variances as a mechanism for

establishing compliance schedules. The

EPA wishes to clarify that it cannot

recognize procedures for the issuance of

state variances in the title V program

and that, although the terms of a

variance may be incorporated into a title

V permit as a compliance schedule, a

title V compliance schedule does not

sanction noncompliance with an

applicable requirement. Wyoming has

the responsibility under title V to

establish a compliance schedule for

sources that are out of compliance and

place that schedule into the permit. The

title V compliance schedule is properly

established through appropriate

enforcement action and not necessarily

through variances. Wyoming does not

need to take any action on this

provision as it has not been identified

as an approval issue.

Comment #5: The commenter objected

to EPA’s decision to grant interim

approval to a program that does not

provide emission trading under a permit

cap in accordance with 40 CFR

70.4(b)(12)(iii) and contends that EPA

has no authority to grant interim

approval to any program that lacks this

authority.

EPA Response: The EPA agrees that

Wyoming must provide emission

trading under a permit cap in its part 70

program. The EPA has determined that

this deficiency is an issue that must be

corrected before full approval may be

granted and that this deficiency does

not interfere with the EPA’s ability to

grant interim approval. 40 CFR

70.4(d)(3)(viii) requires that programs

provide operational flexibility

consistent with 40 CFR 70.4(b)(12)

before the program may be granted

interim approval. The EPA notes that

the Wyoming program does implement

another required type of operational

flexibility, 40 CFR 70.4(b)(12)(i). In

addition, Wyoming has submitted a

letter, dated November 16, 1994, which

clarifies their authority to provide

emission trading under a permit cap.

Specifically, the State’s November 1994

letter stated that Sections 30(h)(i)(H)

and 30(h)(i)(J) of the State’s operating

permit regulations provide authority for

the State to issue permits ‘‘allowing for

the trading of emissions increases and

decreases in the permitted facility solely

for the purpose of complying with a

federally enforceable emissions cap that

is established in the permit independent

of otherwise applicable requirements.’’

Thus, the State has provided clear

authority to implement emissions

trading under a permit cap. The EPA

has determined that the Wyoming

PROGRAM substantially meets the

requirements of 40 CFR 70.4(b)(12)

because it implements the mandatory

operational flexibility provision of 40

CFR 70.4(b)(12)(i) and has adequate

authority to issue permits to implement

40 CFR 70.4(b)(12)(iii).

Comment #6: The commenter stated

that they did not have a problem with

the way ‘‘prompt’’ is defined for

deviation reporting in the Wyoming

program but added that they did have a

problem with the way the definition has

been handled in other interim approval

notices.

EPA Response: The Wyoming

PROGRAM allows the State to define

‘‘prompt’’ for deviation reporting in

each individual permit. Since the

commenter did not have a problem with

the way ‘‘prompt’’ reporting of

deviations is handled in Wyoming, EPA

will not respond to that comment. In

addition, it would be inappropriate in

this notice to comment on how the

definition of ‘‘prompt’’ was handled in

notices for other states’ part 70

approvals.

Comment #7: The commenter noted a

typographical error in the Federal

Register notice proposing interim

approval of the Wyoming PROGRAM

(59 FR 48802) on page 48804 under

paragraph #4 titled ‘‘Provisions

Implementing the Requirements of

Other Titles of the Act.’’ Part b of this

paragraph titled ‘‘Implementation of

112(g) Upon Program Approval’’ refers

to Wyoming’s preconstruction

permitting program found in section 24,

which is an incorrect reference. The

correct reference to the Wyoming

preconstruction permitting program

should be section 21.

EPA Response: The reference to

section 24 was incorrect and should

have read ‘‘section 21’’.

C. Final Action

The EPA is promulgating interim

approval of the operating permits

program submitted by the State of

Wyoming on November 19, 1993. The

State must make the following changes

to receive full approval: (1) Section

30(a)(ix) must be revised to assure R&D

support facilities are included in major

source determinations; (2) Sections 35–

11–901(a), (m) and (n) of the WEQA,

which appear to reduce the penalty for

civil violations committed by surface

coal mine operations from a maximum

of ten thousand dollars per day to five

thousand dollars per day, must be

revised, or clarified in an Attorney

General’s Opinion, to indicate that the

five thousand dollar penalty relates only

to activities subject to the Surface

Mining Control and Reclamation Act;

(3) Section 35–11–901(a) of the WEQA

must be revised to include language that

provides strict liability for corporate

officers, directors or agents in civil

actions; (4) Section 35–11–901(j) of the

WEQA must be revised to provide for a

per day, per violation penalty for false

statements or tampering with

monitoring devices; (5) Section

30(c)(ii)(A)(III)(1) must be revised to

include language similar to the general

provision in 40 CFR 70.5(c), or the State

must provide an Attorney General’s
3770 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

opinion, to clarify that the State will

ensure that all applicable requirements

are identified for any insignificant

activities; (6) Section 30(i)(ii) regarding

general permits must be revised, or the

State must provide an Attorney

General’s Opinion, to clarify the public

notice and comment requirements for

general permits; (7) In the Federal

Register notice proposing interim

approval of the Wyoming PROGRAM,

EPA stated that, prior to full PROGRAM

approval, the State must clarify that

Section 30(h)(i)(J) provides the State

with authority to implement emissions

trading under a permit cap, which is

required by 40 CFR 70.4(b)(12)(iii), or

revise Section 30 to provide such

authority. In a letter dated November 16,

1994, the State of Wyoming clarified

that it has the authority to implement

the emissions trading under permit caps

provision of 40 CFR 70.4(b)(12)(iii). EPA

concurs with the State’s authority to

implement this provision; however, we

are currently reevaluating the State’s

regulations to determine if a regulatory

revision is also needed, prior to full

PROGRAM approval, to assure

consistency with the provisions of 40

CFR 70.4(b)(12)(iii); (8) The State must

provide a definition of ‘‘Indian lands.’’

Refer to the technical support

document accompanying this

rulemaking for a detailed explanation of

each PROGRAM deficiency.

This interim approval, which may not

be renewed, extends until February 19,

1997. During this interim approval

period, the State of Wyoming is

protected from sanctions, and EPA is

not obligated to promulgate, administer

and enforce a Federal operating permits

program in the State of Wyoming.

Permits issued under a program with

interim approval have full standing with

respect to part 70, and the 1-year time

period for submittal of permit

applications by subject sources begins

upon the effective date of this interim

approval, as does the 3-year time period

for processing the initial permit

applications.

If the State of Wyoming fails to submit

a complete corrective program for full

approval by August 19, 1996, EPA will

start an 18-month clock for mandatory

sanctions. If the State of Wyoming then

fails to submit a corrective program that

EPA finds complete before the

expiration of that 18-month period, EPA

will be required to apply one of the

sanctions in section 179(b) of the Act,

which will remain in effect until EPA

determines that the State of Wyoming

has corrected the deficiency by

submitting a complete corrective

program. Moreover, if the Administrator

finds a lack of good faith on the part of

the State of Wyoming, both sanctions

under section 179(b) will apply after the

expiration of the 18-month period until

the Administrator determined that the

State of Wyoming had come into

compliance. In any case, if, six months

after application of the first sanction,

the State of Wyoming still has not

submitted a corrective program that EPA

has found complete, a second sanction

will be required.

If EPA disapproves the State of

Wyoming’s complete corrective

program, EPA will be required to apply

one of the section 179(b) sanctions on

the date 18 months after the effective

date of the disapproval, unless prior to

that date the State of Wyoming has

submitted a revised program and EPA

has determined that it corrected the

deficiencies that prompted the

disapproval. Moreover, if the

Administrator finds a lack of good faith

on the part of the State of Wyoming,

both sanctions under section 179(b)

shall apply after the expiration of the

18-month period until the

Administrator determines that the State

of Wyoming has come into compliance.

In all cases, if, six months after EPA

applies the first sanction, the State of

Wyoming has not submitted a revised

program that EPA has determined

corrects the deficiencies, a second

sanction is required.

In addition, discretionary sanctions

may be applied where warranted any

time after the expiration of an interim

approval period if the State of Wyoming

has not timely submitted a complete

corrective program or EPA has

disapproved its submitted corrective

program. Moreover, if EPA has not

granted full approval to the State of

Wyoming program by the expiration of

this interim approval and that

expiration occurs after November 15,

1995, EPA must promulgate, administer

and enforce a Federal permits program

for the State of Wyoming upon interim

approval expiration.

Requirements for approval, specified

in 40 CFR 70.4(b), encompass section

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

program for delegation of section 112

standards as promulgated by EPA as

they apply to part 70 sources. Section

112(l)(5) requires that the State’s

program contain adequate authorities,

adequate resources for implementation,

and an expeditious compliance

schedule, which are also requirements

under part 70. Therefore, the EPA is also

promulgating approval under section

112(l)(5) and 40 CFR 63.91 of the State’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.

III. Administrative Requirements

A. Docket

Copies of the State’s submittal and

other information relied upon for the

final interim approval, including public

comments received and reviewed by

EPA on the proposal, are maintained in

a docket at the EPA Regional Office. The

docket is an organized and complete file

of all the information submitted to, or

otherwise considered by, EPA in the

development of this final interim

approval. The docket is available for

public inspection at the location listed

under the ADDRESSES section of this

document.

B. Executive Order 12866

The Office of Management and Budget

has exempted this action from Executive

Order 12866 review.

C. Regulatory Flexibility Act

The EPA’s actions under section 502

of the Act do not create any new

requirements, but simply address

operating permits programs submitted

to satisfy the requirements of 40 CFR

Part 70. Because this action does not

impose any new requirements, it does

not have a significant impact on a

substantial number of small entities.

List of Subjects in 40 CFR Part 70

Environmental protection,

Administrative practice and procedure,

Air pollution control, Intergovernmental

relations, Operating permits, Reporting

and recordkeeping requirements.

Dated: December 27, 1994.

Kerrigan G. Clough,

Acting Regional Administrator.

Part 70, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 70—[AMENDED]

1. The authority citation for part 70

continues to read as follows:

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

2. Appendix A to part 70 is amended

by adding the entry for Wyoming in

alphabetical order to read as follows:

Appendix A to Part 70—Approval

Status of State and Local Operating

Permits Programs

* * * * *

Wyoming

(a) Department of Environmental

Quality: submitted on November 19,

1993; effective on February 21, 1995;
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3771

interim approval expires February 19,

1997.

(b) Reserved.

[FR Doc. 95–928 Filed 1–18–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 81

[CA–103–1–6722 FRL–5125–2]

Designation of Areas for Air Quality

Planning Purposes; State of California;

Correction of Design Value for San

Diego Ozone Nonattainment Area;

Reclassification of San Diego Ozone

Nonattainment Area to Serious

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: This document announces the

EPA Region IX decision to reclassify the

San Diego, California, ozone

nonattainment area (San Diego) from

severe to serious. San Diego was

classified as a severe ozone

nonattainment area by EPA on

November 6, 1991 (56 FR 56694).

However, EPA has determined that the

ozone design value of .190 ppm

published by EPA and used in

classifying San Diego as a severe ozone

nonattainment area was incorrect. The

correct monitored ozone design value

was .185 ppm. This design value falls

within the range of values which would

have provided the opportunity for the

State to request reclassification of San

Diego under section 181(a)(4) of the

Clean Air Act, as amended in 1990

(CAA or the Act). Pursuant to section

110(k) of the Act, which allows EPA to

correct its actions, EPA is today

publishing the correct design value of

.185 ppm and is granting the State’s

request to reclassify the San Diego

nonattainment area under section

181(a)(4).

EFFECTIVE DATE: February 21, 1995.

FOR FURTHER INFORMATION CONTACT:

Angela Baranco, Plans Development

Section (A–2–2), Air Planning Branch,

United States Environmental Protection

Agency, Region IX, 75 Hawthorne

Street, San Francisco, California, 94105,

(415) 744–1196.

SUPPLEMENTARY INFORMATION:

Background

Prior to the 1990 amendments to the

Act, EPA identified and designated

nonattainment areas with respect to the

National Ambient Air Quality Standards

(NAAQS). For such areas, States

submitted State Implementation Plans

(SIPs) to control emissions and achieve

attainment of the NAAQS. The San

Diego ozone nonattainment area (San

Diego) was originally designated as

nonattainment for ozone on March 3,

1978 (as well as for other pollutants not

addressed in this document). The SIP

for San Diego was first adopted in the

early 1970’s. The revised SIP was fully

approved by EPA on November 25, 1983

(48 FR 53114) and December 28, 1983

(48 FR 57130).

Under the 1990 amendments to the

Act, San Diego retained its designation

of nonattainment and was classified as

severe by operation of law pursuant to

sections 107(d) and 181(a) upon the date

of enactment of the CAA. See 56 FR

56694 (November 6, 1991). This

classification was required to be based

on the design value for the area. The

actual monitored value for San Diego

was .185 ppm. This value was reported

to the California Air Resources Board

(CARB), which rounded the value to .19

ppm and submitted it to EPA. EPA

published this number as .190 ppm in

its November 6, 1991 Federal Register

document.

CAA Provisions

A. Correction of Error Under Section

110(k)(6)

Section 110(k)(6) of the Act provides:

Whenever the Administrator determines

that the Administrator’s action approving,

disapproving, or promulgating any plan or

plan revision (or part thereof), area

designation, redesignation, classification, or

reclassification was in error, the

Administrator may in the same manner as the

approval, disapproval, or promulgation

revise such action as appropriate without

requiring any further submission from the

State. Such determination and the basis

thereof shall be provided to the State and

public.

EPA interprets this provision to

authorize the Agency to make

corrections to a promulgation when it is

shown to EPA’s satisfaction that: (1)

EPA erred in failing to consider or

inappropriately considered information

made available to EPA at the time of the

promulgation, or the information made

available at the time of promulgation is

subsequently demonstrated to have been

clearly inadequate; and (2) other

information persuasively supports a

change in the promulgation.

EPA’s initial action in classifying San

Diego was based on an ozone design

value of .190 ppm. That information

was subsequently demonstrated to have

been incorrect, and the true design

value was .185 ppm. Accordingly, in

today’s action, EPA is correcting this

error by publishing the correct design

value of .185 ppm for San Diego.

B. Classification Adjustment Under

Section 181(a)(4)

Section 181(a)(4) of the Act provides

a 90-day period following publication of

a classification during which any

nonattainment area with a design value

within 5 percent of the next higher or

lower classification may request to be

reclassified. When EPA published .190

ppm as the ozone design value, the San

Diego planning staff concluded it could

not take advantage of the five-percent

classification adjustment provision

because this value does not fall within

5 percent of the cutoff for classification

as serious. However, the correct value of

.185 ppm does fall within 5 percent of

this number (.179 ppm). When the

discrepancy in the ozone design values

was discovered, the State requested that

EPA reclassify San Diego. After

determining that the original

classification had been based on an

erroneous design value, and that the

error may be corrected pursuant to

section 110(k)(6), EPA accepted the

State’s request, made by letter dated July

19, 1993, to reclassify the San Diego

ozone nonattainment area from severe to

serious under section 181(a)(4).

C. Criteria for Reclassification

Section 181(a)(4) of the CAA provides

general guidelines to determine whether

an area qualifies for a classification

adjustment:

In making such adjustment, the

Administrator may consider the number of

exceedances of the (NAAQS) for ozone in the

area, the level of pollution transport between

the area and other affected areas, including

both intrastate and interstate transport, and

the mix of sources and air pollutants in the

area.

EPA interprets this provision to mean

that the area must demonstrate that it

can attain the ozone NAAQS by the

earlier date required by the lower

classification. As discussed in more

detail in subsection 3 below, San Diego

has submitted a preliminary

demonstration that ‘‘but for transport’’,

it would attain the ozone NAAQS by the

1999 attainment deadline for serious

areas. Documentation concerning each

of the section 181(a)(4) criteria has been

submitted by San Diego as part of this

demonstration and is discussed briefly

below. For a detailed discussion and

analysis of these submissions please

refer to EPA’s Technical Support

Document (TSD).

1. Exceedances

San Diego submitted data concerning

the number of exceedances per year

from 1980 to 1992. This data shows a

clear downward trend projecting zero

exceedances in 1999.