# Clean Air Act Proposed Disapproval of the Title V Operating Permit Programs for Glenn County, Lake County, Shasta County and Tehama County, California; Proposed Disapproval of the Lake County, California, State Implementation Plan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-29268 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** November 29, 1994 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 70 [CA 99-01-6614; FRL-5112-5] Clean Air Act Proposed Disapproval of the Title V Operating Permit Programs for Glenn County, Lake County, Shasta County and Tehama County, California; Proposed Disapproval of the Lake County, California, State Implementation Plan AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: EPA is proposing disapproval of the operating permits programs submitted by the California Air Resources Board on behalf of Glenn County Air Pollution Control District (APCD), Lake County Air Quality Management District (AQMD), Shasta County AQMD, and Tehama County APCD. These programs were submitted for the purpose of complying with federal requirements in title V of the Clean Air Act which mandates that states develop, and submit to EPA, programs for issuing operating permits to all major stationary sources and to certain other sources. In the alternative, EPA is proposing to grant source category-limited interim approval to any of these programs for which the California Air Resources Board submits certain revisions to each District's upset/ breakdown rule and, except for Tehama County, equipment shutdown rule. The EPA is also proposing to disapprove a revision to Lake County's portion of the California State Implementation Plan (SIP) regarding a regulation for issuing federally enforceable state operating permits to non-title V sources. In the alternative, the EPA proposes to approve this regulation if Lake County makes revisions to its upset/breakdown and shutdown rules. DATES: Comments on this proposed action must be received in writing by December 29, 1994. ADDRESSES: Comments on the Lake County program and SIP should be addressed to Ed Pike, Operating Permits Section, A-5-2, Air and Toxics Division, US EPA-Region IX, 75 Hawthorne Street, San Francisco, California 94105. Comments on the other programs should be addressed to Sara Bartholomew at the same address. Copies of the submissions and other supporting information used in developing the proposed disapprovals/interim approvals including the Technical Support Documents are available for inspection during normal business hours at the following location: Operating Permits Section, A- 5-2, Air and Toxics Division, U.S. EPA-Region IX, 75 Hawthorne Street, San Francisco, California 94105. FOR FURTHER INFORMATION CONTACT: For information on the Lake County program and SIP, please contact: Ed Pike, (415) 744-1248. For information on the programs for the other Districts, please contact: Sara Bartholomew, (415) 744-1170. SUPPLEMENTARY INFORMATION: I. Background and Purpose A. Introduction 1. Title V As required under title V of the Clean Air Act (``the Act'') as amended (1990), EPA has promulgated rules that define the minimum elements of an approvable state operating permits program and the corresponding standards and procedures by which EPA will approve, oversee, and withdraw approval of state operating permits programs. See 57 FR 32250 (July 21, 1992). These rules are codified at 40 CFR part 70. Title V requires states to develop, and submit to EPA, programs for issuing these operating permits to all major stationary sources and to certain other sources. The Act requires that states develop and submit these programs to EPA by November 15, 1993, and that EPA act to approve or disapprove each program within one year after receiving the submittal. 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 two years. If EPA has not fully approved a program by two years after the November 15, 1993 date, or by the end of an interim program, it must establish and implement a federal program. 2. Federally-Enforceable State Operating Permit Programs On June 28, 1989 (54 FR 27282), the EPA published criteria for approving and incorporating into SIPs under section 110 of the Act, regulatory programs for the issuance of federally-enforceable operating permits. These programs are known as federally-enforceable state operating permit (FESOP) programs. Permits issued under a FESOP program approved into the SIP pursuant to the June, 1989, notice are considered federally enforceable. EPA has allowed states to develop such programs in conjunction with title V operating permit programs for the purpose of creating federally-enforceable limits on sources' potential to emit. This mechanism would allow potentially major sources to become synthetic minor sources and avoid being subject to title V by reducing their potential to emit to below the title V applicability thresholds. For further information, see the EPA guidance document entitled ``Limitation of Potential to Emit with Respect to Title V Applicability Thresholds,'' dated September 18, 1992. A copy of this document is contained in the Lake County docket. B. Federal Oversight and Sanctions EPA is proposing to disapprove the title V operating permit programs for the Glenn County APCD, Lake County AQMD, Shasta County AQMD, and Tehama County APCD. If EPA were to finalize this proposed disapproval for any one of these Districts, the District may become subject to sanctions under the Act. Pursuant to section 502(d)(2)(A) of the Act, EPA may, at its discretion, apply any of the sanctions in section 179(b) at any time following the effective date of a final disapproval. The available sanctions include a prohibition on the approval by the Secretary of Transportation of certain highway projects or the awarding of certain federal highway funding, and a requirement that new or modified stationary sources or emissions units for which a permit is required under part D of title I of the Act achieve an emissions reductions-to-increases ratio of at least 2-to-1. The latter sanction, however, is available only in areas that are classified nonattainment. Because none of the four Districts is classified nonattainment for any criteria pollutant, the only available sanction is the highway approval and funding sanction. In addition, EPA is required by section 502(d)(2)(B) of the Act to apply sanctions on the date 18 months after the effective date of a final disapproval, unless prior to that date the District has submitted a revised operating permits program and EPA has determined that it corrects the deficiencies that prompted the final disapproval. Finally, if EPA has not granted either full or interim approval to the District program by November 15, 1995, EPA must promulgate, administer and enforce a Federal permits program for that District on that date. EPA is also proposing to disapprove Lake County's FESOP program. Sanctions are available only for requirements of the Act. FESOP programs are not required by the Act; therefore, disapproval of Lake's program will not trigger a sanctions deadline for the District. II. Proposed Action and Implications A. Analysis of State Submission The analysis contained in this notice focuses on the major elements of the Districts' title V operating permits program submittals and on specific elements that must be corrected to meet the minimum requirements of 40 CFR part 70. The four District programs being reviewed are based on a model rule and program description developed by the California Air Resources Board (CARB). As a result, the programs are very similar. A detailed analysis of each program can be found in Technical Support Document (TSDs) for each District. The full program submittals, TSDs, and other relevant materials are available for public review in the public docket for each District. The dockets may be viewed during regular business hours at the address listed above. 1. Title V Support Materials In submitting each District's title V program, CARB requested source category-limited interim approval for the program because California law currently exempts agricultural sources from all permitting requirements including title V. Each District's submission contains a complete program description, District implementing and supporting regulations, application and reporting forms, and other supporting information. In addition, CARB submitted for all Districts in the State a single Attorney General's opinion, State enabling legislation, and certain other information regarding State law. EPA has reviewed each District's program to assure that it contains all the elements required by Sec. 70.4 (b) (elements of the initial program submission) and has found each program complete pursuant to Sec. 70.4 (e)(1) in letters to the California Air Resources Board on January 13, 1994 (Shasta), February 4, 1994 (Tehama), March 4, 1994 (Glenn), and May 20, 1994 (Lake). Copies of these letters are in the dockets. Prior to final action to approve these operating permit programs, EPA intends to have in place an implementation agreement with each of these Districts that addresses data management, acid rain provisions, procedures for delegation of hazardous air pollutant standards under section 112(l) of the Act, and other elements regarding the implementation of the District's title V program. 2. Title V Operating Permit Regulations and Program Implementation This section discusses how the Districts' rules in general comply with the requirements of part 70. In each case, the Districts' rules/ regulations are identical to or very similar to the CARB model; therefore, the discussion below is applicable to all four programs. If a District's program differs substantially from the CARB model and the other Districts' programs in a way that is not fully approvable under part 70, it is noted in sections later in this notice that discuss the interim approval issues for each District. Applicability. All programs meet the source applicability requirements of Secs. 70.2 (Definitions) and 70.3 (Applicability) except that current California law exempts agricultural sources from all permitting requirements including title V. This exemption must be removed from State law in order for the District programs to receive full approval. All programs opted to defer the permitting of minor sources subject to New Source Performance Standards (NSPS) or National Emission Standards for Hazardous Air Pollutants (NESHAP) as allowed under Sec. 70.3 (b)(1). Permit application. The rules substantially meet the application deadlines and application content requirements of Sec. 70.5 (Permit applications). Each program contains the application forms that the District intends to use for initial permit, permit renewal, and permit modification applications. In this action, EPA is proposing to approve these application forms as part of each District's program. All rules require sources to list all emission units in sufficient detail to establish applicable requirements and permit fees. EPA has identified several interim approval issues regarding permit application requirements that must be corrected for full approval. The interim approval issues are discussed in detail later in this notice. In the TSD, EPA has also identified other recommended changes that are not required for full approval but would improve, clarify, or strengthen the Districts' title V programs. Insignificant activities. Section 70.4 (b)(2) requires States to include in their part 70 programs any criteria used to determine insignificant activities or emission levels for the purposes of determining complete applications. Section 70.5(c) states that an application for a part 70 permit may not omit information needed to determine the applicability of, or to impose, any applicable requirement, or to evaluate appropriate fee amounts. Section 70.5(c) also states that EPA may approve, as part of a State program, a list of insignificant activities and emissions levels which need not be included in permit applications. Under part 70, a State must request and EPA must approve as part of that State's program any activity or emission level that the State wishes to consider insignificant. Part 70, however, does not establish appropriate emission levels for insignificant activities, relying instead on a case-by-case determination of appropriate levels based on the particular circumstances of part 70 program under review. All four Districts provided their current permit exemption lists as their list of insignificant activities. Several of these lists provide unbounded discretion to the APCO to determine additional exemptions. For criteria, Glenn, Shasta, and Tehama either provided no criteria or stated that their criteria for insignificance was the list of activities in their current permit exemption list. Because EPA was provided no criteria or information on the level of emissions of activities on most Districts' exemptions list and no demonstration that these activities are not likely to be subject to an applicable requirement, EPA cannot propose full approval of the lists as the basis for determining insignificant activities. Lake submitted several permit exemptions for their part 70 permitting program. Lake County did not submit emission levels or other criteria for these exemptions, although Lake stated that sources above the significance levels in their new source review regulations (Section 602) could not be exempted. These ``significance levels'' are 20 pounds per hour or 150 pounds per day of any criteria pollutant except carbon monoxide and lead, 150 pounds per hour or 1500 pounds per day of carbon monoxide, and more than 27 pounds per day of lead. These levels are a substantial fraction of the major source thresholds for Lake County and would almost certainly exclude units with applicable requirements. EPA, therefore, finds that these emission levels are too high to be considered insignificant. For other State programs, EPA has proposed to accept, as sufficient for full approval, emission levels for insignificant activities of 2 tons per year and the lesser of 1000 pounds per year, section 112(g) de minimus levels, or other title I significant modification levels for HAPs and other toxics (40 CFR 52.21 (b)(23)(i)). EPA believes that these levels are sufficiently below applicability thresholds for many applicable requirements to assure that no unit potentially subject to an applicable requirement is left off a title V application and are consistent with current permitting thresholds for the nineteen Districts under consideration here. EPA is requesting comment on the appropriateness of these emission levels for determining insignificant activities in these Districts. This request for comment is not intended to restrict the ability of individual Districts to propose and EPA to approve other emission levels if the District demonstrates that such alternative emission levels are insignificant compared to the level of emissions from and types of units that are permitted or subject to applicable requirements. Permit content. The rules substantially meet the permit content requirements of Sec. 70.6 (Permit content) including assuring compliance with all applicable requirements, monitoring and related recordkeeping and reporting requirements, and compliance requirements. None of the programs opted to use general permits or the permit shield. In addition, the programs substantially meet the operational flexibility requirements of Sec. 70.4 (b)(12). The programs also prohibit changes that are considered minor under new source review from being made under the operational flexibility provisions. EPA has identified several problems with the permit content and the operational flexibility provisions that must be corrected for full approval. These interim approval issues are discussed in detail later in this notice. In the TSDs, EPA has also identified other recommended changes that are not required for full approval but would improve, clarify, or strengthen the Districts' title V programs. Permit issuance and modifications. All programs provide adequate criteria and procedures for deeming applications complete as required by Sec. 70.5 (a)(2). Most programs provide deadlines and procedures (including public participation and EPA/affected state review) for acting on permits consistent with Sec. 70.7 (a) (Action on applications) and (h) (Public participation) and Sec. 70.8 (Permit review by EPA and affected States); the exceptions are noted in the discussions of each District's program given below. All programs have permit modification procedures that are, for the most part, consistent with Sec. 70.7 (e) (Permit modification). All programs contain procedures that allow new emission units that do not trigger major source NSR, are not acid rain units, and whose operations are not addressed or prohibited by the existing part 70 permit to be handled ``off-permit.'' EPA has identified several problems with the permit issuance and modification procedures that must be corrected for full approval. The interim approval issues are discussed in detail later in this notice. In the TSDs, EPA has also identified other recommended changes that are not required for full approval but would improve, clarify, or strengthen the Districts' title V programs. Definition of title I modification. Part 70 prohibits changes that are modifications under any provisions of title I of the Clean Air Act (``title I modification'') from being treated as minor permit modifications, being made ``off-permit,'' or being made under an operational flexibility provision. None of the Districts' programs specifically define ``title I modification'' although it is clear from the use of the term that the programs do not treat changes reviewed under a minor source preconstruction review program (``minor NSR changes'') as title I modifications. See, for example, the distinction made between ``a modification under Title I of the CAA'' and ``any provision of [the District NSR and PSD rules]'' in Shasta's Rule 5, sections V.I. and V.I.3.c. See also the discussion on operational flexibility in each District's Program Description: ``Title I modifications include a modification that is major under federal NSR * * *, a modification that is major under PSD * * *.'' The EPA is currently in the process of determining the proper definition of title I modification. As further explained below, EPA has solicited public comment on whether the phrase ``modification under any provision of title I of the Act'' should be interpreted to mean literally any change at a source that would trigger permitting authority review under regulations approved or promulgated under title I of the Act. This would include State preconstruction review programs approved by EPA as part of the State Implementation Plan under section 110(a)(2)(C) of the Clean Air Act. On August 29, 1994, EPA proposed revisions to the interim approval criteria in 40 CFR 70.4(d) to, among other things, allow State programs with a more narrow treatment or definition of title I modifications to receive interim approval (59 FR 44572). EPA explained its view that the better 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 continues to believe that the phrase title I modifications should be interpreted as including minor NSR changes, it would revise the interim approval criteria as needed to allow states with a narrower definition to be eligible for interim approval. The EPA hopes to finalize its rulemaking revising the interim approval criteria under 40 CFR 70.4(d) expeditiously.\1\ If EPA establishes in its rulemaking that the definition of title I modifications can be interpreted to exclude changes reviewed under minor NSR programs and changes that trigger the application of a pre- 1990 NESHAP requirement, the Districts' treatment of title I modifications 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 Districts' treatment of title I modifications will become a basis for interim approval. If the treatment becomes a basis for interim approval as a result of EPA's rulemaking, each of the four Districts would be required to revise its treatment of title I modifications to conform to the requirements of part 70. --------------------------------------------------------------------------- \1\Publication of the proposed interim approval criteria revisions was delayed until August 29, 1994, and EPA received several requests to extend the public comment period until November 27, 1994. Given the importance of the issues in that rulemaking to States, sources and the public, but mindful of the need to take action quickly, EPA agreed to extend the comment period until October 28, 1994 (see 59 FR 52122 (October 14, 1994)). --------------------------------------------------------------------------- Accordingly, today's proposed approval does not identify the Districts' treatment of title I modification as necessary grounds for either interim approval or disapproval. Again, although EPA has reasons for believing that the better interpretation of title I 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. 3. District Title V Enforcement and Compliance Provisions The EPA is proposing to disapprove the operating permits programs for Glenn County APCD, Lake County AQMD, Shasta County AQMD, and Tehama County APCD because of deficiencies in the Districts' enforcement authorities. The primary deficiency lies in provisions in the Districts' equipment breakdown/upset rules that state that excess emissions during equipment breakdowns/upsets are not violations. In addition, the Glenn, Lake, and Shasta Districts have rules that state that excess emissions during equipment shutdown for maintenance are not violations. On January 24, 1978 (43 FR 3275) EPA disapproved Glenn's Rules 95.2 and 95.3, Lake's Rules 500, 510, and 511 (now, codified as Articles I and II of Chapter III), Shasta's Rule 3:10 and Tehama's Rule 4:17 as revisions to the California State Implementation Plan (SIP) because each rule provided a priori that emission exceedances during malfunctions or equipment shutdowns were not violations.\2\ The disapproval action was taken consistent with EPA's policy that SIPs cannot contain automatic exemptions from emission limitations during malfunctions/shutdowns. This policy was originally established in 1977 (42 FR 21472 (April 27, 1977) and 42 FR 58171 (November 8, 1977)), restated in 1983 (Memorandum, ``Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions.'' Kathleen M. Bennett, Assistant Administrator for Air, Noise and Radiation, to Regional Administrators, Region I-X. February 15, 1983) (provided in the dockets), and reflected in the emergency provisions included in the 1992 promulgation of part 70. --------------------------------------------------------------------------- \2\Although both the Shasta and Lake Districts have revised their rules since the disapproval, neither has revised the language that resulted in the SIP disapproval. --------------------------------------------------------------------------- In its 1978 disapproval of these breakdown rules, EPA stated that automatic exemptions to SIP limits during malfunctions/shutdowns ``render [SIP] emission limitations potentially unenforceable.'' The rules pose similar enforceability problems in the context of title V. The potential impact on enforceability is of special concern in title V because title V permits will contain emission limits that not only include SIP limits but also limits in NSPS, NESHAP, and MACT standards, and preconstruction permits. A permitting program that includes rules specifically stating that excess emissions during malfunctions or shutdowns are not violations cannot meet the minimum requirements of Sec. 70.11 (Requirements for enforcement authority). These rules may also compromise the ability of the Districts to issue permits that assure compliance with all applicable requirements. The ability to enforce permits as specified in Sec. 70.11 and issue permits that assure compliance with all applicable requirements are identified as minimum elements for interim approval of title V programs in Sec. 70.4(d)(3). Programs that do not have the minimum requirements listed in Sec. 70.4(d)(3) and otherwise do not substantially meet the requirements of part 70 are subject to disapproval. Other than the emergency/shutdown provisions, California law and District rules and regulations provide the Districts with the enforcement authorities required by Sec. 70.11. See the California Attorney General's Opinion and the TSDs (especially Attachments A and F). Variances. The Hearing Boards of all four Districts have authority to issue variances from requirements imposed by State and local law. See California Health and Safety Code 42350 et seq. In the opinion submitted with California operating permit programs, California's Attorney General states that ``[t]he variance process is not part of the Title V permitting process and does not affect federal enforcement for violations of the requirements set forth in a Title V permit.'' (Emphasis in original.) EPA regards State and District variance provisions as wholly external to the programs submitted for approval under part 70 and consequently is proposing to take no action on these provisions of State and local law. EPA has no authority to approve provisions of state law that are inconsistent with the Act. EPA does not recognize the ability of a permitting authority to grant relief from the duty to comply with a federally-enforceable part 70 permit, except where such relief is granted through procedures allowed by part 70. A part 70 permit may be issued or revised, consistent with part 70 permitting procedures, to incorporate those terms of a variance that are consistent with applicable requirements. A part 70 permit may also incorporate, via part 70 permit issuance or revision procedures, the schedule of compliance set forth in a variance. However, EPA reserves the right to pursue enforcement of applicable requirements notwithstanding the existence of a compliance schedule in a permit to operate. This is consistent with Sec. 70.5(c)(8)(iii)(C), which states that a schedule of compliance ``shall be supplemental to, and shall not sanction noncompliance with, the applicable requirements on which it is based.'' Prompt reporting of deviations. Section 70.6 (a)(3)(iii)(B) states that permits must require prompt reporting of deviations from the permit requirements and that the permitting authority shall define prompt in relation to the degree and type of deviation likely to occur and the applicable requirements. The Districts' rules do not define ``prompt'' and instead leave the determination of what constitutes ``prompt'' to the discretion of the Air Pollution Control Officer. Although the permit program regulations should define ``prompt'' for purposes of administrative efficiency and clarity, it is acceptable to define the term in each permit. EPA believes that prompt means reporting a deviation that is not the result of an emergency or breakdown within two to ten days of the occurrence. Two to ten days is sufficient time in most cases to protect public health and safety as well as to provide a forewarning of potential problems. For sources with a low level of excess emissions, a longer time period may be acceptable. However, prompt reporting must be more frequent than the semiannual reporting requirement, since this is a separate reporting obligation under Sec. 70.6(a)(3)(iii)(A). Where ``prompt'' is defined in the individual permit but not in the program regulations, EPA may veto permits that do not require sufficiently prompt reporting of deviations. 4. Permit Fee Demonstration Section 502(b)(3) of the Act and Sec. 70.9 (a) require that each permitting authority collect fees sufficient to cover all reasonable direct and indirect costs required to develop and administer its title V operating permits program. Each title V program submittal must contain either a detailed demonstration of fee adequacy or a demonstration that aggregate fees collected from title V sources meet or exceed $25 per ton of emissions per year (adjusted from 1989 by the Consumer Price Index (CPI)). The $25 per ton amount is presumed, for program approval, to be sufficient to cover all reasonable program costs and is thus referred to as the ``presumptive minimum,'' (Sec. 70.9 (b)(2)(i)). All four Districts have opted to make a presumptive minimum fee demonstration. Currently, the four Districts charge fees for permitting based on some combination of equipment type and/or size, number of emission units, permitting action, and actual cost of services. All Districts have adopted supplemental fee rules or revised existing fee rules to assure that title V sources (either individually or in the aggregate) will pay fees that will remain at or above the CPI-adjusted presumptive minimum. These annual fees are all about $29.26 per ton with total annual revenue from title V sources ranging from $4,096 (in Tehama with one title V source) to $101,506 (in Shasta County with 10 title V sources). (All figures are for 1993). All four Districts demonstrated in their program descriptions that the presumptive minimum fees are adequate to cover the direct and indirect costs of their title V programs. 5. Provisions Implementing the Requirements of Other Titles of the Act a. Section 112--Hazardous Air Pollutants. The Districts have demonstrated in their title V program submittals adequate legal authority to implement and enforce all section 112 requirements through the title V permit. This legal authority is contained in the State of California enabling legislation and in regulatory provisions in each District's rule defining ``applicable requirements'' and mandating that all federal air quality requirements must be incorporated into permits. EPA has determined that this legal authority is sufficient to allow the Districts to issue permits that assure compliance with all section 112 requirements. For further discussion on the District's legal authority, please refer to the TSDs accompanying this action and the April 13, 1993 guidance memorandum entitled, ``Title V Program Approval Criteria for Section 112 Activities,'' signed by John Seitz, Director, Office of Air Quality Planning and Standards, USEPA, which can be found in the dockets. b. Title IV--acid rain. No Districts in California have Phase I acid rain sources and none of the four Districts has identified Phase II sources. The Glenn, Lake, and Tehama Districts have provided commitments to expeditiously adopt the appropriate regulatory authority necessary to issue a timely title IV permit to any new or existing source in the District that becomes subject to, or wants to opt into, the acid rain program. For the Shasta District, EPA will require this commitment as part of the District-EPA implementation agreement. 6. Lake County AQMD's FESOP Program On February 28, 1994, CARB submitted for approval into Lake County's portion of the California SIP, a District operating permit program designed to create federally-enforceable limits on sources' potential to emit. This program is contained in sections 12.800 through 12.850 of Lake County's rule as well as relevant definitions in section 12.200. If approved into the SIP, the program will allow major sources to become synthetic minor sources by limiting their potential to emit to less than the major source level. A detailed analysis of the program can be found in the TSD for Lake County. B. Proposal for and Implications of Disapproval and Interim Approval 1. Title V Programs EPA is proposing to disapprove the operating permits programs submitted by the California Air Resources Board on behalf of Glenn County APCD (received: December 27, 1993), Lake County AQMD (received: November 16, 1993 and March 15, 1994), Shasta County AQMD (received: November 16, 1993), and Tehama County APCD (received: December 6, 1993). If promulgated, these disapprovals would constitute disapprovals under section 502(d) of the Act. As provided under section 502(d)(1) of the Act, CARB and these Districts would have up to 180 days from the date of EPA's final action to revise and resubmit the programs. EPA is proposing to disapprove the operating permits programs for these four Districts because of provisions in their equipment breakdown/upset rules that state that excess emissions during equipment breakdowns/upsets are not violations. In addition, EPA is proposing to disapprove the programs for the Glenn, Lake, and Shasta Districts because these Districts have rules that state that excess emissions during equipment shutdown for maintenance are not violations. As discussed earlier in this notice, these provisions mean that the Districts do not have enforcement authorities that meet the minimum requirements of Sec. 70.11. These provisions also compromise the ability of the Districts to issue permits that assure compliance with all applicable requirements. The minimum requirements for interim approval in Sec. 70.4(d)(3) require that the permitting authority have the ability to both enforce permits (Sec. 70.4(d)(3)(vii)) and issue permits that assure compliance with all applicable requirements (Sec. 70.4(d)(3)(ii)). Programs that do not have the minimum requirements listed in Sec. 70.4(d)(3) and otherwise do not substantially meet the requirements of part 70 are subject to disapproval. If EPA were to finalize this proposed disapproval for any of the four Districts, that District may become subject to sanctions under the Act within 18 months following final action to disapprove its program if the District fails to submit a corrected program that EPA determines corrects the disapproved program's deficiencies. In the alternative, EPA proposes to grant source-category limited interim approval to any of these four programs for which, prior to the final disapproval action, the District adopts and CARB submits to EPA, revisions to the breakdown/shutdown rules that remove the ``no violation'' language. For the breakdown rules, these Districts can either adopt the language of Sec. 70.6(g) that an emergency constitutes an affirmative defense to noncompliance with technology-based emission limitations or that emissions exceeding emission limitations during equipment breakdowns constitute a violation of District rules. The Air Pollution Control Officer may exercise enforcement discretion where an emergency has caused a violation. The latter language is used in most California district equipment breakdown rules and is acceptable to EPA. Provisions for the special treatment of excess emissions during non- emergency equipment shutdown must be deleted altogether. No special treatment of excess emissions during equipment shutdown is allowed because shutdowns are part of the normal operation of a source and, thus, proper design of the equipment should eliminate excess emissions during shutdowns. See the February 15, 1983, Bennett memo cited above for a further discussion of the treatment of excess emissions during shutdowns. If EPA finalizes an interim approval for a District in lieu of the disapproval, each District (and in some instances the State) must make the changes noted below in order for its title V program to receive full approval. This interim approval, which may not be renewed, extends for a period of 2 years. During the interim approval period, a District is protected from sanctions for failure to have a program, and EPA is not obligated to promulgate a Federal permits program in the District. Permits issued under a program with interim approval have full standing with respect to part 70, and the one-year time period for submittal of permit applications by subject sources begins upon interim approval, as does the three-year time period for processing the initial permit applications. Following final interim approval, if any of the Districts fail to submit a complete corrective program for full approval by the date six months before expiration of the interim approval, EPA would start an 18-month clock for mandatory sanctions. If the District then fails to submit a corrective program that EPA can find complete before the expiration of that 18-month period, EPA would be required to apply one of the sanctions in section 179(b) of the Act, which would then remain in effect until EPA determines that the District has corrected the deficiency by submitting a complete corrective program. If, following final interim approval, EPA were to disapprove 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 submits a revised program and EPA determines that it corrects the deficiencies that prompted the disapproval. In addition, discretionary sanctions may be applied where warranted any time after the end of an interim approval period if a District has not timely submitted a complete corrective program or EPA has disapproved a submitted corrective program. Moreover, if EPA has not granted full approval to a District program by the expiration of an interim approval and that expiration occurs after November 15, 1995, EPA must promulgate, administer and enforce a Federal permits program for that District upon interim approval expiration. 2. Lake County AQMD's FESOP Program The EPA is also proposing to disapprove the Lake District's FESOP program because it does not meet the criteria for approving federally enforceable state program for issuing synthetic minor operating permits in EPA's June 28, 1989, Federal Register notice (54 FR 27282). As discussed above, the Lake District currently has rules that state that excess emissions during equipment breakdowns and maintenance are not violations of District, state, and federal emission limitations. This ``no violation'' language calls into question the practical enforceability of any limits on potential to emit established under Lake's synthetic minor permitting program. Under the June 28, 1989 criteria, state operating permit programs that do not create practically enforceable limits cannot create federally-enforceable limits on potential to emit. In the alternative, EPA is proposing to approve Lake's FESOP program into the California SIP under section 110 of the Act if the District removes the no violation language from its equipment breakdown rule and eliminates any special treatment of excess emissions during non-emergency equipment shutdowns. The program otherwise meets the June 28, 1989 approval criteria by ensuring that the limits on potential to emit will be permanent and quantifiable and be no less stringent than any other applicable federal limitations and requirements, by requiring the source comply with the limits in its permit, and by providing adequate notice to EPA and the public of the proposed permit. An analysis of the June 28, 1989 criteria as they apply to Lake County's FESOP program can be found in the TSD for Lake County. Neither CARB nor Lake County AQMD requested approval of the District's FESOP under section 112(l) of the Act for the purpose of creating federally enforceable limitations on the potential to emit of hazardous air pollutants (HAPs). A separate request for approval under section 112(l) is necessary because the proposed SIP approval discussed above only provides a mechanism for controlling criteria pollutants. While federally enforceable limits on criteria pollutants (i.e., volatile organic compounds or particulate matter) may have the incidental effect of limiting certain HAP listed pursuant to section 112(b), section 112 of the Act provides the underlying authority for controlling HAP emissions that are not criteria pollutants. As a legal matter, no additional program approval by EPA is required in order for the criteria pollutant limits to be recognized as federally enforceable for HAPs; however, because EPA is not proposing to approve Lake County's FESOP program under section 112(l), federally-enforceable potential to emit limits established specifically for HAPs cannot be created through the program. C. District Title V Interim Approval Issues Common to All Four Districts In order to receive full approval for its title V program, each District must make the following changes: (1) Provide a demonstration that activities that are exempt from part 70 permitting are truly insignificant and are not likely to be subject to an applicable requirement. Alternatively, the District may restrict the exemptions (including any director's discretion provisions) to activities that are not likely to be subject to an applicable requirement and emit less than District-established emission levels. The District should establish separate emission levels for HAPs and for other regulated pollutants and demonstrate that these emission levels are insignificant compared to the level of emissions from and type of units that are required to be permitted or subject to applicable requirements. (2) Revise the exemption list to remove the general exemption for agricultural production sources or to restrict the exemption to non- title V sources. Insignificant activities at agricultural production sources may still be listed. (3) Revise the rule's application content requirements so that any compliance schedule required by the rule for a source not in compliance must resemble and be at least as stringent as that contained in any judicial consent decree, administrative order, or schedule approved by the hearing board to which the source is subject, as required by Sec. 70.5(c)(4)(iii)(C), rather than simply a schedule of compliance approved by the District's hearing board. (4) Revise the rule's application content requirements to clarify that all reports and other documents submitted in the permit application must be certified by a responsible official as required by Sec. 70.5(d) and to provide the full text of the responsible official's certification in Sec. 70.5(d). (5) Provide in the rule a permit application deadline for sources that become subject to the District's title V rule after the rule's effectiveness date for reasons other than commencing operation. This deadline cannot be any later than 12 months after the source becomes subject to the rule as required by Sec. 70.5(a)(1). (6) Revise the rule's permit issuance procedures to provide for notifying EPA and Affected States in writing of any refusal by the District to accept all recommendations for the proposed permit that the Affected State submitted during the public/Affected State review period as required by Sec. 70.8(b)(2). (7) Incorporate in the rule provisions citing the right of the public to petition EPA after the expiration of EPA's 45-day review period under Sec. 70.8(d) and prohibiting the District from issuing a permit, if it has not already done so, until the EPA's objections in response to the petition are resolved as required by Sec. 70.8(d). (8) Revise the rule to provide for public notice of permitting actions by other means if necessary to assure adequate notice to the affected public as required by Sec. 70.7(h)(1). (9) Revise the rule's permit content requirements to clarify that all reports and other documents required by the permit must be certified by a responsible official as required by Sec. 70.6(c)(1) and to provide the full text of the responsible official's certification in Sec. 70.5(d). (10) Revise the rule's permit content requirements to require that any compliance schedule for a source not in compliance must resemble and be at least as stringent as that contained in any judicial consent decree, administrative order, or schedule approved by the hearing board to which the source is subject as required by Secs. 70.6(c)(3) and 70.5(c)(8)(iii)(C). (11) Revise the rule's permit content requirements to require the submission of compliance certifications more frequently than annually if a more frequent period is specified in the applicable requirement or by the District as required by Sec. 70.6(c)(5)(i). (12) Revise the rule's operational flexibility provisions to require notification by the source of operational flexibility changes to both the EPA and the District as required by Sec. 70.4(b)(12). D. Basis for Title V Source Category-Limited Interim Approval California state law currently exempts agricultural production sources from permit requirements; therefore, EPA is proposing to grant source category-limited interim approval to the operating permits program of any of the four Districts that corrects the disapproval issues discussed above. At this time, none of the Districts has identified any agricultural production sources as potential title V sources. In order for these programs to receive full approval (and to avoid a disapproval upon the expiration of the interim approval), the California Legislature must revise the Health and Safety Code to eliminate the exemption of agricultural production sources from the requirement to obtain a permit and the District must revise its permit exemption rules to eliminate any blanket exemption granted agricultural sources. III. Individual District Title V Interim Approval Issues A. Glenn County APCD In addition to the disapproval and interim approval issues noted above for all Districts, the Glenn District must make the following changes to its title V rule, Article VIII--Additional Procedures for Issuing Permits to Operate for Sources Subject to Title V of the Federal Clean Air Act Amendments of 1990, adopted October 19, 1993, in order to receive full approval: (1) Revise Article VIII V.C.6\3\ to take final action on early reduction applications within nine months of receipt of the complete application rather than within nine months of the date the application was deemed complete as required by Sec. 70.4(b)(11)(iii). --------------------------------------------------------------------------- \3\The EPA has cited specific sections of District rules and regulations to illustrate appropriate places for making the revisions/changes necessary for full approval. The District may, however, revise other sections of their rules to satisfy the interim approval issue. --------------------------------------------------------------------------- B. Lake County AQMD In addition to the disapproval and interim approval issues noted above for all Districts, the Lake District must make the following changes to its title V rule, Chapter XII--Requirements for Issuing Permits to Operate for Sources Subject to Title V of the Federal Clean Air Act Amendments of 1990, adopted October 19, 1993, in order to receive full approval: (1) Revise all deadlines for final permit action in Chapter VII, Section 12.520 (except for (a) and (e)) to be no later than the appropriate number of months after the complete application is received, rather than after the application is deemed complete, as required by Secs. 70.4(b)(11)(iii) and 70.7(a)(2). C. Shasta County AQMD In addition to the disapproval and interim approval issues noted above for all Districts, the Shasta District must make the following changes to its title V rule, Rule 5--Additional Procedures for Issuing Permits to Operate for Sources Subject to Title V of the Federal Clean Air Act Amendments of 1990, adopted September 28, 1993, and Rule 3:10-- Excusable Malfunctions, last amended on July 22, 1986, in order to receive full approval: (1) Revise all deadlines for final permit action in Rule 5 IV.C. (except for C.1. and C.5.) to be no later than the appropriate number of months after the complete application is received, rather than after the application is deemed complete, as required by Secs. 70.4(b)(11)(iii) and 70.7(a)(2). (2) Revise Rule 3:10 to remove the prohibition on the use of reports required by Rule 3:10 in enforcement/permitting actions. D. Tehama County APCD In addition to the disapproval and interim approval issues noted above for all Districts, the Tehama District must make the following changes to its title V rule, Rule 7:1--Federal Operating Permit Program, adopted October 26, 1993, in order to receive full approval: (1) Revise Rule 7:1 IV.B.4. to incorporate the compliance provisions of Sec. 70.7(e)(2)(v). Rule 7:1 IV.B.4. allows the air pollution control officer (APCO) to approve a minor permit modification when the proposed permit revision is sent to EPA for review. While this is allowed under Sec. 70.7(e)(2)(v), Rule 7:1 does not state, as does Sec. 70.7(e)(2)(v), that until the District takes final action to issue or deny the requested permit modification or determines that it is a significant modification, the source must comply with the applicable requirements governing the change and the proposed permit terms and conditions in lieu of complying with the existing permit terms and conditions being modified. Rule 7:1 should also be revised to state that if the source fails to comply with the permit terms and conditions in the requested modification, the existing permit terms and conditions may be enforced against it. (2) Revise Rule 7:1 IV.B.3. to limit the discretion of the APCO to authorize sources to commence operation of significant permit modifications prior to final permit action to when the changes meet the criteria of Sec. 70.5(a)(1)(ii). Rule 7:1 IV.B.3. allows the APCO to authorize sources to commence operation of significant permit modifications when the proposed permit revision is publicly noticed but prior to final permit action. Part 70 prohibits sources from making significant permit modification changes prior to final permit issuance unless the changes have undergone preconstruction review pursuant to section 112(g) or a program approved into the SIP pursuant to part C or D of title I, and the changes are not otherwise prohibited by the source's existing part 70 permit. See Sec. 70.5(a)(1)(ii). The authority in Rule 7:1 IV.B.3. is discretionary with the APCO, and EPA expects that the APCO will exercise this authority during the interim approval period only where the change meets the criteria of Sec. 70.5(a)(1)(ii). IV. Approvals Under Section 112 of the Act A. Implementation of 112(g) Upon Program Approval As a condition of approval of its part 70 program, each District is required to implement section 112(g) of the Act from the effective date of its part 70 program. Imposition of case-by-case determinations of maximum achievable control technology (MACT) or offsets under section 112(g) will require the use of a mechanism for establishing federally enforceable restrictions on a source-specific basis. EPA is proposing to approve each District's preconstruction permitting program under the authority of title V and part 70 solely for the purpose of implementing section 112(g) during the transition period between title V approval and adoption of a District rule implementing EPA's section 112(g) regulations. EPA believes this approval is necessary so that each District has a mechanism in place to establish federally enforceable restrictions for section 112(g) purposes from the date of part 70 approval. Although section 112(l) of the Act generally provides the authority for approval of State and local 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. The scope of this approval is narrowly limited to section 112(g), and does not confer or imply approval for purposes of any other provision under the Act. The specific District rules that EPA is approving for this purpose are listed in Attachment I of the TSD for each District. If a District does not wish to implement section 112(g) through its preconstruction permit program and can demonstrate prior to EPA taking final action on its title V program that an alternative means of implementing section 112(g) exists, EPA may, in the final action approving that District's part 70 program, approve the alternative instead. This approval is for an interim period only, until such time as each District is able to adopt regulations consistent with any regulations promulgated by EPA to implement section 112(g). Accordingly, EPA is proposing to limit the duration of this approval to a reasonable time following promulgation of section 112(g) regulations so that each District, acting expeditiously, will be able to adopt regulations consistent with the section 112(g) regulations. EPA is proposing here to limit the duration of this approval to 12 months following promulgation by EPA of section 112(g) regulations. Comment is solicited on whether 12 months is an appropriate period considering each District's procedures for adoption of regulations. B. Program for Delegation of Section 112 Standards as Promulgated Requirements for approval, specified in Sec. 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 each state and/or local program contain adequate authorities, adequate resources for implementation, and an expeditious compliance schedule, which are also requirements under part 70. Therefore, EPA is also proposing to grant approval under section 112(l)(5) and 40 CFR 63.91 of each District's program for receiving delegation of section 112 standards that are unchanged from the Federal standards as promulgated. EPA has interpreted California law (AB 2728) to mean that Districts receive automatic delegation of section 112(d) standards. The details of this delegation mechanism will be set forth in a Memorandum of Agreement as part of the implementation agreement between each District and EPA. EPA expects to be completed this MOA prior to approval of the District's section 112(l) program for straight delegations. This program applies to both existing and future standards but is limited to sources covered by the part 70 program. V. Administrative Requirements A. Request for Public Comments EPA is requesting comments on all aspects of this proposed disapproval/interim approval. Copies of the Districts' submittals and other information relied upon for the proposed disapproval/interim approval are contained in dockets maintained at the EPA Region IX Office. Each docket is an organized and complete file of all the information submitted to, or otherwise considered by, EPA in the development of this proposed disapproval/interim approval and EPA detailed analysis of each program. The principal purposes of the docket are: (1) to allow interested parties a means to identify and locate documents so that they can effectively participate in the approval/ disapproval process, and (2) to serve as the record in case of judicial review. EPA will consider any comments received by [insert date 30 days after date of publication]. Docket number for this proposal is CA-MULTI-94-1-OPS. The docket for each of the four Districts is located in a separate section of this overall docket. B. Executive Order 12866 The Office of Management and Budget has exempted this regulatory action from Executive Order 12866 review. C. Regulatory Flexibility Act 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. Authority: 42 U.S.C. 7401-7671q. Dated: November 9, 1994. John Wise, Acting Regional Administrator. [FR Doc. 94-29268 Filed 11-28-94; 8:45 am] BILLING CODE 6560-50-W --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-29268. Public record. Not legal advice.