Clean Air Act Final Interim Approval of Operating Permits Program for Nineteen California Air Pollution Control Districts

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5200-7]

Clean Air Act Final Interim Approval of Operating Permits

Program for Nineteen California Air Pollution Control Districts

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final interim approval.

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SUMMARY: The EPA is promulgating interim approval of the Operating

Permits Program submitted by the California Air Resources Board on

behalf of Amador County Air Pollution Control District (APCD), Butte

County APCD, Calaveras County APCD, Colusa County APCD, El Dorado

County APCD, Feather River Air Quality Management District (AQMD),

Great Basin Unified APCD, Imperial County APCD, Kern County APCD,

Lassen County APCD, Mendocino County APCD, Modoc County APCD, North

Coast Unified AQMD, Northern Sierra AQMD, Northern Sonoma County APCD,

Placer County APCD, Siskiyou County APCD, Tuolumne County APCD, and

Yolo-Solano AQMD, California (districts) 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: June 2, 1995.

ADDRESSES: Copies of the nineteen districts' submittals and other

supporting information used in developing the final interim approval

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, please contact: Sara

Bartholomew, Operating Permits Section, A-5-2, Air and Toxics Division,

U.S. EPA-Region IX, 75 Hawthorne Street, San Francisco, California

94105, (415) 744-1170.

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 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 December 8, 1994, EPA proposed interim approval of the operating

permits programs for Amador County APCD, Butte County APCD, Calaveras

County APCD, Colusa County APCD, El Dorado County APCD, Feather River

AQMD, Great Basin Unified APCD, Imperial County APCD, Kern County APCD,

Lassen County APCD, Mendocino County APCD, Modoc County APCD, North

Coast Unified AQMD, Northern Sierra AQMD, Northern Sonoma County APCD,

Placer County APCD, Siskiyou County APCD, Tuolumne County APCD, and

Yolo-Solano AQMD, California. See 54 FR 63289. The EPA received public

comment on the proposal, and is responding to those comments in this

document and in a separate ``Response to Comments'' document that is

[[Page 21721]] available in the docket. The EPA also compiled a

Technical Support Document (TSD) for each of the nineteen districts,

which describes each operating permits program in greater detail.

In this notice EPA is taking final action to promulgate interim

approval of the operating permits program for Amador County APCD, Butte

County APCD, Calaveras County APCD, Colusa County APCD, El Dorado

County APCD, Feather River AQMD, Great Basin Unified APCD, Imperial

County APCD, Kern County APCD, Lassen County APCD, Mendocino County

APCD, Modoc County APCD, North Coast Unified AQMD, Northern Sierra

AQMD, Northern Sonoma County APCD, Placer County APCD, Siskiyou County

APCD, Tuolumne County APCD, and Yolo-Solano AQMD, California.

II. Final Action and Implications

A. Analysis of State Submission

EPA received two comment letters on the proposed rulemaking for the

districts, one from the National Environmental Development Associations

Clean Air Regulatory Project (``NEDA/CARP''), and one from the American

Forest & Paper Association (``AF&PA''), both dated January 9, 1995. The

issues discussed in the December 8, 1994 proposal were not changed as a

result of public comment with the exception of the implementation of

section 112(g) from the effective date of the title V program. EPA's

final action is being revised from the proposed notice with respect to

this issue. This change is discussed below along with other issues

raised during the public comment period.

1. 112(g) Implementation

NEDA/CARP and AF&PA both submitted comments regarding EPA's

proposed approval of the nineteen California districts' preconstruction

permitting programs 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. In

opposition to the proposed action, the commenters argued that the

nineteen districts should not, and cannot, implement section 112(g)

until: (1) EPA has promulgated a section 112(g) regulation; and (2) the

District has a section 112(g) program in place.

EPA received many comments nationally on this issue, and agrees

that it is not reasonable to expect the states and districts to

implement section 112(g) before a rule is issued. EPA has therefore

published an interpretive notice in the Federal Register regarding

section 112(g) of the Act: 60 FR 8333 (February 14, 1995). This notice

outlines EPA's revised interpretation of 112(g) applicability prior to

EPA's issuing the final 112(g) rule. The notice states that major

source modifications, constructions, and reconstructions will not be

subject to 112(g) requirements until the final rule is promulgated. EPA

expects to issue the 112(g) final rule in September 1995.

The notice further explains that EPA is considering whether the

effective date of section 112(g) should be delayed beyond the date of

promulgation of the Federal rule so as to allow States and Districts

time to adopt rules implementing the Federal rule, and that EPA will

provide for any such additional delay in the final section 112(g)

rulemaking. Unless and until EPA provides for such an additional

postponement of section 112(g), the nineteen districts must be able to

implement section 112(g) during the period between promulgation of the

Federal section 112(g) rule and adoption of implementing District

regulations.

For this reason, EPA is proposing to approve the nineteen

districts' preconstruction review programs as a mechanism to implement

section 112(g) during the transition period between promulgation of the

section 112(g) rule and adoption by the nineteen districts of rules

specifically designed to implement section 112(g). However, since

approval is intended solely to confirm that the districts have

mechanisms to implement section 112(g) during the transition period,

the approval itself will be without effect if EPA decides in the final

section 112(g) rule that there will be no transition period. The EPA is

limiting the duration of its approval of the use of preconstruction

programs to implement 112(g) to 12 months following promulgation by EPA

of the section 112(g) rule.

2. Insignificant Activities

NEDA/CARP and AF&PA both assert that EPA lacks the legal footing to

reject the districts' present ``insignificant levels,'' and that EPA

has no authority to hold out ``suggested'' emission levels as a

threshold for receiving full approval.

EPA disagrees that it lacks authority to reject inappropriate or

unsupported insignificance levels, or to articulate on a program-by-

program basis levels that it definitely would accept. Part 70 allows

States to deem certain activities or emission levels insignificant if

they are listed in the program submitted to EPA and approved by EPA,

but does not grant States authority to create new exemptions without

EPA approval. Section 70.4(b)(2) requires the submittal of criteria

used to determine insignificant activities, and Sec. 70.5(c) does not

allow States to create an insignificant activities permit exemption if

the exemption will interfere with the imposition of applicable

requirements or the collection of fees. In addition, part 70 explicitly

authorizes EPA to approve insignificant activities based on emission

levels (Sec. 70.5(c)). EPA has the legal authority to reject district

provisions which contravene these part 70 requirements.

As stated in the proposal, most of the nineteen programs provided

EPA with no criteria or information on the level of emissions of

activities on the districts' exemption lists. In addition, the specific

insignificant activities provisions submitted by the districts have

raised concerns with EPA regarding the districts' ability to ensure

that applicable requirements are included in permits. None of the

nineteen districts provided EPA with a demonstration to the contrary.

For these reasons, the nineteen districts' lists of insignificant

activities are not acceptable.

In the proposed rulemaking EPA suggested insignificance levels that

the Agency would find acceptable even without a further demonstration.

Neither of the commenters specifically addressed these sugested

insignificance levels. EPA would like to note that the nineteen

districts have the flexibility to modify their regulations and submit

criteria for EPA approval of new exemptions, as long as each district

demonstrates, or EPA is otherwise satisfied, that such alternative

emission levels are insignificant compared to the level of emissions

and types of units that are permitted or subject to applicable

requirements.

3. Public Petitions to EPA

NEDA/CARP and AF&PA both registered their concern regarding the

public petition requirements, notification and other procedural

requirements, stating that they believe these requirements will thwart

efforts in California to develop market incentive approaches to

emissions reductions.

Provisions for public participation, notification and public

petitions are required under title V of the Clean Air Act (CAA

502(b)(6) for public participation, and CAA 505(b)(2) for public

petitions), and are therefore included in part 70, the regulations that

implement title V. EPA believes public participation does not preclude

a district from developing market based incentive programs.

[[Page 21722]]

4. Compliance Certification

NEDA/CARP and AF&PA both contend that EPA has misread its own rule

in requiring that the full text of the responsible official's

certification be included in both the application content and permit

content. They argue that the provision of Sec. 70.5(d) sets out the

terms and conditions for any certification of an application form,

report or compliance made pursuant to the rules, but does not establish

a signatory statement that must be attested to by the responsible

official to the exclusion of all other statements (emphasis in comment

letters).

EPA disagrees with the above comment. Section 70.5 requires that:

``This certification * * * shall state that, based on information and

belief formed after reasonable inquiry, the statements and information

in the document are true, accurate, and complete'' (emphasis added).

This indicates that it is not sufficient merely for the responsible

official to sign the certification; the certificate must state that he

or she considered the issue carefully. The statement must contain the

essential elements of Sec. 70.5(d), and include the words quoted above.

EPA does not rule out having a pre-printed statement on the certificate

for convenience.

5. Deviation Reporting

NEDA/CARP and AF&PA both contend that it is necessary for EPA to

revise several of its earlier interim approval notices, in which the

Agency conditioned final approval on including a definition of

``prompt'' in the state operating permits program, in order to provide

a consistent application of the appropriate interpretation of its

rules.

In the proposed interim approval notice EPA stated that the

nineteen districts' regulations should define the meaning of ``prompt''

as used in the requirement found at 40 CFR 70.6(a)(3)(iii)(B), which

requires ``prompt'' reporting of deviations from applicable

requirements. The Agency indicated that an acceptable alternative to

defining in the regulation what constitutes ``prompt'' is to define

``prompt'' in each individual permit.

NEDA/CARP and AF&PA both support this approach. EPA has

consistently asserted that this is an acceptable alternative to

defining ``prompt'' in the body of the permitting regulations, and sees

no need to revisit past interim approval actions to clarify this

interpretation of the definition of what constitutes ``prompt''

reporting of deviations from applicable requirements.

6. Potential to Emit

In the proposed rulemaking, EPA required Amador and Tuolumne

counties to revise the definition of ``potential to emit'' in their

rules to clarify that only federally-enforceable limitations may be

considered in determining a source's potential to emit. NEDA/CARP and

AF&PA both argue that limitations based on state requirements, as well

as federally-enforceable limitations, should be considered in

determining the potential to emit.

EPA's requirement that Amador and Tuolumne revise their definitions

of the term ``potential to emit'' is based upon the definition of that

term found in 40 CFR 70.2. Section 70.2 defines ``potential to emit''

as the maximum capacity of a stationary source to emit any air

pollutant under its physical and operational design. The definition

further provides, however, that a physical and operational limit on

potential to emit is considered to be part of the source's design if it

is enforceable by EPA. Since the Amador and Tuolumne rules do not

conform to this critical definition, the districts must revise their

programs to clarify that only federally enforceable restrictions can

provide a legal limitation on a source's potential to emit.

B. Final Action

The EPA is promulgating interim approval of the operating permits

programs submitted by the California Air Resources Board on behalf of

Amador County APCD (complete submittal received on December 27, 1993),

Butte County APCD (complete submittal received on December 16, 1993),

Calaveras County APCD (complete submittal received on October 31,

1994), Colusa County APCD (complete submittal received on February 24,

1994), El Dorado County APCD (complete submittal received on November

16, 1993), Feather River AQMD (complete submittal received on November

16, 1993), Great Basin Unified APCD (complete submittal received on

January 12, 1994), Imperial County APCD (complete submittal received on

March 12, 1994), Kern County APCD (complete submittal received on

November 16, 1993), Lassen County APCD (complete submittal received on

January 12, 1994), Mendocino County APCD (complete submittal received

on December 27, 1993), Modoc County APCD (complete submittal received

on December 27, 1993), North Coast Unified AQMD (complete submittal

received on February 24, 1994), Northern Sierra AQMD (complete

submittal received on June 6, 1994), Northern Sonoma County APCD

(complete submittal received on January 12, 1994), Placer County APCD

(complete submittal received on December 27, 1993), Siskiyou County

APCD (complete submittal received on December 6, 1993), Tuolumne County

APCD (complete submittal received on November 16, 1993), and Yolo-

Solano AQMD (complete submittal received on October 14, 1994),

California.

The nineteen districts must make the changes specified in the

proposed rulemaking, under II.C., District Title V Interim Approval

Issues Common to All Nineteen Districts and Section III., Individual

District Title V Interim Approval Issues, in order to be granted full

approval.

The scope of the nineteen districts' part 70 programs approved in

this notice applies to all part 70 sources (as defined in the approved

program) within the districts, except any sources of air pollution over

which an Indian Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-

55818 (Nov. 9, 1994). The term ``Indian Tribe'' is defined under the

Act as ``any Indian tribe, band, nation, or other organized group or

community, including any Alaska Native village, which is Federally

recognized as eligible for the special programs and services provided

by the United States to Indians because of their status as Indians.''

See section 302(r) of the CAA; see also 59 FR 43956, 43962 (Aug. 25,

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

This interim approval, which may not be renewed, extends until June

3, 1997. During this interim approval period, the nineteen districts

are protected from sanctions, and EPA is not obligated to promulgate,

administer and enforce a Federal operating permits program in any of

these districts. 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 any of the nineteen districts fails to submit a complete

corrective program for full approval by December 3, 1996, EPA will

start an 18-month clock for mandatory sanctions. If any of the

districts then fail to submit a corrective program that EPA finds

complete before the expiration of that 18-month period, EPA will apply

sanctions to that district as required by section 502(d)(2) of the Act,

which will remain in effect until EPA determines that the district has

[[Page 21723]] corrected the deficiency by submitting a complete

corrective program.

If EPA disapproves any of the nineteen districts' complete

corrective program, EPA will apply sanctions to that district or

districts as required by section 502(d)(2) on the date 18 months after

the effective date of the disapproval, unless prior to that date the

district or districts has submitted a revised program and EPA has

determined that the district or districts corrected the deficiencies

that prompted the disapproval.

In addition, discretionary sanctions may be applied where warranted

any time after the expiration of an interim approval period if any of

the nineteen districts 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 any of the nineteen

districts' programs 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 those districts

lacking full approval, 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 or District'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 nineteen

districts' programs 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 nineteen districts' submittals and other information

relied upon for the final interim approval, including two public

comments received and reviewed by EPA on the proposal, are contained in

docket number CA-NONGR19-94-01-OPS, maintained at the EPA Regional

Office. The docket is an organized and complete file of all the

information submitted to, or otherwise considered by, EPA in the

development of this 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.

The EPA's actions under section 502 of the Act do not create any

new requirements, but simply address operating permits programs

submitted to satisfy the requirements of 40 CFR part 70. Because this

action does not impose any new requirements, it does not have a

significant impact on a substantial number of small entities.

C. Regulatory Flexibility Act

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: April 21, 1995.

John Wise,

Acting Regional Administrator.

Part 70, title 40 of the Code of Federal Regulations is amended as

follows:

PART 70--[AMENDED]

1. The authority citation for part 70 continues to read as follows:

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

2. Appendix A to part 70 is amended by adding the entry for

California in alphabetical order to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating

Permits Programs

* * * * *

California

The following district programs were submitted by the California

Air Resources Board on behalf of:

(a) Amador County Air Pollution Control District (APCD) (complete

submittal received on September 30, 1994); interim approval effective

on June 2, 1995; interim approval expires June 3, 1997.

(b) [Reserved]

(c) Butte County APCD (complete submittal received on December 16,

1993); interim approval effective on June 2, 1995; interim approval

expires June 3, 1997.

(d) Calaveras County APCD (complete submittal received on October

31, 1994); interim approval effective on June 2, 1995; interim approval

expires June 3, 1997.

(e) Colusa County APCD (complete submittal received on February 24,

1994); interim approval effective on June 2, 1995; interim approval

expires June 3, 1997.

(f) El Dorado County APCD (complete submittal received on November

16, 1993); interim approval effective on June 2, 1995; interim approval

expires June 3, 1997.

(g) Feather River Air Quality Management District (AQMD) (complete

submittal received on December 27, 1993); interim approval effective on

June 2, 1995; interim approval expires June 3, 1997.

(h) [Reserved]

(i) Great Basin Unified APCD (complete submittal received on

January 12, 1994); interim approval effective on June 2, 1995; interim

approval expires June 3, 1997.

(j) Imperial County APCD (complete submittal received on March 24,

1994); interim approval effective on June 2, 1995; interim approval

expires June 3, 1997.

(k) Kern County APCD (complete submittal received on November 16,

1993); interim approval effective on June 2, 1995; interim approval

expires June 3, 1997.

(l) [Reserved]

(m) Lassen County APCD (complete submittal received on January 12,

1994); interim approval effective on June 2, 1995; interim approval

expires June 3, 1997.

(n) [Reserved]

(o) Mendocino County APCD (complete submittal received on December

27, 1993); interim approval effective on June 2, 1995; interim approval

expires June 3, 1997.

(p) Modoc County APCD (complete submittal received on December 27,

1993); interim approval effective on June 2, 1995; interim approval

expires June 3, 1997.

(q) [Reserved]

(r) [Reserved]

(s) North Coast Unified AQMD (complete submittal received on

February 24, 1994); interim approval effective on June 2, 1995; interim

approval expires June 3, 1997.

(t) Northern Sierra AQMD (complete submittal received on June 6,

1994); interim approval effective on June 2, 1995; interim approval

expires June 3, 1997.

(u) Northern Sonoma County APCD (complete submittal received on

January 12, 1994); interim approval effective on June 2, 1995; interim

approval expires June 3, 1997.

(v) Placer County APCD (complete submittal received on December 27,

1993); interim approval effective on June 2, 1995; interim approval

expires June 3, 1997.

(w) [Reserved] [[Page 21724]]

(x) [Reserved]

(y) [Reserved]

(z) [Reserved]

(aa) [Reserved]

(bb) [Reserved]

(cc) Siskiyou County APCD (complete submittal received on December

6, 1993); interim approval effective on June 2, 1995; interim approval

expires June 3, 997.

(dd) [Reserved]

(ee) [Reserved]

(ff) Tuolumne County APCD (complete submittal received on November

16, 1993); interim approval effective on June 2, 1995; interim approval

expires June 3, 1997.

(gg) [Reserved]

(hh) Yolo-Solano AQMD (complete submittal received on October 14,

1994); interim approval effective on June 2, 1995; interim approval

expires June 3, 1997.

* * * * *

[FR Doc. 95-10825 Filed 5-2-95; 8:45 am]

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