Clean Air Act Final Approval of Title V Operating Permits Program Revisions; Final Approval of Amended Synthetic Minor Operating Permit Program as a State Implementation Plan Revision; Bay Area Air Quality Management District, California

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[CA 147-1-6995-a; FRL-5216-3]

Clean Air Act Final Approval of Title V Operating Permits Program

Revisions; Final Approval of Amended Synthetic Minor Operating Permit

Program as a State Implementation Plan Revision; Bay Area Air Quality

Management District, California

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is promulgating direct final approval of the title V

operating permit program revisions adopted by the Bay Area Air Quality

Management District (Bay Area, BAAQMD, or District) on February 1, 1995

and submitted to EPA on March 23, 1995. These revisions modify Bay

Area's title V program as proposed for interim approval on November 29,

1994 by providing for optional permit shield provisions, clarifying

permit application requirements, and making other minor program changes

in response to local concerns. In this direct final action, EPA is also

promulgating approval of revisions that Bay Area made to its synthetic

minor operating permit program. The synthetic minor program allows for

the issuance of federally enforceable state operating permits (FESOP)

and was also proposed for approval on November 29, 1994. The synthetic

minor amendments being approved in this notice clarify the District's

permit modification procedures for synthetic minors. Upon approval, the

amended synthetic minor regulations will be incorporated into Bay

Area's portion of the State Implementation Plan (SIP). In order to

extend the federal enforceability of synthetic minor operating permit

conditions to hazardous air pollutants (HAP), EPA is also approving Bay

Area's amended synthetic minor regulations pursuant to section 112(l)

of the Clean Air Act (Act or CAA).

EFFECTIVE DATE: This action is effective on August 22, 1995 unless

adverse or critical comments are received by July 24, 1995. If the

effective date is delayed, a timely notice will be published in the

Federal Register.

ADDRESSES: Copies of the rules and EPA's Technical Support Document for

the amended title V and synthetic minor programs are available for

public inspection at the following location: Operating Permits Section

(A-5-2), Air and Toxics Division, U.S. Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San Francisco, CA 94105.

Copies of the regulations being incorporated by reference in

today's rule are available for inspection at the following location:

Air Docket (6102), U.S. Environmental Protection Agency, 401 M Street,

SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Celia Bloomfield (telephone 415/744-

1249), Operating Permits Section (A-5-2), Air and Toxics Division, U.S.

Environmental Protection Agency, Region IX, 75 Hawthorne Street, San

Francisco, CA 94105.

SUPPLEMENTARY INFORMATION:

I. Background

On November 29, 1994, EPA proposed in the Federal Register to grant

Bay Area's title V operating permits program interim approval (59 FR

60939) in accordance with title V of the Act (as amended in 1990) and

40 CFR part 70 (the title V implementing regulations). In the same

notice, EPA proposed approval of Bay Area's synthetic minor program

based on the June 28, 1989 (54 FR 27274) approval criteria for

federally enforceable state operating permit programs. On February 1,

1995, Bay Area adopted revisions to Regulation 2, Rule 6 (Regulation 2-

6) and the [[Page 32604]] District's Manual of Procedures, Volume II,

Part 3 (MOP), which implement the District's title V and synthetic

minor programs. These revisions were not made in response to the title

V program deficiencies identified by EPA in the proposed rulemaking,

but rather to address local issues and concerns. EPA is promulgating a

direct final approval of the amendments to coordinate the effective

date of the title V and FESOP programs (which are being promulgated in

today's Final Rules Section) with the effective date of the revisions.

II. EPA Evaluation and Action

On March 23, 1995, the California Air Resources Board (CARB)

submitted to EPA, on behalf of the Bay Area, revisions to the

District's title V operating permits program. The revisions, adopted

February 1, 1995 by the Bay Area, address local issues and concerns and

were not adopted in response to EPA's November 29, 1994 proposed

interim approval notice (59 FR 60939). The District's synthetic minor

program revisions, also adopted on February 1, 1995, were submitted to

EPA by CARB, on behalf of the Bay Area, on March 31, 1995. The

synthetic minor revisions clarify the District's processing of

synthetic minor permit modifications.

The EPA has evaluated the submitted rules and has determined that

they are substantially consistent with 40 CFR part 70 and fully

consistent with the June 28, 1989 approval criteria (54 FR 27274) for

SIP-approved state operating permit programs. The following is a brief

analysis of the key regulatory revisions being acted on in today's

notice. (Please refer to the Technical Support Document for a complete

analysis of the submission.)

A. Analysis of Submission

1. Title V Operating Permit Program

a. Federal Enforceability--Title V permits in the Bay Area will

contain District, State, and federal requirements. Bay Area's

regulation, prior to the February 1, 1995 revisions, interchanged the

terms ``applicable requirement'' and ``federally enforceable

requirement,'' causing District and State-only requirements to become

federally enforceable. (See 59 FR 60942.) On February 1, 1995, Bay Area

revised its regulations to ensure that District and State-only

requirements would not automatically become federally enforceable. (See

2-6-305, 2-6-307, 2-6-311.)

b. Duty to Apply--EPA proposed source category-limited interim

approval of Bay Area's title V program on November 29, 1994 because the

program allows certain sources to remain out of the program for two

years by deferring the duty to apply for a title V permit. On February

1, 1995, Bay Area revised the duty to apply section of its regulation

to clarify eligibility and timing issues associated with this deferral

of applications. The changes ensure that only smaller sources of

emissions will receive the deferral (2-6-403.1). These changes are

consistent with the source category-limited interim approval proposed

in the November 29, 1994 Federal Register notice. The revisions further

specify which sources are required to submit applications within three

months from the effective date of Bay Area's title V program so that

the District can meet federal requirements for initial permit issuance

(2-6-404.7 and section 70.4(b)(11)).

c. Permit Applications--Bay Area made several revisions to its

permit application requirements. The primary substantive revision

relieves sources of the requirement to calculate and summarize

emissions from units that emit quantities below given thresholds (2

tons per year of a regulated air pollutant and 1000 pounds per year of

a hazardous air pollutant) (2-6-405.6). EPA stated in its proposed

notice that it would accept emissions cut-offs of 2 tons per year for

criteria pollutants and the lesser of 1000 pounds per year or the

section 112(g) de minimis levels for hazardous air pollutants (HAP) as

criteria used to establish insignificant activities. According to

section 70.5(c), once an activity qualifies as insignificant under

these cut-offs, a source need only list it on the permit application.

Bay Area's approach is substantially consistent with EPA's

interpretation of insignificant activities. (For further analysis,

please refer to the Technical Support Document located in the docket

and Bay Area's final title V interim approval notice published in

today's Final Rules Section of the Federal Register.)

d. Insignificant Activities--As noted above, section 70.5(c) in

part 70 defines insignificant activities as ``activities and emissions

levels which need not be included in permit applications.'' Bay Area

indicated in the program description for its initial title V submittal

that sources listed as exempt or excluded from permitting in Regulation

2, Rule 1, section 113.3 and sections 114-128 constitute the District's

list of insignificant activities (``November 1993 List''). (See

November 16, 1993 submittal: Program Description, p.II-3; rule 2-6-

405.4, adopted November 3, 1993; and Appendix B, Part III.) The

threshold on the November 1993 List is 150 pounds per day, which

exceeds the level that EPA has allowed to be insignificant; therefore,

EPA noted this provision as an interim approval issue. (See 59 FR

60939, November 29, 1994.) In the February 1, 1995 revisions, rule 2-6-

405.6 is unclear as to whether Bay Area intended to require the

activities on the November 1993 List to be quantified on the permit

application. For an interim period, EPA will allow Bay Area not to

require quantification of emissions from units on the November 1993

List, unless the emissions are necessary for determining the

applicability of requirements or establishing permit terms and

conditions that assure compliance with the applicable requirements.

(See MOP, section 2.1.2, subsection d (p.3-8), adopted February 1,

1995.) At the end of the two-year interim approval period, Bay Area

must demonstrate that each of the activities on the November 1993 List

meet EPA's criteria for insignificant activities in section 70.5(c) and

revise the list to exclude activities and emissions that do not qualify

as insignificant to ensure that such activities and emissions will be

quantified on the permit application. EPA also recommends that the

District clarify that any ``exemption'' or ``exclusion'' provided by

Regulation 2, Rule 1 as referred to in rule 2-6-405.4.2 (February 1,

1995 version of Regulation 2-6) does not exempt sources from title V

permitting requirements.

In addition, the February 1, 1995 version of Regulation 2-6

relieves sources emitting less than 2 tons per year of a regulated air

pollutant or 1000 pounds per year of a hazardous air pollutant from

having to quantify emissions. While the emissions cut-off approach is

acceptable for defining insignificant activities, Bay Area must add a

provision to Regulation 2-6 stating that information from insignificant

activities may not be omitted from the permit application if it is

necessary to determine the applicability of a requirement, to impose

any applicable requirement, or to assess fees (section 70.5(c)). This

addition will ensure that Bay Area's insignificant activities

provisions will not interfere with determining whether and how a CAA

requirement applies at a source.

e. Fees--Section 3 of the revised MOP specifies fees associated

with permit shields, acid rain facility monitors, public notice, etc.

These fees are in addition to those that EPA found adequate for full

approval in its November 29, 1994 proposal. Part 70 gives the District

discretion to establish fees as long as all direct and indirect

[[Page 32605]] costs of the program are covered (section 70.9(b)).

2. Synthetic Minor Operating Permit Program

Bay Area added a definition for ``synthetic minor operating permit

modification'' to section 232 of Regulation 2-6 and procedural

requirements for such modifications in sections 421, 422, and 423. The

definition and procedural requirements provide additional assurance

that revisions made to federally enforceable permit conditions

contained in a synthetic minor permit will be revised in accordance

with the procedures established for initial issuance of the synthetic

minor permit. These revisions are fully approvable since they are

consistent with the five approval criteria for FESOP programs set out

in the June 28, 1989 Federal Register notice. (See 59 FR 60939).

B. Final Action and Implications

The EPA is publishing this notice without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in a separate document in this Federal

Register publication, EPA is proposing approval of Bay Area's title V

and synthetic minor program revisions should adverse or critical

comments be filed. This action will be effective August 22, 1995,

unless, within 30 days of its publication, adverse or critical comments

are received.

If EPA receives such comments, this action will be withdrawn before

the effective date by publishing a subsequent notice that will withdraw

the final action. All public comments received will then be addressed

in a subsequent final rule based on this action serving as a proposed

rule. The EPA will not institute a second comment period on this

action. Any parties interested in commenting on this action should do

so at this time. If no such comments are received, the public is

advised that this action will be effective August 22, 1995.

1. Title V Operating Permits Program

EPA is promulgating approval of the title V operating permit

program revisions submitted to EPA by CARB on March 23, 1995. These

revisions do not correct the deficiencies identified in the November

29, 1994 proposed interim approval, and hence, do not impact Bay Area's

interim approval status. In order for the February 1, 1995 revisions to

be fully approvable with respect to insignificant activities, Bay Area

must revise Regulation 2-6 to: (1) State that the permit application

may not omit any information necessary to determine the applicability

of, or to impose, any applicable requirement, or to assess fees; and

(2) clarify that the November 1993 List no longer defines insignificant

activities, or correct the deficiencies associated with the November

1993 List (59 FR 60939).

2. Synthetic Minor Operating Permit Program

EPA is promulgating approval of the synthetic minor operating

permit program revisions submitted to EPA by CARB on March 31, 1995.

Bay Area has already begun to issue permits containing voluntarily

accepted limits pursuant to the District's synthetic minor regulations

as adopted on February 1, 1995 (synthetic minor provisions are

contained within Regulation 2, Rule 6). If the District followed its

own procedures, each of those permits was subject to public notice and

prior EPA review. Therefore, EPA will consider all voluntarily accepted

limits in any District permit issued pursuant to the February 1, 1995

version of Bay Area's synthetic minor program which is being proposed

for direct final approval in today's Federal Register, to be federally

enforceable upon promulgation of this rule provided that any such

permit is submitted to EPA and accompanied by documentation that the

approved procedures were followed. The EPA will expeditiously review

individual permits to ensure their conformity to the program

requirements.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future 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.

III. Administrative Requirements

A. Docket

Copies of Bay Area's submittal and other information relied upon

for the direct final actions are contained in docket number CA-BA-95-1-

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 direct final rulemaking.

The docket is available for public inspection at the location listed

under the ADDRESSES section of this document.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. Secs. 603 and

604. Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises and

government entities with jurisdiction over population of less than

50,000.

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

new requirements, but simply address revisions to Bay Area's existing

operating permits program that was submitted to satisfy the

requirements of 40 CFR part 70. Application for limits under Bay Area's

synthetic minor provisions is voluntary and therefore does not create

any new requirements. Because these approval actions do not impose any

new requirements, I certify that they do not have a significant impact

on any small entities affected.

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a federal mandate that may result in estimated

costs to state, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated today does

not include a federal mandate that may result in estimated costs of

$100 million or more to either state, local, or tribal governments in

the aggregate, or to the private sector. This federal action approves

pre-existing requirements under state or local law, and imposes no new

federal requirements. Accordingly, no additional costs to state, local,

or tribal governments, or to the private sector, result from this

action.

D. Executive Order 12866

The Office of Management and Budget has exempted this action from

review under Executive Order 12866. [[Page 32606]]

List of Subjects

40 CFR Part 52

Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation

by reference, Intergovernmental relations, Lead, Nitrogen dioxide,

Ozone, Particulate matter, Sulfur oxides, Volatile organic compounds.

40 CFR Part 70

Administrative practice and procedure, Air pollution control,

Environmental protection, Hazardous substances, Intergovernmental

relations, Operating permits, and Reporting and recordkeeping

requirements.

Note: Incorporation by reference of the State Implementation

Plan for the State of California was approved by the Director of the

Federal Register on July 1, 1982.

Dated: May 25, 1995.

David P. Howekamp,

Acting Regional Administrator.

Chapter I, 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.

Subpart F--California

2. Section 52.220 is amended by adding paragraph (c)(216)(i)(B) to

read as follows:

Sec. 52.220 Identification of plan.

* * * * *

(c) * * *

(216) * * *

(i) * * *

(B) Bay Area Air Quality Management District.

(1) Amended Regulation 2, Rule 1, Section 129 adopted on February

1, 1995; Amended Regulation 2, Rule 6, Sections 232, 234, 310, 311,

403, 404, 420, 421, 422, 423 adopted on February 1, 1995.

* * * * *

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 revising paragraph (b) to

the entry for California to read as follows:

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

Permits Programs

* * * * *

(b) Bay Area Air Quality Management District: submitted on November

16, 1993, amended on October 27, 1994, and effective as an interim

program on July 24, 1995. Revisions to interim program submitted on

March 23, 1995 and effective on August 22, 1995 unless adverse or

critical comments are received by July 24, 1995. Approval of interim

program, including March 23, 1995 revisions, expires July 23, 1997.

* * * * *

[FR Doc. 95-15037 Filed 6-22-95; 8:45 am]

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