Clean Air Act Final Interim Approval of the Operating Permits Program; Final Approval of State Implementation Plan Revision for the Issuance of Federally Enforceable State Operating Permits; Bay Area Air Quality Management District, California

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[CA 77-1-6996; AD-FRL-5216-5]

Clean Air Act Final Interim Approval of the Operating Permits

Program; Final Approval of State Implementation Plan Revision for the

Issuance of Federally Enforceable State Operating Permits; Bay Area Air

Quality Management District, California

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is promulgating interim approval of the title V

operating permits program submitted by the Bay Area Air Quality

Management District (Bay Area, BAAQMD, or District) for the purpose of

complying with federal requirements that mandate that states develop,

and submit to EPA, programs for issuing operating permits to all major

stationary sources and to certain other sources. In addition, EPA is

promulgating final approval of a revision to Bay Area's portion of the

California State Implementation Plan (SIP) regarding synthetic minor

regulations for the issuance of federally enforceable state operating

permits (FESOP). In order to extend the federal enforceability of state

operating permits to hazardous air pollutants (HAP), EPA is also

finalizing approval of Bay Area's synthetic minor regulations pursuant

to section 112(l) of the Clean Air Act (CAA or Act). Finally, today's

action grants final approval to Bay Area's mechanism for receiving

delegation of section 112 standards as promulgated.

EFFECTIVE DATE: July 24, 1995.

ADDRESSES: Copies of Bay Area's submittals and other supporting

information used in developing the final approvals are available for

inspection (docket number CA-BA-94-1-OPS) during normal business hours

at the following location: U.S. Environmental Protection Agency, Region

IX, Air & Toxics Division, 75 Hawthorne Street, San Francisco, CA

94105. Copies of the regulations being incorporated by reference in

today's rule are also available for inspection at the following

location: Air Docket (6102), U.S. Environmental Protection Agency, 401

M Street, S.W., Washington, D.C. 20460.

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

1249), Mail Code A-5-2, U.S. Environmental Protection Agency, Region

IX, Air & Toxics Division, 75 Hawthorne Street, San Francisco, CA

94105.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

Title V of the 1990 Clean Air Act Amendments (sections 501-507 of

the Clean Air Act (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 November 29, 1994, EPA proposed interim approval of the

operating permits program for Bay Area, California. See 59 FR 60939.

The November 29, 1994 Federal Register document also proposed approval

of Bay Area's interim mechanism for implementing section 112(g) and

program for delegation of section 112 standards as promulgated. Public

comment was solicited on these proposed actions. 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

available in the docket at the Regional office. In this notice, EPA is

promulgating interim approval of Bay Area's operating permits program

and approving the section 112(g) and section 112(l) mechanisms noted

above.

On June 28, 1989 (54 FR 27274), EPA published criteria for

approving and incorporating into the SIP regulatory programs for the

issuance of federally enforceable state operating permits. Permits

issued pursuant to a program meeting the June 28, 1989 criteria and

approved into the SIP are considered [[Page 32607]] federally

enforceable for criteria pollutants. The synthetic minor mechanism may

also be used to create federally enforceable limits for emissions of

hazardous air pollutants (HAP) if it is approved pursuant to section

112(l) of the Act.

In the November 29, 1994 Federal Register document, EPA also

proposed approval of Bay Area's synthetic minor program for creating

federally enforceable limits in District operating permits. In this

notice, EPA is promulgating approval of the synthetic minor program for

the Bay Area as a revision to Bay Area's SIP and pursuant to section

112(l) of the Act.

II. Final Action and Implications

A. Analysis of State Submission and Response to Public Comments

On November 29, 1994, EPA proposed interim approval of Bay Area's

title V operating permits program as it was submitted on November 16,

1993 and amended on October 27, 1994. Since the time that EPA proposed

interim approval, Bay Area adopted regulations to implement title IV of

the Act. On September 21, 1994, Bay Area incorporated part 72 by

reference into District Regulation 2, Rule 7. Regulation 2, Rule 7 was

submitted to EPA on December 29, 1994, and it corrects the first

program deficiency (i.e., acid rain definitions) identified in the

proposed interim approval notice by incorporating the federal acid rain

definitions by reference and by stating that ``if the provisions or

requirements of 40 CFR Part 72 are determined to conflict with

Regulation 2, Rule 6, the provisions and requirements of Part 72 shall

apply and take precedence.''

EPA recently became aware that the November 29, 1994 proposal

incorrectly identified District Regulation 1, sections 431-433. Those

regulations are SIP-approved District breakdown provisions (September

2, 1981, 46 FR 43968) and are recognized by EPA.

EPA received comments on the proposed interim approval of the Bay

Area program from three public commenters: New United Motor

Manufacturing Inc. (NUMMI), BAAQMD, and the National Stone Association

(NSA). Several interim approval issues set forth in the November 29,

1994 proposal were modified as a result of public comment. These

changes are discussed below along with other issues raised during the

public comment period. EPA's final action, as set forth in section

II.B. below, is being revised from the proposed notice in response to

public comment. EPA received no adverse public comment on the proposed

approval of Bay Area's synthetic minor program or program for receiving

section 112(l) standards as promulgated.

1. Section 112(g) Implementation

One commenter stated that in the absence of a final section 112(g)

regulation, Bay Area should be allowed to use its existing air toxics

program and de minimis levels to determine case-by-case Maximum

Achievable Control Technology (MACT) for new, reconstructed, and

modified sources. The commenter further stated that the broad statutory

requirements of section 112(g) should not supersede Bay Area's existing

toxics program.

EPA has received many comments on various state part 70 programs

concerning 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 section 112(g) applicability prior to EPA's issuing the final

section 112(g) rule. The notice states that major source modifications,

constructions, and reconstructions will not be subject to section

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

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

The interpretative 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 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), Bay Area 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.

In the November 29, 1994 Federal Register notice proposing interim

approval for the Bay Area's title V program, EPA also proposed to

approve the use of Bay Area's preconstruction review program as a

mechanism to implement section 112(g) during the transition period

between promulgation of the section 112(g) rule and adoption by the Bay

Area of rules specifically designed to implement section 112(g). Since

approval is intended solely to confirm that the District has a

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

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

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

Bay Area commented that EPA should allow California districts 18

months, rather than 12 months, to develop section 112(g) regulations

following EPA's promulgation of the federal section 112(g) rule. Bay

Area stated that 12 months is not sufficient time to both undergo the

regulatory development process and prepare a section 112(l) equivalency

package for approval of the District's regulation to be used in lieu of

the federal section 112(g) rule.

EPA has approved an 18-month transition period in other states and

does not see a unique reason to limit the Bay Area to 12 months.

Therefore, EPA will allow Bay Area 18 months from the date of EPA's

final section 112(g) rule to develop and submit district regulations

for the implementation of section 112(g). If the final section 112(g)

rule, however, eliminates the transition period, Bay Area must follow

the implementation time lines set out in that rulemaking.

2. Certification by a Responsible Official

One commenter objected to EPA's statement, under program

deficiencies, that any document submitted in conjunction with a title V

permit must be certified by a responsible official. The commenter

stated that part 70 specifies which documents must be certified and

that requiring ``any document'' to be certified represents an overly

strict interpretation of section 70.6(c)(1).

EPA disagrees that the requirement to certify ``any document''

required by the permit is either redundant or unwarranted. The use of

the term ``any document'' is necessary to ensure that all documents

required to be certified under part 70 will be certified. Including the

language in section 70.6(c)(1) should not create any additional burden

than if the documents were all specifically listed. As the Bay Area's

program is currently written, only semiannual reports and annual

compliance certifications need to be certified by a responsible

official. The Bay Area's program fails to specify certification of

other required documents such as progress reports associated with a

compliance schedule (section 70.6(c)(4)) or prompt reports of permit

deviations (section 70.6(a)(3)(iii)(B)). Adding a requirement

consistent with section 70.6(c)(1) would correct such omissions.

On a related note, EPA believes that, in one respect, the language

suggested [[Page 32608]] in the November 29, 1994 Federal Register

proposal may have been an overly inclusive interpretation of section

70.6(c)(1). Section 70.6(c)(1) reads, ``Any document (including

reports) required by a part 70 permit shall contain a certification by

a responsible official * * *'' While the commenter focused on the words

``any document,'' EPA believes that the overly inclusive language in

the proposed interim approval is the reference to any document

submitted ``in conjunction with'' a permit. Therefore, Bay Area may

substitute the phrase ``required by,'' rather than ``in conjunction

with,'' when correcting the above deficiency.

3. Insignificant Activities

Two commenters responded to EPA's identification of deficiencies

regarding Bay Area's insignificant activities list and significance

thresholds. The commenters raised several points, the first being that

EPA's recommended insignificance levels would impose unnecessary

administrative burdens.

EPA does not agree that the cut-off levels proposed in the November

29, 1994 notice of 2 tons per year (tpy) for criteria pollutants and

the lesser of 1000 pounds per year or the section 112(g) de minimis

levels for hazardous air pollutants (HAP) would create an unreasonable

administrative burden. Insignificant activities are relevant only

during the initial application phase when the source has to determine

what information must be included in its permit application. Regardless

of the list of insignificant activities or the cut-off emissions

levels, the source may not omit from its application any information

that is necessary to determine applicability, impose an applicable

requirement, or assess fees (section 70.5(c)).

EPA also disagrees that the requirement to describe emissions from

activities not qualifying as insignificant is overly burdensome. First,

sources can use reliable emissions factors rather than extensive

testing and monitoring. Second, the source descriptions required by

section 70.5(c)(3)(ii) need only include sufficient detail to determine

fees and the applicability of requirements of the Act. Finally, in many

cases, smaller units can be aggregated and described in general terms

if such an approach would not interfere with determining whether and

how an applicable requirement applies at a source.

A second point raised in comment was that the redesignation of Bay

Area to attainment status for ozone justifies a higher insignificance

threshold for criteria pollutants. EPA agrees that emissions cut-offs

for insignificant activities should be based on area-specific

circumstances and analysis. The proposed notice recommended a 2 tpy

cut-off for criteria pollutants for the Bay Area because of the large

number of sources and emissions in the District, the high population

density, and the distinct relationship between regulatory compliance

and air quality improvement in the Bay Area. While EPA is open to

evaluating alternative emissions cut-offs, such a proposal must clearly

demonstrate that the higher level of emissions are insignificant for

the Bay Area.

An industry commenter also requested that EPA accept Bay Area's

categorical permit exemption list as its list of insignificant

activities. While part 70 allows state and local agencies to submit a

list of insignificant activities and emissions levels for approval,

this list must be accompanied by selection criteria that will assure

insignificance with respect to federal applicable requirements

(sections 70.4(b)(2) and 70.5(c)). The fact that the District has a

preexisting exemption list does not constitute sufficient justification

of insignificance. Because Bay Area has not provided EPA with

justification for each categorical exemption, EPA does not have

adequate information on which to evaluate the activities.

A fourth point raised in response to EPA's recommended

insignificance thresholds was the suggestion that a single emissions

cut-off be used to define insignificant activities for HAP-emitting

sources. The commenter suggested that a single threshold would be more

appropriate than the section 112(g) de minimis values since the Act

uses a broad 10 tpy applicability threshold.

EPA recommended using the proposed section 112(g) de minimis levels

because they define what EPA, through research and science, has

determined to be significant enough to warrant review by the public and

EPA on a facility-wide basis. EPA believes that the section 112(g) de

minimis levels would more easily allow the permitting authority to

verify independently the applicability of requirements and should serve

as an upper bound on which activities may be excluded from permit

applications. The same result may be achieved, however, with a single

cut-off of 1000 pounds per year if the threshold is accompanied by a

caveat that activities and emissions necessary for determining the

applicability of, or imposing an applicable requirement on, the source

may not be omitted from the permit application.

A fifth comment regarding insignificant activities was Bay Area's

objection to adding an ``applicable requirement gatekeeper'' that

excludes activities subject to an applicable requirement from

classification as insignificant. Bay Area asserted that the applicable

requirement gatekeeper for insignificant activities is too stringent

since some state implementation plans (SIPs) contain requirements such

as opacity limits that would generally apply to all activities at the

facility regardless of size.

EPA understands Bay Area's concerns and believes that the

applicable requirement gatekeeper can be added to Bay Area's program

without nullifying the usefulness of insignificant activities. EPA

recognizes that certain requirements approved into the SIP, such as

opacity standards, are applicable not to specific emissions units, but

instead to the facility as a whole. Therefore, the presence of an

applicable opacity limit does not mean that every emissions unit at the

facility must be described in the application since the applicability

of the requirement is clear.

4. Notice to the Public and Affected States

Bay Area disagreed with the public and affected state notice

deficiencies identified by EPA in the proposed interim approval notice.

First, Bay Area objected to revising its program to include affected

state notice provisions for Native American tribes since there is not

currently a potentially affected tribe that is eligible for treatment

as a state.

EPA is concerned about Bay Area's proposal to delay adoption of

affected state notice provisions until tribes apply for state status.

Although the federal rule that will enable tribes to apply for

treatment as states has not yet been finalized, and there are no tribes

currently eligible for treatment as a state under the Act, EPA believes

that the likelihood of Native American tribes qualifying as affected

states under part 70 is great and that Bay Area will ultimately need to

revise its rule to address this outcome. Nonetheless, as an alternative

to up-front adoption of affected state notice provisions, EPA will

accept a commitment from Bay Area to: (1) initiate rule revisions upon

notification from EPA that an affected tribe has applied for state

status, and (2) provide affected state notice to tribes upon their

filing for state status, that is, prior to the District's adoption of

affected state notice rules. Second, Bay Area also objected to adding

the phrase ``by other means if necessary to assure adequate notice to

the affected public'' [[Page 32609]] to the District's public notice

procedures. Bay Area claimed that its existing public notice procedures

already assure adequate notice to the affected public.

EPA acknowledges that the Bay Area has an extensive public notice

process and that it is adequate in most circumstances. However, EPA

also realizes that the United States, in general, and the Bay Area, in

particular, consist of diverse communities with varying ties to the

publications used for public notification. EPA proposed adding the

phrase ``by other means if necessary to assure adequate notice to the

affected public * * * '' to Bay Area's public notice provisions to give

Bay Area the legal authority to expand its notification procedures if

notice under existing procedures is ever inadequate. The additional

language is not intended to require the Bay Area to expand its routine

notification procedures, but rather to allow the District to take extra

steps when circumstances dictate.

5. Alternative Emission Limits

Bay Area believes that EPA's concerns regarding alternative

emission limits can be handled on a permit-by-permit basis rather than

by revising the District's Manual of Procedures (MOP). Bay Area's MOP

states that alternative emission control plans issued pursuant to

District Regulation 8 may be incorporated into title V permits. In the

proposed interim approval notice, EPA stated that the permit may

contain an alternative emission limit only if it has been approved into

Bay Area's SIP. The MOP provides no assurance that an alternative

emission control plan in District Regulation 8 is SIP-approved before

it is incorporated into a title V permit. In response, Bay Area

commented that if the alternative emission control plan in District

Regulation 8 has been approved into the SIP, it will become part of the

federally enforceable portion of the permit; if it has not been

approved into the SIP, it will become part of the state-only portion of

the permit.

EPA finds this permit-by-permit approach acceptable. However, the

current language in the MOP does not distinguish between alternative

emission control plans in District Regulation 8 that have been approved

into the SIP and alternative emission control plans in Regulation 8

that have not been approved into the SIP. Therefore, in order to

correct this deficiency, the District must add a provision to the MOP

(section 4.1) stating that only alternative emission control plans that

have been approved into the SIP may be incorporated into the federally

enforceable portion of the permit.

6. Emissions Trading

Bay Area commented that the emissions trading provisions of section

70.6(a)(10) should not be required for the Bay Area since the

District's new source review program prohibits emissions increases at a

facility without a case-by-case approval. EPA does not support Bay

Area's position on this matter. Bay Area must include a provision

consistent with section 70.6(a)(10) to ensure that the District can

implement mandatory trading opportunities that may arise in specific

federal requirements.

7. Particulate Matter (PM) Issues

The National Stone Association raised several issues regarding PM

that were not relevant to EPA's proposed interim approval of Bay Area's

operating permits program. Therefore, EPA is addressing these comments

in the Response to Comments Document (located in the docket at the

Regional Office) and not in this final interim approval notice.

B. Final Action

1. Title V Operating Permits Program

The EPA is promulgating interim approval of Bay Area's title V

operating permits program as submitted on November 16, 1993 and amended

on October 27, 1994. Bay Area must make the following changes to

receive full approval:

(1) Provide a demonstration that each activity on Bay Area's

insignificant activities list (See p. II-3 of program description, 2-6-

405.4, and list in Appendix B.) is truly insignificant and is not

likely to be subject to an applicable requirement. Alternatively, the

District may establish emissions level cut-offs, in which activities

emitting below the cut-offs would qualify as insignificant. In the

latter case, the District must demonstrate that the cut-off emissions

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. In addition, Bay Area must revise Regulation

2, Rule 6 to state that activities needed to determine the

applicability of, or impose applicable requirements on, the facility

may not qualify as insignificant activities. (Secs. 70.5(c) and

70.4(b)(2))

(2) Include a term consistent with the part 70 definition of

``applicable requirement,'' and use that term consistently in rules 2-

6-409.1, 2-6-409.2 and throughout the regulation. As currently written,

Bay Area's regulation requires that ``all federal * * * air quality

requirements'' be incorporated into permits (2-6-409.1); yet, the term

is never defined. Bay Area's program does define ``applicable

requirement'' (2-6-202), but the definition deviates from the part 70

definition and includes non-federally enforceable District and State

requirements. Bay Area's definition of ``federally enforceable'' (2-6-

207) appears to address the federal definition of ``applicable

requirement''; however, it does not include the entire list of

applicable requirements, and it is not clearly used in the permit

content section of Regulation 2-6.

(3) Rule 2-6-409 must be revised to require that permit terms and

conditions assure compliance with all applicable requirements

(Sec. 70.7(a)(1)(iv)) and that permits contain emission limitations and

standards (Sec. 70.6(a)(1)) and compliance certification requirements

(Sec. 70.6(c)(1)) that assure compliance with all applicable

requirements. As Regulation 2-6 is currently written, the District's

title V permits only have to include requirements for testing,

monitoring, reporting, and recordkeeping sufficient to assure

compliance with the terms and conditions of the permit and the

applicable requirements themselves. (2-6-409.1 and 2-6-409.2)

(4) Require that certifications by the responsible official

affirmatively state that they are based on truth, accuracy, and

completeness and that they are based on information and belief formed

after reasonable inquiry. Bay Area must revise 2-6-405.9, 2-6-502, MOP

(4.5 and 4.7), and any other certification provisions to ensure that

both elements are explicitly required. (Sec. 70.5(d))

(5) Revise Regulation 2-6 to define and require notice to, affected

states. Alternatively, Bay Area may make a commitment to: (1) Initiate

rule revisions upon being notified by EPA of an application by an

affected tribe for state status, and (2) provide affected state notice

to tribes upon their filing for state status (i.e., prior to Bay Area's

adopting affected state notice rules).

(6) Eliminate the phrase ``but not limited to'' from the definition

of ``administrative permit amendment'' (2-6-201). Only changes

identified in the rule and approved as part of Bay Area's program may

be processed as administrative amendments. (Sec. 70.7(d)(1)(vi))

(7) Revise 2-6-404.3 to limit the universe of significant permit

modification applications due 12 months after commencing operations to

only those applications for revisions pursuant to section 112(g) and

title I, [[Page 32610]] parts C and D of the Act that are not

prohibited by an existing part 70 permit. Except in the above

circumstances, a source is not allowed to operate the proposed change

until the permitting authority has revised the source's part 70 permit.

(Sec. 70.5(a)(1)(ii))

(8) In minor permit modification procedures, eliminate the extended

review period (2-6-414.2) that is inconsistent with 2-6-410.2 and

Sec. 70.7(e)(2)(iv). This extension inappropriately lengthens the time

that the source can operate under new conditions without a formal

permit revision.

(9) Revise 2-6-412.1 to include notice ``by other means if

necessary to assure adequate notice to the affected public.''

(Sec. 70.7(h)(1))

(10) Add a provision to the Manual of Procedures (section 4.1)

stating that only alternative emission control plans that have been

approved into the SIP may be incorporated into the federally

enforceable portion of the permit. (Sec. 70.6(a)(1)(iii))

(11) Add emissions trading provisions consistent with

Sec. 70.6(a)(10), which requires that trading must be allowed where an

applicable requirement provides for trading increases and decreases

without a case-by-case approval.

(12) Add a requirement to Regulation 2-6 that any document required

by a part 70 permit must be certified by a responsible official.

(Sec. 70.6(c)(1))

(13) Revise 2-6-224 and 2-6-409.10 to specify that all progress

reports must include: (1) Dates when activities, milestones, or

compliance required in the schedule of compliance were achieved; and

(2) an explanation of why any dates in the schedule of compliance were

not or will not be met and any preventive or corrective measures

adopted. (Sec. 70.6(c)(4) (i) and (ii))

(14) Revise section 4.5 of the MOP and add a provision to 2-6-409

to require that compliance certifications be submitted more frequently

than annually if specified in an underlying applicable requirement.

(Sec. 70.6(c)(4))

(15) Bay Area has indicated in its program description that it

intends to process new units that do not affect any federally

enforceable permit condition ``off-permit'' (Section II, p. 21 and

Staff Report, pp. 3-4). However, Regulation 2-6 does not include any of

the off-permit provisions required by Secs. 70.4(b) (14) and (15). The

part 70 off-permit provisions provide several safeguards such as notice

to EPA and recordkeeping requirements that must be incorporated into

Bay Area's program. In order to receive full approval in this regard,

Bay Area may submit a letter revising its program description to

indicate that it will not process new units ``off-permit'' or it may

revise its rule to include the part 70 off-permit provisions.

(16) Revise 2-6-222 defining ``regulated air pollutant'' to be

consistent with the federal definition (Sec. 70.2) and include

pollutants subject to any requirement established under section 112 of

the Act, including sections 112 (g), (j), and (r).

(17) In addition to the District-specific issues arising from Bay

Area's program submittal and locally adopted regulations, California

state law currently exempts agricultural production sources from permit

requirements. In order for this program to receive full approval (and

avoid a disapproval upon the expiration of this 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.

The scope of the Bay Area's part 70 program approved in this notice

applies to all part 70 sources (as defined in the approved program)

within the Bay Area, California, except any sources of air pollution

over which an Indian tribe has jurisdiction. See, e.g., 59 FR 55813,

55815-18 (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 Act; 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 July

23, 1997. During this interim approval period, the Bay Area is

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

administer and enforce a federal operating permits program in the Bay

Area. Permits issued under a program with interim approval have full

standing with respect to part 70, and the 1-year time period for

submittal of permit applications by subject sources begins upon the

effective date of this interim approval, as does the 3-year time period

for processing the initial permit applications.

If the Bay Area fails to submit a complete corrective program for

full approval by January 23, 1997, EPA will start an 18-month clock for

mandatory sanctions. If the Bay Area then fails to submit a corrective

program that EPA finds complete before the expiration of that 18-month

period, EPA will be required to apply one of the sanctions in section

179(b) of the Act, which will remain in effect until EPA determines

that the Bay Area has corrected the deficiency by submitting a complete

corrective program. Moreover, if the Administrator finds a lack of good

faith on the part of the Bay Area, both sanctions under section 179(b)

will apply after the expiration of the 18-month period until the

Administrator determines that the Bay Area has come into compliance. In

any case, if, six months after application of the first sanction, the

Bay Area still has not submitted a corrective program that EPA has

found complete, a second sanction will be required.

If EPA disapproves the Bay Area's complete corrective program, EPA

will be required to apply one of the section 179(b) sanctions on the

date 18 months after the effective date of the disapproval, unless

prior to that date the Bay Area has submitted a revised program and EPA

has determined that it corrected the deficiencies that prompted the

disapproval. Moreover, if the Administrator finds a lack of good faith

on the part of the Bay Area, both sanctions under section 179(b) shall

apply after the expiration of the 18-month period until the

Administrator determines that the Bay Area has come into compliance. In

all cases, if, six months after EPA applies the first sanction, the Bay

Area has not submitted a revised program that EPA has determined

corrects the deficiencies, a second sanction is required.

In addition, discretionary sanctions may be applied where warranted

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

Area has not submitted a timely and complete corrective program or EPA

has disapproved its submitted corrective program. Moreover, if EPA has

not granted full approval to the Bay Area program by the expiration of

this interim approval and that expiration occurs after November 15,

1995, EPA must promulgate, administer and enforce a federal permits

program for the Bay Area upon interim approval expiration.

2. District Preconstruction Permit Program Implementing Section 112(g)

EPA is approving the use of Bay Area's preconstruction review

program found in Regulation 2, Rule 2 as a mechanism to implement

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

EPA's section 112(g) rule and adoption by the Bay Area of rules

specifically designed to implement section 112(g). EPA is limiting the

[[Page 32611]] duration of this approval to 18 months following

promulgation by EPA of the section 112(g) rule.

3. Program for Delegation of Section 112 Standards as Promulgated

Requirements for part 70 program approval, specified in 40 CFR

section 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 District's program contain adequate authorities, adequate resources

for implementation, and an expeditious compliance schedule, which are

also requirements under part 70. Therefore, EPA is also promulgating

approval under section 112(l)(5) and 40 CFR section 63.91 of Bay Area's

program for receiving delegation of section 112 standards that are

unchanged from the federal standards as promulgated. This program for

delegations applies to both existing and future standards but is

limited to sources covered by the part 70 program.

4. State Operating Permit Program for Synthetic Minors

EPA is promulgating full approval of Bay Area's synthetic minor

operating permit program submitted to EPA by the California Air

Resources Board, on behalf of the Bay Area, on February 28, 1994

(supplemented April 29, 1994). The synthetic minor operating permit

program is being approved into Bay Area's SIP pursuant to part 52 and

the five approval criteria set out in the June 28, 1989 Federal

Register document (54 FR 27282). EPA is also promulgating full approval

pursuant to section 112(l)(5) of the Act so that HAP emission limits in

synthetic minor operating permits may be deemed federally enforceable.

Bay Area has already begun to issue permits containing voluntarily

accepted limits pursuant to the District's synthetic minor regulations.

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 operating permits issued pursuant to Bay Area's synthetic

minor regulations being approved in today's notice to be federally

enforceable with the promulgation of this approval provided that Bay

Area submit any permits that it wishes to make federally enforceable to

EPA, accompanied by documentation that the procedures approved today

have been followed. EPA will expeditiously review any individual

permits so submitted to ensure their conformity to the program

requirements. (See 57 FR 59931.)

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 final interim approval, including the three public comment

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

docket number CA-BA-94-1-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 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

review under Executive Order 12866 review.

C. Regulatory Flexibility Act

The EPA's actions under sections 502, 110, and 112 of the Act do

not create any new requirements, but simply address operating permit

programs submitted to satisfy the requirements of 40 CFR part 70.

Because these actions do not impose any new requirements, they do not

have a significant impact on a substantial number of small entities.

D. 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.

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 paragraphs (c) (217) and

(218) to read as follows:

Sec. 52.220 Identification of plan.

* * * * *

(c) * * *

(217) New and amended regulations for the following APCDs were

submitted on February 28, 1994, by the Governor's designee.

(i) Incorporation by reference.

(A) Bay Area Air Quality Management District.

(1) Amended Regulation 2, Rule 1, Sections 102, 129, 204, 213, 214,

215, 216, 217, 218, 219, 302, 408, 411 adopted November 3, 1993; and

New Regulation 2, Rule 6, Sections 206, 207, 210, 212, 213, 214, 218,

222, 230, 231, [[Page 32612]] 301, 311, 401, 402, 403, 404, 420, 421,

422, 602 adopted November 3, 1993.

(218) New and amended regulations for the Bay Area Air Quality

Management District were submitted on April 29, 1994 by the Governor's

designee.

(i) Incorporation by reference.

(A) New Regulation 2, Rule 6, Sections 310 and 423 adopted November

3, 1993.

* * * * *

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 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 and amended on October 27, 1994; interim approval effective on

July 24, 1995, interim approval expires July 23, 1997.

* * * * *

[FR Doc. 95-15038 Filed 6-22-95; 8:45 am]

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