Title V Clean Air Act Final Interim Approval of Operating Permits Program; District of Columbia

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5274-2]

Title V Clean Air Act Final Interim Approval of Operating Permits

Program; District of Columbia

AGENCY: U.S. Environmental Protection Agency (EPA).

ACTION: Final interim approval.

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SUMMARY: EPA is promulgating interim approval of the operating permits

program submitted by the District of Columbia for the purpose of

complying with federal requirements for an approvable program to issue

operating permits to all major stationary sources, and to certain other

sources.

EFFECTIVE DATE: September 6, 1995.

ADDRESSES: Copies of the District's submittal and other supporting

information used in developing the final interim approval are available

for inspection during normal business hours at the following location:

Air, Radiation, and Toxics Division, U.S. Environmental Protection

Agency, Region III, 841 Chestnut Building, Philadelphia, PA 19107.

FOR FURTHER INFORMATION CONTACT: Jennifer M. Abramson, (3AT23), Air,

Radiation and Toxics Division, U.S. Environmental Protection Agency,

Region III, 841 Chestnut Building, Philadelphia, PA 19107, (215) 597-

2923.

SUPPLEMENTARY INFORMATION:

I. Background

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

the Clean Air Act (``the CAA'')), and

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implementing regulations at 40 Code of Federal Regulations (CFR) part

70 require that states seeking to administer a Title V operating

permits program develop and submit a program to EPA by November 15,

1993, and that EPA act to approve or disapprove each program within 1

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 of an operating

permits program submittal. 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 November 15, 1995, or by the expiration of the

interim approval period, it must establish and implement a federal

program.

On March 21, 1995, EPA proposed interim approval of the operating

permits program for the District of Columbia. (See 60 FR 14921). EPA

compiled a Technical Support Document (TSD) which describes the

operating permits program in greater detail. In this notice EPA is

taking final action to promulgate interim approval of the operating

permits program for the District of Columbia.

II. Analysis of State Submission

On January 13, 1994, the District of Columbia submitted an

operating permits program to satisfy the requirements of the CAA and 40

CFR part 70. The submittal was supplemented by additional materials on

March 11, 1994 and was found to be administratively complete pursuant

to 40 CFR 70.4(e)(1). EPA reviewed the program against the criteria for

approval in section 502 of the CAA and the part 70 regulations. EPA

determined, as fully described in the notice of proposed interim

approval of the District's operating permits program (see 60 FR 14921

(March 21, 1995)) and the TSD for this action, that the District's

operating permits program substantially meets the requirements of the

CAA and part 70.

III. Response to Public Comments

EPA received comments from one organization. EPA's response to

these comments are summarized in this section. Comments supporting

EPA's proposal are not addressed in this notice. All comments are

contained in the docket at the address noted in the ADDRESSES section

above.

Title I Modifications

Comment: EPA has no authority to deny approval of the District's

operating permits program based on its definition of ``Title I

modification or modification under any provision of Title I of the

Act''. The District's definition of the term ``Title I Modification''

which does not expressly include changes reviewed under a minor source

preconstruction review program is consistent with the relatively narrow

definition of ``Title I Modifications'' in the current part 70 rules.

EPA Response: As stated in the proposed rule, EPA does not believe

that the District's definition of ``Title I modification or

modification under any provision of Title I of the Act'' is necessary

grounds for either interim approval or disapproval. Accordingly, EPA

has not identified the District's definition of this term to be a

program deficiency.

EPA is currently in the process of determining the proper

definition of the term ``Title I modification or modification under any

provision of Title I of the Act''. (See 59 FR 44572). If EPA

establishes in its rulemaking that the definition of ``Title I

modifications'' can be interpreted to exclude changes reviewed under a

minor source preconstruction review (NSR) program, the District's

definition of ``Title I modification or modification under any

provision of Title I of the Act'' 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

District's definition of ``Title I modification or modification under

any provision of Title I of the Act'' would not fully meet the 40 CFR

70.2 requirements for definitions.

The primary purpose of EPA's discussion of this issue in the

proposed rule was to notify the District and regulated community about

how the definition of ``Title I modification or modification under any

provision of Title I of the Act'' may impact the approval status of the

District's Title V operating permits program. Until the definition of

``Title I modification or modification under any provision of Title I

of the Act'' is established through rulemaking to include changes

reviewed under minor NSR, EPA does not consider the District's

definition of this term to be either an interim or disapproval issue.

Implementation of Section 112(g) Upon Program Approval

Comment: EPA's proposed approval of the District's Chapter 3

operating permits program for the purpose of implementing 112(g) during

the transition period between federal promulgation of a section 112(g)

rule and District adoption of section 112(g) regulations is

objectionable for the following reasons: (1) the District's program may

not conform to the section 112(g) requirements once they have been

issued by EPA, and (2) EPA is proposing to approve the program without

clarifying whether the District's program addresses the critical

threshold questions of how a source is to determine if an emissions

increase is or is not greater than de minimis, and whether or not it

has been offset satisfactorily. EPA has no legal basis for allowing the

District to implement section 112(g) until the agency completes its

rulemaking under 112(g).

EPA Response: Title V of the CAA and the part 70 regulations

require states seeking to obtain and retain approval of Title V

operating permit programs to have authority to issue permits and assure

compliance with all applicable requirements. (Section 502(b)(5)(A) and

40 CFR 70.4(b)(3)(i)). Section 112(g)(2) of the CAA, an applicable

requirement, provides that no person may modify, construct or

reconstruct a major source of HAP, unless the Administrator (or the

state) determines that maximum achievable control technology (MACT)

limitations have been met or that sufficient offsets have been

provided. Accordingly, as discussed in the preamble to the proposed

section 112(g) rule, EPA interprets the statute to require states to

implement section 112(g) including the development of case-by-case MACT

determinations, in order to obtain and retain approval of Title V

operating permits programs (See 59 FR 15565).

In the proposed interim approval of the District's operating

permits program, EPA proposed to approve the District's Chapter 3

operating permits program for the purpose of implementing section

112(g) during the transition period between federal promulgation of a

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

regulations. (See 60 FR 14925-6). This proposal was based in part on

EPA's revised interpretation of the CAA discussed in a Federal Register

notice published on February 14, 1995 which postponed the effective

date of section 112(g) until after EPA has promulgated a rule

addressing that provision. (See 60 FR 8333).

The section 112(g) interpretive notice explains that EPA is still

considering whether the effective date of section 112(g) should be

delayed beyond the date of promulgation of the federal rule

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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), the District must be able

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

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

District of implementing regulations.

As described in the proposed rule, EPA believes that, although the

District currently lacks a program designed specifically to implement

section 112(g), the District's Chapter 3 operating permits program will

serve as an adequate implementation vehicle during a transition period

because it will allow the District to select control measures that

would meet MACT, as defined in section 112, and incorporate these

measures into federally enforceable source-specific permits for major

sources of hazardous air pollutants (HAP).

A consequence of the fact that the District lacks a program

designed specifically to implement section 112(g) is that the timing

requirements for submitting permit applications to establish case-by-

case MACT determinations will differ from those in the section 112(g)

rule. However, EPA expects the District to be able to require sources

to submit applications to obtain operating permits or permit revisions

to establish case-by-case MACT determinations prior to construction

where necessary for purposes of section 112(g) even if its own

operating permits program does not require such permit applications to

be submitted until twelve (12) months after commencing operations.

Although the Chapter 3 operating permits program does not at this

time address critical 112(g) threshold questions with respect to de

minimis levels and offsets, EPA believes that the District can

adequately implement 112(g) prior to adoption of EPA's final

promulgated 112(g) rule by relying on the authority established in the

Chapter 3 operating permits program and using EPA's final 112(g) rule

as guidance. Pursuant to the District's commitment ``to adopt and

implement expeditiously any additional regulations that might be needed

to incorporate such [future section 112] requirements into operating

permits'', the District will be expected to establish additional

authorities with respect to 112(g) de minimis levels and/or offsets, if

necessary, consistent with the 112(g) rule once EPA promulgates a rule

addressing those provisions.

Final Action

EPA is promulgating interim approval of the operating permits

program submitted by the District of Columbia on January 13, 1994, and

supplemented on March 11, 1994. The District must make the changes

identified in the proposed rule in order to fully meet the requirements

of the July 21, 1992 version of part 70. (See 60 FR 14926). The

District must also have acid rain regulations and adequate forms in

place by November 15, 1995 consistent with the commitment made in a

February 3, 1995 letter to EPA.

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

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

within the District of Columbia, 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 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

September 8, 1997. During this interim approval period, the District is

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

administer and enforce a federal operating permits program in the

District. 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 District fails to submit a complete corrective program for

full approval by March 7, 1997, EPA will start an 18-month clock for

mandatory sanctions. If the District 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 District 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 District, both sanctions under section 179(b)

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

Administrator determined that the District had come into compliance. In

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

District still has not submitted a corrective program that EPA has

found complete, a second sanction will be required.

If EPA disapproves the District'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 District 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 District, both sanctions under section 179(b) shall

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

Administrator determines that the District has come into compliance. In

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

District 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

District has not timely submitted a complete corrective program or EPA

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

not granted full approval to the District's 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 District of Columbia upon interim approval expiration.

Requirements for approval, specified in 40 CFR 70.4(b), encompass

section 112(l)(5) requirements for approval of a program for delegation

of section 112 standards as promulgated by EPA as they apply to part 70

sources. Section 112(l)(5) requires that the State's program contain

adequate authorities, adequate resources for implementation, and an

expeditious compliance schedule, which are also requirements under part

70. Therefore, EPA is also promulgating approval under section

112(l)(5) and 40 CFR 63.91 of the District's program for receiving

delegation of section 112 standards that are unchanged from federal

standards as promulgated. This program for delegations only applies to

sources covered by the Part 70 program.

Additionally, EPA is promulgating approval of Chapter 3 of Subtitle

I of Title 20 of the District of Columbia Municipal Regulations (20

DCMR),

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under the authority of Title V and Part 70 for the purpose of

implementing section 112(g) to the extent necessary during the

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

rule and adoption of any necessary District rules to implement EPA's

section 112(g) regulations. However, since this approval is for the

purpose of providing a mechanism to implement section 112(g) during the

transition period, the approval of the Chapter 3 operating permits

program for this purpose will be without effect if EPA decides in the

final section 112(g) rule that sources are not subject to the

requirements of the rule until state regulations are adopted. Although

section 112(l) generally provides the authority for approval of state

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 duration of this

approval is limited to 18 months following promulgation by EPA of

section 112(g) regulations, to provide the District with adequate time

to adopt regulations consistent with federal requirements.

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

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.

EPA has determined that this proposed interim approval action 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.

EPA has determined that this final interim approval action,

promulgating interim approval of the District of Columbia's operating

permits program, 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 in 40 CFR Part 70

Environmental protection, Administrative practice and procedure,

Air pollution control, Intergovernmental relations, Operating permits,

and Reporting and recordkeeping requirements.

Dated: July 20, 1995.

W.T. Wisniewski,

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 the

District of Columbia in alphabetical order to read as follows:

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

Permits Programs

* * * * *

District of Columbia

(a) Environmental Regulation Administration: submitted on

January 13, 1994 and March 11, 1994; interim approval effective on

September 6, 1995; interim approval expires September 8, 1997.

(b) [Reserved]

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[FR Doc. 95-19399 Filed 8-4-95; 8:45 am]

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