Clean Air Act Final Interim Approval of Operating Permits Program; Alabama Department of Environmental Management, Jefferson County Department of Health, and the City of Huntsville Department of Natural Resources and Environmental Management

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AL-95-01; FRL-5332-4]

Clean Air Act Final Interim Approval of Operating Permits

Program; Alabama Department of Environmental Management, Jefferson

County Department of Health, and the City of Huntsville Department of

Natural Resources and Environmental Management

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final interim approval.

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SUMMARY: The EPA is promulgating source category-limited interim

approval of the Operating Permits Programs submitted by the State of

Alabama Department of Environmental Management (ADEM) and the Jefferson

County Department of Health (JCDH). The EPA is also promulgating

interim approval of the Operating Permits Program submitted by the City

of Huntsville Department of Natural Resources and Environmental

Management (City of Huntsville). These approvals are 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: December 15, 1995.

Copies of the State'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:

Environmental Protection Agency, Region 4, Air Programs Branch, 345

Courtland Street, NE, Atlanta, Georgia 30365.

FOR FURTHER INFORMATION CONTACT: Joel Huey, Title V Program Development

Team, Air Programs Branch, Air, Pesticides & Toxics Management

Division, U.S. Environmental Protection Agency, Region 4, 345 Courtland

Street, NE, Atlanta, Georgia 30365, (404) 347-3555, Ext. 4170.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

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 one 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 two years.

If EPA has not fully approved a program by two years after the November

15, 1993 date, or by the end of an interim program, it must establish

and implement a Federal program.

On September 13, 1995, EPA proposed source category-limited interim

approval of the operating permits programs submitted by ADEM and JCDH,

and interim approval of the program submitted by the City of

Huntsville. See 60 FR 47522. The EPA received public comments from four

organizations on the proposal and responds to those comments in the

discussion below. The EPA has also compiled a Technical Support

Document (TSD) which describes the operating permits program in greater

detail. In this document EPA is taking final action to promulgate

source category-limited interim approval of the operating permits

programs submitted by ADEM and JCDH, and interim approval of the

program submitted by the City of Huntsville.

II. Final Action and Implications

A. Analysis of State Submission

The EPA is promulgating source category-limited (SCL) interim

approval of the operating permits program submitted by ADEM on December

15, 1993, as supplemented on March 3, 1994; March 18, 1994; June 5,

1995; July 14, 1995; and August 28, 1995. The EPA is promulgating SCL

interim approval of the operating permits program submitted by JCDH on

December 14, 1993, as supplemented on July 14, 1995. The EPA is

promulgating interim approval of the operating permits program

submitted by the City of Huntsville on November 15, 1993, as

supplemented on July 20, 1995. The State and local programs

substantially, but not fully, meet the requirements of part 70 and meet

the interim approval requirements under 40 CFR 70.4.

B. Response to Comments

In this document, EPA discusses in detail all comments received

concerning the proposal notice. The EPA responds to each comment and

provides clarification where requested. Significant changes to EPA's

opinions stated in the proposal notice include the

[[Page 57347]]

retraction of three interim approval issues.

A public comment period on the proposed interim approval was held

from September 13, 1995, until October 13, 1995. During that period EPA

received comments from ADEM, the City of Huntsville, the Alabama Pulp

and Paper Council (APPCO), and Exxon Company, U.S.A. The ADEM submittal

includes eight comments regarding the interim approval issues listed in

the proposed interim approval notice. The City of Huntsville concurs

with the comments provided by ADEM and provides additional comments on

three of those issues. The APPCO submittal includes three comments

similar to those contained in ADEM's submittal. The Exxon submittal

requests clarification on three items related to the definition of

``administratively complete'' applications. Responses to each comment

follow.

1. Criminal Penalty Provisions

The ADEM agrees that a criminal penalty provision of not less than

$10,000 per day per violation should be addressed in its program before

full approval can be granted. The ADEM reaffirmed that they will

continue to pursue the necessary criminal penalty authority with their

State legislature. The City of Huntsville concurs with ADEM on this

issue.

2. Certification of Completeness

The ADEM acknowledges their agreement with EPA to require the

minimum elements of an ``administratively complete'' permit application

in all initial applications submitted to the State. These elements are

outlined in section II.D. of EPA's July 25, 1995, White Paper for

Streamlined Development of Part 70 Permit Applications. This policy is

necessary to support the two-step process discussed in the White Paper

for accepting applications that are not acted upon within the first

year of ADEM's title V program approval. Those applications will first

be determined to be administratively complete, then be updated with

supporting information as needed. The ADEM will receive fully complete

applications from 40 percent of all part 70 sources within the first

year of interim program approval. Also within the first year, the

remaining 60 percent of part 70 sources will submit initial

applications that meet the minimum requirements of an administratively

complete permit application. The two-step application process is not

being used by JCDH or the City of Huntsville.

ADEM Regulation 335-3-16-.04(9)(b) (JCDH Regulation 18.4.9(b) and

City of Huntsville Regulation 3.9.4(b)) states: ``Certification for

completeness shall not be required for initial applications that will

not be processed in the first year the regulations in this chapter are

effective.'' However, since adopting this rule, ADEM has included the

certification of completeness on all application forms. As discussed

above, all sources will submit applications containing the minimum

elements to be deemed administratively complete by the end of the first

year of program approval. Therefore, ADEM Regulation 335-3-16-.04(9)(b)

(JCDH Regulation 18.4.9(b) and City of Huntsville Regulation 3.9.4(b))

is extraneous and should be deleted.

The Exxon Company also submitted comments related to the

certification of completeness required for initial applications. They

are concerned that the requirements of an administratively complete

application committed to by ADEM will not grant the same degree of

relief envisioned in ADEM Regulation 335-3-16-.04(9)(b) discussed

above. The Exxon submittal requests clarification on three items:

(a) Defining Applicable Requirements. The Exxon Company requests

that EPA confirm that only a small amount of detail is required in

defining applicable requirements in the initial applications of a two-

step process. The EPA confirms that defining the part 70 applicable

requirements could be accomplished by listing all requirements that

apply to the facility, and that detailed rule citations and

descriptions should not be necessary. The State has discretion in

determining how much additional information they would need in order to

begin processing the permit.

(b) Requirements of Compliance Status Certification. Exxon believes

that a certification of compliance status regarding all applicable

requirements (without the option of stating that compliance status is

unknown for certain requirements) would create a burden on the

applicant equivalent to that required to prepare and submit a fully

complete title V application. Exxon requests that EPA state what is

specifically required in the certification of compliance status.

Sources should certify either that they are in compliance with all

applicable requirements, or that they are not in compliance with

specific applicable requirements. A statement from a source that it is

not in compliance with an applicable requirement would require a brief

explanation of the pertinent circumstances and an acknowledgment of the

need to submit a compliance plan in accordance with ADEM Regulation

335-3-16-.04(8)(h) (JCDH Regulation 18.4.8(h) and City of Huntsville

Regulation 3.9.3(h)).

The EPA points out that this certification does not imply any guilt

on the part of the certifying official and does not itself subject the

source to any enforcement action. The certifying official is simply

certifying that, to the best of his or her knowledge and belief, the

statements and information contained in the document are truthful,

accurate, and complete. The only necessary result of a negative

statement on compliance status would be the submission of a plan to

bring the facility into compliance.

The EPA does not agree that this certification creates a burden on

the applicant equivalent to that required to prepare and submit a fully

complete title V application. Several items are required in a fully

complete application that are not required for an administratively

complete initial application. These include the description of the

source's processes and products, detailed emissions related

information, air pollution control requirements, etc.

(c) Intent of Completeness Certification. The Exxon Company

requests that EPA state whether the intent for the applicant to certify

that applications are complete is only in regard to the limited

information that they assume ADEM is going to request. The EPA affirms

that the certification applies only to the information contained in the

document submitted. This includes certifications in initial

applications that are submitted to satisfy the requirement that

administratively complete applications be submitted by all part 70

sources within the first year of program approval. This certification

serves as an assurance from the source that the statements and

information contained in the document submitted are truthful, accurate,

and complete.

3. Insignificant Activities

The EPA received comments on three issues regarding ``insignificant

activities'' as discussed in the proposed interim approval notice:

(a) Section 112(g) De Minimis Levels for HAPs. The ADEM objects to

EPA's requirement that the definition of insignificant activities be

revised such that emissions thresholds for individual activities or

units that are exempted from permitting requirements (but are to be

listed in the permit application) will not exceed five tons per year

for criteria pollutants, and the lesser of 1,000 pounds per year or

section 112(g) de minimis levels for hazardous air

[[Page 57348]]

pollutants (HAPs). With regard to HAPs, ADEM's definition of

insignificant activities includes a potential to emit threshold of

1,000 pounds per year only. The ADEM states that if and when EPA

establishes the de minimis levels for HAPs, they have the ability to

reduce (or increase) each HAP's significance level. They also state

that the part 70 regulations do not define what an insignificant

activity is and that it is left to each agency to establish its own

definition.

The APPCO states that ADEM's current program of addressing trivial

and insignificant activities and emitting units should receive final

approval without revision, with the exception of addressing section

112(g) de minimis levels when promulgated. They do not consider the

issue of section 112(g) de minimis levels to be inconsistent with 40

CFR part 70, but point out that these levels have yet to be

established.

For other state and local programs, EPA has accepted emission

thresholds for insignificant activities of five tons per year for

criteria pollutants and the lesser of 1,000 pounds per year or section

112(g) de minimis levels for HAPs. Since publication of the Alabama

proposal notice, EPA has reconsidered the 1,000 pounds per year limit

established by the State. The EPA now agrees that this limit is

acceptable as long as the requirements discussed in (c) below are met.

Important to this finding is the fact that the level is articulated in

terms of potential emissions rather than actual emissions. Where EPA

has rejected similar HAP thresholds in other programs, it has been

because those levels were in terms of actual emissions and because

those programs did not attempt to demonstrate why such a level would be

insignificant. Even absent a demonstration, EPA believes the use of

potential rather than actual levels, in combination with the

gatekeepers discussed in (c) below, provide adequate assurance that

significant activities will not be excluded from the application.

(b) EPA and Public Review of List of Insignificant Activities. The

ADEM objects to the requirement to make their list of insignificant

activities available for EPA and public review and comment each time

that the list is revised. They state: ``Due to the number of different

industries in Alabama, changes to the insignificant list will occur

often, especially at the beginning of the program. For this reason, it

would be difficult and burdensome to require EPA and public review of

the list each time it is revised . . . ADEM has committed to EPA to

have semi-annual reviews of its list by EPA and the public. In

addition, each time a new insignificant activity not previously

reviewed by EPA and the public is put into an application, it is put

out for the public and EPA to review per the requisite title V review

requirements.''

The City of Huntsville believes that the requirement for public

comment and EPA review of additions to their list of recognized

insignificant activities is already satisfied in that any activities

which the applicant is claiming to be insignificant must be identified

in the permit application. They state that the vast majority of

insignificant activities will be initially identified in the permit

application review process which involves EPA and public participation.

They add that a duplicative requirement for public and EPA notice and

review when revising a list of insignificant activities is entirely

unnecessary.

The APPCO considers EPA's comments regarding insignificant

activities to be inconsistent with part 70, with the exception of

addressing the issue of section 112(g) de minimis levels. They provided

a review of the insignificant activities provisions contained in ADEM's

program, the Federal regulations, and other guidance promulgated by

EPA. Overall, the APPCO summary is correct. However, the distinction

between what is required for trivial activities and what is required

for insignificant activities was not addressed by APPCO. Trivial

activities, as discussed in section II.B.3. of the White Paper, are

certain activities that are clearly trivial (i.e., emissions units and

activities without specific applicable requirements and with extremely

small emissions). Trivial activities can be omitted from applications

even if they are not included on a list of insignificant activities

approved in a State's part 70 program. Attachment A of the White Paper

lists examples of activities which EPA believes should normally qualify

as trivial in this sense. Permitting authorities can allow, on a case-

by-case basis without EPA approval, exemptions similar to those

activities identified in Attachment A.

Insignificant activities are emissions units and activities

included on a list approved by EPA as part of a State program pursuant

to 40 CFR 70.5(c). As provided in the White Paper, permitting

authorities can allow sources merely to list in applications the kinds

of insignificant activities that are present at the source or check

them off a list of insignificant activities approved in the program.

The White Paper also states that ``additional exemptions, to the extent

that the activities they cover are not clearly trivial, still need to

be approved by EPA before being added to State lists of insignificant

activities'' [emphasis added].

The fact that EPA will have the opportunity to review insignificant

activities contained in title V applications does not satisfy the

requirement for EPA approval of additions to the list of insignificant

activities. Considering resource constraints, it is unlikely that EPA

will be able to review each and every permit issued. Therefore, relying

upon the permit review process for concurrence on additions to the

lists of insignificant activities would result in additions being made

without any review by EPA. Also, ADEM's commitment to a semi-annual

review of their list of insignificant activities by EPA and the public

is not sufficient for EPA to confirm that new additions to the list are

appropriate. Such a procedure gives no protection from the possibility

of issued permits having to be reopened to remove listed insignificant

activities that are disallowed by EPA.

States can develop lists of insignificant activities, however EPA

is required to review and approve these lists initially during the

program review and later during implementation as States seek to add

new exemptions to the lists. The EPA is not interfering with the State

and Locals' legitimate exercise of discretion but, to be consistent

with 40 CFR 70.5(c), is merely requiring them to include EPA review and

approval when amending their lists. To obtain full approval the State

and the Local agencies must revise their approach on insignificant

activities such that the lists are made available for EPA review each

time the lists are revised. However, EPA acknowledges that no

requirement exists for public review of a State's list of insignificant

activities.

(c) Exemptions from Permitting Requirements and Major Source

Applicability Determinations. The ADEM objects to prohibiting any

emissions units with applicable requirements from being exempted from

title V permitting requirements or major source applicability

determinations. They argue that such a prohibition would prevent any

unit subject to generic State Implementation Plan (SIP) requirements,

no matter how small, from being treated as an insignificant activity,

thus rendering the concept of insignificant activities useless.

The City of Huntsville states that their rules do not provide for

exemptions from applicable requirements and that ``squeezing'' under a

facility-wide applicability threshold by ``subtracting'' aggregated

emissions resulting from

[[Page 57349]]

insignificant activities is not being sanctioned.

The EPA disagrees with ADEM and the City of Huntsville on this

issue. Generic SIP requirements are discussed in section II.B.4. of the

White Paper. Emissions units and activities may be treated generically

in the application and permit for certain broadly applicable

requirements often found in the SIP. Examples of such requirements

include those that apply identically to all emissions units at a

facility (e.g., source-wide opacity limits), general housekeeping

requirements, and requirements that apply identical emissions limits to

small units (e.g., process weight requirements). These requirements are

sometimes referred to as ``generic'' because they apply to all subject

units or activities at a facility and they are enforced in the same

manner for all. If the applicant documents the applicability of these

requirements and describes the compliance status as required by 40 CFR

70.5(c), the individual emissions units or activities may be excluded

from the application, provided no other requirement applies that would

mandate a different result.

Additionally, although section 70.5(c) provides that insignificant

activities need not be described in permit applications, EPA maintains

that part 70 does not allow for insignificant activities to be excluded

from major source applicability determinations. Major source

determinations are made in accordance with the definitions in section

70.2, which do not allow for exclusions of emissions from insignificant

activities. EPA believes that this does not create a burdensome

inquiry. Part 70 does not require use of any specific method for

estimating the impact of these emissions for applicability purposes.

However, it does require them to be taken into account where they could

impact a major source applicability determination.

As indicated in the proposal notice, EPA finds that the ADEM, JCDH,

and City of Huntsville programs lack assurance that insignificant

activities will not be exempted from title V permitting requirements or

be excluded from major source applicability determinations. As a

condition of full approval, State and Local agencies must revise their

regulations, consistent with section 70.5(c), to ensure that (1)

applications do not omit information needed to determine or impose

applicable requirements, and (2) insignificant activities or emissions

units will not be exempted from the determination of whether a source

is major.

4. Trading of Emissions Increases and Decreases

The ADEM objects to adding provisions to their regulations that

allow for the trading of emissions under a Federally enforceable

emissions cap. They state that their regulations do not prohibit

putting these types of conditions in an operating permit, and nothing

prevents them from doing so if requested by an applicant. They also

point out that ADEM has always had the ability to put conditions in a

permit that provide for emissions trading, and have done so extensively

in their construction permit program. The City of Huntsville concurs

with ADEM on this issue.

The APPCO concurs with EPA that these operational flexibility

provisions should be added to ADEM regulations in order to be

consistent with Federal standards. However, APPCO feels that, given the

present operational flexibility within ADEM regulatory framework, such

provisions would be moot.

The EPA agrees with ADEM that nothing prevents them from issuing

permits that contain conditions that allow trading of emissions

increases and decreases under an emissions cap if requested by an

applicant. However, having this ability does not satisfy Federal

regulations which require all part 70 programs to include these

provisions. Section 70.4(b)(12)(iii) states: ``The program shall

require the permitting authority, if a permit applicant requests it, to

issue permits that contain terms and conditions . . . allowing for the

trading of emissions increases and decreases . . .'' [emphasis added].

As a prerequisite for full program approval, the ADEM, JCDH, and

City of Huntsville regulations must be amended to require the

permitting authority, if a permit applicant requests it, to issue

permits that contain terms and conditions, including all standard

permit requirements and compliance requirements, allowing for the

trading of emissions increases and decreases in the permitted facility

solely for the purpose of complying with a Federally enforceable

emissions cap established in the permit independent of otherwise

applicable requirements. As noted in the proposed interim approval of

Alabama's program, EPA recognizes that the flexibility provisions of 40

CFR part 70 are under revision due to litigation on the rule. However,

for this notice to accurately reflect current Federal regulations, this

deficiency must remain noted until the State revises its program

accordingly.

5. Director's Discretion in Approving Alternative Methods

The ADEM objects to deleting the Department Director's discretion

in approving alternatives to standard reference test methods used in

demonstrating compliance with title V permit terms. In the proposal

notice, EPA required this deletion due to a State regulation which

suggests that the Director has authority to approve alternatives to any

required standard reference test methods. ADEM Regulation 335-3-16-

.04(8)(b)(3) (JCDH Regulation 18.4.8(c)(3) and City of Huntsville

Regulation 3.9.3(c)(3)) states that the permit application shall

include ``emission rates of all pollutants in tons per year and in such

terms as are necessary to establish compliance consistent with the

applicable standard reference test method, or alternative method

approved by the Department's Director.''

The ADEM agrees that the Director does not have the discretion to

change a compliance method that has been established for any Federal

regulation that the State adopts by reference. This includes compliance

methods contained in any NESHAP, NSPS, or MACT regulation. The ADEM

points out, however, that they can change any method established to

determine compliance with a State Implementation Plan (SIP) regulation

(including Prevention of Significant Deterioration (PSD) and New Source

Review (NSR)) or other non-Federal regulation. They add that even in

Federal regulations, which only have provisions for initial compliance

determinations, ADEM can establish its own compliance methods to

determine compliance on an interim or continuous basis. The City of

Huntsville concurs with ADEM on this issue.

The APPCO concurs with EPA that test methods approved by EPA should

be utilized for compliance determinations. However, APPCO points out

that this may not always be the case for determining title V fee

amounts.

The EPA agrees with ADEM's statements on this issue and has not

called for changes in current testing protocol. However, the State

regulation in question seems to imply that the Director may approve

alternatives to standard reference test methods under any circumstance.

Based upon ADEM's comments on this issue, EPA has reevaluated its

interpretation of the regulation and now finds no need for change. The

reference to an ``alternative method approved by the Department's

Director'' is confined to those

[[Page 57350]]

circumstances in which the Director has already been granted authority

to approve such changes. This includes and is limited to methods

established to determine compliance with SIP regulations (i.e., PSD and

NSR) and methods used to determine compliance with Federal regulations

on an interim or continuous basis. However, methods used to determine

compliance with Federal regulations on an interim or continuous basis

must be established in the operating permit in order for them to be

sufficient for a demonstration of compliance.

6. Definition of Significant Modifications

The ADEM objects to modifying their definition of ``significant

modifications'' to meet part 70 requirements. Their rule defines

significant modifications as changes that result in a net emissions

increase of any of the pollutants and levels listed in ADEM Regulation

335-3-14-.04 or .05 (JCDH Regulation 2.4 or 2.5 and City of Huntsville

Regulation 3.4 or 3.5), or any modifications under NSPS or NESHAP. The

EPA pointed out in the proposal notice that 40 CFR 70.7(e)(4)(i)

requires the State's program to contain criteria for determining

whether a change is significant. These criteria must include, at a

minimum, ``every significant change in existing monitoring permit terms

or conditions and every relaxation of reporting or recordkeeping permit

terms or conditions . . .'' The ADEM states that the modification

requirements of a title V permit, including the definition of a

significant modification, will be changed in the upcoming part 70

revision. The ADEM feels that it would be premature to change their

regulations prior to this revision.

The City of Huntsville concurs with ADEM and adds that, in their

opinion, no deficiency exists in their program regarding the types of

changes mentioned in 40 CFR 70.7(e)(4)(i). They point out that these

types of changes do not fall under the definition of ``administrative

amendments'' (City of Huntsville Regulation 3.9.11(a)(1)) and are

specifically excluded from the definition of ``minor permit

modifications'' (City of Huntsville Regulation 3.9.11(c)(1)(i)(b)).

Also, City of Huntsville Regulation 3.9.11(c)(4)(iii) stipulates that

requested permit modifications not meeting the minor permit

modification criteria will be reviewed under the significant

modification procedures. Therefore, the types of changes mentioned in

40 CFR 70.7(e)(4)(i) could only be considered to be significant

modifications and would be processed as such.

The EPA agrees with the City of Huntsville's assessment on the

adequacy of their regulations regarding the types of changes mentioned

in 40 CFR 70.7(e)(4)(i), and concludes that no modifications regarding

this issue are necessary. For the same rationale, EPA also finds that

the ADEM and JCDH programs are not in need of modification regarding

this issue.

7. Director's Discretion in Allowing Administrative Permit

Modifications

The ADEM objects to revising their regulations to specifically list

the types of changes that the State proposes to be eligible for

processing as administrative amendments, thus obtaining the

Administrator's approval of such changes as part of the State's part 70

program. This requirement was made because ADEM Regulation 335-3-16-

.13(1) (JCDH Regulation 18.13.1 and City of Huntsville Regulation

3.9.11(a)) does not require the Administrator's approval of

administrative changes similar to those listed in the chapter. This is

inconsistent with 40 CFR 70.7(d)(1)(vi) which requires that, in order

for changes other than those specified in 40 CFR 70.7(d) (i) through

(v) to be made as administrative amendments, they must first be

determined by the Administrator, as part of the approved part 70

program, to be similar to those specified in 70.7(d)(1) (i) through

(iv).

The ADEM states that the definition of what can be an

administrative permit amendment is likely to be changed in the upcoming

part 70 revision. The ADEM feels that it would be unproductive to

change their regulations now when the new definition may give the

governing agency the ability to make such a change. They also assert

that ADEM should have this type of discretion in order to deal with the

day-to-day variations that will occur in running the operating permits

program.

The City of Huntsville states that no need exists to revise their

rules to be consistent with part 70 in its present form. They state

that the Director's discretion in approving administrative changes in

addition to the ones specifically mentioned in 40 CFR 70.7(d) (i)

through (v) is clearly circumscribed by City of Huntsville Regulation

3.9.11(a) (i.e., the types of changes specified in 70.7(d)(1) (i)

through (iv)). The City of Huntsville asserts that this flexibility

allowed to their Director ``merely serves as a safety valve against the

ludicrous, not as a mechanism for circumventing the requirement to

provide opportunity for EPA and public participation when such

opportunity is clearly appropriate.'' They also point out that the

Director must submit copies of all administrative amendments to the

Administrator, thus affording opportunity for EPA objection.

The EPA does not agree with the positions taken by ADEM and the

City of Huntsville on this issue. The purpose of 40 CFR 70.7(d)(1)(vi)

is to allow states to have the opportunity to make additions to the

list of items that can be considered administrative permit amendments

in their programs. Any changes that might be considered to be

inconsequential, or ludicrous, are already allowed by the regulations

in place. Section 70.7(d)(1)(i) grants the permitting authority the

ability to make amendments which correct typographical errors. Section

70.7(d)(1)(ii) grants the permitting authority the ability to make

amendments which identify changes in name, address, or phone number, or

which provide a similar minor administrative change at the source

[emphasis added].

For full approval, ADEM Regulation 335-3-16-.13(1)(a)7 (JCDH

Regulation 18.13.1(a)(7) and City of Huntsville Regulation

3.9.11(a)(1)(vii)) must be revised to specifically list the types of

changes that the State proposes to be eligible for processing as

administrative amendments, thus obtaining the Administrator's approval

of such changes as part of the State's part 70 program. Alternatively,

the State may revise 335-3-16-.13(1)(a)7 (JCDH Regulation 18.13.1(a)(5)

and City of Huntsville Regulation 3.9.11(a)(1)(vii)) to reference the

``Administrator'' rather than the ``Director.'' The EPA recognizes the

possibility of a change to this requirement in forthcoming revisions to

the part 70 regulations. However, for this notice to accurately reflect

current Federal regulations, this deficiency must remain noted until

the State revises its program accordingly.

8. EPA and Affected State Review of Administrative Permit Amendments

The ADEM commits to correcting an error in citation contained in

ADEM Regulation 335-3-16-.13(1)(a)6. This change will remove an

apparent lack of EPA and affected states review of administrative

permit amendments required by 40 CFR 70.7(d)(1)(v).

In addition to the necessary changes to the title V programs noted

above, it has come to EPA's attention that two questions of

interpretation exist with respect to ADEM Regulations 335-3-16-.11(1)

and 335-3-16-.11(2)(c) (JCDH Regulations 18.11.1 and 18.11.2(c), and

City of Huntsville Regulations 3.3.8(a),

[[Page 57351]]

3.3.8(b) and 3.3.8(b)(3)). The questions of interpretation concern the

Director's ability to exempt emissions exceedances on a case-by-case

basis and the ability of EPA and citizens to participate in the

emergency determination process. The EPA and the State agree to develop

a program revision that resolves these issues in a manner consistent

with part 70.

C. Final Action

1. Title V Operating Permits Program

The EPA is promulgating final source category-limited interim

approval of the operating permits programs submitted by ADEM and JCDH

on December 15, 1993, and December 14, 1993, respectively. The EPA is

also promulgating final interim approval of the program submitted by

the City of Huntsville on November 15, 1993. The State and Local

agencies must make the following changes to receive full approval:

(a) The State statutes must be revised to provide adequate criminal

authority as required by 40 CFR 70.11(a)(3) (ii)-(iii), including

criminal fines recoverable in a maximum amount of not less than $10,000

per day per violation.

(b) The ADEM, JCDH, and City of Huntsville must revise their

regulations regarding insignificant activities such that (1) their list

of insignificant activities is made available for EPA review each time

the list is revised and (2) emissions units with applicable

requirements will not be exempted from title V permitting requirements

or major source applicability determinations, even if listed on an

approved list of insignificant activities.

(c) The ADEM, JCDH, and City of Huntsville programs must be revised

to provide for operational flexibility in accordance with 40 CFR

70.4(b)(12)(iii), 70.5(c)(7), and 70.6(a)(10). These rules allow the

agencies, if requested by permit applicants, to issue permits that

contain terms and conditions allowing for the trading of emissions

increases and decreases in permitted facilities.

(d) ADEM Regulation 335-3-16-.13(1)(a)7 (JCDH Regulation

18.13.1(a)(7) and City of Huntsville Regulation 3.9.11(a)(1)(vii)) must

be revised to specifically list the types of changes that the State

proposes to be eligible for processing as administrative amendments,

thus obtaining the Administrator's approval of such changes as part of

the State's part 70 program. Alternatively, the State may revise 335-3-

16-.13(1)(a)7 (JCDH Regulation 18.13.1(a)(5) and City of Huntsville

Regulation 3.9.11(a)(1)(vii)) to reference the ``Administrator'' rather

than the ``Director.'' Also, ADEM Regulation 335-3-16-.13(1)(a)6 must

be revised to include the EPA and affected states review provisions

required by 40 CFR 70.7(d)(1)(v).

The ADEM and JCDH are being granted source category-limited (SCL)

interim approval of their part 70 operating permits programs. For a

discussion on the basis for SCL interim approval, refer to the proposal

notice of September 13, 1995. See 60 FR 47522.

The scope of the ADEM, JCDH, and City of Huntsville part 70

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

defined in the approved programs) within the State, 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

December 15, 1997. During this interim approval period, ADEM, JCDH, and

the City of Huntsville are protected from sanctions, and EPA is not

obligated to promulgate, administer and enforce a Federal operating

permits program in the jurisdictions of ADEM, JCDH, and the City of

Huntsville. 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 ADEM, JCDH, or the City of Huntsville fail to submit a complete

corrective program for full approval by June 16, 1997, EPA will start

an 18-month clock for mandatory sanctions. If ADEM, JCDH, or the City

of Huntsville then fail 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 ADEM, JCDH, or

the City of Huntsville has corrected the deficiency by submitting a

complete corrective program. Moreover, if the Administrator finds a

lack of good faith on the part of ADEM, JCDH, or the City of

Huntsville, both sanctions under section 179(b) will apply after the

expiration of the 18-month period until the Administrator determines

that ADEM, JCDH, or the City of Huntsville has come into compliance. In

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

JCDH, or the City of Huntsville still have not submitted a corrective

program that EPA has found complete, a second sanction will be

required.

If EPA disapproves the ADEM, JCDH, or City of Huntsville's complete

corrective programs, 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 ADEM, JCDH, or the City of

Huntsville 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 ADEM,

JCDH, or the City of Huntsville, both sanctions under section 179(b)

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

Administrator determines that ADEM, JCDH, or the City of Huntsville has

come into compliance. In all cases, if, six months after EPA applies

the first sanction, ADEM, JCDH, or the City of Huntsville 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 ADEM,

JCDH, or the City of Huntsville has not timely submitted a complete

corrective program or EPA has disapproved a submitted corrective

program. Moreover, if EPA has not granted full approval to ADEM, JCDH,

or the City of Huntsville 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 ADEM,

JCDH, or the City of Huntsville upon interim approval expiration.

2. Preconstruction Review Program Implementing Section 112(g)

The EPA is approving the use of Alabama's preconstruction review

program found in Chapter 335-3-14 of the ADEM Regulations (Chapter 2 of

the JCDH Regulations and Chapter 3.5 of the City of Huntsville

Regulations) as a mechanism to implement section 112(g) during the

transition period between promulgation of EPA's section 112(g) rule and

Alabama's adoption of rules

[[Page 57352]]

specifically designed to implement section 112(g). This approval is

limited to the implementation of the 112(g) rule and is effective only

during any transition time between the effective date of the 112(g)

rule and the adoption of specific rules by Alabama to implement section

112(g). To provide the State and Locals adequate time to adopt

regulations consistent with federal requirements, this approval is

granted with a duration of 18 months following promulgation by EPA of

section 112(g) regulations.

3. Program for Delegation of Section 112 Standards as Promulgated

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 approving under section 112(l)(5) and 40 CFR

63.91, the State's program for receiving delegation of section 112

standards and programs that are unchanged from Federal rules as

promulgated. In addition, EPA is delegating all existing standards and

programs under 40 CFR Parts 61 and 63. This program for delegation

applies to part 70 and non-part 70 sources.\1\

\1\ The radionuclide National Emission Standards for Hazardous

Air Pollutants (NESHAP) is a section 112 regulation and therefore,

also an applicable requirement under the State operating permits

program for part 70 sources. There is not yet a Federal definition

of ``major'' for radionuclide sources. Therefore, until a major

source definition for radionuclide is promulgated, no source would

be a major section 112 source solely due to its radionuclide

emissions. However, a radionuclide source may, in the interim, be a

major source under part 70 for another reason, thus requiring a part

70 permit. The EPA will work with ADEM, JCDH, and the City of

Huntsville in the development of their radionuclide program to

ensure that permits are issued in a timely manner.

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III. Administrative Requirements

A. Docket

Copies of the State's submittal and other information relied upon

for the final interim approval, including 17 public comments received

and reviewed by EPA on the proposal, are contained in docket number AL-

95-01 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.

C. Regulatory Flexibility Act

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.

D. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995,

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

of the Unfunded Mandates Act requires EPA to establish a plan for

informing and advising any small governments that may be significantly

or uniquely impacted by the rule.

The 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 in 40 CFR Part 70

Environmental protection, Administrative practice and procedure,

Air pollution control, Intergovernmental relations, Operating permits,

Reporting and recordkeeping requirements.

Dated: November 8, 1995.

Patrick M. Tobin,

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 Alabama

in alphabetical order to read as follows:

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

Permits Programs

* * * * *

Alabama

(a) Alabama Department of Environmental Management: submitted on

December 15, 1993, and supplemented on March 3, 1994; March 18, 1994;

June 5, 1995; July 14, 1995; and August 28, 1995; interim approval

effective on December 15, 1995; interim approval expires December 15,

1997.

(b) City of Huntsville Department of Natural Resources and

Environmental Management: submitted on November 15, 1993, and

supplemented on July 20, 1995; interim approval effective on December

15, 1995; interim approval expires December 15, 1997.

(c) Jefferson County Department of Health: submitted on December

14, 1993, and supplemented on July 14, 1995; interim approval effective

on December 15, 1995; interim approval expires December 15, 1997.

* * * * *

[FR Doc. 95-28212 Filed 11-14-95; 8:45 am]

BILLING CODE 6560-50-P