Title V Clean Air Act Final Interim Approval of Operating Permits Program; State of Delaware

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5339-1]

Title V Clean Air Act Final Interim Approval of Operating Permits

Program; State of Delaware

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 State of Delaware. This program was submitted

by the State 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: January 3, 1996.

ADDRESSES: Copies of the State of Delaware'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: Robin M. Moran, (3AT23), Air,

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

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

3023.

SUPPLEMENTARY INFORMATION:

I. Background

A. Introduction

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

the Clean Air Act (CAA)), and 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

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within 1 year after receiving the submittal. EPA's program review is

conducted 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, in

the case of interim approval, by the expiration of the interim approval

period, it must establish and implement a federal program.

On September 21, 1995, EPA proposed interim approval of the

operating permits program for the State of Delaware. (See 60 FR 48944).

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 State of Delaware.

II. Analysis of State Submittal

On November 15, 1993, the State of Delaware 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 November

22, 1993, and was found to be administratively incomplete pursuant to

40 CFR 70.4(e)(1) on January 18, 1994. Additional materials were

submitted on February 9, 1994, and May 15, 1995. Based on the

additional information, EPA found the submittal to be administratively

complete on May 19, 1995. The State submitted supplemental information

on September 5, 1995. EPA reviewed Delaware's 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 Delaware's operating permits program (see

60 FR 48944; September 21, 1995) and the TSD for this action, that

Delaware's operating permits program substantially meets the

requirements of the CAA and part 70.

III. Public Comments

EPA received no public comments on the notice of proposed interim

approval.

IV. Insignificant Activities

In the notice of proposed interim approval, EPA generally described

Delaware's list of insignificant activities contained in Appendix A of

Regulation No. 30. Today, EPA is clarifying its rationale for approving

Delaware's insignificant activities provision. Although Delaware's

Regulation No. 30 states that any information required by the permit

application need not be submitted for insignificant activities listed

or described in Appendix A, sources must provide a list of any

activities excluded because of size, emissions rate, or production

rate. The application form reflects this requirement and provides

detail on the specific information that must be included. Delaware's

regulation also requires applications to include information needed to

determine the applicability of, or to impose, any applicable

requirement, and that the emissions from insignificant activities shall

be included when determining the applicability of any applicable

requirement.

Paragraph (i) of Appendix A allows sources flexibility to consider

as insignificant those activities for which no applicable requirement

applies and which are not otherwise listed in the rule if they have the

potential to emit at less than the following aggregate rates: 25 tons

per year (tpy) of VOC in New Castle or Kent Counties or 50 tpy of VOC

in Sussex County; 40 tpy of particulate [matter]; 15 tpy of PM-10; 40

tpy of sulfur dioxide (SO2); and 25 tpy of nitrogen oxides (NOx) in New

Castle or Kent Counties or 100 tpy of NOx in Sussex County. While these

emission levels for insignificant activities are higher than those

approved by EPA for other states, EPA believes that Delaware's program

is acceptable because Delaware, in fact, requires the application to

contain more detailed information about these activities than many

other State programs. Delaware's permit application form (#AQM-1001DD,

submitted on February 9, 1994 and May 15, 1995) requires sources to

identify the following information for insignificant activities based

on emissions levels: the pollutant, emission rate (e.g., tons per year,

pounds per day), number of units and type of source. This level of

detail should ensure that Delaware has enough information to adequately

establish permitting requirements and the applicable requirements of

the Act. Because Delaware requires an acceptable level of information

in the permit application form, EPA believes that the emission

thresholds established in paragraph (i) of Appendix A need not be an

interim approval issue for Delaware's program. Since this decision

depends on the safeguard provided by the requirements in the

application form, EPA will process changes to the application form that

may reduce the quality or level of information relative to

insignificant activities as a formal program revision; that is,

application form revisions relative to insignificant activities will

not be approved by way of an exchange of letters between EPA and the

State of Delaware. Further, EPA's approval of Delaware's insignificant

activities is based on Section 5(d) of Regulation No. 30 (Standard

Application Form and Required Information) which states that the

activities listed in Appendix A are to be included for purposes of

determining whether a source is subject to the regulation. This

provision ensures that the emissions levels established in paragraph

(i) of Appendix A will not interfere with the determination of whether

a source is major under the Clean Air Act.

Final Action

EPA is promulgating interim approval of the operating permits

program submitted by the State of Delaware on November 15, 1993, with

supplemental submittals on November 22, 1993, February 9, 1994, May 15,

1995, and September 5, 1995. The State of Delaware must make the

changes identified in the notice of proposed rulemaking in order to

fully meet the requirements of the July 21, 1992 version of part 70.

(See 60 FR 48944, September 21, 1995). Delaware must adopt acid rain

regulations by July 1, 1996, consistent with the commitment made in a

September 5, 1995 letter to EPA.

The scope of the State's part 70 program applies to all part 70

sources (``covered sources'' as defined in the State's program) within

the State, except for 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 CAA 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

January 5, 1998. During the interim approval period, Delaware is

protected from sanctions for failure to have a fully approved Title V,

part 70 program, and EPA is not obligated to promulgate, administer and

enforce a federal permits program in the State. Permits issued

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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

interim approval, as does the 3-year time period for processing the

initial permit applications.

If the State fails to submit a complete corrective program for full

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

mandatory sanctions. If the State 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 CAA, which will remain in effect until EPA determines

that the State 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 State, both sanctions under section 179(b)

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

Administrator determines that the State has come into compliance. In

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

State still has not submitted a corrective program that EPA finds

complete, a second sanction would be required.

If EPA disapproves the State's complete corrective program, EPA

would 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 the date on which the sanction would be applied the State has

submitted a revised program and EPA has determined that this program

corrected the deficiencies that prompted the disapproval. Moreover, if

the Administrator finds a lack of good faith on the part of the State,

both sanctions under section 179(b) would apply after the expiration of

the 18-month period until the Administrator determines that the State

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

applies the first sanction, the State has not submitted a revised

program that EPA has determined corrects the deficiencies that prompted

disapproval, 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

State 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 the State's program by the expiration of the

interim approval period, EPA must promulgate, administer and enforce a

federal operating permits program for the State upon the date the

interim approval period expires.

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

the CAA's 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 State'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 Delaware's operating

permit program 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 State 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 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

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 State 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 to

propose interim approval of the State of Delaware's operating permits

program pursuant to Title V of the CAA and 40 CFR part 70 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 action, promulgating interim approval

of the State of Delaware'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.

Authority: 42 U.S.C. 7401-7671q.

Dated: November 22, 1995.

W. Michael McCabe,

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

Delaware in alphabetical order to read as follows:

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

Permits Programs

* * * * *

Delaware

(a) Department of Natural Resources and Environmental Control:

submitted on November 15, 1993 and amended on November 22, 1993,

February 9, 1994, May 15, 1995 and September 5, 1995; interim

approval effective on January 3, 1996; interim approval expires

January 5, 1998.

(b) [Reserved]

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[FR Doc. 95-29555 Filed 11-30-95; 1:07 pm]

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