Clean Air Act Interim Approval of Operating Permits Program; Mariposa Air Pollution Control District, California

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5341-9]

Clean Air Act Interim Approval of Operating Permits Program;

Mariposa Air Pollution Control District, California

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is promulgating direct final interim approval of the

title V operating permits program submitted by the California Air

Resources Board (CARB), on behalf of the Mariposa Air Pollution Control

District (Mariposa or District), 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.

In addition, today's action promulgates direct final approval of

Mariposa's mechanism for receiving delegation of section 112 standards

as promulgated.

DATES: This direct final rule is effective on February 5, 1996 unless

adverse or critical comments are received by January 8, 1996. If the

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

Federal Register.

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

[[Page 62759]]

information used in developing this direct final rule are available for

public inspection (docket number CA-MA-95-1-OPS) during normal business

hours at the following location: Operating Permits Section (A-5-2), Air

and Toxics Division, U.S. Environmental Protection Agency, Region IX,

75 Hawthorne Street, San Francisco, CA 94105.

FOR FURTHER INFORMATION CONTACT: Sara Bartholomew (telephone 415/744-

1170), Operating Permits Section (A-5-2), Air and Toxics Division, U.S.

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

Francisco, CA 94105.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

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 (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.

The EPA is publishing this action without prior proposal because

the Agency views this as a noncontroversial action and anticipates no

adverse comments. However, in a separate document in this Federal

Register publication, the EPA is proposing interim approval of the

operating permit program submitted by Mariposa should adverse or

critical comments be filed.

If EPA receives adverse or critical comments, this action will be

withdrawn before the effective date by publishing a subsequent document

that will withdraw the final action. All public comments received will

then be addressed in a subsequent final rule based on this action

serving as the proposed rule. The EPA will not institute a second

comment period. Any parties interested in commenting on this action

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

is advised that this action will be effective on February 5, 1996.

B. Federal Oversight and Sanctions

This interim approval, which may not be renewed, extends until

February 9, 1998. During this interim approval period, Mariposa 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 Mariposa fails to submit a complete corrective program for full

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

mandatory sanctions. If Mariposa 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 Mariposa 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 determines that Mariposa has 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 Mariposa'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 Mariposa 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 Mariposa 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 Mariposa

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 Mariposa upon interim approval expiration.

II. Direct Final Action and Implications

A. Analysis of State Submission

The analysis contained in this notice focuses on specific elements

of Mariposa's title V operating permits program that must be corrected

to meet the minimum requirements of part 70. The full program

submittal; the Technical Support Document (TSD), which contains a

detailed analysis of the submittal; and other relevant materials are

available for inspection as part of the public docket (CA-MA-95-1-OPS).

The docket may be viewed during regular business hours at the address

listed above.

1. Support Materials

Mariposa's title V program was submitted by the California Air

Resources Board (CARB) on March 8, 1995 and found to be complete on May

25, 1995. Enabling legislation for the State of California and the

Attorney General's legal opinion were submitted by CARB for all

districts in California and therefore were not included separately in

Mariposa's submittal. The Mariposa submission does contain a Governor's

letter requesting source category-limited interim approval, District

implementing and supporting regulations, and all other program

documentation required by section 70.4. EPA will wait to develop an

implementation agreement between Mariposa and EPA until the District

has title V sources.

2. Regulations and Program Implementation

Mariposa's title V implementing regulation, District Regulation X,

was adopted on February 28, 1995. The District used the CARB model

rule, and Regulation X is almost identical to the other smaller

districts in California. EPA has granted interim approval to 23 of

these smaller districts to date, and a detailed discussion of the

issues in these programs can be found in 60 FR 21720, published on May

3, 1995.

Mariposa's title V implementing regulations substantially meet the

[[Page 62760]]

requirements of 40 CFR part 70, sections 70.2 and 70.3 for

applicability; sections 70.4, 70.5, and 70.6 for permit content,

including operational flexibility; section 70.7 for public

participation and permit modifications; section 70.5 for criteria that

define insignificant activities and complete application forms; and

section 70.11 for enforcement authority. Although the regulations

substantially meet part 70 requirements, there are a few deficiencies

in the program that are outlined under section II.B.1. below as interim

approval issues and further described in the TSD.

3. Permit Fee Demonstration

Section 502(b)(3) of the Act requires that each permitting

authority collect fees sufficient to cover all reasonable direct and

indirect costs required to develop and administer its title V operating

permits program. Each title V program submittal must contain either a

detailed demonstration of fee adequacy or a demonstration that

aggregate fees collected from title V sources meet or exceed $25 per

ton per year (adjusted annually based on the Consumer Price Index

(``CPI''), relative to 1989 CPI). The $25 per ton amount is presumed,

for program approval, to be sufficient to cover all reasonable program

costs and is thus referred to as the ``presumptive minimum'' (40 CFR

70.9(b)(2)(i)).

Mariposa does not currently have any title V sources. The District

has adopted a fee rule that would charge the presumptive minimum to any

title V source that locates in the District, or to any source to which

title V becomes applicable.

4. Provisions Implementing the Requirements of Other Titles of the Act

a. Authority and Commitments for Section 112 Implementation

Mariposa has demonstrated in its title V program submittal adequate

legal authority to implement and enforce all section 112 requirements

through the title V permit. This legal authority is contained in the

State of California enabling legislation and in regulatory provisions

defining federal ``applicable requirements'' and requiring each permit

to incorporate conditions that assure compliance with all applicable

requirements. EPA has determined that this legal authority is

sufficient to allow Mariposa to issue permits that assure compliance

with all section 112 requirements. For further discussion, please refer

to the TSD accompanying this action and the April 13, 1993 guidance

memorandum entitled, ``Title V Program Approval Criteria for Section

112 Activities,'' signed by John Seitz and located in the docket.

b. Authority for Title IV Implementation

Mariposa has no title V sources at this time, and therefore has no

Phase I or Phase II acid rain sources. The District has not submitted a

complete acid rain program, due to its lack of sources. If, in the

future, title V sources locate in the District, or if title V should

become applicable to any existing sources, Mariposa will need to

provide the same commitment that EPA is requiring of other Districts

that do not have a complete acid rain program. This commitment will be

to expeditiously adopt the appropriate regulatory authority, if and

when it becomes necessary to issue a title IV permit to any new or

existing source in the District that becomes subject to, or wants to

opt into, the acid rain program.

B. Proposed Interim Approval and Implications

1. Title V Operating Permits Program

The EPA is promulgating direct final interim approval to the

operating permits program submitted by the California Air Resources

Board, on behalf of the Mariposa Air Pollution Control District, on

March 8, 1995. Areas in which Mariposa's program is deficient and

requires corrective action prior to full approval are as follows:

(1) Provide a demonstration that activities that are exempt from

part 70 permitting are truly insignificant and are not likely to be

subject to an applicable requirement. Alternatively, the District may

restrict the exemptions to activities that are not likely to be subject

to an applicable requirement and emit less than District-established

emission levels. The District should establish separate emission levels

for HAPs and for other regulated pollutants and demonstrate that these

emission 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.

(2) Revise the exemption list in Rule 402 (Exemptions to Rule 401)

to remove the general exemption for agricultural production sources or

to restrict the exemptions to non-title V sources.

(3) Revise the application content requirements in Rule 1006 so

that any compliance schedule required by the rule for a source not in

compliance must resemble and be at least as stringent as that contained

in any judicial consent decree, administrative order, or schedule

approved by the hearing board to which the source is subject as

required by Sec. 70.5 (c)(4)(iii)(C) rather than simply a schedule of

compliance approved by the District's hearing board.

(4) Revise the application content requirements in Rule 1006 to

clarify that all reports and other documents submitted in the permit

application must be certified by the responsible official as required

by Sec. 70.5 (d) and to provide the full text of the responsible

official's certification in Sec. 70.5 (d).

(5) Provide in Rule 1004 a permit application deadline for sources

that become subject to the District's part 70 rule after the rule's

effectiveness date for reasons other than commencing operation. This

deadline cannot be any later than 12 months after the source becomes

subject to the rule as required by Sec. 70.5 (a)(1).

(6) Revise the permit issuance procedures in Rule 1005 to provide

for notifying the EPA and affected States in writing of any refusal by

the District to accept all recommendations for the proposed permit that

the Affected State submitted during the public/Affected State review

period as required by Sec. 70.8 (b)(2).

(7) Incorporate in Rule 1005 provisions citing the right of the

public to petition EPA under Sec. 70.8 (d) after the expiration of the

EPA's 45-day review period and prohibiting the District from issuing a

permit, if it has not already done so, until the EPA's objections in

response to the petition are resolved as required by Sec. 70.8 (d).

(8) Revise Rule 1005 to provide for public notice of permitting

actions by other means if necessary to assure adequate notice to the

affected public as required by Sec. 70.7 (h)(1).

(9) Revise the permit content requirements in Rule 1006 to clarify

that all reports and other documents required by the permit must be

certified by a responsible official as required by Sec. 70.6 (c)(1) and

to provide the full text of the responsible official's certification in

Sec. 70.5 (d).

(10) Revise the permit content requirements in Rule 1006 to require

that any compliance schedule for a source not in compliance must

resemble and be at least as stringent as that contained in any judicial

consent decree, administrative order, or schedule approved by the

hearing board to which the source is subject as required by Secs. 70.6

(c)(3) and 70.5 (c)(8)(iii)(C).

(11) Revise the permit content requirements in Rule 1006 to require

the submission of compliance certifications more frequently than

annually if a more frequent period is specified in the applicable

requirement or by the District as required by Sec. 70.6 (c)(5)(i).

[[Page 62761]]

This interim approval, which may not be renewed, extends for a

period of up to two years. During the interim approval period, Mariposa

is protected from sanctions for failure to have a program, and EPA is

not obligated to promulgate a federal permits program in the State.

Permits issued under a program with interim approval have full standing

with respect to part 70, and the one-year time period for submittal of

permit applications by subject sources begins upon interim approval, as

does the three-year time period for processing the initial permit

applications.

The scope of Mariposa's part 70 program that EPA is acting on in

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

program) within Mariposa's jurisdiction. The approved program does not

apply to any part 70 sources 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).

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

The EPA has published an interpretive notice in the Federal

Register regarding section 112(g) of the Act (60 FR 8333; February 14,

1995) that postpones the effective date of section 112(g) until after

EPA has promulgated a rule addressing that provision. The interpretive

notice also 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),

Mariposa must be able to implement section 112(g) during the period

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

implementing State regulations.

For this reason, EPA is approving the use of Mariposa'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 Mariposa of rules specifically designed to

implement section 112(g). However, since the sole purpose of this

approval is 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. The EPA is limiting the 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 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 a 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 part 63.91 of Mariposa's program for

receiving delegation of section 112 standards that are unchanged from

federal standards as promulgated. California Health and Safety Code

section 39658 provides for automatic adoption by CARB of section 112

standards upon promulgation by EPA. Section 39666 of the Health and

Safety Code requires that districts then implement and enforce these

standards. Thus, when section 112 standards are automatically adopted

pursuant to section 39658, Mariposa will have the authority necessary

to accept delegation of these standards without further regulatory

action by the District. The details of this mechanism and the means for

finalizing delegation of standards will be set forth in an

implementation agreement between Mariposa and EPA, which will be

negotiated at the time when the District has title V sources. This

program applies to both existing and future standards but is limited to

sources covered by the part 70 program.

III. Administrative Requirements

A. Docket

Copies of Mariposa's submittal and other information relied upon

for this direct final action is contained in docket number CA-MA-95-1-

OPS maintained at the EPA Regional Office. The docket is an organized

and complete file of all the information submitted to, or otherwise

considered by, EPA in the development of this direct final rulemaking.

The docket is available for public inspection at the location listed

under the ADDRESSES section of this document.

B. Regulatory Flexibility Act

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.

C. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

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

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

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

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated today does

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

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

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

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

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

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

action.

D. Executive Order 12866

The Office of Management and Budget has exempted this action from

review under Executive Order 12866.

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: November 13, 1995.

Felicia Marcus,

Regional Administrator.

Part 70, title 40 of the Code of Federal Regulations is amended as

follows:

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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 (n) to the

entry for California to read as follows:

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

Permits Programs

* * * * *

The following district program was submitted by the California Air

Resources Board on behalf of:

(n) Mariposa Air Pollution Control District: submitted on March 8,

1995; approval effective on February 5, 1996 unless adverse or critical

comments are received by January 8, 1996.

* * * * *

[FR Doc. 95-29834 Filed 12-6-95; 8:45 am]

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