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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5341-7]

Clean Air Act Interim Approval of Operating Permits Program; San

Diego 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, on behalf of the San Diego Air Pollution Control

District (San Diego 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 San

Diego'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

information used in developing this direct final rule are available for

public inspection (docket number CA SD-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: Celia Bloomfield (telephone 415/744-

1249), 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

[[Page 62754]]

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 San Diego 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, San Diego 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 San Diego 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 San Diego 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 San Diego 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 San Diego 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 San Diego'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 San Diego 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 San Diego 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 San

Diego 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 San Diego 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 San Diego'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-SD-95-1-OPS).

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

listed above.

1. Support Materials

San Diego's title V program was submitted by the California Air

Resources Board (CARB) on April 22, 1994 and found to be complete on

June 9, 1994. On April 4, 1995, the District amended the regulatory

portion of its submittal. On October 10, 1995, EPA received from CARB,

on behalf of the District, a revised fee program and an updated program

description. 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

San Diego's submittal. The San Diego 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. An implementation agreement is

currently being developed between San Diego and EPA.

2. Regulations and Program Implementation

San Diego's title V implementing regulation, District Regulation

XIV, was first adopted on January 18, 1994. After preliminary review of

Regulation XIV, EPA identified numerous regulatory deficiencies and

communicated the potential disapproval issues to San Diego in letters

dated September 6, 1994 and December 13, 1994. In response, San Diego

revised Regulation XIV. The amended regulation was adopted on March 7,

1995 and submitted to EPA by CARB, on behalf of the District, on April

4, 1995. San Diego's program description was also revised to reflect

the changes made to Regulation XIV. EPA is therefore evaluating and

acting on the March 7, 1995 version of Regulation XIV.

San Diego's title V implementing regulations substantially meet the

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; section 70.5 for 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.

a. Insignificant Activities

Section 70.5(c) states that EPA may approve, as part of a state

program, a list of insignificant activities and emissions levels which

need not be included in permit applications. Section 70.5(c) also

states that an application for a part 70 permit may not omit

information needed to determine the applicability of, or to impose, any

applicable requirement, or to evaluate appropriate fee amounts. Section

70.4(b)(2) requires states to include in their part 70

[[Page 62755]]

programs any criteria used to determine insignificant activities or

emission levels for the purpose of determining complete applications.

Under part 70, a state must request and EPA may approve as part of that

state's program any activity or emission level that the state wishes to

consider insignificant. Part 70, however, does not establish

appropriate emission levels for insignificant activities, relying

instead on a case-by-case determination of appropriate levels based on

the particular circumstances of the part 70 program under review.

San Diego submitted an extensive list of insignificant activities

that the District determined to be insignificant based on having

``relatively low potential to emit'' (Regulation XIV, Appendix A).

While the potential to emit criterion is an acceptable mechanism for

identifying insignificant units, the District did not provide emissions

level cut-offs for many of the listed units. For instance, Regulation

XIV, Appendix A(p)(17) exempts most refrigeration units regardless of

size. Such units, if they have a charge rate of 50 pounds or more of a

Class I or II ozone-depleting compound, would be subject to applicable

requirements and could not be considered insignificant. EPA believes

that in order to have fully approvable insignificant activities

provisions, the listed units should not confuse the regulated

community's obligation to provide all information needed to determine

the applicability of, or to impose, any applicable requirement.

For interim approval, EPA is relying on several rules in Regulation

XIV that affect the scope and usage of insignificant activities.

Specifically, Rule 1401(a) ensures that the District's permit exemption

rule, Rule 11, will not interfere with title V applicability

determinations. Similarly, Rule 1401(b)(4) ensures that emissions from

insignificant units will be included in all title V applicability

determinations. In addition, Rules 1411, 1414(f)(1), 1414(f)(3)(iii)

(A)&(B), 1414(f)(4) and the application ``Completeness Criteria''

guidance document require the permit application to include all

information necessary to determine whether and how an applicable

requirement applies at a source, regardless if a unit qualifies as

insignificant. Finally, Rules 1401(b)(4) and 1401(c)(24) prohibit

activities that are subject to an applicable requirement (other than

two specified generic facility-wide requirements) from qualifying as an

insignificant activity. For full approval, San Diego must revise its

list of insignificant activities for title V permitting as discussed in

section II.B.1.5. of this notice.

b. Variances

San Diego's Hearing Board has the authority to issue variances from

requirements imposed by State and local law. See California Health and

Safety Code sections 42350 et seq. In the legal opinion submitted for

California operating permit programs, California's Attorney General

states that ``[t]he variance process is not part of the Title V

permitting process and does not affect federal enforcement for

violations of the requirements set forth in a Title V permit.''

(Emphasis in original.)

EPA regards the State and District variance provisions as wholly

external to the program submitted for approval under part 70, and

consequently, is not taking action on those provisions of State and

local law. EPA has no authority to approve provisions of state or local

law, such as the variance provisions referred to, that are inconsistent

with the Act. EPA does not recognize the ability of a permitting

authority to grant relief from the duty to comply with a federally

enforceable part 70 permit, except where such relief is granted through

procedures allowed by part 70. A part 70 permit may be issued or

revised (consistent with part 70 permitting procedures) to incorporate

those terms of a variance that are consistent with applicable

requirements. A part 70 permit may also incorporate, via part 70 permit

issuance or modification procedures, the schedule of compliance set

forth in a variance. However, EPA reserves the right to pursue

enforcement of applicable requirements notwithstanding the existence of

a compliance schedule in a permit to operate. This is consistent with

40 CFR Sec. 70.5(c)(8)(iii)(C), which states that a schedule of

compliance ``shall be supplemental to, and shall not sanction

noncompliance with, the applicable requirements on which it is based.''

c. Reporting of Permit Deviations

Part 70 requires prompt reporting of deviations from permit

requirements, and San Diego has not defined ``prompt'' in its program.

Section 70.6(a)(3)(iii)(B) requires the permitting authority to define

prompt in relation to the degree and type of deviations likely to occur

and the applicable requirements. Although the permit program

regulations should define prompt for purposes of administrative

efficiency and clarity, an acceptable alternative is to define prompt

in each individual permit. The EPA believes that prompt should

generally be defined as requiring reporting within two to ten days of

the deviation. Two to ten days is sufficient time in most cases to

protect public health and safety as well as to provide a forewarning of

potential problems. For sources with a low level of excess emissions, a

longer time period may be acceptable. However, prompt reporting must be

more frequent than the semiannual reporting requirement, given this is

a distinct reporting obligation under section 70.6(a)(3)(iii)(A). Where

``prompt'' is defined in the individual permit but not in the program

regulations, EPA may veto permits that do not contain sufficiently

prompt reporting of deviations.

d. Temporary Authorization

San Diego's title V regulation provides for the issuance of a

``temporary authorization'' which allows a source to operate without an

operating permit. Temporary authorizations are not required by part 70,

but they exist in San Diego's title V program in order to maintain

consistency with the District's existing local permitting program. San

Diego structured its temporary authorization mechanism to ensure that

the issuance of temporary authorizations would not interfere with any

of the requirements established under part 70. Specifically, temporary

authorizations may only be issued to sources that have met the

requirements of section 112(g) or the preconstruction permitting

requirements under parts C or D of title I; i.e., the same scope of

sources that do not have to submit applications for title V permits or

title V permit modifications until 12 months after commencing operation

(section 70.5(a)(1)(ii)). Furthermore, possession of a temporary

authorization does not affect a source's obligation to submit a title V

permit application, and the temporary authorization expires on the date

that a complete title V permit application is due.

e. Enhanced New Source Review

San Diego's title V permit program provides for enhanced

preconstruction review, an optional process that allows sources to

satisfy both new source review and title V permit modification

requirements at the same time. Any modification processed pursuant to

San Diego's enhanced preconstruction review procedures may be

incorporated into the title V permit as an administrative permit

amendment. These enhanced procedures obviate the need to undergo two

application, public notice, and permit issuance/revision processes for

the same change.

[[Page 62756]]

f. Applicability

EPA found during its review of the San Diego title V program that

the District's applicability provisions are consistent with part 70 and

fully approvable, but that there is atypical language which warrants a

brief discussion in this notice. First, the requirement to count

fugitive hazardous air pollutant emissions in major source

determinations is contained in the definition of ``potential to emit''

rather than the definition of ``major stationary source.'' The term

``potential to emit'' is used to define ``major stationary source.''

(See Regulation XIV, Rules 1401(c)(25) and (36).)

Second, a broad applicability exemption for all non-major

stationary sources (Rule 1401(b)(1)) appears at first glance to be in

conflict with the part 70 requirement to permit non-major affected

sources and solid waste incineration units subject to section 129(e) of

the Act (section 70.3(b)). However, San Diego's regulation provides

that the applicability exemptions in Rule 1401(b)(1) apply only when

referenced in the applicability section (Rule 1401(a)(2) and (3));

i.e., to non-major sources subject to sections 111 or 112 of the Act.

(See Regulation XIV, Rule 1401(a)(2-4).) San Diego's program

description confirms this reading (section III.B.1.b., p.2). In any

case, if EPA completes a rulemaking that would require a non-major

source to obtain a title V permit, the non-major stationary source

exemption would not apply for that source (Rule 1401(b)(1)).

g. Federally Mandated New Source Review

In order to have an approvable title V program, permits must assure

compliance with all federal applicable requirements. The part 70

definition of ``applicable requirement'' includes ``any term or

condition of any preconstruction permits issued pursuant to regulations

approved or promulgated through rulemaking under title I, including

parts C or D, of the Act;'' (section 70.2, definition of ``applicable

requirement,'' subsection (2)) i.e., major and minor new source review

and prevention of significant deterioration requirements.

Rather than citing parts C or D of title I, San Diego's definition

of ``federally enforceable requirement'' states that requirements

imposed by ``federally mandated new source review'' or prevention of

significant deterioration regulations are applicable requirements. The

use of the term ``federally mandated new source review'' is unclear.

Under San Diego's definition, ``federally mandated new source review''

is linked to ``emission thresholds specified in federal law or in the

approved State Implementation Plan (SIP).'' (See Regulation XIV, Rule

1401(c)(19).) The District has a SIP-approved minor new source review

program that is triggered by any emissions increase, which could be

construed as an emissions threshold of zero, and therefore all NSR,

major and minor, is federally mandated. (See Regulation II, Rule

10(a).) Yet, San Diego has contended that minor NSR is not always

federally mandated, leaving the term ``federally mandated new source

review'' subject to conflicting interpretations.

The District must revise either the definition of ``federally

mandated new source review'' or the definition of ``federally

enforceable requirement'' to clearly include minor new source review as

an applicable requirement under title V. However, San Diego's program

is approvable for an interim period because the District's approved SIP

contains a minor new source review program, and San Diego's definition

of ``federally enforceable requirement'' also includes ``[a]ny standard

or other requirement provided for in the State Implementation Plan''

(Regulation XIV, Rule 1401(c)(18)(i)). Rules 10 and 21 of San Diego's

portion of the California SIP constitute the District's minor (and

major) NSR program. (See June 22, 1994 letter from Richard Smith, San

Diego Air Pollution Control District, to Ron Friesen, California Air

Resources Board.) Since Rules 10 and 21 are in San Diego's SIP, the

requirement to obtain, and the specific conditions of, a minor NSR

permit are federally enforceable.

EPA has discussed this interim approach with San Diego, and the

District agrees that SIP-approved Rules 10 and 21 provide for a

federally enforceable minor NSR program. However, EPA and San Diego

disagree about whether Rule 21 extends federal enforceability to all

terms and conditions of minor NSR permits. EPA believes that, until San

Diego's SIP is revised to state otherwise, Rule 21 makes all terms and

conditions of minor NSR permits federally enforceable. San Diego

believes that minor NSR permit terms that do not originate from the SIP

or other federal law or regulations are not made federally enforceable

by Rule 21. As an interim solution until San Diego's SIP is revised or

this disagreement is resolved, the District has agreed to designate in

the part 70 permit certain minor NSR permit terms as ``District-only

minor NSR'' and stipulate that those terms so listed will be reviewed

and, as necessary, be deleted, revised, or incorporated as federally-

enforceable terms of the part 70 permit on or before a specified

deadline (not later than the renewal of the permit).

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)).

San Diego has opted to make a presumptive minimum fee

demonstration. The District's fees are based on the actual direct and

indirect costs of evaluating and issuing a title V permit. In addition

to employing a cost recovery approach, the District will charge an

initial title V permit application fee of $2,200 per permitted source

(Rule 40, Section (s)). San Diego estimates an average implementation

cost, and hence fees, of $320,000 per year for the first 5 years of the

program. The presumptive minimum is calculated at $309,300 per year by

multiplying an estimated 10,000 tons of pollutants emitted each year in

San Diego by the CPI adjusted presumptive dollar amount of $30.93. San

Diego will therefore be collecting fees in an amount that exceeds the

presumptive minimum.

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

a. Authority and Commitments for Section 112 Implementation

San Diego 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 San Diego to issue permits that assure

compliance with all section 112 requirements. For further discussion,

please refer to the TSD accompanying

[[Page 62757]]

this action and the April 13, 1993 guidance memorandum entitled,

``Title V Program Approval Criteria for Section 112 Activities,''

signed by John Seitz.

b. Authority for Title IV Implementation

On March 7, 1995, San Diego incorporated by reference part 72, the

federal acid rain permitting regulations. The incorporation by

reference was codified in Rule 1412 of Regulation XIV and submitted to

EPA on April 4, 1995.

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 San Diego Air Pollution Control District, on

April 22, 1994 and amended on April 4, 1995 and October 10, 1995. Areas

in which San Diego's program is deficient and requires corrective

action prior to full approval are as follows:

(1) California State law currently exempts agricultural production

sources from permit requirements. CARB has requested source category-

limited interim approval for all California districts. In order for San

Diego's program to receive full approval (and to avoid a disapproval

upon the expiration of this interim approval), the California

Legislature must revise the Health and Safety Code to eliminate the

exemption of agricultural production sources from the requirement to

obtain a permit.

(2) Part 70 requires that any significant change in monitoring

permit terms or conditions be processed as a significant permit

modification. Rule 1401(c)(43), definition of ``Significant Permit

Modification,'' must be revised accordingly. (See section 70.7(e)(4).)

(3) San Diego's treatment of affected state notification is unclear

in the program submittal. Part 70 requires that air permitting

authorities provide notice to all affected states of all proposed

permits, minor and significant permit modifications, and renewals

(section 70.8(b)(1)). The term ``affected state'' is defined in section

70.2 as a contiguous state whose air quality may be affected or a state

within 50 miles of a permitted source. EPA is also undergoing a

rulemaking action that will allow Native American lands to be treated

as a state. (See 59 FR 43956, 43962 (Aug. 25, 1994); 58 FR 54364 (Oct.

21, 1993).)

San Diego's program does not define ``affected state,'' and it does

not specify any affected state notification procedures. It does

provide, however, the requirement to notify affected states in the case

of minor or significant permit modifications. In addition, San Diego

has indicated that it currently has cooperative permitting agreements

with Native American tribes.

EPA is not concerned about the notice deficiencies with respect to

states that border California because of San Diego's coastal location.

On the other hand, in order to receive full approval on this issue, San

Diego's program must ensure that Native American tribes will be

adequately notified and consulted once such tribes apply for treatment

as affected states. If San Diego's existing cooperative permitting

practices meet the affected state notification requirements set out in

section 70.8(b), the District may submit them to EPA for incorporation

into its title V program to satisfy the affected state notice

requirements. As an alternative to up-front adoption of affected state

notice provisions or incorporation of existing practices, EPA will

accept a commitment from San Diego to: (1) Initiate rule revisions upon

notification from EPA that an affected tribe has applied for state

status; and (2) provide affected state notice to tribes upon a tribe's

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

affected state notice rules.

(4) Revise Rule 1410(h)(7), paragraph 2 to require permit reopening

procedures for any inactive status permit that is modified to reflect

new applicable requirements upon being converted to active status if

there are 3 years or more remaining on the term of its 5-year permit.

(See section 70.7(f)(1)(i).)

(5) Remove any activities from the District's list of insignificant

activities that are subject to a unit-specific applicable requirement

and adjust/add size cut-offs to ensure that the listed activities are

truly insignificant. (See sections 70.4(b)(2) and 70.5(c).)

(6) Remove the reference to Rules 1401 (j) and (k) in Rule 1401(i).

This reference to minor and significant permit modifications in the

provisions for administrative permit amendments could be read to be

inconsistent with the definition of ``significant permit modification''

(Rule 1401(c)(43)), which correctly defaults unspecified changes to the

significant permit modification process. In addition, the phrase

``These shall include the following'' in the administrative permit

amendment section (Rule 1410(i)) creates ambiguity about whether the

list of administrative permit amendments is exhaustive or open ended.

Because part 70, section 70.7(d)(vi) requires that administrative

permit amendments be specifically approved as part of the title V

program, the word ``include'' in the above phrase must also be removed.

(7) The District must revise either the definition of ``federally

mandated new source review'' or the definition of ``federally

enforceable requirement'' to clearly include minor new source review as

an applicable requirement under title V.

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

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

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

EPA is not obligated to promulgate a federal permits program in the

District. 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 San Diego'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 San Diego'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), San

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

between promulgation of the

[[Page 62758]]

federal section 112(g) rule and adoption of implementing State

regulations.

For this reason, EPA is approving the use of San Diego'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 San Diego 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 San Diego'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, San Diego 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 San Diego and EPA. 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 San Diego's submittal and other information relied upon

for this direct final action is contained in docket number CA-SD-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, Environmental protection, Intergovernmental

relations, Operating permits, Reporting and recordkeeping requirements.

Dated: November 8, 1995.

Felicia Marcus,

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 paragraph (x) 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:

(x) San Diego Air Pollution Control District: submitted on April

22, 1994 and amended on April 4, 1995 and October 10, 1995; approval

effective on February 5, 1996, unless adverse or critical comments are

received by January 8, 1996.

* * * * *

[FR Doc. 95-29836 Filed 12-06-95; 8:45 am]

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