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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5174-4]

Title V Clean Air Act Proposed Interim Approval of Operating

Permits Program; District of Columbia

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed interim approval.

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SUMMARY: EPA is proposing interim approval of the operating permits

program submitted by the District of Columbia. This program was

submitted by the District for the purpose of complying with federal

requirements which mandate that states develop, and submit to EPA,

programs for issuing operating permits to all major stationary sources,

and to certain other sources. The rationale for proposing interim

approval is set forth in this notice; additional information is

available at the address indicated below. This action is being taken in

accordance with the provisions of the Clean Air Act.

DATES: Comments on this proposed action must be received in writing by

April 20, 1995.

ADDRESSES: Comments should be submitted to Jennifer Abramson at the

Region III address indicated. Copies of the District's submittal and

other supporting information used in developing the proposed interim

approval are available for inspection during normal business hours at

the following location: Air, Radiation, and Toxics Division, U.S.

Environmental Protection Agency, Region III, 841 Chestnut Building,

Philadelphia, PA 19107.

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

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

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

2923.

SUPPLEMENTARY INFORMATION:

I. Background

As required under Title V of the Clean Air Act (CAA) as amended

(1990), EPA has promulgated rules which define the minimum elements of

an approvable state operating permits program and the corresponding

standards and procedures by which EPA will approve, oversee, and

withdraw approval of state operating permits programs (see 57 FR 32250

(July 21, 1992)). These rules are codified at 40 Code of Federal

Regulations (CFR) part 70. Title V requires states to develop, and

submit to EPA, programs for issuing these operating permits to all

major stationary sources and to certain other sources.

The CAA requires that states develop and submit these programs to

EPA by November 15, 1993, and that EPA act to approve or disapprove

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

review occurs pursuant to section 502 of the CAA and part 70, 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, EPA must establish

and implement a federal operating permits program.

Following final interim approval, if the District fails to submit a

complete corrective program for full approval by 6 months before the

interim approval period expires, EPA would start an 18-month clock for

mandatory sanctions. If the District then failed to submit a complete

corrective program before the expiration of that 18-month period, EPA

would be required to apply one of the sanctions in section 179(b) of

the CAA. Such a sanction would remain in effect until EPA determined

that the District had corrected the deficiency by submitting a complete

corrective program. Moreover, if the Administrator found a lack of good

faith on the part of the District, both sanctions under section 179(b)

would apply after the [[Page 14922]] expiration of the 18-month period

until the Administrator determined that the District had come into

compliance. In any case, if, six months after application of the first

sanction, the District still had not submitted a corrective program

that EPA found complete, a second sanction would be required.

If, following final interim approval, EPA disapproved the

District'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 that date the

District had submitted a revised program and EPA had determined that

this program corrected the deficiencies that prompted the disapproval.

Moreover, if the Administrator found a lack of good faith on the part

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

the expiration of the 18-month period until the Administrator

determined that the District had come into compliance. In all cases,

if, six months after EPA applied the first sanction, the District had

not submitted a revised program that EPA had determined corrected the

deficiencies that prompted disapproval, a second sanction would be

required.

In addition, discretionary sanctions may be applied where warranted

any time after the end of an interim approval period if the District

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 a District program by the expiration of an

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

federal operating permits program for the District upon the date the

interim approval period expires.

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

operating permits program for review by EPA. The submittal was

supplemented by additional materials on March 11, 1994, and was found

to be administratively complete pursuant to 40 CFR 70.4(e)(1). The

submittal includes an Administrator's letter, a description of the

District's title V program, permitting regulations, a Corporation

Counsel's legal opinion, permitting program documentation, a permit fee

demonstration, a description of compliance tracking and enforcement

program, and provisions implementing the requirements of other titles

of the CAA.

II. Summary and Analysis of the District's Submittal

The analysis contained in this notice focuses on the major portions

of the District's operating permits program submittal: regulations and

program implementation, variances, fees, support materials, and

provisions implementing the requirements of titles III and IV of the

CAA. Specifically, this notice addresses the deficiencies in the

District's submittal which will need to be corrected prior to full

approval by EPA. These deficiencies as well as other issues related to

the District's operating permit program are discussed in detail in the

Technical Support Document (TSD). The full program submittal and the

TSD are available for review as part of the public docket. The docket

may be viewed during regular business hours at the EPA Region III

office listed in the ADDRESSES section of this document.

A. Regulations and Program Implementation

The District of Columbia's operating permit program is primarily

defined by regulations adopted as chapter 3 of subtitle I of title 20

of the District of Columbia Municipal Regulations (20 DCMR). Provisions

for enforcement authority are located in other Chapters of subtitle I

of 20 DCMR. The following analysis of the District's operating permit

regulations corresponds directly with the format and structure of part

70.

Section 70.2 Definitions

The District's regulations substantially meet the requirements of

40 CFR 70.2 for definitions. The following changes must be made to

chapter 3 in order to fully meet the requirements of 40 CFR 70.2.

1. The Sec. 399.1 definition of ``Fugitive emissions'' is entitled

``Emissions emissions''. This typographical error must be corrected to

clarify the meaning of the term fugitive emissions as the term is used

in the chapter 3 operating permits regulations.

2. The Sec. 399.1 definition of ``Title I modification or

modification under any provision of Title I of the Act'' does not

expressly include changes reviewed under a minor source preconstruction

review program (``minor NSR changes''). EPA is currently in the process

of determining the proper definition of this term. As further explained

below, EPA has solicited public comment on whether the phrase

``modification under any provision of Title I of the Act'' in 40 CFR

70.7(e)(2)(i)(A)(5) should be interpreted to mean literally any change

at a source that would trigger permitting authority review under

regulations approved or promulgated under Title I of the Act. This

would include state preconstruction review programs approved by EPA as

part of a State Implementation Plan (SIP) under section 110(a)(2)(C) of

the Clean Air Act.

On August 29, 1994, EPA proposed revisions to the interim approval

criteria in 40 CFR 70.4(d) to, among other things, allow state programs

with a more narrow definition of ``Title I modifications'' to receive

interim approval (59 FR 44572). EPA explained its view that the

preferred reading of ``Title I modifications'' includes minor NSR, and

solicited public comment on the proper interpretation of that term (59

FR 44573). EPA stated that if, after considering the public comments,

it continued to believe that the term ``Title I modifications'' should

be interpreted as including minor NSR changes, it would revise the

interim approval criteria as needed to allow states with a narrower

definition to be eligible for interim approval.

EPA hopes to finalize its rulemaking revising the interim approval

criteria under 40 CFR 70.4(d) expeditiously. If EPA establishes in its

rulemaking that the definition of ``Title I modifications'' can be

interpreted to exclude changes reviewed under minor NSR programs, the

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

any provision of Title I of the Act'' would be fully consistent with

part 70. Conversely, if EPA establishes through the rulemaking that the

definition must include changes reviewed under minor NSR, the

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

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

70.2 requirements for definitions. If the impact of this deficiency

becomes a basis for interim approval as a result of EPA's rulemaking,

the District would be required to revise the section 399.1 definition

to conform to the requirements of part 70.

Accordingly, this proposed approval does not identify the

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

any provision of Title I of the Act'' as necessary grounds for either

interim approval or disapproval. Again, although EPA has reasons for

believing that the better interpretation of ``Title I modifications''

is the broader one, EPA does not believe that it is appropriate to

determine whether this is a program deficiency until EPA completes its

rulemaking on this issue.

Section 70.5 Permit Applications

The District's regulations substantially meet the requirements of

[[Page 14923]] 40 CFR 70.5 for permit applications. The following

changes must be made to Chapter 3 in order to fully meet the

requirements of 40 CFR 70.5:

1. Section 301.1(b)(6)(B) must be modified to clarify that

applications for permit renewal must contain both a compliance plan, as

required by Sec. 301.3(h), and a compliance certification, as required

by Sec. 301.3(i).

2. The District must revise Sec. 301.3(c)(1) to ensure that all

regulated air pollutant emissions which are subject to applicable

requirements, including emissions from nonmajor sources subject to

section 111 or 112 of the CAA, and sources solely subject to Part 60,

Subpart AAA--Standards of Performance for new Residential Wood Heaters

and Part 61, Subpart M--National Emissions Standard for Hazardous Air

Pollutants (NESHAP) for Asbestos, section 61.145, Standard for

Demolition and Renovation, will be described in permit applications.

During the interim period, the District will be expected to require

sources to prepare permit applications which include all information

needed to determine the applicability of any applicable requirement, in

accordance with Sec. 301.3.

Accordingly, the District will also be expected to issue permits to

major sources that include all applicable requirements, in accordance

with Sec. 302.1.

3. Section 301.3(g) must be revised to correct the misreferenced

sections of the District's regulations which address alternate

operating scenarios and emissions trading.

4. Section 301.3(h)(3)(C) must be revised to clarify that any

schedule of compliance shall be supplemental to and shall not sanction

noncompliance with the applicable requirements on which it is based.

Sections 70.4 and 70.6 Permit Content

The District's regulations substantially meet the requirements of

40 CFR 70.4 and 40 CFR 70.6 for permit content. The following changes

must be made to Chapter 3 in order to fully meet the requirements of 40

CFR 70.4 and 40 CFR 70.6:

1. Section 302.1(k) must be revised to clarify that terms and

conditions for the trading or averaging of emissions must meet all

applicable requirements and the requirements of the operating permits

program.

2. Section 302.3(e)(6) must be renumbered to Sec. 302.3(f) to be

consistent with the structure of 40 CFR 70.6(c)(6). Such a change is

needed to clarify that the permit will include provisions required by

the Mayor to ensure compliance.

3. Section 302.4(e) must be revised to clarify that requests for

coverage under a general permit must meet the permit application

requirements of Title V of the Clean Air Act, and include all

information necessary to assure compliance with the general permit.

4. The section 302.8 provisions regarding operational flexibility

must be restructured to clarify that the three types of operational

flexibility (Section 502(b)(10) changes, emissions trading under SIP,

and emissions trading for the purposes of complying with federally

enforceable emissions cap) are available only when the conditions

specified in 40 CFR 70.4(b)(12) are met.

5. Section 302.8(b) must be revised to clarify that compliance with

emissions trading provisions in a permit will be determined according

to requirements of the applicable SIP/ Federal Implementation Plan

(FIP) or applicable requirement authorizing the emissions trade.

Section 70.7 Permit Issuance, Renewal, Reopenings, and Revisions

The District's regulations substantially meet the requirements of

40 CFR 70.7 for permit issuance, renewal, reopenings, and revisions.

The following changes must be made to Chapter 3 in order to fully meet

the requirements of 40 CFR 70.7:

1. The provisions of Sec. 303.1(f) and Sec. 303.1(e)(2) authorize

an extension of 5 days from the permit issuance deadlines required in

part 70. Sections 303.1(f) and 303.1(d)(1) must be revised to ensure

that the Part 70 permit issuance deadlines will be met.

2. Section 303.3(a) language must be modified to clarify that

public participation and EPA and affected state review will apply to

the entire draft renewal permit, including those portions which are

incorporated by reference.

3. Section 303.5(d)(1) prescribes the use of significant permit

modification procedures for changes meeting certain criteria. So that

all types of changes will be assigned a specified permit revision

track, Sec. 303.5(d)(1) must be revised to also require the use of the

significant permit modification procedure for any type of change which

does not qualify for either a minor permit modification or an

administrative amendment.

4. The District must revise Sec. 303.10 to provide for sending

notice to persons on a mailing list developed by the permitting

authority, including those people who request, in writing, to be on the

list.

5. Section 303.10(a)(1)(B) must be revised to require the notice to

include procedures to request a hearing in the event that a hearing has

not been scheduled. Although not specified in the Chapter 3

regulations, the District must provide an opportunity to request a

hearing if one has not been scheduled during the interim period.

6. Section 303.10 must be revised to include a provision that

requires notice of a public hearing at least 30 days in advance of the

hearing. Although not specified in the Chapter 3 regulations, the

District must provide notice of a public hearing at least 30 days in

advance of the hearing during the interim period.

Section 70.9 Fee Determination and Certification

The District's regulations substantially meet the requirements of

40 CFR 70.9 for fee determination and certification. The following

changes must be made to Chapter 3 in order to fully meet the

requirements of 40 CFR 70.9:

1. Section 305.2(b) must be revised to clarify that the August 1989

CPI value of 124.6 will not be used for the purposes of calculating the

CPI fee adjustment and that the appropriate value of 122.15, the

average 1989 CPI value, will be used instead.

2. Section 305.1 requires sources to pay an annual presumptive

minimum fee ``or the equivalent over some other period''. Although

appearing in section 502(b)(3)(A) of the CAA, the language ``or the

equivalent over some other period'' as written into this section may

allow for wide variations in the amount and timing of fee payments and

could frustrate enforcement of the fee payment requirement. If the

District intends to provide sources with the flexibility to pay fees

pursuant to a pay schedule other than the annual presumptive minimum,

section 305.1 must be revised to ensure that such equivalent fee

schedule is enforceable as a practical matter. If the District does not

intend to allow sources to pay fees other than the annual presumptive

minimum, the section 305.1 language ``or the equivalent over some other

period'' should be removed.

Section 70.11 Enforcement Authority

The District's regulations substantially meet the requirements of

40 CFR 70.11 for requirements for enforcement authority. The following

changes must be made to subtitle I of 20 DCMR in order to fully meet

the requirements of 40 CFR 70.11:

1. The enforcement provisions cited in the Corporation Counsel's

opinion as [[Page 14924]] meeting the enforcement requirements of part

70 do not satisfy the requirements of Sec. 70.11(a)(1) and (2). The

District must either revise the Corporation Counsel's opinion to

reference existing provisions in District of Columbia law which satisfy

the requirements of 70.11(a) (1) and (2), or specifically establish

authorities to restrain or enjoin immediately permit violators

presenting substantial endangerment, and to seek injunctive relief for

program and permit violations without the need for prior revocation of

the permit. Whichever approach the District takes, the District's

regulations must clearly establish that such enforcement authority

extends to chapter 3.

2. The District must clarify that civil fines are recoverable for

the violation of any applicable requirement, any permit condition, any

fee or filing requirement, any duty to allow or carry out inspection,

entry of monitoring activities or, any regulation or orders issued by

the Mayor. The District must either amend the Subtitle I of 20 DCMR to

specifically address the types of violations for which civil fines are

recoverable, or otherwise have the Corporation Counsel demonstrate that

section 100.6 applies to each of the specific types of violations

mentioned in Sec. 70.11(a)(3)(i).

3. As required by 40 CFR 70.11(a)(3), the District must establish

civil enforcement authority for the collection of penalties in a

maximum amount of not less than $10,000 per day per violation. Such

civil penalties must be recoverable for the types of violations

discussed in Sec. 70.11(a)(3)(i).

4. With respect to the Sec. 100.6 civil enforcement authority, the

District must clarify that mental state is not allowed as an element of

proof for civil violations. The District must either establish

regulatory provisions for strict liability or provide a demonstration

from the Corporation Counsel that mental state is not allowed as an

element of proof for civil violations.

5. The District must clarify that criminal fines are recoverable

for any knowing violations of applicable requirements, permit

conditions, or fee or filing requirements. Criminal fines must also be

recoverable against any person who knowingly makes any false material

statement, representation or certification in any forms, in any notice

or report required by a permit, or who knowingly renders inaccurate any

required monitoring device or method. The District must either amend

the subtitle I of 20 DCMR to specifically address the types of knowing

violations for which criminal fines are recoverable or have the

Corporation Counsel demonstrate that section 105.1 applies to each of

the specific types of knowing violations mentioned in

Sec. 70.11(a)(3)(ii) and (iii).

6. Section 105.1 provides criminal enforcement authority for the

recovery of fines in an amount not to exceed $10,000. Pursuant to the

requirements of Sec. 70.11(a)(3)(i), the District must revise the

provisions pertaining to criminal enforcement so to authorize the

collection of penalties in a maximum amount of not less than

Sec. 10,000 per day per violation. Such criminal penalties must be

recoverable for the types of knowing violations discussed in

Sec. 70.11(a)(3)(ii) and (iii).

B. Variances

The District of Columbia has the authority to issue a variance from

requirements imposed by the District under the ``District of Columbia

Air Pollution Control Act of 1984'' (APCA). Under specific

circumstances and following a specified procedure, section 103 of the

APCA authorizes the Mayor to grant or deny requests for relief from

APCA requirements. EPA regards this provision as wholly external to the

program submitted for approval under part 70, and consequently is

proposing to take no action on this provision of the District's law.

EPA has no authority to approve provisions of District law, such as the

variance provisions referred to, which are inconsistent with the CAA.

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. EPA reserves the right to enforce the terms of the part 70

permit where the permitting authority purports to grant relief from the

duty to comply with a Part 70 permit in a manner inconsistent with Part

70 procedures.

C. Permit Fee Demonstration

Section 305 of the District's regulations requires owners or

operators of part 70 sources to pay annual fees of twenty-five dollars

($25), adjusted by the CPI index, times the total tons of the actual

emissions of each regulated pollutant (for presumptive fee calculation)

emitted from part 70 sources, or an equivalent amount. All fees,

penalties, and interest collected shall be deposited by the Mayor in a

special District of Columbia Treasury fund, subject to appropriation,

to carry out part 70 activities solely. The District's fee calculation,

based on 1990 inventory data, shows that revenues will be able to cover

the estimated costs of the program.

In chapter V. of the submittal entitled ``Permitting Program

Documentation'', the District estimates revenues and costs associated

with the implementation of its operating permits program. However, the

District's projection of revenues is based on the August 1989 CPI value

of 124.6 rather than the average 1989 CPI value of 122.15 required

under the concept of presumptive minimum. Although Chapter V.

demonstrates that revenues would have been adequate using the August

1989 value, section 305 requires the District to use the average 1989

value in calculating the CPI adjustment which will result in the

collection of greater revenues. Until the District submits a revised

fee rule accompanied by a detailed fee demonstration, the average 1989

value of 122.15 must be employed in the implementation of the chapter 3

operating permits program.

In addition to revenues obtained from the payment of emissions-

based fees, the District's chapter V. projection of revenues includes

revenues received from annual $200 operating fees assessed to each of

the District's 38 sources. Because the imposition of the annual $200

operating fee is not authorized under any provision of the chapter 3

regulations, EPA cannot be certain that such fees will be paid.

Accordingly, EPA has subtracted the revenue estimates from operating

fees from total projected revenues for purposes of evaluating the

adequacy of the District's fee program. The estimates of revenues from

the authorized collection of emissions-based fees reveal that the

District's program will have adequate funding to cover the direct and

indirect costs of implementing the permit program during each of the

first four years.

D. Support Materials

The District's part 70 operating permits program submittal

substantially meets the requirements of 40 CFR 70.4 for an attorney

general's legal opinion. Among the several issues required to be

addressed in the attorney general's opinion, part 70 requires each

opinion to demonstrate adequate authority for judicial review of final

permit actions. Specifically, Sec. 70.4(b)(3)(xi) requires the legal

opinion to demonstrate authority to ensure that if the final permit

action being challenged is the permitting authority's failure to issue

or deny a permit within the required timeframes, a petition for

judicial review may be filed any time before the permitting authority

issues or denies the permit. Section XX. of the Corporation

[[Page 14925]] Counsel's opinion cites DCMR 303.11 as the authority

which fulfills this requirement. In doing so, it appears that the

Corporation Counsel interprets District law such that each day which

the Mayor fails to issue or deny a permit (after the permit issuance

deadline) constitutes a new final action date for purposes of the 90-

day judicial review petition deadline. However, the District's 303.11

regulations are vague in this regard and do not prohibit petitions for

the Mayor's failure to act from being filed after the Mayor issues or

denies the permit. The District must amend DCMR 303.11 to clarify that

when the Mayor fails to issue or deny a permit within the required

deadline, this failure can be challenged up until the time before the

permitting authority denies the permit or issues the final permit.

The District's part 70 operating permits program substantially

meets the requirements of 40 CFR 70.4 for a statement of adequate

resources. Chapter VIII. of the District's submittal indicates that the

Compliance and Enforcement Branch (CEB) of the District's Air Resources

Management Division (ARMD) manages compliance and enforcement

activities in the District. In chapters II., and V., the submittal

indicates that title V fee revenues will support the hiring of 4

engineers in the Engineering and Planning Branch (EPB) of the ARMD who

will perform engineering functions inclusive of permitting,

inspections, compliance monitoring and reporting. Chapter II. of the

submittal indicates that the EPB will collaborate with the CEB to carry

out compliance and enforcement functions.

In order to fully meet the 40 CFR 70.4 requirement for a statement

of adequate resources, the District must clarify the specific

responsibilities and procedures for coordination regarding EPB and CEB

involvement in compliance and enforcement activities for part 70

sources. The District must also demonstrate that compliance and

enforcement activities (not including court costs or other costs

associated with an enforcement action) will be fully supported by title

V fees, including resources allocated to support CEB involvement in

compliance and enforcement activities, if applicable.

The District's part 70 operating permits program submittal

substantially meets the requirements of 40 CFR 70.4 for compliance

tracking and enforcement. In order to fully meet the 40 CFR 70.4

requirement for compliance tracking and enforcement, the District must

submit additional information regarding how the District will monitor

and track source compliance (e.g., inspection/enforcement strategies,

description of system to be used prior to/in conjunction with

Aerometric Information Retrieval System (AIRS)/AIRS Facility Subsystem

(AFS) enhancements, etc.) or reference any agreement the District has

with EPA that provides this information. The District must also clarify

that information related to the District's enforcement actions will be

submitted to EPA at least annually.

E. Provisions Implementing the Requirements of Title III

Implementing Title III Standards Through Title V Permits

Under the ``District of Columbia Air Pollution Control Act of

1984'', D.C. Law 5-165 as amended by D.C. Law 9-162, D.C. Code Sec. 6-

906 and Title 20, District of Columbia Municipal Regulations (20 DCMR),

Chapter 3, the District of Columbia has demonstrated in its Title V

program submittal broad legal authority to incorporate into permits and

enforce all applicable requirements; however, the District has also

indicated that additional regulatory authority may be necessary to

carry out specific CAA section 112 activities. The District has

therefore supplemented its broad legal authority with a commitment ``to

adopt and implement expeditiously any additional regulations that might

be needed to incorporate such requirements into operating permits.''

This is stated in the Operating Permit Program submittal, Chapter IX,

entitled ``Provisions Implementing the Requirements of Other Titles of

the Act'', paragraph B. EPA has determined that this commitment, in

conjunction with the District of Columbia's broad statutory authority,

adequately assures compliance with all the CAA's section 112

requirements. EPA regards this commitment as an acknowledgement by the

District of Columbia of its obligation to obtain further legal

authority as needed to issue permits that assure compliance with the

CAA's section 112 applicable requirements. This commitment does not

substitute for compliance with part 70 requirements that must be met at

the time of program approval.

EPA is interpreting the above legal authority and commitment to

mean that the District of Columbia is able to carry out all of the

CAA's section 112 activities. For further rationale on this

interpretation, please refer to the TSD accompanying this rulemaking

which is located in the public docket and the April 13, 1993 guidance

memorandum titled ``Title V Program Approval Criteria for Section 112

Activities,'' signed by John Seitz, Director, Office of Air Quality

Planning and Standards, Office of Air and Radiation, USEPA.

Implementation of 112(g) Upon Program Approval

EPA is proposing to approve the District's Chapter 3 operating

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

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

rule and District adoption of 112(g) implementing regulations. EPA had

until recently interpreted the CAA to require sources to comply with

section 112(g) beginning on the date of approval of the Title V program

regardless of whether EPA had completed its section 112(g) rulemaking.

EPA has since revised this interpretation of the CAA as described in a

February 14, 1995 Federal Register notice (see 60 FR 83333). The

revised interpretation postpones the effective date of section 112(g)

until after EPA has promulgated a rule addressing that provision. The

rationale for the revised interpretation is set forth in detail in the

February 14, 1995 interpretive notice.

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

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

delayed beyond the date of promulgation of the federal rule to allow

states time to adopt rules implementing the federal rule, and that EPA

will provide for any such additional delay in the final section 112(g)

rulemaking. Unless and until EPA provides for such an additional

postponement of section 112(g), the District must be able to implement

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

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

regulations.

EPA believes that, although the District currently lacks a program

designed specifically to implement section 112(g), the District's

Chapter 3 permit program will serve as an adequate implementation

vehicle during a transition period because it will allow the District

to select control measures that would meet MACT on a case-by-case

basis, as defined in section 112, and incorporate these measures into

federally enforceable source-specific permits. Section 112(g)

requirements for case-by-case MACT determinations are governed by the

provisions of 20 DCMR, sections 301.1(a)(3), 303.9, and the section

399.1 definition of ``Applicable requirement''. However, in accordance

with the provisions of section 112(g), the section 301.1(a)(3)

requirement to obtain an operating permit or permit revision within

twelve (12) months after [[Page 14926]] commencing operation must

instead be satisfied prior to construction during the transition

period.

This proposed approval clarifies that the operating permits program

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

transition period between promulgation of the section 112(g) rule and

adoption by the District of Columbia of rules established to implement

section 112(g). EPA is proposing to limit the duration of this approval

to an outer limit of 18 months following promulgation by EPA of the

section 112(g) rule. Comment is solicited on whether 18 months is an

appropriate period taking into consideration the District's procedures

for adoption of regulations.

However, since this proposed approval is for the single purpose of

providing 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 sources are not subject to the

requirements of the rule until State regulations are adopted.

Although section 112(l) generally provides the authority for

approval of state air toxics programs, title V and section 112(g)

provide authority for this limited approval because of the direct

linkage between implementation of section 112(g) and Title V. If the

District of Columbia does not wish to implement section 112(g) through

its Chapter 3 permit program and can demonstrate that an alternative

means of implementing section 112(g) exists during the transition

period, EPA may, in the final action approving the District of

Columbia's Part 70 program, approve the alternative instead.

Program for Straight Delegation of Section 112 Standards

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 promulgated by EPA as they apply to part 70

sources. Section 112(l)(5) requires that the state programs contain

adequate authorities, adequate resources for implementation, and an

expeditious compliance schedule, which are also requirements under part

70. Therefore, EPA is also proposing to grant approval under section

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

receiving delegation of section 112 standards that are unchanged from

the federal standards as promulgated. For EPA-promulgated rules which

are applicable to sources in the District, the District intends to

request delegation after adopting the rules by incorporation by

reference. The details of this delegation mechanism will be established

prior to delegating any section 112 standards under the District's

approved section 112(l) program for straight delegation. This program

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

covered by the Part 70 program.

F. Title IV Provisions/Commitments

As part of the program submittal, the District of Columbia

committed to submit all missing portions of the title IV acid rain

program by January 1, 1995. On February 3, 1995, the District submitted

a letter notifying EPA that the January 1, 1995 date would not be met.

In this letter, the District committed to having acid rain regulations

in place by November 15, 1995 and provided a brief schedule for

adoption of the necessary regulatory authorities.

III. Request for Public Comments

EPA is soliciting public comments on the issues discussed in this

notice or on other relevant matters. These comments will be considered

before taking final action. Interested parties may participate in this

federal rulemaking action by submitting written comments to the EPA

Regional office listed in the ADDRESSES section of this document.

Proposed Action

EPA is proposing to grant interim approval to the operating permits

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

scope of the District's Part 70 program applies to all Part 70 sources

(as defined in the program) within the District, except for sources of

air pollution over which an Indian Tribe has jurisdiction. See, e.g.,

59 FR 55813, 55815-55818 (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). Prior to

full approval by EPA, the District must make the following changes:

1. Rename section 399.1 definition of ``Emissions emissions'' to

``Fugitive emissions''.

2. If EPA establishes through rulemaking that the definition of

``Title I modifications'' must include changes reviewed under minor

NSR, the District's definition of ``Title I modification or

modification under any provision of title I of the Act'' will not fully

meet the 40 CFR 70.2 requirements for definitions. If the impact of

this deficiency becomes a basis for interim approval as a result of

EPA's rulemaking, the District must revise its section 399.1 definition

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

of title I of the Act'' to conform to the requirements of part 70. At

that time, EPA will determine the required timeframe, up to two years,

to correct the deficiency.

3. Modify section 301.1(b)(6)(B) to clarify that applications for

permit renewal must contain both a compliance plan, as required by

section 301.3(h), and a compliance certification, as required by

section 301.3(i).

4. Revise section 301.3(c)(1) to ensure that all applicable

requirements will be described in permit applications.

5. Revise section 301.3(g) to correct misreferenced sections of the

District's regulations which address alternate operating scenarios and

emissions trading.

6. Revise section 301.3(h)(3)(C) to clarify that any schedule of

compliance shall be supplemental to and shall not sanction

noncompliance with the applicable requirements on which it is based.

7. Revise section 302.1(k) to clarify that terms and conditions for

the trading or averaging of emissions must meet all applicable

requirements and the requirements of the operating permits program.

8. Renumber section 302.3(e)(6) to 302.3(f).

9. Revise section 302.4(e) to clarify that requests for coverage

under a general permit must meet the permit application requirements of

title V of the Clean Air Act, and include all information necessary to

assure compliance with the general permit.

10. Restructure section 302.8 for operational flexibility in

accordance the structure of part 70 operational flexibility provisions.

11. Revise section 302.8(b) to clarify that compliance with

emissions trading provisions in a permit will be determined according

to requirements of the applicable SIP/FIP or applicable requirement

authorizing the emissions trade.

12. Revise sections 303.1(f) and 303.1(d)(1) to ensure that the

part 70 permit issuance deadlines will be met.

13. Modify section 303.3(a) to clarify that public participation

and EPA and affected state review will apply to the entire draft

renewal permit, including those portions which are incorporated by

reference.

14. Revise section 303.5(d)(1) to require the use of the

significant permit [[Page 14927]] modification procedure for any type

of change which does not qualify as either a minor permit modification

or an administrative amendment.

15. Revise section 303.10 to provide for sending notice to persons

on a mailing list developed by the permitting authority, including

those people who request in writing to be on the list.

16. Revise section 303.10(a)(1)(B) to require the notice to include

procedures to request a hearing in the event that a hearing has not

been scheduled.

17. Revise section 303.10 to include a provision that requires

notice of a public hearing at least 30 days in advance of the hearing.

18. Revise section 305.2(b) to clarify that the August 1989 CPI

value of 124.6 will not be used for the purposes of calculating the CPI

fee adjustment and that the appropriate value of 122.15, the average

1989 CPI value, will be used instead.

19. Revise section 305.1 to ensure that provisions for equivalent

fee schedules are enforceable as a practical matter or remove section

305.1 language ``or the equivalent over some other period''.

20. Revise the Corporation Counsel's opinion to reference existing

provisions in District of Columbia law which satisfy the requirements

of Sec. 70.11(a)(1) and (2), or establish authorities to restrain or

enjoin immediately permit violators presenting substantial

endangerment, and to seek injunctive relief for program and permit

violations without the need for prior revocation of the permit.

21. Amend subtitle I of 20 DCMR to specifically address the types

of violations for which civil fines are recoverable, or otherwise have

the Corporation Counsel demonstrate that section 100.6 applies to each

of the specific types of violations mentioned in Sec. 70.11(a)(3)(i).

22. Establish civil enforcement authority for the collection of

penalties in a maximum amount of not less than $10,000 per day per

violation.

23. Establish regulatory provisions for strict civil liability, or

provide a demonstration from the Corporation Counsel that mental state

is not allowed as an element of proof for civil violations.

24. Amend Subtitle I of 20 DCMR to specifically address the types

of knowing violations for which criminal fines are recoverable, or have

the Corporation Counsel demonstrate that section 105.1 applies to each

of the specific types of knowing violations mentioned in

Sec. 70.11(a)(3)(ii) and (iii).

25. Revise criminal enforcement provisions to authorize the

collection of penalties in a maximum amount of not less than $10,000

per day per violation.

26. Amend DCMR 303.11 to clarify that when the Mayor fails to issue

or deny a permit within the required deadline, this failure can be

challenged any time before the permitting authority denies the permit

or issues the final permit.

27. Clarify the specific responsibilities and procedures for

coordination regarding EPB and CEB involvement in compliance and

enforcement activities for part 70 sources. Such a clarification must

demonstrate that compliance and enforcement activities (not including

court costs or other costs associated with an enforcement action) will

be fully supported by title V fees.

28. Submit additional information regarding how the District will

monitor and track source compliance or reference any agreement the

District has with EPA that provides this information.

29. Clarify that information on the District's enforcement

activities will be submitted to EPA at least annually.

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

period of up to 2 years. During the interim approval period, the

District is protected from sanctions for failure to have a fully

approved title V, part 70 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 1-year time period for submittal of permit

applications by subject sources begins upon interim approval, as does

the 3-year time period for processing the initial permit applications.

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 applicable to Part 70 sources as

promulgated by EPA. 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 proposing under section 112(l)(5)

and 40 CFR 63.91 to grant approval of the District's program for

receiving delegation of section 112 standards that are unchanged from

federal standards as promulgated. This program for delegations only

applies to sources covered by the part 70 program.

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 District of Columbia'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.

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.

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

Dated: March 9, 1995.

Stanley L. Laskowski,

Acting Regional Administrator.

[FR Doc. 95-6929 Filed 3-20-95; 8:45 am]

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