Clean Air Act Proposed Interim Approval of Operating Permits Program; Delegation of Section 112 Standards; State of New Hampshire

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5552-7]

Clean Air Act Proposed Interim Approval of Operating Permits

Program; Delegation of Section 112 Standards; State of New Hampshire

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed interim approval.

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SUMMARY: The EPA is promulgating interim approval of the Operating

Permits Program submitted by the State of New Hampshire 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. EPA is also approving the State's authority to

implement hazardous air pollutant requirements.

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

September 13, 1996.

ADDRESSES: Comments should be addressed to Ida E. Gagnon, Air Permits

Program, CAP, U.S. Environmental Protection Agency, Region I, JFK

Federal Building, Boston, MA 02203-2211.

Copies of the State's submittal and other supporting information

relevant to this action are available for inspection during normal

business hours at the following location: U.S. Environmental Protection

Agency, Region 1, One Congress Street, 11th floor, Boston, MA 02203.

FOR FURTHER INFORMATION CONTACT: Ida E. Gagnon, Air Permits Program,

CAP, U.S. Environmental Protection Agency, Region 1, JFK Federal

Building, Boston, MA 02203-2211, (617) 565-3500.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

As required under title V of the 1990 Clean Air Act Amendments

(sections 501-507 of the Clean Air Act (``the Act'')), EPA has

promulgated rules which define the minimum elements of an approvable

State operating permits program and the corresponding standards and

procedures by which the 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 Act 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. 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.

B. Federal Oversight and Sanctions

If EPA were to finalize this proposed interim approval, it will

extend for two years following the effective date of final interim

approval, and cannot be renewed. During the interim approval period,

the State of New Hampshire is protected from sanctions, and EPA is not

obligated to promulgate, administer and enforce a Federal permits

program for the State of New Hampshire. 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 specified in section 503(c) of the Act begins upon the

effective date of interim approval, as does the 3-year time period for

processing the initial permit applications.1

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\1\ Note that states may require applications to be submitted

earlier than required under section 503(c). See Env-A 609.05(d).

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Following final interim approval, if the State of New Hampshire

fails to submit a complete corrective program for full approval by the

date 6 months before expiration of the interim approval, EPA will start

an 18-month clock for mandatory sanctions. If the State of New

Hampshire 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 the State of New

Hampshire has corrected the deficiency by submitting a complete

corrective program. If, six months after application of the first

sanction, the State of New Hampshire still has not submitted a

corrective

[[Page 42223]]

program that EPA finds complete, a second sanction will be required.

If, following final interim approval, EPA disapproves the State of

New Hampshire'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 the

State of New Hampshire has submitted a revised program and EPA has

determined that it corrected the deficiencies that prompted the

disapproval. If, six months after EPA applies the first sanction, the

State of New Hampshire has not submitted a revised program that EPA has

determined corrected the deficiencies that prompted disapproval, a

second sanction will be required.

Moreover, if EPA has not granted full approval to a State of New

Hampshire program by the expiration of an interim approval and that

expiration occurs after November 15, 1995, EPA must promulgate,

administer and enforce a Federal permits program for the State of New

Hampshire upon interim approval expiration.

II. Proposed Action and Implications

A. Analysis of State Submission

1. Support Materials

The Air Resource Division Director of the State of New Hampshire

(Designee of the Governor) submitted an administratively complete title

V Operating Permits Program (PROGRAM) on October 26, 1995. EPA deemed

the PROGRAM administratively complete in a letter to the Commissioner

dated November 22, 1995. The PROGRAM submittal includes a description

of how the State intends to implement the PROGRAM and legal opinions

from the Attorney General of New Hampshire stating that the laws of the

State provide adequate authority to carry out the PROGRAM. The

submittal additionally contains evidence of proper adoption of the

PROGRAM regulations, permit application forms, a data management system

and a fee adequacy demonstration.

2. Regulations and Program Implementation

The State of New Hampshire has submitted Env-A 600 entitled

``Statewide Permit System'' for implementing the State Part 70 program

as required by 40 CFR 70.4(b)(2). Sufficient evidence of procedurally

correct adoption is included in Section III of the submittal.

The New Hampshire operating permits regulations follow Part 70 very

closely. The following requirements, set out in EPA's Part 70 operating

permits program review are addressed in Section III of the State's

submittal.

The New Hampshire PROGRAM, including the operating permits

regulations, substantially meets the requirements of 40 CFR Part 70,

including Secs. 70.2 and 70.3 with respect to applicability;

Secs. 70.4, 70.5 and 70.6 with respect to permit content and

operational flexibility; Secs. 70.5 with respect to complete

application forms and criteria which define insignificant activities;

Secs. 70.7 and 70.8 with respect to public participation, minor permit

modifications, and review by affected states and EPA; and Sec. 70.11

with respect to requirements for enforcement authority. Although the

PROGRAM substantially meets Part 70 requirements, there are program

deficiencies that are outlined in section II.B. below as Interim

Approval issues. Those Interim Approval issues are more fully discussed

in the Technical Support Document, dated November 6, 1995 and entitled

``Technical Support Document--New Hampshire Operating Permits Program''

(``TSD''). The TSD also contains a detailed discussion of elements of

Part 70 that appear in New Hampshire's title V program regulations but

which are in need of some clarification. That clarification is provided

by EPA in the TSD and by the New Hampshire Attorney General's Office by

a legal Opinion supplementing the State's original submittal.

Prompt Reporting of Deviations From Permit Requirements

Part 70 of the operating permits regulation requires prompt

reporting of deviations from the permit requirements. Section

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

in relation to the degree and type of deviation likely to occur and the

applicable requirements. The State of New Hampshire has not defined

``prompt'' in its program with respect to reporting of deviations.

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 Sec. 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.

Definition of ``Title I Modification''

New Hampshire's definition of ``title I modification'' does not

include changes reviewed under a minor source preconstruction review

program (``minor NSR changes''). In an August 29, 1994 rulemaking

proposal, EPA explained its view that the better reading of ``title I

modifications'' includes minor NSR. However, the Agency solicited

public comment on whether the phrase 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. (59 FR 44572, 44573). This would include State

preconstruction review programs approved by EPA as part of the State

Implementation Plan under section 110(a)(2)(C) of the Clean Air Act.

The EPA has not yet taken final action on the August 29, 1994

proposal. However, in response to public comment on that proposal, the

Agency has decided that the definition of ``title I modifications'' is

best interpreted as not including changes reviewed under minor NSR

programs. EPA included this interpretation in a supplemental rulemaking

proposal published on August 31, 1995. 60 FR 45530, 545-546. Thus, New

Hampshire's definition of ``title I modification'' is fully consistent

with EPA's current interpretation of Part 70.

In the August 29, 1994 proposal (59 FR 44572) the Agency stated

that if, after considering the public comments, it determined that the

phrase ``title I modifications'' should be interpreted as including

minor NSR changes, the Agency would revise the interim approval

criteria as needed to allow states with a narrower definition to be

eligible for interim approval. If EPA should conclude, during the final

rulemaking on the August 29, 1994 (59 FR 44572) and August 31, 1995 (60

FR 45530, 545-546) proposals, that Title I modifications should be read

to include minor NSR, it will identify the narrow definition of Title I

modification as an interim approval condition on New Hampshire's

program at the appropriate time.

Variances

New Hampshire has the authority to issue a variance from certain

regulatory

[[Page 42224]]

requirements imposed by State law. See Env-A 207 and RSA 125-C:16. The

EPA regards New Hampshire's variance provisions as wholly external to

the program submitted for approval under Part 70 and consequently is

proposing to take no action on these provisions of State law. The EPA

has no authority to approve provisions of State law that are

inconsistent with the Act. The 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 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 revision 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

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.''

Audit Privilege and Penalty Waiver Legislation

The Clean Air Act sets forth the minimum elements required for

approval of a State operating permits program, including the

requirement that the permitting authority has adequate authority to

assure that sources comply with all applicable CAA requirements as well

as authority to enforce permits through recovery of minimum civil

penalties and appropriate criminal penalties. Section 502(b)(5) (A) and

(E) of the CAA. EPA's implementing regulations, which further specify

the required elements of State operating permits programs (40 CFR Part

70), explicitly require States to have certain enforcement authorities,

including authority to seek injunctive relief to enjoin a violation, to

bring suit to restrain violations imposing an imminent and substantial

endangerment to public health or welfare, and to recover appropriate

criminal and civil penalties. 40 CFR 70.11. In addition, section 113(e)

of the CAA sets forth penalty factors for EPA or a court to consider

for assessing penalties for civil and criminal violations of title V

permits. EPA is concerned about the potential impact of some State

privilege and immunity laws on the ability of such States to enforce

federal requirements, including those under title V of the CAA. Based

on review and consideration of the statutory and regulatory provisions

discussed above, EPA issued guidance on April 5, 1996, entitled

``Effect of Audit Immunity/Privilege Laws on States' Ability to Enforce

Title V Requirements'' to address these concerns. This guidance

outlines certain elements of State audit immunity and privilege laws

which, in EPA's view, may so hamper the State's ability to enforce as

to preclude approval of the State's title V operating permits program.

New Hampshire has adopted legislation that would provide, subject

to certain conditions, for an environmental audit ``privilege'' for

voluntary compliance evaluations performed by a regulated entity. New

Hampshire's legislation also provides, subject to certain conditions,

for a penalty waiver for violations of environmental laws when a

regulated entity discovers such violations pursuant to a voluntary

compliance evaluation and voluntarily discloses such violations to the

State and takes prompt and appropriate measures to remedy the

violations.

New Hampshire's audit privilege legislation excludes from the scope

of the privilege all ``[d]ocuments, communications, data, reports, or

other information required to be collected, developed, maintained,

reported, or otherwise made available to a regulatory agency pursuant

to an environment law.'' Such information is ``non-privileged'' under

the terms of the legislation. Thus, EPA is not listing any conditions

on New Hampshire's title V program approval for this issue because the

legislation will not preclude the State from enforcing its title V

permit program requirements consistent with the requirements of the

CAA. New Hampshire's Attorney General has submitted a legal opinion

which supports EPA's understanding that the State title V program

requirements for compliance monitoring, reporting of violations,

recordkeeping, and compliance certification, together render the

privilege inapplicable to compliance evaluations, at a title V source,

of the State's title V requirements.

New Hampshire's Attorney General Opinion also addresses the penalty

waiver provisions of the audit legislation. Section 147-E:9, II of the

legislation excludes certain violations from the scope of the penalty

waiver provision. For example, criminal acts committed knowingly,

purposefully, or recklessly are not covered by the penalty waiver

provision when disclosed to the State. Another category excluded from

the scope of the penalty waiver is violations that result in serious

harm to human health or the environment. Although the list of excluded

violations does not explicitly contain violations that result in a

significant economic benefit, violations that are required to be

disclosed by law, or violations that result in a serious risk of harm

to human health or the environment, New Hampshire's Attorney General

Opinion explains that in the context of New Hampshire's title V

operating permit program such violations could not qualify for the

penalty waiver. In essence, the Attorney General Opinion states that

violations of the terms and conditions of State-issued title V permits

are excluded from the penalty waiver provision because any such

violations would be required to be disclosed by the title V permit

itself pursuant to at least one, and possibly all, of the following

requirements in New Hampshire's program: (1) the obligation to report

promptly any deviations from the terms and conditions of the permit;

(2) the obligation to submit monitoring reports no less frequently than

semi-annually; and (3) the obligation to submit annual compliance

certifications. Hence, these requirements would preclude a title V

source from asserting that it ``elected'' (the term used in New

Hampshire's legislation) to disclose any such violations to the State,

i.e. such disclosure could not be voluntary under State law, a

precondition for the applicability of the penalty waiver provisions.

With regard to violations of the requirement to apply for a title V

permit, the Attorney General opines that a title V source could not

``elect,'' or volunteer, to disclose the application violation, and so

the penalty waiver provisions would not apply. The reasoning in the

Attorney General Opinion is as follows. A source is under a continuing

obligation, even when failing to apply for a permit on time, to submit

to the State information sufficient to enable the State to issue a

title V permit. Such information would necessarily contain, or at least

include a reference to, information relating to all construction

permits and non-title V State operating permits already issued to the

source. This information would indicate when the source became a

``major source.'' Moreover, the State already possesses extensive

computerized emissions data on each source in the State. These sources

of emissions information would enable the State to deduce that the

source had

[[Page 42225]]

failed to apply for a title V permit in a timely manner. Thus, there is

no meaningful sense in which a source could ``elect'' to disclose, or

voluntarily disclose, the application violation because the source was

required by virtue of the permit application requirement of the State's

regulations to submit the source's emissions information (or at least

reference existing permits that contain such information) from which

the State could deduce on its own that the violation occurred.

The Attorney General Opinion adds that as a practical matter New

Hampshire will be aware of a source's failure to apply for a title V

permit before the source submits a belated permit application. The

Attorney General Opinion asserts that the State has, based on its

existing emissions inventory, already identified all sources in the

State subject to title V and has notified them of their obligation to

apply for a title V permit, and will therefore independently know of

any permit application violation that occurs. The Attorney General

argues that since New Hampshire's legislation excludes from the scope

of the penalty waiver provisions those violations independently

discovered by the State, the waiver provisions would not apply to

permit application violations because the State would already know of

the violation at the time the source belatedly applied.

The Attorney General Opinion also addresses certain hypothetical

factual situations and explains why the penalty waiver and privilege

provisions of the State legislation would not apply. Those situations

involve instances in which a title V source evaluates compliance with a

title V permit term or condition in a method different from the

compliance method specified in the permit, or evaluates compliance at

more frequent time intervals than required by the title V permit. In

essence, since any violations discovered in either of the two

situations described above would be required to be reported under the

terms and conditions of the permit, disclosure of such violations could

not be voluntary and hence could not qualify for the penalty waiver or

the privilege.

New Hampshire's Attorney General Opinion concludes that the

privilege and penalty waiver provisions of New Hampshire's audit

legislation are not available to title V permit holders for violations

of title V requirements. Based on the Attorney General's discussion of

the issues as described above, EPA is not listing conditions on New

Hampshire's title V program approval with regard to these issues.

However, if New Hampshire's implementation of its title V program is

inconsistent with the Attorney General's Opinion or the State's audit

legislation is held by the New Hampshire State courts to be applicable

to title V violations, EPA reserves its rights to address what would in

that event be the State's inability to enforce its title V program

consistent with the requirements of the CAA.

The complete program submittal, the TSD, and New Hampshire's

Attorney General Opinion are available in the docket for review. The

TSD includes a detailed analysis, including a program checklist, of how

the State's program and regulations compare with EPA's requirements and

regulations.

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

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

detailed demonstration of fee adequacy or a demonstration that the fees

collected exceed $25 per ton of actual emissions per year, adjusted

from the August, 1989 consumer price index. The $25 per ton was

presumed by Congress to cover all reasonable direct and indirect costs

to an operating permit program. This minimum amount is referred to as

the ``presumptive minimum.''

New Hampshire has opted to make a presumptive minimum fee

demonstration. In the fee regulation, the State proposes an emission

based fee for calculating the operating permit program fees. This fee

is equivalent to at least the Part 70 presumptive minimum fee of $25

per ton of regulated air pollutants, adjusted per the consumer price

index (CPI). Using New Hampshire's emission based fee approach, the

State is charging a dollar per ton fee of $43.30 starting in 1995 and

adjusting it annually by the CPI and an inventory stabilization factor

(ISF). The ISF is the quotient of the total statewide stationary source

actual emissions as determined from the revised 1993 inventory divided

by the total statewide stationary source actual emissions from the

previous calendar year. If the ISF computes to a number less than 1,

then 1 shall be used as the ISF. New Hampshire's average rate is above

the presumptive minimum adjusted by the CPI.

Therefore, New Hampshire has demonstrated that the state is

collecting sufficient permit fees to meet EPA's presumptive minimum

criteria. For more information, see Attachment E of New Hampshire's

title V program submittal.

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

a. Authority and/or Commitments for Section 112 Implementation

New Hampshire has demonstrated in its title V program submittal

adequate legal authority to implement and enforce all section 112

requirements for hazardous air pollutants through the title V permit.

This legal authority is contained in New Hampshire's enabling

legislation and in regulatory provisions defining ``applicable

requirements'' and requiring that the permit must incorporate all

applicable requirements. EPA has determined that this legal authority

is sufficient to allow New Hampshire to issue permits that assure

compliance with all section 112 requirements.

Therefore, the State of New Hampshire's legal authority is

sufficient to allow the State to issue permits that assure compliance

with all section 112 requirements, and to carry out all section 112

activities at Part 70 sources. For further rationale on this

interpretation, please refer to the Technical Support Document

referenced above and the April 13, 1993 guidance memorandum titled

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

signed by John Seitz.

b. Implementation of 112(g) Upon Program Approval

On February 14, 1995 EPA published an interpretive notice (see 60

FR 8333) that postpones the effective date of section 112(g) until

after EPA has promulgated a rule addressing that provision. 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 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) New Hampshire 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. EPA believes that

New Hampshire can utilize its preconstruction permitting program to

serve as a procedural vehicle for implementing section 112(g) rule and

making these requirements Federally

[[Page 42226]]

enforceable between promulgation of the Federal section 112(g) rule and

adoption of implementing State regulations. For this reason, EPA is

approving New Hampshire's preconstruction permitting program found in

Env-A 600, Statewide Permit System, under the authority of title V and

Part 70 solely for the purpose of implementing section 112(g) during

the transition period between title V approval and adoption of a State

rule implementing EPA's section 112(g) regulations.

Since the approval would be for the single purpose of providing a

mechanism to implement section 112(g) during the transition period, the

approval would 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. Also, since the approval

would be for the limited purpose of allowing the State sufficient time

to adopt regulations, EPA is limiting the duration of the approval to

18 months following promulgation by EPA of its section 112(g) rule.

c. Program for Straight Delegation of Section 111 and 112 Standards

Requirements for operating permit program approval, specified in 40

CFR 70.4(b), encompass section 112(l)(5) requirements for approval of a

program for delegation of hazardous air pollutant requirements under

section 112 and standards as promulgated by EPA as they apply to Part

70 sources. Section 112(l)(5) requires that the State's program contain

adequate authorities, adequate resources for implementation, and an

expeditious compliance schedule, which are also requirements under Part

70. EPA is also granting approval under section 112(l)(5) and 40 CFR

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

standards that are unchanged from the Federal standards as promulgated,

and section 112 infrastructure programs such as those programs

authorized under sections 112(i)(5), 112(g), 112(j) and 112(r) to the

extent they apply to sources subject to New Hampshire's title V program

regulations. EPA is reconfirming the 40 CFR parts 60 and 61 standards

currently delegated to New Hampshire as indicated in Table I.2 In

addition, EPA is proposing to delegate all future 40 CFR part 63

standards to the extent they apply to sources subject to New

Hampshire's title V program regulations.3 EPA is delegating the 40

CFR part 63 standards as indicated in Table II to the extent they apply

to sources subject to New Hampshire's title V program regulations.

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\2\ Please note that federal rulemaking is not required for

delegation of section 111 standards.

\3\ The radionuclide National Emission Standards for Hazardous

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

also an applicable requirement under the State operating permits

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

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

source definition for radionuclide is promulgated, no source would

be a major section 112 source solely due to its radionuclide

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

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

70 permit. The EPA will work with the State in the development of

its radionuclide program to ensure that permits are issued in a

timely manner.

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New Hampshire has informed EPA that it intends to accept future

delegation of section 112 standards by checking the appropriate boxes

on a standardized checklist. The checklist will list applicable

regulations and will be sent by the EPA Regional Office to New

Hampshire. New Hampshire will accept delegation by checking the

appropriate box and returning the checklist to EPA Region I. The

details of this delegation mechanism are set forth in the May 30, 1996

Memorandum of Agreement between New Hampshire and EPA. This program

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

covered by the Part 70 program. The original delegation agreement

between EPA and New Hampshire was set forth in a letter to Dennis R.

Lunderville dated September 30, 1982.

d. Commitment to Implement Title IV of the Act

New Hampshire has committed to take action, following promulgation

by EPA of regulations implementing section 407 and 410 of the Act, or

revisions to either Parts 72, 74, or 76 or the regulations implementing

section 407 or 410, to either incorporate by reference or submit, for

EPA approval, New Hampshire Department of Environmental Protection

(DEP) regulations implementing these provisions.

B. Proposed Action

The EPA is proposing to grant interim approval to the operating

permits program submitted by New Hampshire on October 26, 1995. If

promulgated, the State must make the following change to receive full

approval:

1. New Hampshire does not allow for ``section 502(b)(10)''

changes at a title V source. In an August 29, 1994 (59 FR 44572)

rulemaking proposal, EPA proposed to eliminate section 502(b)(10)

changes as a mechanism for implementing operational flexibility.

However, the Agency solicited comment on the rationale for this

proposed elimination. If EPA should conclude, during a final

rulemaking, that section 502(b)(10) changes are no longer required

as a mechanism for operational flexibility, then New Hampshire will

not be required to address 502(b)(10) changes in its rule.

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

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

State 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 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.

The scope of the State of New Hampshire's Part 70 program that EPA

is proposing in this notice would apply to all Part 70 sources (as

defined in the approved program) within the State of New Hampshire,

except any 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 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).

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

section 112(l)(5) requirements for approval of a program for delegation

of section 112 standards as promulgated by EPA as they apply to Part 70

sources. Section 112(l)(5) requires that the State's program contain

adequate authorities, adequate resources for implementation, and an

expeditious compliance schedule, which are also requirements under Part

70. EPA is granting approval under section 112(l)(5) and 40 CFR 63.91

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

standards that are unchanged from Federal standards as promulgated.

This program for delegations only applies to sources covered by the

Part 70 program.

III. Administrative Requirements

A. Opportunity for Public Comments

The EPA is requesting comments on all aspects of the proposed

interim approval. Copies of the State's submittal and other information

relied upon for

[[Page 42227]]

the interim approval are contained in a docket 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 interim approval. The principal purposes of the

docket are:

(1) to allow interested parties a means to identify and locate

documents so that they can effectively participate in the approval

process, and

(2) to serve as the record in case of judicial review. The EPA will

consider any comments received by September 13, 1996.

B. Executive Order 12866

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

C. Regulatory Flexibility Act

The EPA's actions under section 502 of the Act do not create any

new requirements, but simply address operating permits programs

submitted to satisfy the requirements of 40 CFR Part 70. Because this

action does not impose any new requirements, it does not have a

significant impact on a substantial number of small entities.

D. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``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 action proposed 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 proposes approving

preexisting requirements under State or local law, and imposes no new

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

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

action.

List of Subjects in 40 CFR Part 70

Administrative practice and procedure, Air pollution control,

Environmental protection, Intergovernmental relations, Operating

permits, Reporting and recordkeeping requirements.

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

Dated: July 22, 1996.

John P. DeVillars,

Regional Administrator, Region I.

Table I.-- Reconfirmation of Part 60 and 61 Delegations

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Part 60 Subpart Categories

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D Fossil-Fuel Fired Steam Generators.

Da Electric Utility Steam Generators.

Db Industrial-Commercial-Institutional Steam

Generating Unit.

Dc Small Industrial-Commercial-Institutional Steam

Generating Unit.

E Incinerators.

Ea Municipal Waste Combustors.

I Asphalt Concrete Plants.

J Petroleum Refineries.

K Petroleum Liquid Storage Vessels.

Ka Petroleum Liquid Storage Vessels.

Kb Petroleum Liquid Storage Vessels.

L Secondary Lead Smelters.

M Secondary Brass and Bronze Production Plants.

N Basic Oxygen Process Furnaces Primary Emissions.

O Sewage Treatment Plants.

AA Steel Plants-Electric Arc Furnaces.

BB Kraft Pulp Mills.

DD Grain Elevators.

EE Surface Coating of Metal Furniture.

GG Stationary Gas Turbines.

KK Lead-Acid Battery Manufacturing.

LL Metallic Mineral Processing Plants.

QQ Graphic Arts-Rotogravure Printing.

RR Tape and Label Surface Coatings.

TT Metal Coil Surface Coating.

VV Equipment Leaks of Voc in Socmi.

WW Beverage Can Surface Coating.

XX Bulk Gasoline Terminals.

BBB Rubber Tire Manufacturing.

FFF Flexible Vinyl and Urethan Coating and Printing.

GGG Equipment Leaks of Voc in Petroleum Refineries.

HHH Synthetic Fiber Production.

JJJ Petroleum Dry Cleaners.

OOO Nonmetallic Mineral Plants.

QQQ Voc From Petroleum Refinery Waste Water Systems.

SSS Magnetic Tape Coating.

TTT Surface Coating of Plastic Parts For Business

Machines.

UUU Calciners and Dryers in the Mineral Industry.

VVV Polymetric Coating of Supporting Substrates.

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[[Page 42228]]

Part 61 Subpart Categories

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C Beryllium.

E Mercury.

J Equipment Leaks of Benzene.

M Asbestos.

V Equipment Leaks (Fugitive Emission Sources).

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Table II.--Delegation of Part 63 Standards as They Apply to New

Hampshire's Title V Operating Permits Program

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Part 63 Subpart Categories

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A General Provisions.

B Equivalent Emission Limitation by Permit.

D Compliance Extensions for Early Reductions.

F National Emission Standards for Organic

Hazardous Air Pollutants From the Synthetic

Organic Chemical Manufacturing Industry.

G National Emission Standards for Organic

Hazardous Air Pollutants From the Synthetic

Organic Chemical Manufacturing Industry Process

Vents, Storage Vessels, Transfer Operations,

and Wastewater.

H National Emission Standards for Organic

Hazardous Air Pollutants for Equipment Leaks.

I National Emission Standards for Organic

Hazardous Air Pollutants for Certain Processes

Subject to the Negotiated Regulation for

Equipment Leaks.

M National Perchloroethylene Air Emission

Standards for Dry Cleaning Facilities.

N National Emission Standards for Chromium

Emissions from Hard and Decorative

Electroplating and Chromium Anodizing Tanks.

O Ethylene Oxide Emission Standards for

Sterilization Facilities.

Q National Emission Standards for Hazardous Air

Pollutants for Industrial Cooling Towers.

R National Emission Standards for Organic

Hazardous Air Pollutants for Source Categories:

Gasoline Distribution (Stage I).

T National Emission Standards for Halogenated

Solvent Cleaning.

W National Emission Standards for Organic

Hazardous Air Pollutants for Epoxy Resins

Production and Non-Nylon Polyamides Production.

X National Emission Standards for Organic

Hazardous Air Pollutants From Secondary Lead

Smelting.

Y National Emission Standards for Organic

Hazardous Air Pollutants for Marine Tank Vessel

Loading Operations.

CC National Emission Standards for Organic

Hazardous Air Pollutants: Petroleum Refineries.

GG National Emission Standards for Organic

Hazardous Air Pollutants for source categories:

Aerospace Manufacturing and Rework.

JJ National Emission Standards for Wood Furniture

Manufacturing Operations.

KK National Emission Standards for Printing and

Publishing.

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[FR Doc. 96-20591 Filed 8-13-96; 8:45 am]

BILLING CODE 6560-50-P