[Federal Register Volume 60, Number 54 (Tuesday, March 21, 1995)]
[Proposed Rules]
[Pages 14921-14927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6929]



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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]
BILLING CODE 6560-50-P