[Federal Register Volume 60, Number 151 (Monday, August 7, 1995)]
[Rules and Regulations]
[Pages 40101-40104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19399]



-----------------------------------------------------------------------


ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[AD-FRL-5274-2]


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

AGENCY: U.S. Environmental Protection Agency (EPA).

ACTION: Final interim approval.

-----------------------------------------------------------------------

SUMMARY: EPA is promulgating interim approval of the operating permits 
program submitted by the District of Columbia for the purpose of 
complying with federal requirements for an approvable program to issue 
operating permits to all major stationary sources, and to certain other 
sources.

EFFECTIVE DATE: September 6, 1995.

ADDRESSES: Copies of the District's submittal and other supporting 
information used in developing the final 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

    Title V of the 1990 Clean Air Act Amendments (sections 501-507 of 
the Clean Air Act (``the CAA'')), and 

[[Page 40102]]
implementing regulations at 40 Code of Federal Regulations (CFR) part 
70 require that states seeking to administer a Title V operating 
permits program develop and submit a program 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 Act and the part 70 regulations, which 
together outline criteria for approval or disapproval of an operating 
permits program submittal. 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 November 15, 1995, or by the expiration of the 
interim approval period, it must establish and implement a federal 
program.
    On March 21, 1995, EPA proposed interim approval of the operating 
permits program for the District of Columbia. (See 60 FR 14921). EPA 
compiled a Technical Support Document (TSD) which describes the 
operating permits program in greater detail. In this notice EPA is 
taking final action to promulgate interim approval of the operating 
permits program for the District of Columbia.

II. Analysis of State Submission

    On January 13, 1994, the District of Columbia submitted an 
operating permits program to satisfy the requirements of the CAA and 40 
CFR part 70. 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). EPA reviewed the program against the criteria for 
approval in section 502 of the CAA and the part 70 regulations. EPA 
determined, as fully described in the notice of proposed interim 
approval of the District's operating permits program (see 60 FR 14921 
(March 21, 1995)) and the TSD for this action, that the District's 
operating permits program substantially meets the requirements of the 
CAA and part 70.

III. Response to Public Comments

    EPA received comments from one organization. EPA's response to 
these comments are summarized in this section. Comments supporting 
EPA's proposal are not addressed in this notice. All comments are 
contained in the docket at the address noted in the ADDRESSES section 
above.

Title I Modifications

    Comment: EPA has no authority to deny approval of the District's 
operating permits program based on its definition of ``Title I 
modification or modification under any provision of Title I of the 
Act''. The District's definition of the term ``Title I Modification'' 
which does not expressly include changes reviewed under a minor source 
preconstruction review program is consistent with the relatively narrow 
definition of ``Title I Modifications'' in the current part 70 rules.
    EPA Response: As stated in the proposed rule, EPA does not believe 
that the District's definition of ``Title I modification or 
modification under any provision of Title I of the Act'' is necessary 
grounds for either interim approval or disapproval. Accordingly, EPA 
has not identified the District's definition of this term to be a 
program deficiency.
    EPA is currently in the process of determining the proper 
definition of the term ``Title I modification or modification under any 
provision of Title I of the Act''. (See 59 FR 44572). If EPA 
establishes in its rulemaking that the definition of ``Title I 
modifications'' can be interpreted to exclude changes reviewed under a 
minor source preconstruction review (NSR) program, 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'' would not fully meet the 40 CFR 
70.2 requirements for definitions.
    The primary purpose of EPA's discussion of this issue in the 
proposed rule was to notify the District and regulated community about 
how the definition of ``Title I modification or modification under any 
provision of Title I of the Act'' may impact the approval status of the 
District's Title V operating permits program. Until the definition of 
``Title I modification or modification under any provision of Title I 
of the Act'' is established through rulemaking to include changes 
reviewed under minor NSR, EPA does not consider the District's 
definition of this term to be either an interim or disapproval issue.
Implementation of Section 112(g) Upon Program Approval

    Comment: EPA's proposed approval of the District's Chapter 3 
operating permits program for the purpose of implementing 112(g) during 
the transition period between federal promulgation of a section 112(g) 
rule and District adoption of section 112(g) regulations is 
objectionable for the following reasons: (1) the District's program may 
not conform to the section 112(g) requirements once they have been 
issued by EPA, and (2) EPA is proposing to approve the program without 
clarifying whether the District's program addresses the critical 
threshold questions of how a source is to determine if an emissions 
increase is or is not greater than de minimis, and whether or not it 
has been offset satisfactorily. EPA has no legal basis for allowing the 
District to implement section 112(g) until the agency completes its 
rulemaking under 112(g).
    EPA Response: Title V of the CAA and the part 70 regulations 
require states seeking to obtain and retain approval of Title V 
operating permit programs to have authority to issue permits and assure 
compliance with all applicable requirements. (Section 502(b)(5)(A) and 
40 CFR 70.4(b)(3)(i)). Section 112(g)(2) of the CAA, an applicable 
requirement, provides that no person may modify, construct or 
reconstruct a major source of HAP, unless the Administrator (or the 
state) determines that maximum achievable control technology (MACT) 
limitations have been met or that sufficient offsets have been 
provided. Accordingly, as discussed in the preamble to the proposed 
section 112(g) rule, EPA interprets the statute to require states to 
implement section 112(g) including the development of case-by-case MACT 
determinations, in order to obtain and retain approval of Title V 
operating permits programs (See 59 FR 15565).
    In the proposed interim approval of the District's operating 
permits program, EPA proposed 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. (See 60 FR 14925-6). This proposal was based in part on 
EPA's revised interpretation of the CAA discussed in a Federal Register 
notice published on February 14, 1995 which postponed the effective 
date of section 112(g) until after EPA has promulgated a rule 
addressing that provision. (See 60 FR 8333).
    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 

[[Page 40103]]
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), 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 by the 
District of implementing regulations.
    As described in the proposed rule, EPA believes that, although the 
District currently lacks a program designed specifically to implement 
section 112(g), the District's Chapter 3 operating permits 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, as defined in section 112, and incorporate these 
measures into federally enforceable source-specific permits for major 
sources of hazardous air pollutants (HAP).
    A consequence of the fact that the District lacks a program 
designed specifically to implement section 112(g) is that the timing 
requirements for submitting permit applications to establish case-by-
case MACT determinations will differ from those in the section 112(g) 
rule. However, EPA expects the District to be able to require sources 
to submit applications to obtain operating permits or permit revisions 
to establish case-by-case MACT determinations prior to construction 
where necessary for purposes of section 112(g) even if its own 
operating permits program does not require such permit applications to 
be submitted until twelve (12) months after commencing operations.
    Although the Chapter 3 operating permits program does not at this 
time address critical 112(g) threshold questions with respect to de 
minimis levels and offsets, EPA believes that the District can 
adequately implement 112(g) prior to adoption of EPA's final 
promulgated 112(g) rule by relying on the authority established in the 
Chapter 3 operating permits program and using EPA's final 112(g) rule 
as guidance. Pursuant to the District's commitment ``to adopt and 
implement expeditiously any additional regulations that might be needed 
to incorporate such [future section 112] requirements into operating 
permits'', the District will be expected to establish additional 
authorities with respect to 112(g) de minimis levels and/or offsets, if 
necessary, consistent with the 112(g) rule once EPA promulgates a rule 
addressing those provisions.

Final Action

    EPA is promulgating interim approval of the operating permits 
program submitted by the District of Columbia on January 13, 1994, and 
supplemented on March 11, 1994. The District must make the changes 
identified in the proposed rule in order to fully meet the requirements 
of the July 21, 1992 version of part 70. (See 60 FR 14926). The 
District must also have acid rain regulations and adequate forms in 
place by November 15, 1995 consistent with the commitment made in a 
February 3, 1995 letter to EPA.
    The scope of the District's part 70 program approved in this notice 
applies to all part 70 sources (as defined in the approved program) 
within the District of Columbia, except any sources of air pollution 
over which an Indian Tribe has jurisdiction. See, e.g., 59 FR 55813, 
55815-18 (Nov. 9, 1994). The term ``Indian Tribe'' is defined under the 
Act as ``any Indian tribe, band, nation, or other organized group or 
community, including any Alaska Native village, which is federally 
recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.'' 
See section 302(r) of the CAA; see also 59 FR 43956, 43962 (Aug. 25, 
1994); 58 FR 54364 (Oct. 21, 1993).
    This interim approval, which may not be renewed, extends until 
September 8, 1997. During this interim approval period, the District is 
protected from sanctions, and EPA is not obligated to promulgate, 
administer and enforce a federal operating permits program in the 
District. Permits issued under a program with interim approval have 
full standing with respect to part 70, and the 1-year time period for 
submittal of permit applications by subject sources begins upon the 
effective date of this interim approval, as does the 3-year time period 
for processing the initial permit applications.
    If the District fails to submit a complete corrective program for 
full approval by March 7, 1997, EPA will start an 18-month clock for 
mandatory sanctions. If the District 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 District has corrected the deficiency by submitting a complete 
corrective program. Moreover, if the Administrator finds a lack of good 
faith on the part of the District, both sanctions under section 179(b) 
will apply after the expiration of the 18-month period until the 
Administrator determined that the District had come into compliance. In 
any case, if, six months after application of the first sanction, the 
District still has not submitted a corrective program that EPA has 
found complete, a second sanction will be required.
    If EPA disapproves the District'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 District has submitted a revised program and EPA 
has determined that it corrected the deficiencies that prompted the 
disapproval. Moreover, if the Administrator finds a lack of good faith 
on the part of the District, both sanctions under section 179(b) shall 
apply after the expiration of the 18-month period until the 
Administrator determines that the District has come into compliance. In 
all cases, if, six months after EPA applies the first sanction, the 
District has not submitted a revised program that EPA has determined 
corrects the deficiencies, a second sanction is required.
    In addition, discretionary sanctions may be applied where warranted 
any time after the expiration of an interim approval period if the 
District has not timely submitted a complete corrective program or EPA 
has disapproved its submitted corrective program. Moreover, if EPA has 
not granted full approval to the District's program by the expiration 
of this interim approval and that expiration occurs after November 15, 
1995, EPA must promulgate, administer and enforce a federal permits 
program for the District of Columbia upon interim approval expiration.
    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. Therefore, EPA is also promulgating approval under section 
112(l)(5) and 40 CFR 63.91 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.
    Additionally, EPA is promulgating approval of Chapter 3 of Subtitle 
I of Title 20 of the District of Columbia Municipal Regulations (20 
DCMR), 

[[Page 40104]]
under the authority of Title V and Part 70 for the purpose of 
implementing section 112(g) to the extent necessary during the 
transition period between promulgation of the federal section 112(g) 
rule and adoption of any necessary District rules to implement EPA's 
section 112(g) regulations. However, since this approval is for the 
purpose of providing a mechanism to implement section 112(g) during the 
transition period, the approval of the Chapter 3 operating permits 
program for this purpose 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. The duration of this 
approval is limited to 18 months following promulgation by EPA of 
section 112(g) regulations, to provide the District with adequate time 
to adopt regulations consistent with federal requirements.
    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 does 
not impose any new requirements, it does not have a significant impact 
on a substantial number of small entities.
    EPA has determined that this proposed interim approval action does 
not include a federal mandate that may result in estimated costs of 
$100 million or more to either state, local, or tribal governments in 
the aggregate, or to the private sector. This federal action approves 
pre-existing requirements under state or local law, and imposes no new 
federal requirements. Accordingly, no additional costs to state, local, 
or tribal governments, or to the private sector result from this 
action.
    EPA has determined that this final interim approval action, 
promulgating interim approval of the District of Columbia's operating 
permits program, does not include a federal mandate that may result in 
estimated costs of $100 million or more to either state, local, or 
tribal governments in the aggregate, or to the private sector. This 
federal action approves pre-existing requirements under state or local 
law, and imposes no new federal requirements. Accordingly, no 
additional costs to state, local, or tribal governments, or to the 
private sector result from this action.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
and Reporting and recordkeeping requirements.

    Dated: July 20, 1995.
W.T. Wisniewski,
Acting Regional Administrator.

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

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

    2. Appendix A to part 70 is amended by adding the entry for the 
District of Columbia in alphabetical order to read as follows:

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

* * * * *

District of Columbia

    (a) Environmental Regulation Administration: submitted on 
January 13, 1994 and March 11, 1994; interim approval effective on 
September 6, 1995; interim approval expires September 8, 1997.
    (b) [Reserved]
* * * * *
[FR Doc. 95-19399 Filed 8-4-95; 8:45 am]
BILLING CODE 6560-50-P