[Federal Register Volume 60, Number 235 (Thursday, December 7, 1995)]
[Rules and Regulations]
[Pages 62758-62762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29834]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[AD-FRL-5341-9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is promulgating direct final interim approval of the 
title V operating permits program submitted by the California Air 
Resources Board (CARB), on behalf of the Mariposa Air Pollution Control 
District (Mariposa or District), for the purpose of complying with 
federal requirements for an approvable state program to issue operating 
permits to all major stationary sources and to certain other sources. 
In addition, today's action promulgates direct final approval of 
Mariposa's mechanism for receiving delegation of section 112 standards 
as promulgated.

DATES: This direct final rule is effective on February 5, 1996 unless 
adverse or critical comments are received by January 8, 1996. If the 
effective date is delayed, a timely notice will be published in the 
Federal Register.

ADDRESSES: Copies of the District's submittal and other supporting 

[[Page 62759]]
information used in developing this direct final rule are available for 
public inspection (docket number CA-MA-95-1-OPS) during normal business 
hours at the following location: Operating Permits Section (A-5-2), Air 
and Toxics Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105.

FOR FURTHER INFORMATION CONTACT: Sara Bartholomew (telephone 415/744-
1170), Operating Permits Section (A-5-2), Air and Toxics Division, U.S. 
Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    Title V of the 1990 Clean Air Act Amendments (sections 501-507 of 
the Clean Air Act (Act)), and implementing regulations at 40 Code of 
Federal Regulations (CFR) part 70 (part 70), require that states 
develop and submit operating permits programs to EPA by November 15, 
1993, and that EPA act to approve or disapprove each program within 1 
year after receiving the submittal. The EPA's program review occurs 
pursuant to section 502 of the Act and the part 70 regulations, which 
together outline criteria for approval or disapproval. Where a program 
substantially, but not fully, meets the requirements of part 70, EPA 
may grant the program interim approval for a period of up to 2 years. 
If EPA has not fully approved a program by 2 years after the November 
15, 1993 date, or by the end of an interim program, it must establish 
and implement a federal program.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial action and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, the EPA is proposing interim approval of the 
operating permit program submitted by Mariposa should adverse or 
critical comments be filed.
    If EPA receives adverse or critical comments, this action will be 
withdrawn before the effective date by publishing a subsequent document 
that will withdraw the final action. All public comments received will 
then be addressed in a subsequent final rule based on this action 
serving as the proposed rule. The EPA will not institute a second 
comment period. Any parties interested in commenting on this action 
should do so at this time. If no such comments are received, the public 
is advised that this action will be effective on February 5, 1996.

B. Federal Oversight and Sanctions

    This interim approval, which may not be renewed, extends until 
February 9, 1998. During this interim approval period, Mariposa 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 Mariposa fails to submit a complete corrective program for full 
approval by August 7, 1997, EPA will start an 18-month clock for 
mandatory sanctions. If Mariposa 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 Mariposa has corrected the deficiency by submitting a complete 
corrective program. Moreover, if the Administrator finds a lack of good 
faith on the part of the District, both sanctions under section 179(b) 
will apply after the expiration of the 18-month period until the 
Administrator determines that Mariposa has come into compliance. In any 
case, if, six months after application of the first sanction, the 
District still has not submitted a corrective program that EPA has 
found complete, a second sanction will be required.
    If EPA disapproves Mariposa'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 Mariposa 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 Mariposa 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 Mariposa 
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 Mariposa upon interim approval expiration.

II. Direct Final Action and Implications

A. Analysis of State Submission

    The analysis contained in this notice focuses on specific elements 
of Mariposa's title V operating permits program that must be corrected 
to meet the minimum requirements of part 70. The full program 
submittal; the Technical Support Document (TSD), which contains a 
detailed analysis of the submittal; and other relevant materials are 
available for inspection as part of the public docket (CA-MA-95-1-OPS). 
The docket may be viewed during regular business hours at the address 
listed above.
1. Support Materials
    Mariposa's title V program was submitted by the California Air 
Resources Board (CARB) on March 8, 1995 and found to be complete on May 
25, 1995. Enabling legislation for the State of California and the 
Attorney General's legal opinion were submitted by CARB for all 
districts in California and therefore were not included separately in 
Mariposa's submittal. The Mariposa submission does contain a Governor's 
letter requesting source category-limited interim approval, District 
implementing and supporting regulations, and all other program 
documentation required by section 70.4. EPA will wait to develop an 
implementation agreement between Mariposa and EPA until the District 
has title V sources.
2. Regulations and Program Implementation
    Mariposa's title V implementing regulation, District Regulation X, 
was adopted on February 28, 1995. The District used the CARB model 
rule, and Regulation X is almost identical to the other smaller 
districts in California. EPA has granted interim approval to 23 of 
these smaller districts to date, and a detailed discussion of the 
issues in these programs can be found in 60 FR 21720, published on May 
3, 1995.
    Mariposa's title V implementing regulations substantially meet the 

[[Page 62760]]
    requirements of 40 CFR part 70, sections 70.2 and 70.3 for 
applicability; sections 70.4, 70.5, and 70.6 for permit content, 
including operational flexibility; section 70.7 for public 
participation and permit modifications; section 70.5 for criteria that 
define insignificant activities and complete application forms; and 
section 70.11 for enforcement authority. Although the regulations 
substantially meet part 70 requirements, there are a few deficiencies 
in the program that are outlined under section II.B.1. below as interim 
approval issues and further described in the TSD.
3. Permit Fee Demonstration
    Section 502(b)(3) of the Act requires that each permitting 
authority collect fees sufficient to cover all reasonable direct and 
indirect costs required to develop and administer its title V operating 
permits program. Each title V program submittal must contain either a 
detailed demonstration of fee adequacy or a demonstration that 
aggregate fees collected from title V sources meet or exceed $25 per 
ton per year (adjusted annually based on the Consumer Price Index 
(``CPI''), relative to 1989 CPI). The $25 per ton amount is presumed, 
for program approval, to be sufficient to cover all reasonable program 
costs and is thus referred to as the ``presumptive minimum'' (40 CFR 
70.9(b)(2)(i)).
    Mariposa does not currently have any title V sources. The District 
has adopted a fee rule that would charge the presumptive minimum to any 
title V source that locates in the District, or to any source to which 
title V becomes applicable.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority and Commitments for Section 112 Implementation
    Mariposa has demonstrated in its title V program submittal adequate 
legal authority to implement and enforce all section 112 requirements 
through the title V permit. This legal authority is contained in the 
State of California enabling legislation and in regulatory provisions 
defining federal ``applicable requirements'' and requiring each permit 
to incorporate conditions that assure compliance with all applicable 
requirements. EPA has determined that this legal authority is 
sufficient to allow Mariposa to issue permits that assure compliance 
with all section 112 requirements. For further discussion, please refer 
to the TSD accompanying this action and the April 13, 1993 guidance 
memorandum entitled, ``Title V Program Approval Criteria for Section 
112 Activities,'' signed by John Seitz and located in the docket.
b. Authority for Title IV Implementation
    Mariposa has no title V sources at this time, and therefore has no 
Phase I or Phase II acid rain sources. The District has not submitted a 
complete acid rain program, due to its lack of sources. If, in the 
future, title V sources locate in the District, or if title V should 
become applicable to any existing sources, Mariposa will need to 
provide the same commitment that EPA is requiring of other Districts 
that do not have a complete acid rain program. This commitment will be 
to expeditiously adopt the appropriate regulatory authority, if and 
when it becomes necessary to issue a title IV permit to any new or 
existing source in the District that becomes subject to, or wants to 
opt into, the acid rain program.

B. Proposed Interim Approval and Implications

1. Title V Operating Permits Program
    The EPA is promulgating direct final interim approval to the 
operating permits program submitted by the California Air Resources 
Board, on behalf of the Mariposa Air Pollution Control District, on 
March 8, 1995. Areas in which Mariposa's program is deficient and 
requires corrective action prior to full approval are as follows:
    (1) Provide a demonstration that activities that are exempt from 
part 70 permitting are truly insignificant and are not likely to be 
subject to an applicable requirement. Alternatively, the District may 
restrict the exemptions to activities that are not likely to be subject 
to an applicable requirement and emit less than District-established 
emission levels. The District should establish separate emission levels 
for HAPs and for other regulated pollutants and demonstrate that these 
emission levels are insignificant compared to the level of emissions 
from and type of units that are required to be permitted or subject to 
applicable requirements.
    (2) Revise the exemption list in Rule 402 (Exemptions to Rule 401) 
to remove the general exemption for agricultural production sources or 
to restrict the exemptions to non-title V sources.
    (3) Revise the application content requirements in Rule 1006 so 
that any compliance schedule required by the rule for a source not in 
compliance must resemble and be at least as stringent as that contained 
in any judicial consent decree, administrative order, or schedule 
approved by the hearing board to which the source is subject as 
required by Sec. 70.5 (c)(4)(iii)(C) rather than simply a schedule of 
compliance approved by the District's hearing board.
    (4) Revise the application content requirements in Rule 1006 to 
clarify that all reports and other documents submitted in the permit 
application must be certified by the responsible official as required 
by Sec. 70.5 (d) and to provide the full text of the responsible 
official's certification in Sec. 70.5 (d).
    (5) Provide in Rule 1004 a permit application deadline for sources 
that become subject to the District's part 70 rule after the rule's 
effectiveness date for reasons other than commencing operation. This 
deadline cannot be any later than 12 months after the source becomes 
subject to the rule as required by Sec. 70.5 (a)(1).
    (6) Revise the permit issuance procedures in Rule 1005 to provide 
for notifying the EPA and affected States in writing of any refusal by 
the District to accept all recommendations for the proposed permit that 
the Affected State submitted during the public/Affected State review 
period as required by Sec. 70.8 (b)(2).
    (7) Incorporate in Rule 1005 provisions citing the right of the 
public to petition EPA under Sec. 70.8 (d) after the expiration of the 
EPA's 45-day review period and prohibiting the District from issuing a 
permit, if it has not already done so, until the EPA's objections in 
response to the petition are resolved as required by Sec. 70.8 (d).
    (8) Revise Rule 1005 to provide for public notice of permitting 
actions by other means if necessary to assure adequate notice to the 
affected public as required by Sec. 70.7 (h)(1).
    (9) Revise the permit content requirements in Rule 1006 to clarify 
that all reports and other documents required by the permit must be 
certified by a responsible official as required by Sec. 70.6 (c)(1) and 
to provide the full text of the responsible official's certification in 
Sec. 70.5 (d).
    (10) Revise the permit content requirements in Rule 1006 to require 
that any compliance schedule for a source not in compliance must 
resemble and be at least as stringent as that contained in any judicial 
consent decree, administrative order, or schedule approved by the 
hearing board to which the source is subject as required by Secs. 70.6 
(c)(3) and 70.5 (c)(8)(iii)(C).
    (11) Revise the permit content requirements in Rule 1006 to require 
the submission of compliance certifications more frequently than 
annually if a more frequent period is specified in the applicable 
requirement or by the District as required by Sec. 70.6 (c)(5)(i). 

[[Page 62761]]

    This interim approval, which may not be renewed, extends for a 
period of up to two years. During the interim approval period, Mariposa 
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 one-year time period for submittal of 
permit applications by subject sources begins upon interim approval, as 
does the three-year time period for processing the initial permit 
applications.
    The scope of Mariposa's part 70 program that EPA is acting on in 
this notice applies to all part 70 sources (as defined in the approved 
program) within Mariposa's jurisdiction. The approved program does not 
apply to any part 70 sources over which an Indian tribe has 
jurisdiction. See, e.g., 59 FR 55813, 55815-18 (Nov. 9, 1994). The term 
``Indian tribe'' is defined under the Act as ``any Indian tribe, band, 
nation, or other organized group or community, including any Alaska 
Native village, which is federally recognized as eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians.'' See section 302(r) of the CAA; 
see also 59 FR 43956, 43962 (Aug. 25, 1994); 58 FR 54364 (Oct. 21, 
1993).
2. State Preconstruction Permit Program Implementing Section 112(g)
    The EPA has published an interpretive notice in the Federal 
Register regarding section 112(g) of the Act (60 FR 8333; February 14, 
1995) that postpones the effective date of section 112(g) until after 
EPA has promulgated a rule addressing that provision. The interpretive 
notice also explains that EPA is considering whether the effective date 
of section 112(g) should be delayed beyond the date of promulgation of 
the federal rule so as to allow states time to adopt rules implementing 
the federal rule, and that EPA will provide for any such additional 
delay in the final section 112(g) rulemaking. Unless and until EPA 
provides for such an additional postponement of section 112(g), 
Mariposa 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.
    For this reason, EPA is approving the use of Mariposa's 
preconstruction review program as a mechanism to implement section 
112(g) during the transition period between promulgation of the section 
112(g) rule and adoption by Mariposa of rules specifically designed to 
implement section 112(g). However, since the sole purpose of this 
approval is to confirm that the District has a mechanism to implement 
section 112(g) during the transition period, the approval itself will 
be without effect if EPA decides in the final section 112(g) rule that 
there will be no transition period. The EPA is limiting the duration of 
this approval to 18 months following promulgation by EPA of the section 
112(g) rule.
3. Program for Delegation of Section 112 Standards as Promulgated
    Requirements for approval, specified in 40 CFR section 70.4(b), 
encompass section 112(l)(5) requirements for approval of a program for 
delegation of section 112 standards as promulgated by EPA as they apply 
to part 70 sources. Section 112(l)(5) requires that a state's program 
contain adequate authorities, adequate resources for implementation, 
and an expeditious compliance schedule, which are also requirements 
under part 70. Therefore, EPA is also promulgating approval under 
section 112(l)(5) and 40 CFR part 63.91 of Mariposa's program for 
receiving delegation of section 112 standards that are unchanged from 
federal standards as promulgated. California Health and Safety Code 
section 39658 provides for automatic adoption by CARB of section 112 
standards upon promulgation by EPA. Section 39666 of the Health and 
Safety Code requires that districts then implement and enforce these 
standards. Thus, when section 112 standards are automatically adopted 
pursuant to section 39658, Mariposa will have the authority necessary 
to accept delegation of these standards without further regulatory 
action by the District. The details of this mechanism and the means for 
finalizing delegation of standards will be set forth in an 
implementation agreement between Mariposa and EPA, which will be 
negotiated at the time when the District has title V sources. This 
program applies to both existing and future standards but is limited to 
sources covered by the part 70 program.

III. Administrative Requirements

A. Docket

    Copies of Mariposa's submittal and other information relied upon 
for this direct final action is contained in docket number CA-MA-95-1-
OPS maintained at the EPA Regional Office. The docket is an organized 
and complete file of all the information submitted to, or otherwise 
considered by, EPA in the development of this direct final rulemaking. 
The docket is available for public inspection at the location listed 
under the ADDRESSES section of this document.

B. Regulatory Flexibility Act

    The EPA's actions under section 502 of the Act do not create any 
new requirements, but simply address operating permits programs 
submitted to satisfy the requirements of 40 CFR Part 70. Because this 
action does not impose any new requirements, it does not have a 
significant impact on a substantial number of small entities.

C. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a federal mandate that may result in estimated 
costs to state, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated today does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to either state, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under state or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to state, local, 
or tribal governments, or to the private sector, result from this 
action.

D. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
review under Executive Order 12866.

List of Subjects in 40 CFR Part 70

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

    Dated: November 13, 1995.
Felicia Marcus,
Regional Administrator.

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

[[Page 62762]]


PART 70--[AMENDED]

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

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

    2. Appendix A to part 70 is amended by adding paragraph (n) to the 
entry for California to read as follows:

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

* * * * *
    The following district program was submitted by the California Air 
Resources Board on behalf of:
    (n) Mariposa Air Pollution Control District: submitted on March 8, 
1995; approval effective on February 5, 1996 unless adverse or critical 
comments are received by January 8, 1996.
* * * * *
[FR Doc. 95-29834 Filed 12-6-95; 8:45 am]
BILLING CODE 6560-50-P