[Federal Register Volume 61, Number 158 (Wednesday, August 14, 1996)]
[Proposed Rules]
[Pages 42222-42228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20591]


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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        
------------------------------------------------------------------------
                                                                        
------------------------------------------------------------------------
                       Part 60 Subpart Categories                       
                                                                        
------------------------------------------------------------------------
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.    
                                                                        
------------------------------------------------------------------------
 
[[Page 42228]]

                                                                        
                       Part 61 Subpart Categories                       
                                                                        
------------------------------------------------------------------------
C                       Beryllium.                                      
E                       Mercury.                                        
J                       Equipment Leaks of Benzene.                     
M                       Asbestos.                                       
V                       Equipment Leaks (Fugitive Emission Sources).    
------------------------------------------------------------------------



     Table II.--Delegation of Part 63 Standards as They Apply to New    
              Hampshire's Title V Operating Permits Program             
------------------------------------------------------------------------
                                                                        
------------------------------------------------------------------------
                       Part 63 Subpart Categories                       
------------------------------------------------------------------------
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.                                    
------------------------------------------------------------------------

[FR Doc. 96-20591 Filed 8-13-96; 8:45 am]
BILLING CODE 6560-50-P