[Federal Register Volume 65, Number 244 (Tuesday, December 19, 2000)]
[Rules and Regulations]
[Pages 79314-79317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32031]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[CA224-0263; FRL-6864-3]


Clean Air Act Final Interim Approval of the Operating Permits 
Program; Approval of State Implementation Plan Revision for the 
Issuance of Federally Enforceable State Operating Permits; Antelope 
Valley Air Pollution Control District, California

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final interim approval.

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SUMMARY: The EPA is promulgating interim approval of the Operating 
Permits Program submitted by the California Air Resources Board on 
behalf of the Antelope Valley Air Pollution Control District (APCD), 
California (Antelope Valley 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, EPA is promulgating final approval of a revision 
to Antelope Valley's portion of the California State Implementation 
Plan (SIP) regarding synthetic minor regulations for the issuance of 
federally enforceable state operating permits (FESOP). In order to 
extend the federal enforceability of state operating permits to 
hazardous air pollutants (HAP), EPA is also finalizing approval of 
Antelope Valley's synthetic minor regulations pursuant to section 
112(l)of the Clean Air Act (CAA or Act). Finally, today's action grants 
final approval to Antelope Valley's mechanism for receiving delegation 
of section 112 standards as promulgated.

DATES: Effective date: January 18, 2001.
    Expiration date: January 11, 2003.

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: 
Permits Office, Air-3, Air Division, U.S. EPA, Region IX, 75 Hawthorne 
Street, San Francisco, California 94105.
    Copies of the submitted rules are also available for inspection at 
the following locations:
    California Air Resources Board, 2020 L Street, Sacramento, CA 95814
    Antelope Valley Air Pollution Control District, 43301 Division 
Street, Suite 206, Lancaster, CA 93539-4409

FOR FURTHER INFORMATION CONTACT: Duong Nguyen (telephone 415/744-1142), 
Mail Code Air-3, U.S. Environmental Protection Agency, Region IX, Air 
Division, 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 Act) and implementing regulations at 40 Code of Federal Regulations 
(CFR) 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.
    On March 31, 2000, EPA proposed interim approval of the operating 
permits program for Antelope Valley APCD, California. See 65 FR 17231. 
The Federal Register document also proposed approval of the District's 
interim mechanism for implementing section 112(g) and program for 
delegation of section 112 standards as promulgated. Public comment was 
solicited on these proposed actions. EPA received no public comment on 
the proposal. In this notice, EPA is promulgating interim approval of 
Antelope Valley's operating permits program. EPA is also clarifying the 
section 112(g) implementation discussion in the proposed rulemaking. 
The clarification is not a substantive change from the proposed 
rulemaking (see II.B.2). This final rulemaking also approves the 
delegation mechanism to implement section 112(l) as noted above. On 
June 28, 1989 (54 FR 27274), EPA published criteria for approving and 
incorporating into the SIP regulatory programs for the issuance of 
federally enforceable state operating permits. Permits issued pursuant 
to a program meeting the June 28, 1989 criteria and approved into the 
SIP are considered federally enforceable for criteria pollutants. The 
synthetic minor mechanism may also be used to create federally 
enforceable limits for emissions of HAP if it is approved pursuant to 
section 112(l) of the Act.
    In the March 31, 2000 Federal Register document, EPA also proposed 
approval of Antelope Valley's synthetic minor program for creating 
federally enforceable limits in District operating permits. In this 
document, EPA is promulgating approval of the synthetic minor program 
for Antelope Valley as a revision to the District's SIP and pursuant to 
section 112(l) of the Act.

II. Final Action and Implications

A. Analysis of State Submission

Comments
    On March 31, 2000, EPA proposed interim approval of Antelope 
Valley's title V operating permits program as it was submitted on 
January 26, 1999. EPA received no adverse public comment on Antelope 
Valley's title V operating permits program, the proposed approval of 
Antelope Valley's synthetic minor program, or program for receiving 
section 112(1) standards as promulgated.

B. Final Action

1. Title V Operating Permits Program
    The EPA is promulgating interim approval of Antelope Valley's title 
V operating permits program as submitted on January 26, 1999. EPA did 
not receive any comments on the changes that were outlined as necessary 
for full approval. Therefore, the program deficiencies described in the 
proposed rulemaking, under II.B.1.(a), Proposed Interim Approval, and 
the legislative deficiency outlined under II.B.1.(b), Legislative 
Source Category-Limited Interim Approval Issue, must be corrected in 
order for the District to be granted full approval. The scope of the 
Antelope Valley's part 70 program approved in this notice applies to 
all part 70 sources (as defined in the approved program) within the 
District, except any sources of air pollution over which an Indian 
Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-55818

[[Page 79315]]

(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 
January 21, 2003. During this interim approval period, Antelope Valley 
is protected from sanctions, and EPA is not obligated to promulgate, 
administer and enforce a Federal operating permits program in this 
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 Antelope Valley 
fails to submit a complete corrective program for full approval by July 
21, 2002, 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 Antelope Valley, both sanctions under section 179(b) will apply 
after the expiration of the 18-month period until the Administrator 
determines that the District has come into compliance. In any case, if, 
six months after application of the first sanction, Antelope Valley 
still has not submitted a corrective program that EPA has found 
complete, a second sanction will be required.
    If EPA disapproves Antelope Valley'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 Antelope Valley, 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, 
Antelope Valley 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 Antelope 
Valley has not submitted a timely and 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 Antelope Valley upon interim approval 
expiration.
2. Implementing Section 112(g)
    In the March 31, 2000 proposed rulemaking for interim approval of 
Antelope Valley's title V operating permits program, EPA proposed 
approving the use of Antelope Valley's preconstruction review program. 
The proposal was intended as a mechanism to implement section 112(g) 
during the transition period between promulgation of EPA's section 
112(g) rule and adoption by Antelope Valley of rule(s) specifically 
designed to implement section 112(g).
    This final rulemaking clarifies the proposed rulemaking by noting 
that the section 112(g) rule, titled ``Hazardous Air Pollutants: 
Regulations Governing Constructed or Reconstructed Major Sources,'' was 
actually promulgated by EPA on December 27, 1996. The rule specified 
that permitting authorities must adopt a program (rule) to implement 
section 112(g) with an effective date of June 29, 1998, and that a 
permitting authority must certify and notify EPA by this date that the 
program meet the requirements of 112(g). A subsequent EPA rulemaking on 
June 30, 1999 granted a 30-month transitional period to permitting 
authorities that were unable to initiate a program to implement section 
112(g) after June 29, 1998. During this transitional period, which 
expires on December 29, 2000, a permitting authority may (1) Request 
EPA to issue section 112(g) determinations, or (2) make section 112(g) 
determinations and issue a notice of Maximum Available Control 
Technology (MACT) that will become final and legally enforceable after 
EPA concurs in writing with the permitting authority's determination. 
Failure by the permitting authority to adopt a program to implement 
section 112(g) after the transitional period ends shall be construed as 
a failure by the permitting authority to adequately administer and 
enforce its title V operating permits program and shall constitute 
cause by EPA to apply the sanctions and remedies set forth in the Clean 
Air Act section 502(I).
    On July 24, 1998, Antelope Valley submitted a letter to EPA 
indicating its intention to rely on an existing, but incomplete Toxic 
New Source Review rule and case-by-case MACT determinations in the 
transitional period to comply with the section 112(g) rule. Antelope 
Valley is in the process of developing and adopting a revised rule to 
implement section 112(g) by December 2000.
    This final rulemaking hereby reiterates that failure by Antelope 
Valley to adopt a program (rule) to implement section 112(g) after 
December 29, 2000 shall be viewed as failure to adequately administer 
and enforce its title V operating permits program and could trigger 
sanctions and remedies as prescribed in section 502 of the Act. Since 
this section 112(g) implementation discussion merely clarifies the 
language in the proposed rulemaking on March 31, 2000 and provides 
additional information on the issue, it is not a substantive change 
from the proposed rulemaking.
3. Program for Delegation of Section 112 Standards as Promulgated
    Requirements for part 70 program 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 
District'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 Antelope Valley's 
program for receiving delegation of section 112 standards that are 
unchanged from the federal standards as promulgated. This program for 
delegations applies to both existing and future standards but is 
limited to sources covered by the part 70 program.
4. State Operating Permit Program for Synthetic Minors
    EPA is promulgating full approval of Antelope Valley's synthetic 
minor operating permit program, adopted by the District on March 17, 
1998, and submitted to EPA by the California Air

[[Page 79316]]

Resources Board, on behalf of Antelope Valley, on February 16, 1999. 
The synthetic minor operating permit program is being approved into 
Antelope Valley's SIP pursuant to part 52 and the five approval 
criteria set out in the June 28, 1989 Federal Register document (54 FR 
27282). EPA is also promulgating full approval pursuant to section 
112(l)(5) of the Act so that HAP emission limits in synthetic minor 
operating permits may be deemed federally enforceable.

III. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 13045

    Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997), applies to any rule that: (1) Is determined to be ``economically 
significant'' as defined under Executive Order 12866, and (2) concerns 
an environmental health or safety risk that EPA has reason to believe 
may have a disproportionate effect on children. If the regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children, and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

C. Executive Order 13084

    Under Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to OMB, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected and 
other representatives of Indian tribal governments ``to provide 
meaningful and timely input in the development of regulatory policies 
on matters that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this rule.

D. Executive Order 13132

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999) revokes and replaces Executive Orders 12612, Federalism and 
12875, Enhancing the Intergovernmental Partnership. Executive Order 
13132 requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely acts on a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This final rule will not have a significant impact on a substantial 
number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the Clean Air Act do not create any new 
requirements but simply act on requirements that the State is already 
imposing. Therefore, because the Federal SIP approval does not create 
any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

F. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    EPA believes that VCS are inapplicable to today's action because it 
does not require the public to perform activities conducive to the use 
of VCS.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must

[[Page 79317]]

submit a rule report, which includes a copy of the rule, to each House 
of the Congress and to the Comptroller General of the United States. 
EPA will submit a report containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the rule in the Federal Register. A major rule cannot take effect until 
60 days after it is published in the Federal Register. This rule is not 
a ``major'' rule as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by February 20, 2001. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

I. 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 
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 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 acts on pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides, 
Volatile organic compounds.

40 CFR Part 70

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

    Dated: August 21, 2000.
Felicia Marcus,
Regional Administrator, Region 9.

    Chapter I, title 40 of the Code of Federal Regulations is amended 
as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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

Subpart F--California

    2. Section 52.220 is amended by adding paragraph (c)(262)(i)(E) to 
read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (262) * * *
    (i) * * *
    (E) Antelope Valley Air Pollution Control District.
    (1) Rule 225, adopted March 17, 1998.
* * * * *

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 (ii) to the 
entry for California to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs
* * * * *
California
* * * * *
    (ii) Antelope Valley Air Pollution Control District (complete 
submittal received on January 26, 1999); interim approval effective on 
January 18, 2001; interim approval expires January 21, 2003.
* * * * *
[FR Doc. 00-32031 Filed 12-18-00; 8:45 am]
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