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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

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[Federal Register: December 19, 2000 (Volume 65, Number 244)]
[Rules and Regulations]
[Page 79314-79317]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19de00-8]

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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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