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Title V Clean Air Act Final Interim Approval of Operating Permits Program; District of Columbia
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: August 7, 1995 (Volume 60, Number 151)]
[Rules and Regulations]
[Page 40101-40104]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5274-2]
Title V Clean Air Act Final Interim Approval of Operating Permits
Program; District of Columbia
AGENCY: U.S. Environmental Protection Agency (EPA).
ACTION: Final interim approval.
SUMMARY: EPA is promulgating interim approval of the operating permits
program submitted by the District of Columbia for the purpose of
complying with federal requirements for an approvable program to issue
operating permits to all major stationary sources, and to certain other
sources.
EFFECTIVE DATE: September 6, 1995.
ADDRESSES: Copies of the District's submittal and other supporting
information used in developing the final interim approval are available
for inspection during normal business hours at the following location:
Air, Radiation, and Toxics Division, U.S. Environmental Protection
Agency, Region III, 841 Chestnut Building, Philadelphia, PA 19107.
FOR FURTHER INFORMATION CONTACT: Jennifer M. Abramson, (3AT23), Air,
Radiation and Toxics Division, U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, PA 19107, (215) 597-
2923.
SUPPLEMENTARY INFORMATION:
I. Background
Title V of the 1990 Clean Air Act Amendments (sections 501-507 of
the Clean Air Act (``the CAA'')), and
[[Page 40102]]
implementing regulations at 40 Code of Federal Regulations (CFR) part
70 require that states seeking to administer a Title V operating
permits program develop and submit a program to EPA by November 15,
1993, and that EPA act to approve or disapprove each program within 1
year after receiving the submittal. EPA's program review occurs
pursuant to section 502 of the Act and the part 70 regulations, which
together outline criteria for approval or disapproval of an operating
permits program submittal. Where a program substantially, but not
fully, meets the requirements of part 70, EPA may grant the program
interim approval for a period of up to 2 years. If EPA has not fully
approved a program by November 15, 1995, or by the expiration of the
interim approval period, it must establish and implement a federal
program.
On March 21, 1995, EPA proposed interim approval of the operating
permits program for the District of Columbia. (See 60 FR 14921). EPA
compiled a Technical Support Document (TSD) which describes the
operating permits program in greater detail. In this notice EPA is
taking final action to promulgate interim approval of the operating
permits program for the District of Columbia.
II. Analysis of State Submission
On January 13, 1994, the District of Columbia submitted an
operating permits program to satisfy the requirements of the CAA and 40
CFR part 70. The submittal was supplemented by additional materials on
March 11, 1994 and was found to be administratively complete pursuant
to 40 CFR 70.4(e)(1). EPA reviewed the program against the criteria for
approval in section 502 of the CAA and the part 70 regulations. EPA
determined, as fully described in the notice of proposed interim
approval of the District's operating permits program (see 60 FR 14921
(March 21, 1995)) and the TSD for this action, that the District's
operating permits program substantially meets the requirements of the
CAA and part 70.
III. Response to Public Comments
EPA received comments from one organization. EPA's response to
these comments are summarized in this section. Comments supporting
EPA's proposal are not addressed in this notice. All comments are
contained in the docket at the address noted in the ADDRESSES section
above.
Title I Modifications
Comment: EPA has no authority to deny approval of the District's
operating permits program based on its definition of ``Title I
modification or modification under any provision of Title I of the
Act''. The District's definition of the term ``Title I Modification''
which does not expressly include changes reviewed under a minor source
preconstruction review program is consistent with the relatively narrow
definition of ``Title I Modifications'' in the current part 70 rules.
EPA Response: As stated in the proposed rule, EPA does not believe
that the District's definition of ``Title I modification or
modification under any provision of Title I of the Act'' is necessary
grounds for either interim approval or disapproval. Accordingly, EPA
has not identified the District's definition of this term to be a
program deficiency.
EPA is currently in the process of determining the proper
definition of the term ``Title I modification or modification under any
provision of Title I of the Act''. (See 59 FR 44572). If EPA
establishes in its rulemaking that the definition of ``Title I
modifications'' can be interpreted to exclude changes reviewed under a
minor source preconstruction review (NSR) program, the District's
definition of ``Title I modification or modification under any
provision of Title I of the Act'' would be fully consistent with part
70. Conversely, if EPA establishes through the rulemaking that the
definition must include changes reviewed under minor NSR, the
District's definition of ``Title I modification or modification under
any provision of Title I of the Act'' would not fully meet the 40 CFR
70.2 requirements for definitions.
The primary purpose of EPA's discussion of this issue in the
proposed rule was to notify the District and regulated community about
how the definition of ``Title I modification or modification under any
provision of Title I of the Act'' may impact the approval status of the
District's Title V operating permits program. Until the definition of
``Title I modification or modification under any provision of Title I
of the Act'' is established through rulemaking to include changes
reviewed under minor NSR, EPA does not consider the District's
definition of this term to be either an interim or disapproval issue.
Implementation of Section 112(g) Upon Program Approval
Comment: EPA's proposed approval of the District's Chapter 3
operating permits program for the purpose of implementing 112(g) during
the transition period between federal promulgation of a section 112(g)
rule and District adoption of section 112(g) regulations is
objectionable for the following reasons: (1) the District's program may
not conform to the section 112(g) requirements once they have been
issued by EPA, and (2) EPA is proposing to approve the program without
clarifying whether the District's program addresses the critical
threshold questions of how a source is to determine if an emissions
increase is or is not greater than de minimis, and whether or not it
has been offset satisfactorily. EPA has no legal basis for allowing the
District to implement section 112(g) until the agency completes its
rulemaking under 112(g).
EPA Response: Title V of the CAA and the part 70 regulations
require states seeking to obtain and retain approval of Title V
operating permit programs to have authority to issue permits and assure
compliance with all applicable requirements. (Section 502(b)(5)(A) and
40 CFR 70.4(b)(3)(i)). Section 112(g)(2) of the CAA, an applicable
requirement, provides that no person may modify, construct or
reconstruct a major source of HAP, unless the Administrator (or the
state) determines that maximum achievable control technology (MACT)
limitations have been met or that sufficient offsets have been
provided. Accordingly, as discussed in the preamble to the proposed
section 112(g) rule, EPA interprets the statute to require states to
implement section 112(g) including the development of case-by-case MACT
determinations, in order to obtain and retain approval of Title V
operating permits programs (See 59 FR 15565).
In the proposed interim approval of the District's operating
permits program, EPA proposed to approve the District's Chapter 3
operating permits program for the purpose of implementing section
112(g) during the transition period between federal promulgation of a
section 112(g) rule and District adoption of 112(g) implementing
regulations. (See 60 FR 14925-6). This proposal was based in part on
EPA's revised interpretation of the CAA discussed in a Federal Register
notice published on February 14, 1995 which postponed the effective
date of section 112(g) until after EPA has promulgated a rule
addressing that provision. (See 60 FR 8333).
The section 112(g) interpretive notice explains that EPA is still
considering whether the effective date of section 112(g) should be
delayed beyond the date of promulgation of the federal rule
[[Page 40103]]
so as to allow states time to adopt rules implementing the federal
rule, and that EPA will provide for any such additional delay in the
final section 112(g) rulemaking. Unless and until EPA provides for such
an additional postponement of section 112(g), the District must be able
to implement section 112(g) during the transition period between
promulgation of the federal section 112(g) rule and adoption by the
District of implementing regulations.
As described in the proposed rule, EPA believes that, although the
District currently lacks a program designed specifically to implement
section 112(g), the District's Chapter 3 operating permits program will
serve as an adequate implementation vehicle during a transition period
because it will allow the District to select control measures that
would meet MACT, as defined in section 112, and incorporate these
measures into federally enforceable source-specific permits for major
sources of hazardous air pollutants (HAP).
A consequence of the fact that the District lacks a program
designed specifically to implement section 112(g) is that the timing
requirements for submitting permit applications to establish case-bycase
MACT determinations will differ from those in the section 112(g)
rule. However, EPA expects the District to be able to require sources
to submit applications to obtain operating permits or permit revisions
to establish case-by-case MACT determinations prior to construction
where necessary for purposes of section 112(g) even if its own
operating permits program does not require such permit applications to
be submitted until twelve (12) months after commencing operations.
Although the Chapter 3 operating permits program does not at this
time address critical 112(g) threshold questions with respect to de
minimis levels and offsets, EPA believes that the District can
adequately implement 112(g) prior to adoption of EPA's final
promulgated 112(g) rule by relying on the authority established in the
Chapter 3 operating permits program and using EPA's final 112(g) rule
as guidance. Pursuant to the District's commitment ``to adopt and
implement expeditiously any additional regulations that might be needed
to incorporate such [future section 112] requirements into operating
permits'', the District will be expected to establish additional
authorities with respect to 112(g) de minimis levels and/or offsets, if
necessary, consistent with the 112(g) rule once EPA promulgates a rule
addressing those provisions.
Final Action
EPA is promulgating interim approval of the operating permits
program submitted by the District of Columbia on January 13, 1994, and
supplemented on March 11, 1994. The District must make the changes
identified in the proposed rule in order to fully meet the requirements
of the July 21, 1992 version of part 70. (See 60 FR 14926). The
District must also have acid rain regulations and adequate forms in
place by November 15, 1995 consistent with the commitment made in a
February 3, 1995 letter to EPA.
The scope of the District's part 70 program approved in this notice
applies to all part 70 sources (as defined in the approved program)
within the District of Columbia, except any sources of air pollution
over which an Indian Tribe has jurisdiction. See, e.g., 59 FR 55813,
55815-18 (Nov. 9, 1994). The term ``Indian Tribe'' is defined under the
Act as ``any Indian tribe, band, nation, or other organized group or
community, including any Alaska Native village, which is federally
recognized as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians.''
See section 302(r) of the CAA; see also 59 FR 43956, 43962 (Aug. 25,
1994); 58 FR 54364 (Oct. 21, 1993).
This interim approval, which may not be renewed, extends until
September 8, 1997. During this interim approval period, the District is
protected from sanctions, and EPA is not obligated to promulgate,
administer and enforce a federal operating permits program in the
District. Permits issued under a program with interim approval have
full standing with respect to part 70, and the 1-year time period for
submittal of permit applications by subject sources begins upon the
effective date of this interim approval, as does the 3-year time period
for processing the initial permit applications.
If the District fails to submit a complete corrective program for
full approval by March 7, 1997, EPA will start an 18-month clock for
mandatory sanctions. If the District then fails to submit a corrective
program that EPA finds complete before the expiration of that 18-month
period, EPA will be required to apply one of the sanctions in section
179(b) of the Act, which will remain in effect until EPA determines
that the District has corrected the deficiency by submitting a complete
corrective program. Moreover, if the Administrator finds a lack of good
faith on the part of the District, both sanctions under section 179(b)
will apply after the expiration of the 18-month period until the
Administrator determined that the District had come into compliance. In
any case, if, six months after application of the first sanction, the
District still has not submitted a corrective program that EPA has
found complete, a second sanction will be required.
If EPA disapproves the District's complete corrective program, EPA
will be required to apply one of the section 179(b) sanctions on the
date 18 months after the effective date of the disapproval, unless
prior to that date the District has submitted a revised program and EPA
has determined that it corrected the deficiencies that prompted the
disapproval. Moreover, if the Administrator finds a lack of good faith
on the part of the District, both sanctions under section 179(b) shall
apply after the expiration of the 18-month period until the
Administrator determines that the District has come into compliance. In
all cases, if, six months after EPA applies the first sanction, the
District has not submitted a revised program that EPA has determined
corrects the deficiencies, a second sanction is required.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if the
District has not timely submitted a complete corrective program or EPA
has disapproved its submitted corrective program. Moreover, if EPA has
not granted full approval to the District's program by the expiration
of this interim approval and that expiration occurs after November 15,
1995, EPA must promulgate, administer and enforce a federal permits
program for the District of Columbia upon interim approval expiration.
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of section 112 standards as promulgated by EPA as they apply to part 70
sources. Section 112(l)(5) requires that the State's program contain
adequate authorities, adequate resources for implementation, and an
expeditious compliance schedule, which are also requirements under part
70. Therefore, EPA is also promulgating approval under section
112(l)(5) and 40 CFR 63.91 of the District's program for receiving
delegation of section 112 standards that are unchanged from federal
standards as promulgated. This program for delegations only applies to
sources covered by the Part 70 program.
Additionally, EPA is promulgating approval of Chapter 3 of Subtitle
I of Title 20 of the District of Columbia Municipal Regulations (20
DCMR),
[[Page 40104]]
under the authority of Title V and Part 70 for the purpose of
implementing section 112(g) to the extent necessary during the
transition period between promulgation of the federal section 112(g)
rule and adoption of any necessary District rules to implement EPA's
section 112(g) regulations. However, since this approval is for the
purpose of providing a mechanism to implement section 112(g) during the
transition period, the approval of the Chapter 3 operating permits
program for this purpose will be without effect if EPA decides in the
final section 112(g) rule that sources are not subject to the
requirements of the rule until state regulations are adopted. Although
section 112(l) generally provides the authority for approval of state
air toxics programs, Title V and section 112(g) provide authority for
this limited approval because of the direct linkage between
implementation of section 112(g) and Title V. The duration of this
approval is limited to 18 months following promulgation by EPA of
section 112(g) regulations, to provide the District with adequate time
to adopt regulations consistent with federal requirements.
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
EPA's actions under section 502 of the Act do not create any new
requirements, but simply address operating permits programs submitted
to satisfy the requirements of 40 CFR part 70. Because this action does
not impose any new requirements, it does not have a significant impact
on a substantial number of small entities.
EPA has determined that this proposed interim approval action does
not include a federal mandate that may result in estimated costs of
$100 million or more to either state, local, or tribal governments in
the aggregate, or to the private sector. This federal action approves
pre-existing requirements under state or local law, and imposes no new
federal requirements. Accordingly, no additional costs to state, local,
or tribal governments, or to the private sector result from this
action.
EPA has determined that this final interim approval action,
promulgating interim approval of the District of Columbia's operating
permits program, does not include a federal mandate that may result in
estimated costs of $100 million or more to either state, local, or
tribal governments in the aggregate, or to the private sector. This
federal action approves pre-existing requirements under state or local
law, and imposes no new federal requirements. Accordingly, no
additional costs to state, local, or tribal governments, or to the
private sector result from this action.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
and Reporting and recordkeeping requirements.
Dated: July 20, 1995.
W.T. Wisniewski,
Acting Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
PART 70--[AMENDED]
The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding the entry for the
District of Columbia in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * *
District of Columbia
(a) Environmental Regulation Administration: submitted on
January 13, 1994 and March 11, 1994; interim approval effective on
September 6, 1995; interim approval expires September 8, 1997.
(b) [Reserved]
* * * *
[FR Doc. 95-19399 Filed 8-4-95; 8:45 am]
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