[Federal Register Volume 60, Number 232 (Monday, December 4, 1995)]
[Rules and Regulations]
[Pages 62032-62034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29555]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5339-1]


Title V Clean Air Act Final Interim Approval of Operating Permits 
Program; State of Delaware

AGENCY: U.S. Environmental Protection Agency (EPA).

ACTION: Final interim approval.

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SUMMARY: EPA is promulgating interim approval of the operating permits 
program submitted by the State of Delaware. This program was submitted 
by the State 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: January 3, 1996.

ADDRESSES: Copies of the State of Delaware'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: Robin M. Moran, (3AT23), Air, 
Radiation and Toxics Division, U.S. Environmental Protection Agency, 
Region III, 841 Chestnut Building, Philadelphia, PA 19107, (215) 597-
3023.

SUPPLEMENTARY INFORMATION:

I. Background

A. Introduction

    Title V of the 1990 Clean Air Act Amendments (section 501-507 of 
the Clean Air Act (CAA)), and 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 

[[Page 62033]]
within 1 year after receiving the submittal. EPA's program review is 
conducted 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, in 
the case of interim approval, by the expiration of the interim approval 
period, it must establish and implement a federal program.
    On September 21, 1995, EPA proposed interim approval of the 
operating permits program for the State of Delaware. (See 60 FR 48944). 
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 State of Delaware.

II. Analysis of State Submittal

    On November 15, 1993, the State of Delaware 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 November 
22, 1993, and was found to be administratively incomplete pursuant to 
40 CFR 70.4(e)(1) on January 18, 1994. Additional materials were 
submitted on February 9, 1994, and May 15, 1995. Based on the 
additional information, EPA found the submittal to be administratively 
complete on May 19, 1995. The State submitted supplemental information 
on September 5, 1995. EPA reviewed Delaware's 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 Delaware's operating permits program (see 
60 FR 48944; September 21, 1995) and the TSD for this action, that 
Delaware's operating permits program substantially meets the 
requirements of the CAA and part 70.

III. Public Comments

    EPA received no public comments on the notice of proposed interim 
approval.

IV. Insignificant Activities

    In the notice of proposed interim approval, EPA generally described 
Delaware's list of insignificant activities contained in Appendix A of 
Regulation No. 30. Today, EPA is clarifying its rationale for approving 
Delaware's insignificant activities provision. Although Delaware's 
Regulation No. 30 states that any information required by the permit 
application need not be submitted for insignificant activities listed 
or described in Appendix A, sources must provide a list of any 
activities excluded because of size, emissions rate, or production 
rate. The application form reflects this requirement and provides 
detail on the specific information that must be included. Delaware's 
regulation also requires applications to include information needed to 
determine the applicability of, or to impose, any applicable 
requirement, and that the emissions from insignificant activities shall 
be included when determining the applicability of any applicable 
requirement.
    Paragraph (i) of Appendix A allows sources flexibility to consider 
as insignificant those activities for which no applicable requirement 
applies and which are not otherwise listed in the rule if they have the 
potential to emit at less than the following aggregate rates: 25 tons 
per year (tpy) of VOC in New Castle or Kent Counties or 50 tpy of VOC 
in Sussex County; 40 tpy of particulate [matter]; 15 tpy of PM-10; 40 
tpy of sulfur dioxide (SO2); and 25 tpy of nitrogen oxides (NOx) in New 
Castle or Kent Counties or 100 tpy of NOx in Sussex County. While these 
emission levels for insignificant activities are higher than those 
approved by EPA for other states, EPA believes that Delaware's program 
is acceptable because Delaware, in fact, requires the application to 
contain more detailed information about these activities than many 
other State programs. Delaware's permit application form (#AQM-1001DD, 
submitted on February 9, 1994 and May 15, 1995) requires sources to 
identify the following information for insignificant activities based 
on emissions levels: the pollutant, emission rate (e.g., tons per year, 
pounds per day), number of units and type of source. This level of 
detail should ensure that Delaware has enough information to adequately 
establish permitting requirements and the applicable requirements of 
the Act. Because Delaware requires an acceptable level of information 
in the permit application form, EPA believes that the emission 
thresholds established in paragraph (i) of Appendix A need not be an 
interim approval issue for Delaware's program. Since this decision 
depends on the safeguard provided by the requirements in the 
application form, EPA will process changes to the application form that 
may reduce the quality or level of information relative to 
insignificant activities as a formal program revision; that is, 
application form revisions relative to insignificant activities will 
not be approved by way of an exchange of letters between EPA and the 
State of Delaware. Further, EPA's approval of Delaware's insignificant 
activities is based on Section 5(d) of Regulation No. 30 (Standard 
Application Form and Required Information) which states that the 
activities listed in Appendix A are to be included for purposes of 
determining whether a source is subject to the regulation. This 
provision ensures that the emissions levels established in paragraph 
(i) of Appendix A will not interfere with the determination of whether 
a source is major under the Clean Air Act.

Final Action

    EPA is promulgating interim approval of the operating permits 
program submitted by the State of Delaware on November 15, 1993, with 
supplemental submittals on November 22, 1993, February 9, 1994, May 15, 
1995, and September 5, 1995. The State of Delaware must make the 
changes identified in the notice of proposed rulemaking in order to 
fully meet the requirements of the July 21, 1992 version of part 70. 
(See 60 FR 48944, September 21, 1995). Delaware must adopt acid rain 
regulations by July 1, 1996, consistent with the commitment made in a 
September 5, 1995 letter to EPA.
    The scope of the State's part 70 program applies to all part 70 
sources (``covered sources'' as defined in the State's program) within 
the State, except for 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 CAA 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 5, 1998. During the interim approval period, Delaware is 
protected from sanctions for failure to have a fully approved Title V, 
part 70 program, and EPA is not obligated to promulgate, administer and 
enforce a federal permits program in the State. Permits issued 

[[Page 62034]]
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 
interim approval, as does the 3-year time period for processing the 
initial permit applications.
    If the State fails to submit a complete corrective program for full 
approval by July 7, 1997, EPA will start an 18-month clock for 
mandatory sanctions. If the State 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 CAA, which will remain in effect until EPA determines 
that the State 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 State, both sanctions under section 179(b) 
will apply after the expiration of the 18-month period until the 
Administrator determines that the State has come into compliance. In 
any case, if, six months after application of the first sanction, the 
State still has not submitted a corrective program that EPA finds 
complete, a second sanction would be required.
    If EPA disapproves the State's complete corrective program, EPA 
would 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 the date on which the sanction would be applied the State has 
submitted a revised program and EPA has determined that this program 
corrected the deficiencies that prompted the disapproval. Moreover, if 
the Administrator finds a lack of good faith on the part of the State, 
both sanctions under section 179(b) would apply after the expiration of 
the 18-month period until the Administrator determines that the State 
has come into compliance. In all cases, if, six months after EPA 
applies the first sanction, the State has not submitted a revised 
program that EPA has determined corrects the deficiencies that prompted 
disapproval, 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 
State has not timely submitted a complete corrective program or EPA has 
disapproved a submitted corrective program. Moreover, if EPA has not 
granted full approval to the State's program by the expiration of the 
interim approval period, EPA must promulgate, administer and enforce a 
federal operating permits program for the State upon the date the 
interim approval period expires.
    Requirements for approval, specified in 40 CFR 70.4(b), encompass 
the CAA's 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 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.
    Additionally, EPA is promulgating approval of Delaware's operating 
permit program 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 State 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 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 
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 State 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 to 
propose interim approval of the State of Delaware's operating permits 
program pursuant to Title V of the CAA and 40 CFR part 70 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 action, promulgating interim approval 
of the State of Delaware'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.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: November 22, 1995.
W. Michael McCabe,
Regional Administrator.

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

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 the entry for 
Delaware in alphabetical order to read as follows:

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

* * * * *

Delaware

    (a) Department of Natural Resources and Environmental Control: 
submitted on November 15, 1993 and amended on November 22, 1993, 
February 9, 1994, May 15, 1995 and September 5, 1995; interim 
approval effective on January 3, 1996; interim approval expires 
January 5, 1998.
    (b) [Reserved]
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[FR Doc. 95-29555 Filed 11-30-95; 1:07 pm]
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