[Federal Register Volume 59, Number 190 (Monday, October 3, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24372]


[[Page Unknown]]

[Federal Register: October 3, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[MS01; FRL-5082-8]

 

Clean Air Act Proposed Full Approval of Operating Permits 
Program; State of Mississippi

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed full approval.

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SUMMARY: The EPA proposes to grant full approval to the Operating 
Permits Program submitted by the State of Mississippi for the purpose 
of complying with Federal requirements which mandate that States 
develop, and submit to EPA, programs for issuing operating permits to 
all major stationary sources, and to certain other sources.
DATES: Comments on this proposed action must be received in writing by 
November 2, 1994.

ADDRESSES: Written comments should be addressed to Carla Pierce at the 
Region IV address.
    Copies of the State's submittal and other supporting information 
used in developing the proposed full approval are available for 
inspection during normal business hours at the following location: U.S. 
Environmental Protection Agency, Region IV, 345 Courtland Street, NE., 
Atlanta, GA 30365. Interested persons wanting to examine these 
documents should make an appointment with the appropriate office at 
least 24 hours before the visiting day.

FOR FURTHER INFORMATION CONTACT: Carla E. Pierce, Regional Program 
Manager, Air Programs Branch, Air Pesticides & Toxics Management 
Division, Region IV Environmental Protection Agency, 345 Courtland 
Street, NE., Atlanta, GA 30365, telephone (404) 347-2864.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    As required under title V of the Clean Air Act Amendments of 1990, 
(Clean Air Act (``Act'') sections 501-507), EPA has promulgated rules 
which define the minimum elements of an approvable State operating 
permits program and the corresponding standards and procedures by which 
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. 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 operating permits 
program.

II. Proposed Action and Implications

A. Analysis of State Submission

1. Support Materials
    Pursuant to section 502(d) of the Clean Air Act as amended (1990 
Amendments), the Governor of each State must develop and submit to the 
Administrator an operating permits program under State or local law or 
under an interstate compact meeting the requirements of title V of the 
Act. The Mississippi Department of Environmental Quality (MDEQ) 
requested, under the signature of Governor Kirk Fordice, approval of 
its operating permits program with full authority to administer the 
program in all areas of the State of Mississippi, with the exceptions 
of the Indian reservations and tribal lands.
    In the MDEQ operating permits program submittal, Mississippi does 
not assert jurisdiction over Indian lands or reservations for purposes 
of 40 CFR part 70 and title V. EPA will, at a future date, conduct a 
Federal title V operating permits program governing title V sources of 
air emissions on Indian lands and reservations in Mississippi.
    The Mississippi submittal, provided as Section I-''Program 
Description and Implementation Summary,'' addresses 40 CFR 70.4(b)(1) 
by describing how the MDEQ intends to carry out its responsibilities 
under the part 70 regulations. The program description has been deemed 
to be sufficient for meeting the requirement of 40 CFR 70.4(b)(1).
    Pursuant to 40 CFR 70.4(b)(3), the Governor is required to submit a 
legal opinion from the Attorney General (or the attorney for the State 
air pollution control agency that has independent legal counsel) 
demonstrating adequate authority to carry out all aspects of a title V 
operating permits program. The State of Mississippi submitted an 
Attorney General's Opinion and a Supplemental Attorney General's 
Opinion demonstrating adequate legal authority as required by Federal 
law and regulation.
    Section 70.4(b)(4) requires the submission of relevant permitting 
program documentation not contained in the regulations, such as permit 
application forms, permit forms and relevant guidance to assist in the 
State's implementation of its permit program. Appendix 10 of the MDEQ 
submittal includes the permit application form, and it has been 
determined that the application form meets the requirements of 40 CFR 
70.5(c).
    EPA intends to develop an Implementation Agreement with 
Mississippi, although this proposed action does not depend on the 
Implementation Agreement.
2. Regulations and Program Implementation
    The State of Mississippi has submitted Regulations APC-S-6, 
``Mississippi Air Emissions Operating Permit Regulations for the 
purposes of title V of the Federal Clean Air Act,'' for implementing 
the State part 70 program as required by 40 CFR 70.4(b)(2). Sufficient 
evidence of their procedurally correct adoption was included in 
Appendices 7 and 12 of the submittal. Copies of all applicable State 
statutes and regulations which authorize the part 70 program, including 
those governing State administrative procedures, were submitted with 
the State's program.
    The Mississippi operating permits regulations followed part 70 very 
closely. The following requirements, set out in EPA's part 70 operating 
permits program review, are addressed in Section II of the State's 
submittal: (A) Applicability requirements, (40 CFR 70.3(a)): APC-S-6, 
Section I.B; (B) Permit applications, (40 CFR 70.5): APC-S-6, Section 
II; (C) Provisions for permit content, (40 CFR 70.6): standard permit 
requirements: APC-S-6, Section III.A.1; permit duration: APC-S-6, 
Section III.A.2; monitoring and related record keeping and reporting 
requirements: APC-S-6, Section III.A.3; compliance requirements: APC-S-
6, Sections III.B and III.C; (D) Operational flexibility provisions, 
(40 CFR 70.4(b)(12)): APC-S-6, Section IV.F; (E) Provisions for permit 
issuance, renewals, reopenings and revisions, including public 
participation (40 CFR 70.7): APC-S-6, Section IV; and (F) Permit review 
by EPA and affected States (40 CFR 70.6): APC-S-6, Section V. 
Mississippi Code Annotated (MSCA) sections 49-17-36 and 49-17-43, 
satisfy the requirements of 40 CFR 70.11, for enforcement authority.
    The MDEQ has included criteria to determine insignificant 
activities and emissions levels in APC-S-6, Section VII. Section VII.A 
includes activities/emissions sources which are not required to be 
included in the permit application. Section VII.B includes activities/
emissions sources that must be listed in the permit application, but 
their emissions do not have to be quantified. Notwithstanding Sections 
VII.A and B, applicants are required to include all emission sources 
and quantify emissions if needed to determine major source compliance 
with an applicable requirement, or to collect any permit fee. 
Applicants shall also include all emission sources with a potential to 
emit greater than 1 pound per hour of any regulated air pollutant that 
is not a hazardous air pollutant, or greater than 0.1 pound per hour of 
any hazardous air pollutant.
    Part 70 of the operating permits regulations 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. 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. 
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 that this is a distinct 
reporting obligation under 40 CFR 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 require sufficiently prompt reporting 
of deviations. The State of Mississippi has not defined prompt in its 
program regulations with respect to reporting of deviations. The MDEQ, 
however, has committed to define ``prompt'' as discussed above in each 
individual permit.
    The State statute (MSCA 49-2-9) contains a provision that allows 
the State to adopt, modify, repeal, and promulgate, after due notice 
and hearing, and where not otherwise prohibited by Federal or State 
law, to make exceptions to and grant exceptions and variances from, and 
to enforce rules and regulations implementing or effectuating the 
powers and duties of the Mississippi Commission on Environmental 
Quality under any and all statutes within the Commission's 
jurisdiction, and as the Commission may deem necessary to prevent, 
control and abate existing or potential pollution. Regulation APC-S-6, 
Section I.B.8 prohibits exceptions or variances to be granted from any 
of the regulations regarding title V permits. The program submittal is 
approvable based on these limitations placed on the state's variance 
provision.
    The complete MDEQ program submittal and the Technical Support 
Document are available for review for more detailed information.
3. Permit Fee Demonstration
    MSCA sections 49-17-14 and 49-17-30 require the establishment of a 
permit fee sufficient to cover the reasonable direct and indirect costs 
of the title V operating permit program. The fee amount is set annually 
by order of the Mississippi Commission on Environmental Quality and is 
based on either actual or allowable emissions at the request of the 
source. Under State law, the minimum annual fee assessment is set at 
$250 and the maximum annual fee assessment is set at $250,000.
    The MDEQ has elected to assess a title V operating permit fee below 
the Federal presumptive minimum permit fee. Mississippi's fee amount 
was determined through a detailed fee demonstration study that was 
conducted by the John C. Stennis Institute of Government at Mississippi 
State University. The basis of the fee demonstration was a 
comprehensive workload analysis for the title V program.
    Based on the results of the fee demonstration study, the 
Mississippi Commission on Environmental Quality issued an Order setting 
the title V fee at $23.39 per ton of regulated air pollutants for the 
first year of the title V program. The fee may be adjusted annually by 
Order of the Commission to account for inflation factors or changing 
program costs. EPA has determined that Mississippi's fee demonstration 
is adequate and meets the requirements of 40 CFR 70.9.
4. Provisions Implementing the Requirements of Other Titles of the Act
    a. Authority and/or Commitments for Section 112 Implementation. 
Mississippi has demonstrated in its title V program submittal broad 
legal authority to incorporate into permits and enforce all applicable 
requirements. Additionally, the State has adopted APC-S-1, Section 8, 
``Provisions for Hazardous Air Pollutants,'' which provides adequate 
legal authority to implement and enforce applicable section 112 rules, 
emission standards, and requirements. Mississippi has further 
supplemented its broad legal authority with a commitment to ``take 
action, following promulgation by EPA of regulations implementing 
section 112 of title III of the Federal Clean Air Act, and to submit, 
for EPA approval, MDEQ regulations implementing these provisions.'' EPA 
has determined that this commitment, in conjunction with Mississippi's 
broad statutory and regulatory authority, adequately assures compliance 
with all section 112 requirements. EPA regards this commitment as an 
acknowledgement by Mississippi of its obligation to obtain further 
regulatory authority as needed to issue permits that assure compliance 
with section 112 applicable requirements. This commitment does not 
substitute for compliance with part 70 requirements that must be met at 
the time of program approval.
    EPA is interpreting the above legal authority and commitment to 
mean that Mississippi is able to carry out all section 112 activities. 
For further rationale on this interpretation, please refer to the 
Technical Support Document accompanying this proposed full approval and 
the April 13, 1993 guidance memorandum entitled ``Title V Program 
Approval Criteria for Section 112 Activities,'' signed by John Seitz.
    b. Implementation of 112(g) Upon Program Approval. As a condition 
of approval of the part 70 program, Mississippi is required to 
implement section 112(g) of the Act from the effective date of the part 
70 program. Imposition of case-by-case determinations of MACT or 
offsets under section 112(g) will require the use of a mechanism for 
establishing federally enforceable restrictions on a source-specific 
basis. EPA is proposing to approve Mississippi's preconstruction 
permitting program found in APC-S-2 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. EPA believes this 
approval is necessary so that Mississippi has a mechanism in place to 
establish federally enforceable restrictions for section 112(g) 
purposes from the date of part 70 approval. Section 112(l) provides the 
authority for approval for the use of State air programs to implement 
112(g), and 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 scope of this approval is narrowly 
limited to section 112(g), and does not confer or imply approval for 
purposes of any other provision under the Act. If Mississippi does not 
wish to implement section 112(g) through its preconstruction permit 
program and can demonstrate that an alternative means of implementing 
section 112(g) exists, EPA may, in the final action approving 
Mississippi's part 70 program, approve the alternative instead.
    This approval only extends until such time as the State is able to 
adopt regulations consistent with any regulations promulgated by EPA to 
implement section 112(g). Accordingly, EPA is proposing to limit the 
duration of this approval to a reasonable time following promulgation 
of section 112(g) regulations so that Mississippi, acting 
expeditiously, will be able to adopt regulations consistent with the 
section 112(g) regulations. EPA is proposing here to limit the duration 
of this approval to 18 months following promulgation by EPA of section 
112(g) regulations.
    c. Program for Delegation of Section 112 Standards as Promulgated. 
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 General Provisions Subpart A 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. Therefore, EPA is 
also proposing to grant 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 to delegate existing standards under 40 CFR parts 61 and 63 for 
part 70 sources.1 Mississippi has informed EPA that it intends to 
accept delegation of section 112 standards through adoption by 
reference. This program applies to both existing and future standards.
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    \1\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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    Additionally, Mississippi has requested delegation of current and 
future section 112 standards under section 112(l)(5) and 40 CFR 63.91 
for sources not subject to part 70 requirements. The State has 
demonstrated that it has broad legal authority which covers all section 
112 sources. MSCA sections 49-2-9 and 49-17-29(a), and APC-S-1 section 
8, give the State the authority to implement each applicable section 
112 rule, emission standard, or requirement for sources not subject to 
part 70 requirements. Mississippi has demonstrated that it will 
expeditiously implement section 112 requirements for these sources 
pursuant to a schedule after EPA promulgation, and that it has 
sufficient enforcement authority to adequately enforce section 112 
requirements. The State has also demonstrated that it has adequate 
resources to implement current section 112 standards. With respect to 
future section 112 requirements, Mississippi has committed to provide 
EPA with future demonstrations of resource adequacy as necessary when 
new requirements are promulgated and the resource burdens associated 
with those requirements become known. Therefore, for sources not 
subject to part 70 requirements, EPA is proposing to grant approval 
under section 112(l)(5) and 40 CFR 63.91 of the State's program for 
receiving delegation of future section 112 standards that are unchanged 
from Federal standards as promulgated, and to delegate existing 
standards under 40 CFR parts 61 and 63 for non-part 70 sources.
    d. Commitment to implement Title IV of the Act. The MDEQ has 
committed to ``take action, following promulgation by EPA of 
regulations implementing sections 407 and 410 of the Act, or revising 
either part 72 or the regulations implementing sections 407 or 410, to 
either incorporate such new revised provisions by reference or submit, 
for EPA approval, MDEQ regulations implementing these provisions.'' The 
MDEQ committed to adopt and submit to EPA the above referenced 
regulations no later than January 1, 1995.

B. Proposed Actions

1. Full Approval of the Program
    EPA proposes to fully approve the operating permits program 
submitted to EPA from the State of Mississippi on November 15, 1993. As 
a condition of full approval, Mississippi has issued a commitment to 
EPA which confirms that the State's interpretation of a ``title I 
modification'' is consistent with EPA's current interpretation of that 
term. In addition, the State's regulatory definition is on its face 
consistent with EPA's interpretation. See APC-S-6, Section I.A.31. EPA 
believes the better interpretation of the phrase ``modifications under 
any provision of title I of the Act'' in 40 CFR 70.7(e)(2)(i)(A)(5) 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. This would include State preconstruction review programs 
approved into the State Implementation Plan (SIP) under section 
110(a)(2)(C) and regulations addressing source changes that trigger 
National Emission Standards for Hazardous Air Pollutants (NESHAPs) 
established pursuant to section 112 prior to the 1990 amendments. EPA 
is soliciting comment in the current proposal to revise part 70 on the 
proper definition of ``title I modification.'' Unless Mississippi 
changes its own interpretation from that indicated in its commitment, 
the program will be fully approvable under either option discussed in 
that proposal. See 56 FR 44460, 44515 (August 29, 1994). EPA has 
determined that the program is otherwise adequate to meet the minimum 
elements of a State operating permits program as specified in 40 CFR 
part 70.
2. Program for Straight Delegation of Section 112 Standards
    As discussed above in section II.A.4.c, EPA is proposing to grant 
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 applies to all section 112 sources. Additionally, EPA is 
proposing to delegate existing standards under 40 CFR parts 61 and 63 
for all section 112 sources.

III. Administrative Requirements

A. Request for Public Comments

    EPA is requesting comments on all aspects of this proposed full 
approval. Copies of the State's submittal and other information relied 
upon for the proposed full 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 proposed full 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. EPA will 
consider any comments received by November 2, 1994.

B. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
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.

List of Subjects in 40 CFR Part 70

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

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

    Dated: September 21, 1994.
Patrick M. Tobin,
Acting Regional Administrator.
[FR Doc. 94-24372 Filed 9-30-94; 8:45 am]
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