[Federal Register Volume 59, Number 230 (Thursday, December 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29570]


[[Page Unknown]]

[Federal Register: December 1, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[AD-FRL-5112-3]

 

Clean Air Act Final Interim Approval of Operating Permits 
Program; State of Hawaii

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 State of Hawaii 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.

EFFECTIVE DATE: December 1, 1994.

ADDRESSES: Copies of the State's submittal and other supporting 
information used in developing the final rule are available for 
inspection during normal business hours at the Region IX address.

FOR FURTHER INFORMATION CONTACT: Ed Pike (telephone 415/744-1248), A-5-
2, US Environmental Protection Agency, Region IX, Air and Toxics 
Division, 75 Hawthorne Street, San Francisco, CA 94105.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    Title V of the Amendments to the Clean Air Act (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 July 26, 1994, EPA proposed to grant interim approval of the 
operating permits program for Hawaii unless certain deficiencies were 
corrected, in which case EPA would grant full approval. See 59 FR 
37957. EPA did not receive public comments objecting to EPA's 
determination that Hawaii's program substantially meets the requirement 
of part 70 and therefore qualifies for interim approval under 
Sec. 70.4(d). The program was not revised prior to this final 
rulemaking (see the proposal for a full description of Hawaii's 
program). Therefore, EPA is promulgating interim approval at this time. 
EPA will fully approve Hawaii's program when Hawaii corrects the 
deficiencies identified in this document. EPA received several comments 
on the changes required for full approval, which are addressed in this 
document and the Response to Comments document in the docket.

II. Final Action and Implications

A. Final Action and Changes From Proposal

    Hawaii must revise the State's list of insignificant activities to 
qualify for full approval. Specifically, Hawaii must eliminate 
director's discretion or include approvable emission levels that would 
limit this discretion. Hawaii must also delete several other activities 
with unlimited or potentially large emissions or add emission levels 
and/or other restrictions consistent with part 70. Hawaii must 
eliminate the activities identified in the proposal or add restrictions 
such as emission levels. EPA is also requiring the State to restrict or 
eliminate an exemption for certain ground engines at airfields. The 
acceptable emission levels or other restrictions are those stated in 
the proposal except as discussed below.
    Hawaii must also provide existing sources that become subject to 
part 70 in the future the opportunity to qualify for the permit 
application shield. This requirement is unchanged from the proposal. If 
Hawaii corrects these two areas of the rule, EPA will grant full 
approval. This document also discusses the status of permit 
applications and permits that were completed prior to this approval.

B. Public Comments

    The public comments on EPA's proposal focused on insignificant 
activities. EPA received a number of comments from industry 
representatives requesting that EPA approve provisions in Hawaii's rule 
that allow the Director of Health broad discretion to create new 
insignificant activities. These insignificant activities need not be 
described on permit applications and are essentially exempt from part 
70 permitting, although sources must include all information necessary 
to determine and impose all applicable requirements. The director's 
discretion to create permit exemptions is not limited to any activity 
(such as a source category or equipment type) or emission levels. This 
broad provision is not fully approvable because new permit exemptions 
would be granted without prior EPA approval or State rulemaking to 
revise the list of exemptions in the part 70 program. Part 70 requires 
States to list these activities or emission levels in the program and 
submit them to EPA for prior approval along with criteria for 
determining these permit exemptions. The criteria are used by EPA to 
evaluate the permit exemptions for specific activities and emission 
levels. As EPA stated in the July 26 proposal, EPA cannot grant full 
approval to Hawaii's program unless the State deletes the broad 
director's discretion provision or, alternatively, includes specific 
activities or emission levels and submits criteria that meet the 
requirements of part 70.
    EPA also received several comments regarding the changes proposed 
by EPA that would render Hawaii's unacceptable permit exemptions 
approvable. Part 70 allows EPA to approve specific emission levels for 
permit exemptions (40 CFR 70.4(b)(2)). EPA proposed that emission units 
emitting less than two tons per year of criteria pollutants would not 
interfere with part 70 requirements, such as determining or imposing 
applicable requirements or fees (Sec. 70.5(c)). EPA also proposed that 
emission units emitting the lesser of 1000 pounds per year or twenty 
five percent of the modification threshold for hazardous air pollutants 
designated under section 112(b) of the Act and other title I toxics 
(for example, pollutants subject to Prevention of Significant 
Deterioration requirements under 40 CFR 52.21) would not interfere with 
these part 70 requirements.
    EPA received no comments objecting to EPA's proposed determination 
that activities emitting less than EPA's proposed emission levels are 
generally not subject to regulation and generally would not interfere 
with determining and imposing applicable requirements and fees. 
Therefore, Hawaii may remedy EPA's objection to director's discretion 
and unlimited or large permit exemptions in the list of insignificant 
activities by capping them with these proposed emission levels or lower 
emission levels. EPA received comments that higher emission levels 
should be approved. However, EPA did not receive any criteria for 
approving higher emission levels or a request to approve a specific 
alternative emission level. Therefore, EPA is not approving an 
alternate emission level in this rulemaking. EPA may revisit the 
approvability of higher levels if EPA receives new information 
justifying increased emission levels.
    One commenter suggested that Hawaii adopt a two ton per year limit 
on permit exemptions for certain engines that could otherwise have 
large emissions. EPA will fully approve this permit exemption if Hawaii 
limits it to engines emitting less than two tons per year or limits it 
based on the equipment size and operational limits stated in the 
proposal, since EPA believes that both approaches would achieve 
substantially the same result. EPA requested, but did not receive, 
public comment containing information (such as emission levels or 
potential applicable requirements) that could be used to determine 
whether a permit exemption for ground support engines for aircraft 
(Hawaii Administrative Rules section 11-60.1-82 (g)(11)) would be 
appropriate. However, a prior EPA emissions study (EPA-450/4-81-026d) 
shows that the emissions from engines used to provide auxiliary power 
to aircraft could potentially be large. Therefore, Hawaii must delete 
or cap this permit exemption unless EPA receives new information 
justifying the exemption.
    Permit exemptions approved for this program are based on State-
specific circumstances and analysis. These permit exemptions may not be 
appropriate for other State or local programs due to variations in 
local factors such as ambient air quality, State Implementation Plans, 
source types, and emissions. In addition, this part 70 approval does 
not create or expand exemptions for other permitting programs or 
regulations.
    EPA is also approving Hawaii's request for approval of its 
provisions for implementing requirements under section 112(g) of the 
Act for new and modified major sources of air toxics. One letter, which 
was received after the deadline for receipt of public comments, stated 
that EPA should deny this request because Hawaii may not have 
sufficient administrative resources or procedures for implementing 
these requirements. Hawaii's regulations and the Attorney General's 
statement demonstrate that Hawaii has sufficient resources and 
authority to implement all applicable requirements, including section 
112(g), and EPA is approving Hawaii's request as proposed.
    For more information on the public comments on the proposal, please 
see the Response to Comments document in the docket.

C. Effect of Interim Approval

    Hawaii's regulation provides for issuing permits that meet the 
requirements of part 70 and, for subject sources, 40 CFR 52.21, 
Prevention of Significant Deterioration. As noted in the proposal, this 
action does not modify or address EPA's current PSD delegation to 
Hawaii. Permits issued prior to the effective date of this approval are 
not considered part 70 permits. These permits were not issued under an 
approved program and the rule does not provide for several part 70 
procedural requirements, such as the opportunity for EPA veto (HAR 
section 11-60.1-95) and the opportunity for public petitions (HAR 
section 11.60-100), until after the program is approved. Under State 
law, part 70 permits issued after this approval must be subject to all 
part 70 procedural requirements (see Attorney General's 
statement).1
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    \1\Hawaii's integrated program appropriately restricts minor 
permit modifications and operational flexibility by incorporating 
the title I modification gatekeeper imposed by part 70. Hawaii's 
integrated rule requires a title I permit modification for all 
modifications (HAR section 11-60.1-148) and does not allow any title 
I modification to be processed through the part 70 minor 
modification track. The rule also prohibits operational flexibility 
for title I modifications by including the title I gatekeeper and 
stating that sources cannot use operational flexibility to exceed 
the emission limit in the integrated permit (HAR section 11-60.1-
96). EPA received no comments on Hawaii's use of title I 
modification gatekeepers to ensure that changes undergo the proper 
procedural requirements and is approving this portion of Hawaii's 
program.
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    This action does not terminate any permit application shield 
previously granted by Hawaii that is consistent with Hawaii's program 
and part 70, nor does it create a permit application shield for sources 
that do not qualify. Part 70 and Hawaii's program provide a permit 
application shield to sources that submit a timely and complete 
application and include enough information to determine and impose all 
applicable requirements (HAR sections 11-60.1-83 and 87). Applicants 
must submit any additional required information to retain the 
application shield (HAR section 11-60.1-87). The part 70 permit 
application shield does not shield new or modified sources from any 
requirement to obtain a preconstruction permit under title I of the 
Act.
    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, the 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. Hawaii has informed EPA that the State 
intends to obtain the regulatory authority necessary to accept 
delegation of section 112 standards by incorporating section 112 
standards by reference. This program for delegations applies to all 
sources covered by the part 70 program, which includes non-major 
sources subject to section 112 requirements.
    This interim approval, which may not be renewed, extends until 
December 1, 1996. During this interim approval period, the State is 
protected from sanctions, and EPA is not obligated to promulgate, 
administer and enforce a Federal operating permits program in the 
State. 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 State fails to submit a complete corrective program for full 
approval by June 3, 1996, 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 Act, which will remain in effect until EPA determines 
that the State has corrected the deficiency by submitting a complete 
corrective program.
    If EPA disapproves the State 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 State has submitted a revised program and EPA has 
determined that it corrected the deficiencies that prompted the 
disapproval. 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 its submitted corrective program.
    The available sanctions include a prohibition on the approval by 
the Secretary of Transportation of certain highway projects or the 
awarding of certain federal highway funding, and a requirement that new 
or modified stationary sources or emissions units for which a permit is 
required under part D of title I of the Act achieve an emissions 
reductions-to-increases ratio of at least 2-to-1. The latter sanction, 
however, is available only in areas that are classified nonattainment. 
Hawaii has no areas classified as nonattainment.
    If EPA has not granted full approval to the State 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 State upon interim approval expiration.

III. Administrative Requirements

A. Docket

    Copies of the State's submittal and other information relied upon 
for the final interim approval, including the Response to Comments 
document and three public comments received and reviewed by EPA, are 
contained in docket number HI-94-OPS maintained at the EPA Regional 
Office. EPA also received two letters after the deadline for receipt of 
public comments. EPA does not consider these letters official public 
comments and has addressed these letters for informational purposes 
only. The docket is an organized and complete file of all the 
information submitted to, or otherwise considered by, EPA in the 
development of this final rulemaking. The docket is available for 
public inspection at the location listed under the ADDRESSES section of 
this document.

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.

D. Effective Date

    Section 553 of the Administrative Procedures Act (5 U.S.C.A., 
chapter 5) requires that EPA allow at least 30 days from the 
publication of a substantive rule before it becomes effective unless 
EPA determines there is good cause for a shorter deadline. EPA has 
determined that easing the administrative burden on the State and on 
sources that will receive permits during this 30 day time period is 
good cause for an earlier effective date. State law (HRS title 11, 
section 342B-24) ties the initial permit issuance deadlines to the 
adoption of local regulations rather than the effective date of EPA 
approval, imposing strict permit issuance deadlines. In addition, 
Hawaii relies on the rule EPA is approving to issue permits meeting the 
requirements of part 70 and Prevention of Significant Deterioration 
(PSD) requirements under title I of the Act. Because the permits issued 
prior to the effective date of this approval cannot legally be issued 
as part 70 permits, waiving the 30 day period will spare sources and 
the State the burden of re-issuing as part 70 permits the permits 
issued to PSD sources and other sources during this time. In addition, 
this action does not impose substantive new requirements but merely 
approves an existing state program. For instance, this action does not 
affect the requirement that sources submit permit applications or pay 
fees. Therefore, delaying the effective date of the approval would 
impose an undue burden on Hawaii and sources and the effective date of 
this rulemaking is December 1, 1994.

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.

    Dated: November 10, 1994.
John Wise,
Acting Regional Administrator.

PART 70--[AMENDED]

    Part 70, title 40 of the Code of Federal Regulations is amended as 
follows:
    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 Hawaii 
in alphabetical order to read as follows:

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

* * * * *

Hawaii

    (a) Department of Health; submitted on December 20, 1993; effective 
on December 1, 1994; interim approval expires December 1, 1996.
    (b) Reserved.
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[FR Doc. 94-29570 Filed 11-30-94; 8:45 am]
BILLING CODE 6560-50-P