[Federal Register Volume 59, Number 248 (Wednesday, December 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31941]


[Federal Register: December 28, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[MS01; FRL-5082-8]


Clean Air Act Final Full Approval Of 40 CFR Part 70 Operating 
Permits Program; State of Mississippi

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

ACTION: Final Full Approval.

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SUMMARY: The EPA is promulgatring full approval of the Operating 
Permits Program submitted by the State of Mississippi 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: January 27, 1995.

ADDRESSES: Copies of the State's submittal and other supporting 
information used in developing the final 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, 3rd floor, Tower Building. 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:
Scott Miller, Title V Program Development Team, Air Programs Branch, 
Air, Pesticides & Toxics Management Division, Region IV Environmental 
Protection Agency, 345 Courtland Street, NE, Atlanta, GA 30365, (404) 
347-2864.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    Title V of the 1990 Clean Air Act Amendments (sections 501-507 of 
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 October 3, 1994, EPA proposed full approval of the operating 
permits program for the State of Mississippi. See 59 FR 50214. The EPA 
received public comment on the proposal, and compiled a Technical 
Support Document (TSD) which describes the operating permits program in 
greater detail. EPA received seven comments on the proposed full 
approval of the Mississippi program. Generally, these comments 
addressed the issues of what changes at a source constitute a ``title I 
modification'' under the State's regulations and the requirement that 
Mississippi make 112(g) determinations prior to EPA promulgating final 
rules implementing section 112(g) of the Act. In this notice EPA is 
taking final action to promulgate full approval of the operating 
permits program for the State of Mississippi.

II. Final Action and Implications

A. Analysis of State Submission and Response to Public Comments

    On October 3, 1994, EPA proposed full approval of the State of 
Mississippi's Title V Operating Permit Program. See 59 FR 50214. The 
program elements discussed in the proposed notice are unchanged from 
the original analysis in the proposed notice and continue to fully meet 
the requirements of 40 CFR part 70.
1. Definition of Title I Modification
    The proposal discussed the State's definition of the phrase 
``modification under any provision of Title I of the Act.'' At the time 
of the proposal, EPA believed that for a State's program to be fully 
approvable, it would be necessary for the State's definition of 
``modification under any provision of Title I of the Act'' 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 of the Act prior to the 1990 
amendments. Mississippi adopted the more encompassing definition of 
what constitutes a ``title I modification'' into its program 
regulations as discussed above in order to obtain full approval of its 
operating permits program. Two commenters, the National Environmental 
Development Association/Clean Air Regulatory Project (NEDA/CARP) and 
the American Forest and Paper Association (AFPA), contended that 
neither EPA nor Mississippi have any authority to include as ``title I 
modifications'' those changes made pursuant to a preconstruction 
permitting program approved under the SIP. Furthermore, the commenters 
believe that requiring Mississippi's program regulations to include the 
more encompassing definition of ``title I modification'' would reverse 
the Agency's current operating permits rule.
    On August 29, 1994, EPA proposed revisions to the interim approval 
criteria in 40 CFR 70.4(d) to, among other things, allow state programs 
with a more narrow definition of ``title I modification'' to receive 
interim approval (59 FR 44572). EPA intended to finalize its revisions 
to the interim approval criteria under 40 CFR 70.4(d) before taking 
action on part 70 programs submitted by the states. However, that is no 
longer possible. Publication of the proposed revisions was delayed 
until August 29, 1994, and EPA received several requests to extend the 
public comment period.\1\ Given the importance of the issues in that 
rulemaking to States, sources and the public, but mindful of the need 
to take action quickly, EPA agreed to extend the comment period until 
October 28, 1994 (see 59 FR 52122 (October 14, 1994)). Consequently, 
final action to revise the interim approval criteria will not occur 
before the deadline for EPA action on State programs such as 
Mississippi's that were submitted on or before November 15, 1993.\2\ 
EPA believes it would be inappropriate to delay action on Mississippi's 
program, perhaps for several months, until final action is taken on the 
interim approval revisions. EPA also believes it would be inappropriate 
to grant interim approval to Mississippi on this issue before final 
action is taken to revise the current interim approval criteria of 40 
CFR 70.4(b) to provide a legal basis for such an interim approval. In 
lieu of EPA's final promulgation of interim approval criteria, the 
State has decided that it will implement the narrower definition of 
what constitutes a ``title I modification.'' Upon EPA's final decision 
of what constitutes a ``title I modification,'' the State has committed 
to revise its definition of what constitutes a ``title I 
modification''.
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    \1\EPA originally established a 30-day public comment period for 
the August 29, 1994 proposal. In response to several requests for 
extension, however, EPA agreed to allow an additional thirty days 
for public comments. (See 59 FR 52122 (October 14, 1994).
    \2\Section 502(d) requires, in relevant part, that ``[n]ot later 
than 1 year after receiving a program, and after notice and 
opportunity for public comment, the Administrator shall approve or 
disapprove such program, in whole or in part.''
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    EPA is allowing this approach to ``title I modification'' for a 
number of reasons. First, EPA has not yet conclusively determined that 
a narrower definition of ``title I modification'' is incorrect and thus 
a basis for disapproval (or even interim approval). The Agency has 
received numerous comments on this issue as a result of the August 29, 
1994, Federal Register notice, and EPA cannot and will not make a final 
decision on this issue until it has evaluated all of the comments. 
Second, EPA believes that the Mississippi program should not be 
disapproved because EPA itself has not yet been able to resolve this 
issue through rulemaking. Moreover, disapproving programs from states 
such as Mississippi that submitted their programs to EPA on or before 
the November 15, 1993, statutory deadline could lead to the perverse 
result that these states would receive disapprovals, while states which 
were late in submitting programs could take advantage of revised 
interim approval criteria if and when these criteria become final. In 
effect, States would be severely penalized for having made timely 
program submissions to EPA. Finally, disapproval of a State program for 
a potential problem that primarily affects permit revision procedures 
would delay the issuance of part 70 permits, hampering state/federal 
efforts to improve environmental protection through the operating 
permits system.
    For the reasons mentioned above, EPA is approving the Mississippi 
program's use of a narrower definition of ``title I modification'' at 
this time.\3\ However, should EPA in the interim approval criteria 
rulemaking make a final determination that such a narrow definition of 
``title I modification'' is incorrect and that a revision of the 
interim approval criteria is warranted, the Agency will propose further 
action on Mississippi's program so that the State's definition of 
``title I modification'' could become grounds for interim approval.\4\ 
A State program like Mississippi's that receives full approval of its 
narrower definition pending completion of EPA's rulemaking must 
ultimately be placed on an equal footing with states that receive 
interim approval in later months under any revised interim approval 
criteria because of the same issue. Converting the full approval on 
this issue to an interim approval after EPA completes its rulemaking 
will avoid this inequity. EPA anticipates that an action to convert the 
full approval on the ``title I modification'' issue to an interim 
approval would be effected through an additional rulemaking, so as to 
ensure that there is adequate notice of the change in approval status.
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    \3\For similar reasons, the EPA will not construe 40 CFR 
70.7(e)(2)(i)(A)(3) to prohibit Mississippi from allowing minor NSR 
changes to be processed as minor permit modifications. See 59 FR 
44573-44574.
    \4\State programs with a narrower ``title I modification'' 
definition that are acted upon by EPA after an Agency decision that 
such narrower definition is inappropriate would be considered 
deficient, but would be eligible for interim approval under revised 
40 CFR 70.4(b).
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2. Section 112(g) Modifications
    EPA received a comment regarding the proposed approval of 
Mississippi's preconstruction permitting program 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. The commenter argued that Mississippi should not, 
and cannot, implement section 112(g) until: 1) EPA has promulgated a 
section 112(g) regulation, and 2) the State has a section 112(g) 
program in place. The commenter also argued that Mississippi's 
preconstruction review program can not serve as a means to implement 
section 112(g) because it was not designed for that purpose.
    EPA disagrees with the commenter's contention that section 112(g) 
does not take effect until after EPA has promulgated implementing 
regulations. The statutory language in section 112(g)(2) prohibits the 
modification, construction, or reconstruction of a source after the 
effective date of a title V program unless MACT (determined on a case-
by-case basis, if necessary) is met. The unambiguous meaning of this 
provision is that the prohibition takes effect on the effective date of 
program approval regardless of whether EPA or a state has promulgated 
implementing regulations.
    The EPA has acknowledged that states may encounter difficulties 
implementing section 112(g) prior to the promulgation of final EPA 
regulations (See June 28, 1994 memorandum entitled, ``Guidance for 
Initial Implementation of Section 112(g),'' signed by John Seitz, 
Director of the Office of Air Quality Planning and Standards). EPA has 
issued guidance, in the form of a proposed rule, which may be used to 
determine whether a physical or operational change at a source is not a 
modification either because it is below de minimis levels or because it 
has been offset by a decrease of more hazardous emissions. See 59 FR 
15004 (April 1, 1994). EPA believes the proposed rule provides 
sufficient guidance to Mississippi and sources until such time as EPA's 
section 112(g) rulemaking is finalized.
    EPA is aware that Mississippi lacks a program designed specifically 
to implement section 112(g). However, Mississippi does have a 
preconstruction review program that can serve as a procedural vehicle 
for rendering federally enforceable a case-by-case MACT or offset 
determination. EPA's approval of Mississippi's preconstruction review 
program clarifies that it may be used for this purpose during the 
transition period to meet the requirements of section 112(g).
    EPA believes Mississippi's preconstruction review program will be 
adequate in most if not all cases because it will allow Mississippi to 
select control measures that would meet MACT, as defined in section 
112, and incorporate these measures into a federally enforceable 
preconstruction permit. While it is true that Mississippi's 
preconstruction review authority extends only to criteria pollutants, 
Mississippi should nevertheless be able to impose federally enforceable 
measures reflecting MACT for most if not all changes qualifying as 
modification, construction, or reconstruction under section 112(g). 
This is because most section 112(b) HAPs are also criteria pollutants, 
and moreover because measures designed to limit criteria pollutant 
emissions will often have the incidental effect of limiting non-
criteria pollutant HAPs. In the event of a situation where 
Mississippi's preconstruction permit program cannot be used, the State 
may utilize its title V permitting program to do any required MACT 
determinations as a result of 112(g).
    Another consequence of the fact that Mississippi lacks a program 
designed specifically to implement section 112(g) is that the 
applicability criteria found in its preconstruction review program may 
differ from those in section 112(g). However, whether a particular 
source change qualifies as a modification, construction, or 
reconstruction for section 112(g) purposes will be determined according 
to the statutory provisions of section 112(g), using the proposed rule 
as guidance. As noted in the June 28, 1994 guidance, EPA intends to 
defer wherever possible to a State's judgment regarding applicability 
determinations. This deference must be subject to obvious limitations. 
For instance, a physical or operational change resulting in a net 
increase in HAP emissions above 10 tons per year could not be viewed as 
a de minimis increase under any interpretation of the CAA. The EPA 
would expect Mississippi to be able to issue a preconstruction permit 
containing a case-by-case determination of MACT in such a case even if 
review under its own preconstruction review program would not be 
triggered.
3. ``Prompt'' Reporting of Deviations From Permit Limits
    In the proposed full approval notice EPA stated that Mississippi's 
regulations should define the meaning of ``prompt'' as used in the 
requirement found at 40 CFR 70.6(a)(3)(iii)(B) which require ``prompt'' 
reporting of deviations from applicable requirements. The Agency 
indicated that an acceptable alternative to defining what constitutes 
``prompt'' reporting of deviations from applicable requirements is to 
define ``prompt'' in each individual permit.
    One commenter supports this approach and asserts that it is 
necessary for EPA to revise several of its earlier interim approval 
notices, in which the Agency conditioned final approval on including a 
definition of ``prompt'' in the state operating permits program, in 
order to provide a consistent application of the appropriate 
interpretation of its rules. EPA has consistently asserted that this is 
an acceptable alternative to defining prompt in the body of the 
permitting regulations and sees no need to revisit past interim 
approval actions to clarify this interpretation of the definition of 
what constitutes ``prompt'' reporting of deviations from applicable 
requirements.
4. Full Approval Under Current Part 70 Regulations
    One commenter submitted comments previously submitted on the 
proposed part 70 operating permits rule, and objected to the full 
approval of Mississippi on the same grounds that it objected to the 
promulgation of the part 70 rule itself. The EPA believes the 
appropriate forum for pursuing objections to the legal validity of the 
Part 70 rule is through a petition for review of the rule in the D.C. 
Circuit Court of Appeals. The EPA notes that this commenter has filed 
such a petition. However, unless and until the part 70 rule is revised, 
EPA must evaluate programs according to the rule that is in effect.

B. Final Action

    The EPA is promulgating full approval of the operating permits 
program submitted to EPA by the State of Mississippi program on 
November 12, 1993. Mississippi has demonstrated that the program will 
be adequate to meet the minimum elements of a State operating permits 
program as specified in 40 CFR part 70.
    The scope of the State's part 70 program approved in this notice 
applies to all 70 sources (as defined in the approved program) within 
the State, 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).
    Requirements for approval, specified in 40 CFR 70.4(b), encompass 
section 112(1)(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(1)(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 full approval under section 
112(1)(5) and 40 CFR part 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 
sources covered by the part 70 program as well as nonpart 70 sources.

III. Administrative Requirements

A. Docket

    Copies of the State's submittal and other information relied upon 
for the final full approval, including the seven public comments 
received and reviewed by EPA on the proposal, are contained in docket 
number [insert docket number] 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 final full approval. 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 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

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

    Dated: December 15, 1994
John H. Hankinson, Jr.,
Regional Administrator.

    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 
Mississippi in alphabetical order to read as follows:

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

* * * * *
Mississippi
    (a) Department of Environmental Quality: submitted on November 
15, 1993; full approval effective on January 27, 1995.
    (b) Reserved
* * * * *

[FR Doc. 94-31941 Filed 12-27-94; 8:45 am]
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