[Federal Register Volume 60, Number 47 (Friday, March 10, 1995)]
[Proposed Rules]
[Pages 13088-13095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5981]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[OK001; AD-FRL-5170-3]
Clean Air Act Proposed Interim Approval Operating Permits
Program; the State of Oklahoma
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim approval.
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SUMMARY: The EPA proposes source category-limited interim approval of
the operating permits program submitted by the Oklahoma Department of
Environmental Quality (ODEQ) through the Governor of Oklahoma on
January 12, 1994, for the purpose of complying with Federal
requirements for an approvable State program to issue operating permits
to all major stationary sources, with the exception of sources on
Indian country.
DATES: Comments on this proposed action must be received in writing by
April 10, 1995.
ADDRESSES: Written comments on this action should be addressed to Ms.
Jole C. Luehrs, Chief, New Source Review Section, at the EPA Region 6
Office listed below. Copies of the State's submittal and other
supporting information used in developing the proposed interim approval
rule are available for inspection during normal business hours at the
following locations. Interested persons wanting to examine these
documents should make an appointment with the appropriate office at
least 24 hours before visiting day.
U.S. Environmental Protection Agency, Region 6, Air Programs Branch
[[Page 13089]] (6T-AN), 1445 Ross Avenue, Suite 700, Dallas, Texas
75202-2733.
Oklahoma Department of Environmental Quality, 4545 North Lincoln
Boulevard., Suite 250, Oklahoma City, Oklahoma 73105-3483.
FOR FURTHER INFORMATION CONTACT: Wm. Nicholas Stone, New Source Review
Section (6T-AN), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7226.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
As required under title V of the 1990 Clean Air Act Amendments
(sections 501-507 of the Clean Air Act (``the Act'')), EPA has
promulgated rules which define the minimum elements of an approvable
State operating permits program and the corresponding standards and
procedures by which the 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 the
EPA, programs for issuing these operating permits to all major
stationary sources and to certain other sources, with the exception of
sources on Indian country.
The Act requires that States develop and submit these programs to
the EPA by November 15, 1993, and that the EPA act to approve or
disapprove each program within one 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 40 CFR part 70, and where a State requests source
category-limited interim approval, the EPA may grant the program
interim approval for a period of up to two years. If the EPA has not
fully approved a program by two years after the November 15, 1993, date
or by the end of an interim program, it must establish and implement a
Federal program.
B. Federal Oversight and Sanctions
If the EPA were to finalize this proposed source category-limited
interim approval, it would extend for two years following the effective
date of final interim approval, and could not be renewed. During the
interim approval period, the State of Oklahoma would be protected from
sanctions, and the EPA would not be obligated to promulgate,
administer, and enforce a Federal permits program for the State of
Oklahoma. Permits issued under a program with interim approval have
full standing with respect to part 70, and the State will permit
sources based on the transition schedule submitted with the source
category-limited approval request. This schedule may extend for no more
than five years beyond the interim approval date.
Following final interim approval, if Oklahoma has failed to submit
a complete corrective program for full approval by the date six months
before expiration of the interim approval, the EPA would start an 18-
month clock for mandatory sanctions. If Oklahoma then failed to submit
a corrective program that the EPA found complete before the expiration
of that 18-month period, the EPA would apply sanctions as required by
section 502(d)(2) of the Act, which would remain in effect until the
EPA determined that the State of Oklahoma had corrected the deficiency
by submitting a complete corrective program.
If, following final interim approval, the EPA were to disapprove
Oklahoma's complete corrective program, the EPA would be required under
section 502(d)(2) to apply sanctions on the date 18 months after the
effective date of the disapproval, unless prior to that date Oklahoma
had submitted a revised program and the EPA had determined that it
corrected the deficiencies that prompted the disapproval.
In addition, discretionary sanctions may be applied where warranted
any time after the end of an interim approval period if Oklahoma has
not timely submitted a complete corrective program or the EPA has
disapproved a submitted corrective program. Moreover, if the EPA has
not granted full approval to Oklahoma's program by the expiration of an
interim approval and that expiration occurs after November 15, 1995,
the EPA must promulgate, administer, and enforce a Federal permits
program for Oklahoma upon interim approval expiration.
II. Proposed Action and Implications
A. Analysis of State Submission
1. Support Materials
Pursuant to section 502(d) of the Act, the Governor of each State
is required to develop and submit to the Administrator a part 70
program under State or local law or under an interstate compact meeting
the requirements of title V of the Act. Under the signature of Governor
David Walters, ODEQ requested approval with full authority to
administer the State part 70 program in all areas of the State of
Oklahoma.
The Governor's letter makes no reference to Indian country and
specifically requests full authority over the State of Oklahoma.
Because the Oklahoma permitting authorities have not demonstrated,
consistent with applicable principles of Indian law and Federal Indian
policies, legal authority to regulate sources in Indian country under
the Act, the proposed interim approval of the Oklahoma part 70 program
will not extend to any lands within the exterior boundaries of Indian
country. Though the State has made no demonstration of jurisdiction
over Indian country, the State may at a later time make an adequate
demonstration of authority. Title V sources located within the exterior
boundaries of Indian country in the State of Oklahoma will be subject
to the Federal operating permit program, to be promulgated at 40 CFR
part 71, unless a tribe is delegated a part 70 program. Regulations for
delegation of tribal programs are being developed pursuant to section
301(d) of the Act. Tribes may also have inherent sovereign authority to
regulate air pollutants from sources on Indian country.
The Oklahoma submittal addresses the program description as
required at 40 CFR 70.4(b)(1) by describing how ODEQ intends to carry
out its responsibilities under the part 70 regulations. The program
description is addressed in the following areas: (I) Complete Program
Description, (II) State Permitting Regulations, Guidelines, Policies,
and Procedures, (III) Attorney General's Opinion, (IV) Permitting
Program Documentation, (V) Provisions for Implementing the Operating
Permits Program, (VI) Permit Fee Demonstration, (VII) Compliance
Tracking and Enforcement, and (VIII) Provisions Implementing the
Requirement of Other Titles of the Act (40 CFR 70.4(b)(3) (i) and (v)).
The program description has been deemed to be appropriate 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,
hereafter AG) demonstrating adequate authority to carry out all aspects
of a title V operating permits program. The State of Oklahoma submitted
an AG's Opinion in section III of the ``Program Description'' and a
Supplemental AG's Opinion on February 28, 1994, demonstrating adequate
legal authority as required by Federal law and regulation. The
Supplemental AG's Opinion addresses the delegation of authority for
signature from the [[Page 13090]] Attorney General to the Chief Counsel
for the Air Quality Division who has full authority to represent the
State in all matters relating to the Department's environmental
programs. This opinion with the supplement adequately addresses the
thirteen provisions listed at 40 CFR 70.4(b)(3)(i)-(xiii).
The State statutes cited in the AG's Opinion authorize the
imposition of criminal fines in the amount of $10,000 per violation as
required by 40 CFR 70.11(a)(3)(ii) for knowing violations of applicable
requirements, permit conditions, as well as fee and filing
requirements. Further, these statutes authorize the fine amounts to be
imposed on a per day per violation basis as required by 40 CFR
70.11(a)(3)(ii). The statute at Title 27A O.S. Supplement. 1993,
Section 2-5-116, appears to establish a cap in the amount of $250,000
on criminal penalties. The State is requested to supplement the
Attorney General's Opinion again to clarify that this limit will not
impede the State or EPA from enforcing daily violations with a $10,000
per day per violation fine. This supplemental AG Opinion should be
submitted to the EPA before the publication of the final interim
approval notice.
40 CFR 70.4(b)(4) requires the submission of relevant permitting
program documentation not contained in the regulations, such as permit
forms and relevant guidance to assist in the State's implementation of
its program. The State addresses this requirement in its program
submittal under Attachment 39--``Instructions for Title V Part 70
Operating Permit Application and General Permit Application
Completeness Checklist'', Attachment 40--``Permit Form'', Attachment
41--``Permit Reporting Forms'', and Attachment 42--``Inspection
Protocol, Point Source Inspection Form.''
2. Regulations and Program Implementation
The State of Oklahoma has submitted the Oklahoma Air Quality
Council Regulations (OAC) 252:100-8 ``Operating Permit Regulations''
and OAC 252:100-8-9 ``Permit Fee Requirements,'' for implementing the
State's part 70 program as required by 40 CFR 70.4(b)(2). Sufficient
evidence of their procedurally correct adoption was submitted in the
package on January 7, 1994, showing evidence of adoption which was sent
to the EPA in the State's original submittal. Copies of all applicable
State and local statutes and regulations which authorize the part 70
program, including those governing State administrative procedures,
were submitted with the State's program.
The State submitted as Attachment 1, OAC 252-100-8 titled
``Operating Permits (Part 70)'' (Subchapter 8), as required at 40 CFR
70.4(b)(2). Subchapter 8 follows the rule at 40 CFR part 70 very
closely. Supporting documentation of procedurally correct adoption and
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. Subchapter 8
received written comments from May 7 through October 19, 1993, and
public hearings were held July 13, August 17, September 14, and October
19, 1993. The response to comments was made by ODEQ on October 19,
1993. Sufficient evidence of their procedurally correct adoption was
submitted and meets the requirements of 40 CFR 70.4(b)(2).
The following requirements, set out in the EPA's part 70 rule, are
addressed in the State's submittal: (a) provisions to determine
applicability (40 CFR 70.3(a)), OAC 252-100-8-3; (b) provisions to
determine complete applications (40 CFR 70.5(a)(2)), OAC 252-100-8-5;
(c) public participation (40 CFR 70.7(h)), OAC 252-100-8-7(i); (d)
provisions for minor permit modifications (40 CFR 70.7(e)(2)), OAC 252-
100-8-7(e); (e) provisions for permit content (40 CFR 70.6(a)), OAC
252-100-8-6; (f) provisions for operational flexibility (40 CFR
70.4(b)(12)), OAC 252-100-8-6(h); and (g) enforcement provisions (40
CFR 70.4(b)(5) and 70.4(b)(4)(ii)), OAC 252-100-8-6(b-c) and the AG
Opinion.
Following is a discussion of certain specific provisions in the
State's submission as they relate to requirements of 40 CFR part 70:
(a) Applicability criteria, including any criteria used to
determine insignificant activities or emissions levels (40 CFR
70.4(b)(2) and 70.3(a)): Applicability criteria are listed at OAC
252:100-8-3 with ``applicable requirement'' defined at OAC 252:100-8-2.
The regulations at OAC 252:100-8-2 defines a ``major source.'' The
State included a paragraph (4) to this definition which does not allow
aggregation of emission sources at oil and gas wells, compressor
stations, and pump stations for criteria pollutants. Paragraph (4) is
in conflict with the rule because oil and gas sources may not be
aggregated to determine major source status for Hazardous Air
Pollutants only. Therefore, as a condition for full approval, the
regulations at OAC 252:100-8-2, ``major source,'' must be revised to
delete paragraph (4).
Oklahoma's ``major source'' definition creates the possibility that
sources that would otherwise be major under part 70 would not be major
due to the non-aggregation provision for oil and gas facilities. Non-
aggregation of oil and gas units is provided only for the emission of
hazardous air pollutants in the Federal rule. 40 CFR 70.2 requires all
sources located on contiguous or adjacent properties, under common
control, and belonging to a single major industrial grouping to be
considered as the same source. The Oklahoma permit regulations could
cause certain part 70 major sources, as defined in 40 CFR 70.2, or
portions of such sources, to be treated as separate sources. This could
cause some part 70 sources to be exempted from coverage by part 70
permits which must ensure all part 70 requirements for these sources
are met. The EPA considers Oklahoma's misinterpretation of the non-
aggregation provision for criteria pollutants to allow an unknown
number of oil and gas facilities to avoid title V of the Act. The EPA
expects that any permits issued by the State will address all
applicable requirements, as required by 40 CFR 70.7(a)(1)(iv).
The State of Oklahoma submitted under the signature of the
Executive Director of the ODEQ, Mark Coleman, a request dated January
23, 1995, for the EPA to grant source category-limited interim approval
allowing more time to permit these extra sources and correct the
regulations. In the original submittal the Governor of Oklahoma
delegated the authority to submit non-regulatory changes under the
signature of the Executive Director of the ODEQ. Because the request
for source category-limited interim approval requires a regulatory
change, the EPA must receive a formal request under the Governor's
signature before the EPA can publish final interim approval in the
Federal Register. The request included a revised transition schedule
that demonstrates the State will permit at least 60% of its sources and
at least 80% of its emissions during the first three years. The request
is consistent with the policy memo from John Seitz, Director of the
Office of Air Quality Planning and Standards dated August 2, 1993. The
EPA can grant source category-limited interim approval to States whose
programs do not provide for permitting all required sources if the
State makes a showing that two criteria were met: 1) that there were
``compelling reasons'' for the exclusions and 2) that all required
sources will be permitted on a schedule that ``substantially meets''
the requirements of part 70. The EPA considers Oklahoma's
misinterpretation of use of the non-aggregation provision
[[Page 13091]] for criteria pollutants to be a compelling reason for
granting this type of interim approval. Further, the revised transition
plan demonstrates that all part 70 sources will be permitted on a
schedule that substantially meets the requirements of part 70.
The EPA is therefore proposing to grant Oklahoma source category-
limited interim approval. Source category-limited interim approval will
allow Oklahoma to implement the revised transition schedule to permit
all part 70 sources during the transition period after the permit
regulations have been revised. As a condition of this interim approval,
the State must revise the regulations at OAC 252:100-8-7(a)(5)(A) and
OAC 252:100-8-5(b)(2) to reflect the new transition schedule for
permitting existing sources consistent with the rule at 40 CFR part 70.
For full part 70 approval, the ODEQ will be required to revise its
permit regulations so no source or portion of a source which would be
defined as a major under 40 CFR 70.2 will be exempt from part 70
requirements because the emissions of an oil or gas unit have not been
aggregated. Additionally, the State must formally request source
category-limited interim approval under the Governor's signature
because this approval action requires the regulatory changes outlined
above. This formal request under the Governor's signature must be
received by the EPA before this approval action can be published as
final in the Federal Register.
The regulations at OAC 252:100-8-3(e) address insignificant
activities. Emissions of one pound per hour of criteria pollutants or
emissions of toxic pollutants less than the de minimis listed at OAC
252:100-41-43(a)(5) are considered insignificant. Further, the State
regulations consider increases in potential to emit at a facility to be
insignificant if the increase is less than 10% of the permit limit or
10% of the facility's baseline potential to emit. This insignificant
level is available to any permit action (modification or renewal) and
must be identified in the application. Emissions of 1 lb/hr based on
the source's potential to emit are reasonable. However, to consider a
percentage change in the potential to emit or a permit limit as
insignificant is not reasonable. As the regulations are currently
written, a permitted source could exceed a permit limit by 10% without
liability. Also, 10% of a high permit limit could mask a permit
modification from preconstruction review. For these reasons, the
language at OAC 252:100-8-3(e)(3) must be revised to delete the
allowance of any percentage of the permit limit or change in the
potential to emit as an insignificant emission level. Further, the
language at OAC 252:100-8-3(e)(1) must be amended to base the 1 lb/hr
insignificant emissions level on the source's potential to emit.
The ODEQ will maintain a list of insignificant activities that need
not be quantified on the application as well as a list of activities
the Department considers to be ``trivial.'' Trivial activities are not
required to be identified on the application. The Federal rule at part
70 allows a list of insignificant activities and emission levels which
need not be included in permit applications be submitted as part of a
State's part 70 program, and approved by the Administrator. However,
the list of insignificant activities and the list of trivial activities
mentioned in the State regulations were not submitted as part of the
part 70 program, and part 70 does not allow for the substitution of the
State permitting authority's approval for the Administrator's approval,
which is required by 40 CFR 70.5(c). Furthermore, 40 CFR 70.5(c)
clarifies that if the insignificant activities are exempted because of
size or production rate, a list of these insignificant activities must
be included in the application. Therefore, for full part 70 approval,
the regulations at OAC 252:100-8-3(e) must be revised to reflect the
requirements at 40 CFR 70.5(c).
The State's insignificant emissions levels will allow for an
emissions threshold that could allow significant emissions to avoid
appearing on the application. As a condition of full approval, the
State must amend the language at OAC 252:100-8-3(e) so that the
insignificant emissions rate of 1 lb/hr for criteria pollutants will be
based on potential to emit instead of actual emissions. Additionally,
the language at OAC 252:100-8-3(e)(3) must be revised to delete the
allowance of any percentage of the permit limit or change in the
potential to emit as an insignificant emission level. An application
may not omit information needed to determine the applicability of, or
to impose any applicable requirement, or to evaluate the fee amount
required. Further, any list of insignificant activities or trivial
activities must be approved by the EPA prior to its use.
(b) Provisions to determine complete applications are listed at OAC
252:100-8-5(d) and 5(b)(8). Complete application forms, model permit
forms, permit reporting forms, and instructions are located in
Attachments 39, 40, 41, and 42. These application forms may be amended
without rulemaking to facilitate changes required by new applicable
requirements. These provisions meet the requirements of 40 CFR 70.5
(a)(2) and (c).
(c) Provisions for public participation are found at OAC 252:100-8-
7(i) and review by the EPA and affected States at OAC 252:100-8-8. The
State regulations provide for adequate public participation and notice
to affected States for permit issuance, renewals, and reopenings. The
regulations provide standing only for those who have provided written
comments during public review. The State must clarify that judicial
review is available to all affected parties for all final permit
actions including minor modifications and administrative amendments. As
a condition of full approval, the provision at OAC 252:100-8-7(j) must
be clarified to assure that all final permit actions are subject to
judicial review.
The regulations at OAC 252:100-8-7(i)(1)(E) and at OAC 252:100-8-
7(j)(2)(A) provide standing for written comments only during public
review. As a condition of full approval, these provisions in the
regulations must be revised to delete the word ``written,'' thus
providing standing for oral comments during the public participation
process. With these required changes, the provisions meet the
requirements of 40 CFR 70.7(h).
(d) The rule at 40 CFR 70.7(e)(2)(i) specifies criteria for minor
permit modifications. These criteria are adequately incorporated in the
State regulations at OAC 252:100-8-7(e)(1)(A). These provisions are
more stringent than the rule at 40 CFR 70.7(e) because they include
State-only requirements as well as federally enforceable requirements.
The provisions at OAC 252:100-8-7(e) meet the requirements at 40 CFR
70.7(e).
The EPA has noted two deficiencies in the administrative amendments
procedure at OAC 252:100-8-7(d). This procedure is designed to make
simple changes to the permit that do not require public, affected
State, or EPA review. The rule at 40 CFR 70.7(d)(1)(iii) allows
administrative amendments to be used to require more frequent
monitoring at the facility. The regulations at OAC 252:100-8-7(d)(1)(C)
allow ``. . . more or less . . .'' frequent monitoring. Also, OAC
252:100-8-7(d)(1)(E) allows changes processed under Subchapter 7 using
enhanced New Source Review (NSR) procedures to be incorporated into the
operating permit under an administrative amendment.
The administrative amendment procedure cannot be used to make the
[[Page 13092]] monitoring requirements less stringent. Therefore, as a
condition for full approval, the State must revise the administrative
amendment procedure to delete the words ``. . . or less . . .'' from
OAC 252:100-8-7(d)(1)(C).
The regulations do not define or specify the NSR procedures
mentioned and therefore require clarification. The rule at 40 CFR
70.7(d)(1)(v) requires that the procedures used for enhanced NSR are
substantially equivalent to the requirements of 40 CFR 70.7 and 40 CFR
70.8 that would be applicable to the change if it were subject to
review as a permit modification, and has compliance requirements
substantially equivalent to those contained in 40 CFR 70.6. Subchapter
7 has not been submitted as a SIP revision and the EPA will reserve
comment on Subchapter 7 until it is submitted. Until the EPA has
completed its review of the State Implementation Plan (SIP) revision
and has approved it, the EPA expects that the State will interpret the
term ``enhanced'' in OAC 252:100-8-7(d)(1)(E) consistent with the EPA's
definition of that term, so that changes processed under the State's
NSR program will be eligible for incorporation into the title V permit
through administrative amendment only if those changes have been
processed consistent with the requirements of 40 CFR 70.7(d)(1)(v), as
explained above. Interpreted in this way, the State's program is
eligible for interim approval.
Therefore, as a condition for full approval, the State must revise
the regulations at OAC 252:100-8-7(d)(1)(E) to define or specify
``Enhanced New Source Review procedures'' and to submit a SIP revision
for Subchapter 7 that reflects these procedures.
(e) Provisions for permit content are found at OAC 252:100-8-6. The
State regulations contain all of the provisions at 40 CFR 70.6. The
language in the State regulations is often verbatim with the rule.
Adequate provisions are made for permit duration, permit shield,
general permits, temporary sources, and emergency situations. The
regulations at OAC 252:100-8(a)(3)(C)(iii)(I) define ``prompt''
reporting of exceedances as 24 hours after the occurrence. The
provisions at OAC 252:100-8-6(a) include the phrase ``To the extent
practicable . . .'' This phrase indicates that the State has discretion
in what constitutes an applicable requirement. In order to receive full
approval, the State must remove the phrase ``to the extent
practicable.'' Until this revision is made, the permits issued by the
State shall meet the requirements of 40 CFR 70.6 and include all
applicable requirements.
(f) Provisions for operational flexibility and alternative
scenarios are listed at OAC 252:100-8-6(h). This section meets the
requirements of 40 CFR 70.4(b)(12), 70.5(c)(7), and 70.6(a)(10).
(g) Provisions for compliance tracking and enforcement are
described in Section VII of the submittal. The State commits to submit
annual information concerning the State's enforcement activities in
part A of this section. Attachment 42 contains an Inspection Protocol
and Point Source Inspection Form. Attachment 48 is the latest
Enforcement Memorandum of Agreement. Attachment 49 contains the Air
Quality Program Enforcement Action Report. Attachment 50 contains a
tracking list for Administrative Orders and Consent Orders. The AG
Opinion discussed above outlines the State's authority to enforce all
aspects of the program. These submission elements meet the requirements
for compliance tracking and reporting at 40 CFR 70.4(b)(4)(ii) and (5).
These submission elements meet the enforcement authority requirements
at 40 CFR 70.4(b)(2), 70.4(b)(3)(vii), and 70.4(9).
The State of Oklahoma has the authority to issue a variance from
requirements under Title 27A O.S. Supplement. 1993, Section 2-5-109.
The EPA regards this provision as wholly external to the program
submitted for approval under part 70, and consequently is proposing to
take no action on this provision of State law. The EPA has no authority
to approve provisions of State law, such as the variance provision
referred to, which are inconsistent with the Act. The EPA does not
recognize the ability of a permitting authority to grant relief from
the duty to comply with a federally enforceable part 70 permit, except
where such relief is granted through the procedures allowed by part 70.
A part 70 permit may be issued or revised (consistent with part 70
permitting procedures) to incorporate those terms of a variance that
are consistent with applicable requirements. A part 70 permit may also
incorporate, via part 70 permit issuance or modification procedures,
the schedule of compliance set forth in a variance. However, the EPA
reserves the right to pursue enforcement of applicable requirements
notwithstanding the existence of a compliance schedule in a permit to
operate. This is consistent with 40 CFR 70.5(c)(8)(iii)(C), which
states that a schedule of compliance ``shall be supplemental to, and
shall not sanction noncompliance with, the applicable requirements on
which it is based.''
3. Permit Fee Demonstration
The regulations at OAC 252:100-8-9 specify an annual fee of $25 per
ton per year based on actual or allowable emissions at the facility as
reflected in the emission inventory. This fee is based on 1995 dollars
for the first year and will be adjusted each year afterward to reflect
the difference between the Consumer Price Index (CPI) for the previous
year to the CPI for 1989. The original submittal from the State did not
contain a detailed fee analysis. Instead, the regulations at OAC
252:100-8-9(d)(1)(B) specify that the ODEQ must complete a detailed
workload analysis mandated by State law to be conducted by an
independent consultant with a review of the fee and adjustment of the
fee as necessary. The State submitted the workload analysis and fee
demonstration to the EPA for review on November 7, 1994. The formal
submission to the program was made in a letter dated January 23, 1995,
from the Executive Director of the ODEQ to the EPA. The fee
demonstration recommends a fee of $15.19 per ton in 1995 dollars and
will be adjusted each year to the 1989 CPI as provided for in the
regulations.
Though the fee reflected in the fee demonstration is less than the
$25 per ton fee listed in the Act, the State has shown that it will
provide sufficient funding based on the applicable requirements in
effect at the time of the program submittal. Based on the anticipated
emissions, the State expects the $15.19 per ton fee to generate over
$4,250,000 the first year. These funds will adequately pay for the
anticipated costs of the program as demonstrated in the detailed
workload analysis.
Therefore, based on its review, the EPA proposes approval for the
fee structure and workload analysis of the Oklahoma part 70 program.
The EPA solicits comment on the fee during the comment period for this
proposed approval action and will respond to any comments before taking
final action. The EPA is recommending approval of the $15.19 per ton
fee and deems the analysis and fee demonstration adequate in accordance
with 40 CFR part 70.
4. Provisions Implementing the Requirements of Other Titles of the Act
The State of Oklahoma acknowledges that its request for approval of
a part 70 program is also a request for approval of a program for
delegation of unchanged section 112 standards under the authority of
section 112(l) as they apply to part 70 sources. Upon receiving
approval under section 112(l), the State may receive delegation of any
new authority required by section 112 of the Act through the delegation
process. [[Page 13093]]
The State also has the option at any time to request, under section
112(l) of the Act, delegation of section 112 requirements in the form
of State regulations which the State demonstrates are equivalent to the
corresponding section 112 provisions promulgated by the EPA. At this
time, the State plans to use the mechanism of incorporation by
reference to adopt unchanged Federal section 112 requirements into its
regulations.
The radionuclide National Emission Standard for Hazardous Air
Pollutants (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
radionuclides 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.
Section 112(g) of the Act requires that, after the effective date
of a permits program under title V, no person may construct,
reconstruct or modify any major source of hazardous air pollutants
unless the State determines that the maximum achievable control
technology (MACT) emission limitation under section 112(g) will be met.
Such determination must be made on a case-by-case basis where no
applicable limitations have been established by the Administrator.
During the period from the title V effective date to the date the State
has taken appropriate action to implement the final section 112(g) rule
(either adoption of the unchanged Federal rule or approval of an
existing State rule under 112(l)), Oklahoma intends to implement
section 112(g) of the Act through the State's preconstruction process.
The State of Oklahoma commits to appropriately implementing and
enforcing the existing and future requirements of sections 111, 112 and
129 of the Act, and all MACT standards promulgated in the future, in a
timely manner.
The regulations at OAC 252:100-8-6(i) provide for the permitting of
acid rain sources. The EPA commented on these regulations on October 1,
1993, and recommended that the State incorporate by reference the
Federal acid rain permit requirements. The State has agreed to change
OAC 252:100-8-6(i) to incorporate by reference the acid rain permit
requirements and has drafted this revision as an emergency rule. The
State must submit this regulatory revision for incorporation by
reference of the acid rain permitting rules before this approval action
can be published as final in the Federal Register.
5. Enforcement Provisions
The State describes compliance tracking and enforcement under
Section VII of the submittal. Oklahoma commits to submit annual
information concerning the State's enforcement activities in part A of
this section. As required at 40 CFR 70.4(b)(4)(ii) and 70.4(b)(5), the
Enforcement Memorandum of Understanding, signed by the State and the
EPA on July 22, 1993, appears in the submittal as Attachment 48.
Attachment 42 contains an Inspection Protocol and Point Source
Inspection Form. Attachment 49 contains the Air Quality Program
Enforcement Action Report. Attachment 50 contains a tracking list for
Administrative Orders and Consent Orders. The AG Opinion discussed
above outlines the State's authority to enforce all aspects of the
program. This statement of authority is required at 40 CFR
70.4(b)(3)(vii).
The compliance tracking and enforcement information in the
submittal serves to describe the current processes in place to track
air permits and conduct enforcement actions. These elements meet the
requirements for compliance tracking and reporting at 40 CFR 70.4(b)
(4)(ii) and (5). Further, these elements meet the enforcement authority
requirements at 40 CFR 70.4(b)(2), 70.4(b)(3)(vii), and 70.4(9).
6. Technical Support Document
The results of this review will be shown in a document entitled
``Technical Support Document,'' which will be available in the docket
at the locations noted above. The technical support documentation shows
that all operating permits program requirements of 40 CFR part 70 and
relevant guidance were met by the submittal with the exception of those
requirements described below.
7. Summary
The State of Oklahoma submitted to the EPA, under a cover letter
from the Governor, the State's operating permits program on January 7,
1994. The submittal has adequately addressed all sixteen elements
required for full approval as discussed in part 70 with the exception
of the issues described in section B below. The State of Oklahoma
addressed appropriately all requirements necessary to receive source
category-limited interim approval of the State operating permits
program pursuant to title V of the Act, 1990 Amendments and 40 CFR part
70. The EPA is proposing source category-limited interim approval for
the part 70 program submittal for the State of Oklahoma.
B. Options for Approval/Disapproval and Implications
The EPA is proposing to grant source category-limited interim
approval to the operating permits program submitted by the State of
Oklahoma on January 7, 1994. Interim approvals under section 502(g) of
the Act do not create any new requirements, but simply approve
requirements that the State is already imposing.
If promulgated, the State must make the following changes to
receive full approval:
(1) Criminal Penalty Cap
As discussed in section A.1 above, the State must provide a
supplemental Attorney General's Opinion to clarify the implementation
of the criminal penalty statute in such a way that preserves the
integrity of the Act. This supplement must be submitted to the EPA
before final action on this proposal is taken.
(2) Definition of ``Major Source''
As discussed in section A.2.a above, the State must revise OAC
252:100-8-2, ``major source'' by deleting paragraph (4). This revision
will make the definition consistent with the rule at part 70. Also, the
State must revise the regulations to reflect the transition schedule
proposed for source category-limited interim approval.
(3) Revision of Insignificant Activities
As discussed in section A.2.a above, the State must amend the
language at OAC 252:100-8-3(e) so that the insignificant emissions rate
of 1 lb/hr for criteria pollutants will be based on potential to emit
instead of actual emissions. Further, the language at OAC 252:100-8-
3(e)(3) must be revised to delete the allowance of any percentage of a
permit limit or change in the potential to emit as an insignificant
emission level. Also, an application may not omit information needed to
determine the applicability of, or to impose, any applicable
requirement, or to evaluate the fee amount required. Further, any list
of insignificant activities or trivial activities must be approved by
the EPA prior to its use, as required at 40 CFR 70.5(c).
[[Page 13094]]
(4) Revision of Permit Content
The regulations at OAC 252:100-8-6(a) must be revised to remove the
phrase ``To the extent practicable. . .'' Until this revision is made,
the permits issued by the State shall meet the requirements of 40 CFR
70.6 and include all applicable requirements.
(5) Revision to Provide Standing
As discussed in section A.2.c above, the State must revise OAC
252:100-8-7(i)(1)(E) and OAC 252:100-8-7(j)(2)(A) to delete the word
``written'' so that oral comments have standing with judicial review of
the permitting process. Also, the State must clarify OAC 252:100-8-7(j)
so that judicial review is available to all affected parties for all
final permit actions including minor modifications and administrative
amendments.
(6) Administrative Amendment Procedure
As discussed in section A.2.d above, the State must revise OAC
252:100-8-7(d)(1)(C) to delete the words, ``. . . or less . . .''.
Further, the provisions at OAC 252:100-8-7(d)(1)(E) must be clarified
to require enhanced NSR procedures that are substantially equivalent to
the requirements of 40 CFR 70.7 and 40 CFR 70.8 for a change subject to
review as a permit modification and compliance requirements
substantially equivalent to those contained in 40 CFR 70.6. The State
must submit a SIP revision for Subchapter 7 that incorporates enhanced
NSR procedures that meet the requirements listed at 40 CFR 70.7 and 40
CFR 70.8 for a change subject to review as a permit modification, and
has compliance requirements substantially equivalent to those contained
in 40 CFR 70.6.
(7) Review of the Fee
As discussed in section A.3 above, the EPA has reviewed the
workload analysis and fee demonstration submitted November 7, 1994, and
is recommending approval of the proposed fee of $15.19 per ton. The EPA
will consider comments made during the comment period for this approval
action and will reserve final action on the fee for the final interim
approval notice.
(8) Acid Rain Incorporation by Reference
As discussed in section A.4 above, the State must revise OAC
252:100-8 to incorporate the acid rain requirements and submit this
revision to the EPA before final action on this proposal is taken.
Evidence of these regulatory revisions and their procedurally
correct adoption must be submitted to the EPA within 18 months of the
EPA's approval of the Oklahoma part 70 program. This interim approval,
which may not be renewed, extends for a period of up to two years.
During the interim approval period, the State is protected from
sanctions for failure to have a program, and the EPA is not obligated
to promulgate a Federal permits program in the State. Permits issued
under a program with interim approval have full standing with respect
to 40 CFR part 70, and the State will permit sources based on the
transition schedule submitted with the source category-limited approval
request. This schedule may extend for no more than five years beyond
the interim approval date.
If the interim approval is converted to a disapproval, it will not
affect any existing State requirements applicable to small entities.
Federal disapproval of the State submittal does not affect its State-
enforceability. Moreover, the EPA's disapproval of the submittal does
not impose a new Federal requirement.
The scope of Oklahoma's part 70 program that the EPA proposes to
approve in this notice would apply to all part 70 sources (as defined
in the approved program) within the State of Oklahoma, except any
sources of air pollution over which an Indian Tribe has jurisdiction.
See, e.g., 59 FR 55813, 55815-18 (November 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 Act; see also
59 FR 43956, 43962 (August 25, 1994); 58 FR 54364 (October 21, 1993).
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) approval requirements for delegation of section 112
standards as promulgated by the 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 proposing to grant approval under section
112(l)(5) and 40 CFR part 63.
III. Proposed Rulemaking Action
In this action, the EPA is proposing source category-limited
interim approval of the part 70 program submitted by the State of
Oklahoma. The program was submitted by the State to the EPA for the
purpose of complying with Federal requirements found at the 1990
Amendments, title V and at part 70, which mandates that States develop,
and submit to the EPA, programs for issuing operating permits to all
major stationary sources and certain other sources, with the exception
of Indian country. 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. This program for delegations only
applies to sources covered by the part 70 program.
The EPA has reviewed this submittal of the Oklahoma part 70 program
and is proposing source category-limited interim approval. Certain
defects in the State's regulations preclude the EPA from granting full
approval of the State's part 70 program at this time. The EPA is
proposing to grant interim approval, subject to the State obtaining the
needed regulatory revisions within 18 months after the Administrator's
approval of the Oklahoma title V program pursuant to 40 CFR 70.4.
IV. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of this proposed
rule. Copies of the State's submittal and other information relied upon
for the proposed interim 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,
the EPA in the development of this proposed rulemaking. 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 rulemaking
process; and
(2) To serve as the record in case of judicial review. The EPA will
consider any comments received by April 10, 1995.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
C. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., the
EPA must prepare a regulatory flexibility analysis assessing the impact
of any proposed or final rule on small entities, (5 U.S.C. 603 and
604). Alternatively, the EPA may certify that the rule will not have a
significant impact on a substantial [[Page 13095]] number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
Part 70 program approvals under section 502 of the Act do not
create any new requirements, but simply approve requirements that the
State is already imposing. Therefore, because the Federal part 70
program approval does not impose any new requirements, I certify that
it does not have a significant impact on any small entities affected.
Moreover, due to the nature of the Federal-State relationship under the
Act, preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
Act forbids the EPA to base its actions concerning part 70 programs on
such grounds, (Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66
(S.Ct 1976); 42 U.S.C. section 7410(a)(2)).
List of Subjects in 40 CFR Part 70
Administrative practice and procedure, Air pollution control,
Checklist, Environmental protection, Intergovernmental relations,
Memorandum of understanding, Operating permits, Options for approval/
disapproval and implications, Permit fee demonstration.
Authority: 42 U.S.C. 7401-7671q.
Dated: February 22, 1995.
William B. Hathaway,
Acting Regional Administrator (6M).
[FR Doc. 95-5981 Filed 3-9-95; 8:45 am]
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