[Federal Register Volume 60, Number 84 (Tuesday, May 2, 1995)]
[Rules and Regulations]
[Pages 21442-21445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10700]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MS-20-1-6562a; FRL-5173-9]
Approval and Promulgation of Implementation Plans; Mississippi:
Approval of Revisions to Construction and Operation Permit Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving revisions to the Mississippi State
Implementation Plan (SIP) to allow the State of Mississippi to issue
Federally enforceable state operating permits (FESOP). On January 26,
1994, the State of Mississippi through the Mississippi Department of
Environmental Quality (MDEQ) submitted a SIP revision fulfilling the
requirements necessary for a state FESOP program to become Federally
enforceable. In order to extend the Federal enforceability of
Mississippi's FESOP program to hazardous air pollutants (HAP), EPA is
also approving Mississippi's FESOP program pursuant to section 112 of
the Clean Air Act as amended in 1990 (CAA) so that the State may issue
FESOP for HAP.
DATES: This final rule will be effective July 3, 1995 unless adverse or
critical comments are received by June 1, 1995. If the effective date
is delayed, timely notice will be published in the Federal Register.
ADDRESSES: Written comments should be addressed to Scott Miller, at the
EPA Regional Office listed below. Copies of the documents relative to
this action are available for public inspection during normal business
hours at the following locations. The interested persons wanting to
examine these documents should make an appointment with the appropriate
office at least 24 hours before the visiting day.
Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460
Environmental Protection Agency, Region 4, Air Programs Branch, 345
Courtland Street, NE, Atlanta, Georgia 30365
Mississippi Department of Environmental Quality, Bureau of Air Quality
Control, Air Quality Division, Post Office Box 10385, Jackson,
Mississippi 39285
FOR FURTHER INFORMATION CONTACT: Carla Pierce, Title V, Regional
Program Manager, Air Programs Branch, Air, Pesticides & Toxics
Management Division, Region 4, Environmental Protection Agency, 345
Courtland Street, NE., Atlanta, Georgia 30365. The telephone number is
404/347-2864.
SUPPLEMENTARY INFORMATION: On January 26, 1994, the State of
Mississippi through the MDEQ submitted a SIP revision designed to make
certain permits issued under Mississippi's existing minor source
operating permit program Federally enforceable pursuant to EPA
requirements as specified in a Federal Register notice, ``Requirements
for the preparation, adoption, and submittal of implementation plans;
air quality, new source review; final rules,'' (see 54 FR 22274, June
28, 1989). The State will continue to issue permits which are not
Federally enforceable under its existing minor source operating permit
rules as it has done in the past. The SIP revision which is the subject
of today's rulemaking adds additional requirements to the State's
current minor source operating permit program which allows the State to
issue FESOP. This voluntary SIP revision allows EPA and citizens under
the CAA to enforce terms and conditions of Mississippi's FESOP program.
Operating permits that are issued under the State's FESOP program that
is approved into the State SIP and under section 112(l) will provide
federally enforceable limits to an air pollution source's potential to
emit. Limiting of a source's potential to emit through federally
enforceable operating permits can affect a source's applicability to
federal regulations such as title V operating permits, New Source
Review (NSR) preconstruction permits, Prevention of Significant
Deterioration (PSD) preconstruction permits for criteria pollutants and
federal air toxics requirements mandated under section 112 of the CAA.
In the aforementioned June 28, 1989, Federal Register notice, EPA
listed five criteria necessary to make a State's minor source operating
permit program Federally enforceable and, therefore, approvable into
the SIP. This revision satisfies the five criteria for Federal
enforceability of the State's FESOP program.
The first criteria for a state's operating permit program to become
Federally enforceable is that the permit program that the state wishes
to be Federally enforceable must be approved into the SIP. On January
26, 1994, the State of Mississippi submitted through MDEQ a SIP
revision designed to meet the five criteria for Federal enforceability.
Today's action will approve these regulations into the Mississippi SIP,
thereby, meeting the first criteria for Federal enforceability.
The second criteria for a state's operating permit program to
become Federally enforceable is that the regulations approved into the
SIP impose a legal obligation that operating permit holders adhere to
the terms and limitations of such permits. Mississippi's regulations
meet this criteria in Regulation APC-S-2, Section II of the State
regulations by requiring the following:
In addition to the requirements contained herein, no permit
shall be issued unless the applicant has complied with applicable
requirements including * * * and additional relevant Rules and
Regulations promulgated by the Commission and/or Permit Board.
Hence, the second criteria for Federal enforceability is met.
The third criteria necessary for a state's operating permit program
to be Federally enforceable is that the state operating permit program
require that all emissions limitations, controls, and other
requirements imposed by such permits will be at least as stringent as
any other applicable limitations and requirements contained in the SIP
or enforceable under the SIP, and that the program may not issue
permits that waive, or make less stringent, any limitations or
requirements contained in or issued pursuant to the SIP, or that are
otherwise ``Federally enforceable'' (e.g. standards established under
sections 111 and 112 of the Act). Mississippi satisfies this criteria
in two regulations included in the State's SIP submittal. APC-S-2,
Section II.B.5 requires that all permits to construct or operate shall
specify in their application the air emission rate for each air
pollutant subject to regulation under the Federal Clean Air Act that
can be reasonably expected to be emitted from a facility. In addition,
Regulation APC-S-2, Section VI.E.4 provides that the granting of a
permit shall not relieve an air pollution source of the responsibility
to comply with other applicable requirements of the permitting
regulation or other applicable regulations or law. Taken together,
these two regulations satisfy the third criteria for Federal
enforceability.
The fourth criteria for a state's operating permit program to
become Federally enforceable is that limitations, controls, and
requirements in the operating permits are quantifiable, and otherwise
enforceable as a practical matter. While a determination of what is
practically enforceable will generally differ based on process type and
emissions, the State has included several regulations designed to
ensure that permit limitations are enforceable as a practical matter.
APC-S-2, Section VII.B.2 requires that when performing stack tests to
determine compliance with an applicable regulation that the results be
expressed in units consistent with the emission standard of the
applicable regulation for which the source is attempting to show
compliance. In addition, this regulation requires that the stack test
demonstration be reported in ``units of mass per time'' of the
applicable regulation. Regulation APC-S-2, Section XI, provides that
MDEQ may require in any permit the installation of
[[Page 21444]] sampling ports with access and the installation,
maintenance and use of monitoring equipment as well as be required to
maintain records to show compliance with applicable emission standards.
Therefore, the Mississippi FESOP program satisfies the fourth criteria
for Federal enforceability.
The fifth criteria for a state's operating permit program to become
Federally enforceable is to provide EPA and the public with timely
notice of the proposal and issuance of such permits, and to provide
EPA, on a timely basis, with a copy of each proposed (or draft) and
final permit intended to be federally enforceable. This process also
must provide for an opportunity for public comment on the permit
applications prior to issuance of the final permit. Regulation APC-S-2,
Section V provides a 30 day opportunity for public comment period as
well as the opportunity for a public hearing on any application where
MDEQ believes there is sufficient interest. Regulation APC-S-2, Section
V.C provides that ``the Permit Board may provide notice to the public
and provide opportunity for public comment on any application for a
Construction Permit or Operating Permit.'' EPA notes that any permit
which has not gone through an opportunity for public comment and EPA
review in the Mississippi FESOP program will not be Federally
enforceable.
In addition to requesting approval into the SIP, Mississippi has
also requested approval of its FESOP program under section 112(l) of
the Act for the purpose of creating Federally enforceable limitations
on the potential to emit of HAP through the issuance of FESOP. Approval
under section 112(l) is necessary because the proposed SIP approval
discussed above only extends to the control of criteria pollutants.
Federally enforceable limits on criteria pollutants (i.e., VOC's or PM-
10) may have the incidental effect of limiting certain HAP listed
pursuant to section 112(b).1 However, section 112 of the Act
provides the underlying authority for controlling all HAP emissions.
\1\The EPA intends to issue guidance addressing the technical
aspects of how these criteria pollutant limits may be recognized for
purposes of limiting a source's potential to emit of HAP to below
section 112 major source levels.
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EPA believes that the five approval criteria for approving FESOP
programs into the SIP, as specified in the June 28, 1989, Federal
Register notice, are also appropriate for evaluating and approving the
programs under section 112(l). The June 28, 1989, notice does not
address HAP because it was written prior to the 1990 amendments to
section 112, not because it establishes requirements unique to criteria
pollutants.
In addition to meeting the criteria in the June 28, 1989, notice, a
FESOP program that addresses HAP must meet the statutory criteria for
approval under section 112(l)(5). Section 112(l) allows EPA to approve
a program only if it: (1) Contains adequate authority to assure
compliance with any section 112 standards or requirements; (2) provides
for adequate resources; (3) provides for an expeditious schedule for
assuring compliance with section 112 requirements; and (4) is otherwise
likely to satisfy the objectives of the CAA.
EPA plans to codify the approval criteria for programs limiting
potential to emit of HAP, such as FESOP programs, through amendments to
Subpart E of Part 63, the regulations promulgated to implement section
112(l) of the CAA. (See 58 FR 62262, November 26, 1993.) EPA currently
anticipates that these regulatory criteria, as they apply to FESOP
programs, will mirror those set forth in the June 28, 1989, notice. The
EPA currently anticipates that since FESOP programs approved pursuant
to section 112(l) prior to the planned Subpart E revisions will have
been approved as meeting these criteria, further approval actions for
those programs will not be necessary.
EPA believes it has authority under section 112(l) to approve
programs to limit potential to emit of HAP directly under section
112(l) prior to this revision to Subpart E. Section 112(l)(5) requires
the EPA to disapprove programs that are inconsistent with guidance
required to be issued under section 112(l)(2). This might be read to
suggest that the ``guidance'' referred to in section 112(l)(2) was
intended to be a binding rule. Even under this interpretation, EPA does
not believe that section 112(l) requires this rulemaking to be
comprehensive. That is, it need not address every possible instance of
approval under section 112(l). EPA has already issued regulations under
section 112(l) that would satisfy any section 112(l)(2) requirement for
rulemaking. Given the severe timing problems posed by impending
deadlines set forth in ``maximum achievable control technology'' (MACT)
emission standards under section 112 and for submittal of title V
permit applications, EPA believes it is reasonable to read section
112(l) to allow for approval of programs to limit potential to emit
prior to promulgation of a rule specifically addressing this issue. EPA
is therefore approving Mississippi's FESOP program so that Mississippi
may begin to issue FESOP as soon as possible.
EPA believes that Mississippi's FESOP program meets the approval
criteria specified in the June 28, 1989 Federal Register notice and in
section 112(l)(5) of the CAA. As discussed previously in this notice,
Mississippi's FESOP program meets the five criteria necessary for
Federal enforceability.
Regarding the statutory criteria of section 112(l)(5) referred to
above, EPA believes Mississippi's FESOP program contains adequate
authority to assure compliance with section 112 requirements because
the third criterion of the June 28, 1989, notice is met, that is,
because the program does not allow for the waiver of any section 112
requirement. Sources that become minor through a permit issued pursuant
to this program would still be required to meet section 112
requirements applicable to non-major sources.
Regarding the requirement for adequate resources, EPA believes
Mississippi has demonstrated that it can provide for adequate resources
to support the FESOP program. EPA expects that resources will continue
to be adequate to administer that portion of the State's minor source
operating permit program under which FESOP will be issued since
Mississippi has administered a minor source operating permit program
for several years. EPA will monitor Mississippi's implementation of its
FESOP to ensure that adequate resources are in fact available. EPA also
believes that Mississippi's FESOP program provides for an expeditious
schedule for assuring compliance with section 112 requirements. This
program will be used to allow a source to establish a voluntary limit
on potential to emit to avoid being subject to a CAA requirement
applicable on a particular date. Nothing in Mississippi's FESOP program
would allow a source to avoid or delay compliance with a CAA
requirement if it fails to obtain an appropriate federally enforceable
limit by the relevant deadline. Finally, EPA believes it is consistent
with the intent of section 112 and the CAA for states to provide a
mechanism through which sources may avoid classification as a major
source by obtaining a Federally enforceable limit on potential to emit.
With the addition of these provisions, Mississippi's FESOP program
satisfies all the requirements listed in the June 28, 1989, Federal
Register notice. EPA is approving this revision to the State of
Mississippi's SIP thus making the State's FESOP program Federally
enforceable.
[[Page 21445]]
Final Action
In this action, EPA is approving the Mississippi FESOP program. EPA
is publishing this action without prior proposal because the Agency
views this as a noncontroversial amendment and anticipates no adverse
comments. However, in a separate document in this Federal Register
publication, EPA is proposing to approve the SIP revision should
adverse or critical comments be filed. This action will be effective
July 3, 1995 unless, within 30 days of its publication, adverse or
critical comments are received. If EPA receives such comments, this
action will be withdrawn before the effective date by publishing a
subsequent document that will withdraw the final action. All public
comments received will then be addressed in a subsequent final rule
based on this action serving as a proposed rule. EPA will not institute
a second comment period on this action. Any parties interested in
commenting on this action should do so at this time. If no such
comments are received, the public is advised that this action will be
effective July 3, 1995.
The Agency has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Amendments
enacted on November 15, 1990. EPA has determined that this action
conforms with those requirements.
Under section 307(b)(1) of the CAA, 42 U.S.C. 7607(b)(1), petitions
for judicial review of this action must be filed in the United States
Court of Appeals for the appropriate circuit by July 3, 1995. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2) of the CAA, 42
U.S.C. 7607(b)(2).) The Office of Management and Budget has exempted
this action from review under Executive Order 12866.
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any SIP. Each request for revision to the SIP shall be considered
separately in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., 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, EPA may certify that the rule will not have a
significant impact on a substantial 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.
SIP approvals under section 110 and subchapter I, part D of the CAA
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the federal SIP-
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 CAA,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs 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. 7410(a)(2).
List of Subjects in 40 CFR Part 52
Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation
by reference, Lead, Nitrogen dioxide, Intergovernmental relations,
Particulate matter, Ozone and Sulfur oxides.
Dated: March 1, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
Part 52 of chapter I, title 40, Code of Federal Regulations, is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart Z--Mississippi
2. Section 52.1270 is amended by adding paragraph (c)(25) to read
as follows:
Sec. 52.1270 Identification of plan.
* * * * *
(c) * * *
(25) Revisions to minor source operating permit rules submitted by
the Mississippi Department of Environmental Quality on January 26,
1994.
(i) Incorporation by reference.
(A) Regulation APC-S-2, effective January 9, 1994.
(ii) Other material. None.
[FR Doc. 95-10700 Filed 5-1-95; 8:45 am]
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