[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38715-38718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18527]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[NC-065-1-6431a; FRL-5226-7]


Approval and Promulgation of Implementation Plans: Approval of 
Revisions to the Mecklenburg County Portion of the North Carolina State 
Implementation Plan (SIP)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the Mecklenburg County portion 
of the North Carolina State Implementation Plan (SIP) to allow the 
Mecklenburg County Department of Environment to issue Federally 
enforceable local operating permits (FELOP). On November 24, 1993, the 
Mecklenburg County Department of Environment through the North Carolina 
Department of Environment, Health, and Natural Resources (DEHNR) 
submitted a SIP revision fulfilling the requirements necessary to issue 
FELOP. The submittal conforms with the requirements necessary for a 
local agency's minor source operating permit program to become 
federally enforceable. In order to extend the Federal enforceability of 
local operating permits to hazardous air pollutants (HAP), EPA is also 
proposing approval of the Mecklenburg County minor source operating 
permit regulations pursuant to section 112 of the Act.

DATES: This final rule will be effective on September 26, 1995 unless 
adverse or critical comments are received by August 28, 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 material submitted by Mecklenburg County may be 
examined during normal business hours at the following locations:

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.
North Carolina Department of Health, Environment and Natural Resources, 
Air Quality Section, P.O. Box 29535, Raleigh, North Carolina 27626.

FOR FURTHER INFORMATION CONTACT: Scott Miller, Air Programs Branch, 
Air, Pesticides & Toxics Management Division, Region 4 Environmental 

[[Page 38716]]
Protection Agency, 345 Courtland Street NE., Atlanta, Georgia 30365. 
The telephone number is (404) 347-2864.

SUPPLEMENTARY INFORMATION: On November 24, 1993, Mecklenburg County, 
North Carolina through DEHNR submitted a SIP revision designed to allow 
Mecklenburg County to issue FELOP which conform to EPA requirements for 
federal enforceability 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). This voluntary SIP revision allows 
EPA and citizens under the Act to enforce terms and conditions of 
local-issued minor source operating permits. Operating permits that are 
issued under the County's minor source operating permit 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.
    In the aforementioned June 28, 1989, Federal Register document, EPA 
listed five criteria necessary to make a local agency'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 County's minor source operating permit 
program.
    The first criteria for a local agency's minor source operating 
permit to become federally enforceable is that the regulations 
governing permit issuance are approved into the SIP. On November 24, 
1993, Mecklenburg County through the DEHNR submitted a SIP revision 
fulfilling the requirements necessary to make Mecklenburg County's 
minor source operating permit program federally enforceable. This 
action will approve these regulations into the North Carolina 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. Mecklenburg County Air 
Pollution Control Ordinance (MCAPCO) Regulation 1.5232(b) states that 
failure to apply for or to act in accordance with the terms, 
conditions, or requirements of any permit shall be cause for 
enforcement sanctions in MCAPCO Regulation 1.5300 and Chapter 143, 
Article 21B of the General Statutes of North Carolina. MCAPCO 
Regulation 1.5300 lists criminal and civil enforcement remedies that 
the County may take in the event that an air pollution source violates 
the terms, conditions, or requirements of the permit. Hence, the second 
criteria for federal enforceability is met.
    The third criteria necessary for Mecklenburg County's operating 
permit program to be federally enforceable is that the local 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). MCAPCO Regulation 
1.5232(b) mandates that approval of construction, modification, or 
operation of any source shall not affect the responsibility of the 
owner or operator to comply with applicable portions of the SIP. 
Therefore, the third criteria for federal enforceability is met.
    The fourth criteria for a local agency'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 County has included several regulations designed to 
ensure that permit limitations are enforceable as a practical matter. 
MCAPCO Regulation 1.5212(d) requires that upon request an air pollution 
source prove to the Department that it has complied with air quality 
emission standards and has been in compliance with federal and state 
laws and regulations. MCAPCO Regulation 1.5213(b) provides that the 
Department will attach as a condition of any permit which is issued, a 
requirement that the applicant prior to construction or operation of a 
facility under the permit, comply with all lawfully adopted ordinances. 
MCAPCO Regulation 1.5214 requires that after a permit is issued a 
source must submit written notification to the Department before it 
commences operation of the newly permitted activity. Within 90 days 
after the source notifies the Department, the Department will inspect 
the source, equipment, process, or device in order to determine 
compliance with permit conditions and limitations. Therefore, the 
fourth criteria for federal enforceability is met.
    The fifth criteria for a local agency'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. MCAPCO Regulation 
1.5213(g) requires a 30 day public notice period for every permit 
issued by the County. In addition, every permit issued by the County 
goes through a public hearing prior to permit issuance. MCAPCO 
Regulation 1.5213(h) requires the Department to submit the proposed 
permit to EPA for review during the 30 day comment period, and also 
provides that after final permit issuance the Department will submit a 
copy of the final permit to EPA. Hence, the fifth criteria for federal 
enforceability is met.
    On June 28, 1989 (54 FR 27274), EPA published criteria for 
approving and incorporating into the SIP regulatory programs for the 
issuance of federally enforceable state operating permits (FESOP). 
Permits issued pursuant to an operating permit program approved into 
the SIP as meeting these criteria may be considered federally 
enforceable. The EPA has encouraged states to develop such FESOP 
programs in conjunction with title V operating permits programs to 
enable sources to limit their potential to emit to below the title V 
applicability thresholds. (See the guidance document entitled, 
``Limitation of Potential to Emit with Respect to Title V Applicability 
Thresholds,'' dated September 18, 1992, from John Calcagni, Director, 
Air Quality Management Division, Office of Air Quality Planning and 
Standards (OAQPS), Office of Air and Radiation, U.S. EPA.) On November 
3, 1993, the EPA announced in a guidance document entitled, 
``Approaches to Creating Federally Enforceable Emissions Limits,'' 
signed by John S. Seitz, Director, OAQPS, that this mechanism could be 
extended to create federally enforceable limits for emissions of HAP if 
the program were approved pursuant to section 112(l) of the Act. 

[[Page 38717]]

    In addition to requesting approval into the SIP, Mecklenburg County 
also requested on July 12, 1994, approval of its minor source operating 
permit program under section 112(l) of the Act for the purpose of 
creating federally enforceable limitations on the potential to emit of 
HAP. 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

    \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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    However, section 112 of the Act provides the underlying authority 
for controlling all HAP emissions.
    EPA believes that the five approval criteria for approving FELOP 
programs into the SIP, as specified in the June 28, 1989 Federal 
Register document, are also appropriate for evaluating and approving 
the programs under section 112(l). The June 28, 1989, document 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. Hence, the following five criteria are applicable to FELOP 
approvals under section 112(l): (1) The program must be submitted to 
and approved by the EPA; (2) the program must impose a legal obligation 
on the operating permit holders to comply with the terms and conditions 
of the permit, and permits that do not conform with the June 28, 1989, 
criteria or the EPA's underlying regulations shall be deemed not 
federally enforceable; (3) the program must contain terms and 
conditions that are at least as stringent as any requirements contained 
in the SIP, enforceable under the SIP, or any section 112 or other CAA 
requirement, and may not allow for the waiver of any CAA requirement; 
(4) permits issued under the program must contain conditions that are 
permanent, quantifiable, and enforceable as a practical matter; and (5) 
permits that are intended to be federally enforceable must be issued 
subject to public participation and must be provided to the EPA in 
proposed form on a timely basis.
    In addition to meeting the criteria in the June 28, 1989, document, 
a FELOP 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 Act.
    EPA plans to codify the approval criteria for programs limiting 
potential to emit of HAP, such as FELOP programs, through amendments to 
Subpart E of Part 63, the regulations promulgated to implement section 
112(l) of the Act. (See 58 FR 62262, November 26, 1993.) EPA currently 
anticipates that these regulatory criteria, as they apply to FELOP 
programs, will mirror those set forth in the June 28, 1989, notice. EPA 
also anticipates that given FELOP 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 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 EPA to disapprove 
programs that are inconsistent with guidance required to be issued 
under section 112(l)(2). This could 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, 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. Therefore, EPA is approving Mecklenburg County's 
minor source operating permit program to allow the County to begin 
issuing FELOPs as soon as possible.
    Regarding the statutory criteria of section 112(l)(5) referred to 
above, EPA believes Mecklenburg County's minor source operating permit 
program contains adequate authority to assure compliance with section 
112 requirements because the third criterion of the June 28, 1989, 
document 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 
Mecklenburg County has demonstrated that it can provide for adequate 
resources to support the minor source operating permit program. EPA 
expects that since Mecklenburg County has administered a minor source 
operating permit program for several years, resources will continue to 
be adequate to administer the minor source operating permit program. 
EPA will monitor Mecklenburg County's implementation of its FELOP to 
ensure that adequate resources are in fact available. EPA also believes 
that Mecklenburg County's minor source operating permit 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 Mecklenburg County's 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 Act 
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, Mecklenburg County's minor 
source operating permit program satisfies all the requirements listed 
in the June 28, 1989, Federal Register document. Therefore, EPA is 
approving this revision to the Mecklenburg County portion of the North 
Carolina SIP making the County's minor source operating permit program 
federally enforceable which will allow the County to issue FELOP.
Final Action

    In this action, EPA is approving the Mecklenburg County minor 
source operating permit program. EPA is publishing this action without 
prior proposal because the EPA views this as a noncontroversial 
amendment and anticipates no adverse comments. However, in a separate 
document in the Federal Register publication, EPA is proposing to 
approve the SIP revision should adverse or critical comments be 

[[Page 38718]]
filed. This action will be effective on September 26, 1995 in the 
Federal Register unless, by August 28, 1995, 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 on 
September 26, 1995.
    EPA 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 Act, 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 September 26, 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 state implementation plan. Each request for revision to the state 
implementation plan 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 Action

    SIP approvals under 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. Section 
7410(a)(2).

D. Unfunded Mandates Reform Act of 1995

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the proposed interim approval action 
promulgated today does not include a Federal mandate that may result in 
estimated costs of $100 million or more to State, local, or tribal 
governments in the aggregate, or to the private sector. This Federal 
action approves pre-existing requirements under State or local law, and 
imposes no new Federal requirements. Accordingly, no additional costs 
to State, local, or tribal governments, or to the private sector, 
result from this action.
List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon Monoxide, 
Hydrocarbons, Incorporation by Reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
Recordkeeping requirements, Sulfur oxides.

    Dated: June 23, 1995.
William A. Waldrop,
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 II--North Carolina

    2. Section 52.1770 is amended by adding paragraph (c)(70) to read 
as follows:


Sec. 52.1770  Identification of plan.

* * * * *
    (c) * * *
    (70) The minor source operating permit program for Mecklenburg 
County, North Carolina, submitted by the Mecklenburg County Department 
of Environmental Protection on November 24, 1993, and as part of the 
Mecklenburg County portion of the North Carolina SIP.
    (i) Incorporation by reference.
    MCAPCO Regulations 1.5211 through 1.5214, 1.5216, 1.5219, 1.5221, 
1.5222, 1.5232, 1.5234, and 1.5306 of the Mecklenburg County portion of 
the North Carolina SIP adopted June 6, 1994.
    (ii) Other material. None.
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[FR Doc. 95-18527 Filed 7-27-95; 8:45 am]
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