[Federal Register Volume 60, Number 167 (Tuesday, August 29, 1995)]
[Proposed Rules]
[Pages 44805-44812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21415]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[NC-95-01; FRL-5288-2]
Clean Air Act Proposed Interim Approval of Operating Permit
Program; North Carolina, Western North Carolina Mecklenburg County,
Forsyth County
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim approval.
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SUMMARY: EPA proposes interim approval of the operating permit programs
submitted by the State of North Carolina Department of Health,
Environment and Natural Resources (DEHNR), Western North Carolina
Regional Air Pollution Control Agency (WNCRAPCA), Forsyth County
Department of Environmental Affairs (FCDEA), and Mecklenburg County
Department of Environmental Protection (MCDEP) for the purpose of
complying with Federal requirements which mandate that states develop,
and submit to EPA, programs for issuing operating permits to all major
stationary sources, and to certain other sources.
DATES: Comments on this proposed action must be received in writing by
September 28, 1995.
ADDRESSES: Written comments on this action should be addressed to Carla
E. Pierce, Chief, Air Toxics Unit/Title V Team, Air Programs Branch, at
the EPA Region 4 office listed below. Copies of the DEHNR, WNCRAPCA,
FCDEA, and MCDEP submittals and other supporting information used in
developing the proposed interim approval are available for inspection
during normal business hours at the following location: U.S.
Environmental Protection Agency, Region 4, 345 Courtland Street, NE,
Atlanta, GA 30365.
FOR FURTHER INFORMATION CONTACT: Scott Miller, Title V Program
Development Team, Air Programs Branch, Air Pesticides & Toxics
Management Division, U.S. Environmental Protection Agency, Region 4,
345 Courtland Street, NE, Atlanta, GA 30365, (404) 347-3555, Ext. 4153.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
As required under title V of the Clean Air Act (``the Act'') as
amended by the 1990 Clean Air Act Amendments, EPA promulgated rules on
July 21, 1992 (57 FR 32250), that define the minimum elements of an
approvable state operating permit program and the corresponding
standards and procedures by which EPA will approve, oversee, and
withdraw approval of state operating permit programs. These rules are
codified at 40 Code of Federal Regulations (CFR) part 70. Title V and
part 70 require that states develop, and submit to EPA, programs for
issuing operating permits to all major stationary sources and to
certain other sources.
The Act requires states to develop and submit these programs to EPA
by November 15, 1993, and EPA to approve or disapprove each program
within one year after receiving the submittal. If the State's
submission is materially changed during the one-year review period, 40
CFR Part 70.4(e)(2) allows EPA to extend the review period for no more
than one year following receipt of the additional materials. EPA
received the DEHNR, WNCRAPCA, FCDEA, and MCDEP's title V operating
permit program submittals on November 12, 1993. The State provided EPA
with additional materials in supplemental submittals dated December 17,
1993, February 28, 1994, May 31, 1994, and August 9, 1995. Because
these supplements materially changed the State's title V program
submittal, EPA has extended the review period and will work
expeditiously to promulgate a final decision on the State's program.
EPA reviews state operating permit programs pursuant to section 502
of the Act and 40 CFR part 70, 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 two years. If EPA has not granted full
or interim approval to a whole program by November 15, 1995, it must
establish and implement a Federal operating permit program for that
state.
B. Federal Oversight and Sanctions
If EPA grants interim approval to the DEHNR, WNCRAPCA, FCDEA, and
MCDEP programs, the interim approval 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 North
Carolina, WNCRAPCA, FCDEA, and MCDEP would not be subject to sanctions,
and EPA would not be obligated to promulgate, administer, and enforce a
Federal permit program for the State. Permits issued under a program
with interim approval are fully effective with respect to part 70, and
the 12-month time period for submittal of permit applications by
sources subject to part 70 requirements begins upon the effective date
of final interim approval, as does the three-year time period for
processing the initial permit applications.
Following the granting of final interim approval, if the DEHNR,
WNCRAPCA, FCDEA, or MCDEP failed to submit complete corrective programs
for full approval by the date six months before expiration of the
interim approval, EPA would start an 18-month clock for mandatory
sanctions. If the DEHNR, WNCRAPCA, FCDEA, or MCDEP then failed to
submit a corrective program that EPA found complete before the
expiration of that 18-month period, EPA would be required to apply one
of the sanctions in section 179(b) of the Act, which would remain in
effect until EPA determined that DEHNR, WNCRAPCA, FCDEA, or MCDEP had
corrected the deficiency by submitting a complete corrective program.
Moreover, if the Administrator found a lack of good faith on the part
of DEHNR, WNCRAPCA, FCDEA, or MCDEP, both sanctions under section
179(b) would apply after the expiration of the 18-month period and
would extend until the Administrator determined that these programs had
come into compliance. In any case, if, six months after application of
the first sanction, DEHNR, WNCRAPCA, FCDEA, or MCDEP still had not
submitted a corrective program that EPA found complete, the second
sanction would be applied.
If, following final interim approval, EPA were to disapprove any of
the North Carolina State or local program complete corrective programs,
EPA would be required to apply one of the section 179(b) sanctions on
the date 18 months after the effective date of the disapproval, unless
prior to that date the DEHNR, WNCRAPCA, FCDEA, or MCDEP had submitted a
revised program and EPA had determined that it corrected the
deficiencies that prompted the disapproval. Moreover, if the
Administrator found a lack of good faith on the part of the North
Carolina State or local agencies, both sanctions under section 179(b)
would apply after the expiration of the 18-month period until the
Administrator determined that the North Carolina State or local
agencies had come into compliance. In all cases, if six months after
EPA applied the first sanction, the North Carolina State or local
agencies had not submitted a revised program that EPA had determined
corrected the deficiencies that prompted disapproval, a second sanction
would be required.
[[Page 44806]]
In addition, discretionary sanctions may be applied where warranted
any time after the end of an interim approval period if a state has not
timely submitted a complete corrective program or EPA has disapproved a
submitted corrective program. Moreover, if EPA has not granted full
approval to a state program by the expiration of an interim approval
and that expiration occurs after November 15, 1995, EPA must
promulgate, administer, and enforce a Federal operating permit program
for that state upon interim approval expiration.
II. Proposed Action and Implications
A. Analysis of State Submission
EPA believes that the operating permit programs submitted by the
DEHNR, WNCRAPCA, FCDEA, and MCDEP substantially meet the requirements
of title V and part 70, and EPA proposes to grant interim approval to
these programs. For detailed information on the analysis of the State
and local agency submission, please refer to the Technical Support
Document (TSD) contained in the docket at the address noted above.
1. Support Materials
On November 12, 1993, EPA received the title V operating permit
programs submitted by the DEHNR, WNCRAPCA, FCDEA, and MCDEP. The DEHNR
requested, under the signature of the State of North Carolina
Governor's designee, approval of its operating permit program with full
authority to administer the program in all areas of the State of North
Carolina, with the exceptions of Indian reservations and tribal lands.
The State and local agencies submitted supplements to their title V
operating permits programs submittals dated December 17, February 28,
1994, May 31, 1994, and July 27, 1995.
The DEHNR, WNCRAPCA, FCDEA, and MCDEP submittals address, in
Section II entitled ``Complete Program Description,'' the requirement
of 40 CFR Part 70.4(b)(1) by describing how the State and local
agencies intend to carry out their responsibilities under the part 70
regulations. EPA believes the program descriptions are sufficient for
meeting the requirement of 40 CFR Part 70.4(b)(1).
Pursuant to 40 CFR Part 70.4(b)(3), each state 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) demonstrating adequate authority to carry out all aspects of
the title V operating permit program. The DEHNR submitted a General
Counsel Opinion and a Supplementary General Counsel Opinion
demonstrating adequate legal authority as required by Federal law and
regulation. WNCRAPCA, FCDEA, and MCDEP each submitted a General Counsel
Opinion. EPA believes that these opinions adequately address the
thirteen provisions listed at 40 CFR 70.4(b)(3)(i)-(xiii).
Section 70.4(b)(4) requires the submission of relevant permitting
program documentation not contained in the regulations, such as permit
application forms, permit forms, and relevant guidance to assist in the
State's implementation of its permit program. Section IV of the DEHNR,
WNCRAPCA, and FCDEA submittals and Appendix C of the MCDEP submittal
include permit application forms. EPA has determined that the
application forms meet the requirements of 40 CFR Part 70.5(c).
2. Regulations and Program Implementation
The State of North Carolina developed 15A North Carolina
Administrative Code (NCAC) Subchapter 2Q.0500 entitled ``Title V
Procedures'' for the implementation of the substantive requirements of
40 CFR part 70. The State also made changes to 15A NCAC 2Q.0200 and 15A
NCAC 2Q.0100 to implement other part 70 requirements. These rules, and
several other rules and statutes providing for State permitting and
administrative actions, were submitted by North Carolina with
sufficient evidence of procedurally correct adoption as required by 40
CFR Part 70.4(b)(2). The FCDEA adopted the State regulations verbatim
in the Forsyth County Air Quality Technical Code (FCAQTC) Subchapter 3Q
Sections .0500, .0100, and .0200. The WNCRAPCA adopted the State
regulations verbatim in WNCRAPCA Rules and Regulations (WNCRAPCARR)
Chapter 17 Sections .0500, .0100, and .0200. The MCDEP adopted the
State regulations verbatim in Mecklenburg County Air Pollution Control
Ordinance (MCAPCO) Article 1 Sections .5500, .5231, .5211. The local
programs contain regulations that differ from the State program
concerning the collection of title V fees. Since the local agency
programs adopted the State regulations verbatim with the exception of
fee collection, this proposed rulemaking will discuss the State
regulations and how they meet the requirements of part 70 and follow
with regulatory citations for the local agency regulations which
implement the equivalent State regulation. Fee regulations will be
discussed separately for each local agency.
The DEHNR program, in Regulation 15A NCAC 2Q.0502 (MCAPCO
Regulation 1.5502, FCAQTC Regulation 3Q.0502, and WNCRAPCARR Regulation
17.0502), substantially meets the requirements of 40 CFR Part 70.2 and
70.3 regarding applicability. However, Regulation 15A NCAC 2Q.0502(c)
(MCAPCO Regulation 1.5502(c), FCAQTC Regulation 3Q.0502(c), and
WNCRAPCARR Regulation 17.0502(c)) allows Research and Development (R&D)
facilities to be treated as separate facilities from other stationary
facilities that are part of the same industrial grouping, are located
on contiguous or adjacent property, and are under common control. Such
an approach is inconsistent with the definition of major source found
in 40 CFR Part 70.2, which 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 facility.
However, EPA notes that relatively few sources will be excluded from
the scope of the State's title V program as a result of this approach.
Moreover, the State has committed to undertake a rulemaking designed to
assure that R&D facilities that are collocated with manufacturing
facilities and which are under common control and belonging to a single
major industrial grouping will be considered as the same facility for
determining title V applicability to the source. Finalization of this
rulemaking is a prerequisite to obtaining full program approval.
The DEHNR, WNCRAPCA, FCDEA, and MCDEP definition of ``title I
modification'' does not include changes reviewed under a minor source
preconstruction review program (``minor NSR changes''). The EPA is
currently in the process of determining the proper definition of that
phrase. As further explained below, EPA has solicited public comment on
whether the phrase ``modification under any provision of title I of the
Act'' in 40 CFR 70.7(e)(2)(i)(A)(5) should be interpreted 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 by EPA as part of the State Implementation Plan under section
110(a)(2)(C) of the Clean Air Act.
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
[[Page 44807]]
narrow definition of ``title I modifications'' to receive interim
approval (59 FR 44572). The Agency explained its view that the better
reading of ``title I modifications'' includes minor NSR and pre-1990
NESHAP requirements, and solicited public comment on the proper
interpretation of that term (59 FR 44573). The Agency stated that if,
after considering the public comments, it continued to believe that the
phrase ``title I modifications'' should be interpreted as including
minor NSR changes, it would revise the interim approval criteria as
needed to allow states with a narrower definition to be eligible for
interim approval.
The EPA hopes to finalize its rulemaking revising the interim
approval criteria under 40 CFR 70.4(d) expeditiously.1 If EPA
establishes in its rulemaking that the definition of ``title I
modifications'' can be interpreted to exclude changes reviewed under
minor NSR programs, the definition of ``title I modification'' would be
fully consistent with part 70. Conversely, if EPA establishes through
the rulemaking that the definition must include changes reviewed under
minor NSR, the DEHNR, WNCRAPCA, FCDEA, and MCDEP definition of ``title
I modifications'' will become a basis for interim approval. If the
definition becomes a basis for interim approval as a result of EPA's
rulemaking, the DEHNR, WNCRAPCA, FCDEA, and MCDEP would be required to
revise their definition to conform to the requirements of part 70.
\1\Publication of the proposed interim approval criteria
revisions was delayed until August 29, 1994, and EPA received
several requests to extend the public comment period until November
27, 1994. 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)).
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Accordingly, today's proposed approval does not identify the DEHNR,
WNCRAPCA, FCDEA, and MCDEP definition of ``title I modification'' as
necessary grounds for either interim approval or disapproval. Again,
although EPA has reasons for believing that the better interpretation
of ``title I modifications'' is the broader one, EPA does not believe
that it is appropriate to determine whether this is a program
deficiency until EPA completes its rulemaking on this issue.
The DEHNR program, in Regulation 15A NCAC 2Q.0507 and associated
permit application forms (MCAPCO Regulation 1.5507, FCAQTC Regulation
3Q.0507, and WNCRAPCARR Regulation 17.0507), substantially meets the
requirements of 40 CFR Part 70.5 for complete permit application forms.
However, Regulation 15A NCAC 2Q.0507 (MCAPCO Regulation 1.5507, FCAQTC
Regulation 3Q.0507, and WNCRAPCARR Regulation 17.0507) does not require
an applicant to include all fugitive emissions regardless of whether
such emissions will be used to determine title V applicability.
Pursuant to 40 CFR Part 70.3(d), an applicant must include all fugitive
emissions regardless of whether such emissions will be used to
determine title V applicability. The State has committed to undertake a
rulemaking designed to assure that this requirement in 40 CFR Part
70.3(d) is included in the State's regulations. Finalization of this
rulemaking is a prerequisite to obtaining full program approval.
Section 70.4(b)(2) requires state and local agencies to include in
their part 70 programs any criteria used to determine insignificant
activities or emission levels for the purposes of determining complete
applications. Section 70.5(c) states that an application for a part 70
permit may not omit information needed to determine the applicability
of, or to impose, any applicable requirement, or to evaluate
appropriate fee amounts. Section 70.5(c) also states that EPA may
approve, as part of a state or local program, a list of insignificant
activities and emissions levels which need not be included in permit
applications. Under part 70, a state or local agency must request and
EPA must approve as part of that program any activity or emission level
that the state wishes to consider insignificant. Part 70, however, does
not establish appropriate emission levels for insignificant activities,
relying instead on a case-by-case determination of appropriate levels
based on the particular circumstances of part 70 program under review.
For other state programs, EPA has proposed to accept, as sufficient
for full approval, potential per emission unit levels for insignificant
activities of 5 tons per year for criteria pollutants and the lesser of
1000 pounds per year or section 112(g) de minimis levels for hazardous
air pollutants (HAP). Provided the State or local program does not
allow applications to omit information needed to determine the
applicability of, or to impose any applicable requirement, or to
evaluate the fee amount required under the program's approved fee
schedule, EPA believes that these levels are sufficiently below
applicability thresholds for many applicable requirements to assure
that no unit potentially subject to an applicable requirement is left
off a title V application and are consistent with current permitting
thresholds in the State of North Carolina.
The State and local agency title V programs include three different
approaches to establishing insignificant activities and emissions
levels. Regulation 15A NCAC 2Q.0102(b)(1) (MCAPCO Regulation
1.5211(e)(1), FCAQTC Regulation 3Q.0102(b)(1), and WNCRAPCARR
Regulation 17.0102(b)(1)) establishes exemptions according to source
category and activity. These activities are not required to be included
in permit applications or permits issued by the State or local
agencies. Regulation 15A NCAC 2Q.0102(b)(2) (MCAPCO Regulation
1.5211(e)(2), FCAQTC Regulation 3Q.0102(b)(2), and WNCRAPCARR
Regulation 17.0102(b)(2)) establishes exemptions on the basis of size
or production rate. These activities are required to be included in the
permit application but are not required to be included in a facility's
permit. Some of these activities are exempted at levels of up to 40 tpy
for criteria pollutants. These levels are a substantial fraction of the
major source threshold and would almost certainly exclude units with
applicable requirements. EPA, therefore, finds that these emission
levels are too high to be considered insignificant. EPA proposes that,
in order to obtain full approval, the State must revise this regulation
to revise these threshold levels downward from potential emissions of
40 tpy for these activities to potential per emission unit levels for
insignificant activities of 5 tons per year for criteria pollutants and
the lesser of 1000 pounds per year or section 112(g) de minimis levels
for HAP or such other level as the State or local agencies can
demonstrate will not be likely to interfere with determining and
imposing an applicable requirement. Regulation 15A NCAC
2Q.0102(b)(2)(F) (MCAPCO Regulation 1.5211(e)(2)(F), FCAQTC Regulation
3Q.0102(b)(2)(F) and WNCRAPCARR Regulation 17.0102(b)(2)(F)) allows an
applicant to demonstrate to the satisfaction of the respective air
program Director that an activity would be negligible in air quality
impacts, not require an air pollution control device, and not violate
any applicable emission control standard when operating at maximum
design capacity or maximum operating rate, whichever is greater. If an
applicant could demonstrate that an activity qualified under the above
criteria or conditions, the activity would then be considered as an
insignificant activity. In order to obtain full program approval, the
DEHNR, WNCRAPCA, FCDEA, and MCDEP must revise their
[[Page 44808]]
regulations to provide that any insignificant activity granted under
15A NCAC 2Q.0102(b)(2)(F) or other respective local agency regulations
would be limited to potential per emission unit levels for
insignificant activities of 5 tons per year for criteria pollutants and
the lesser of 1000 pounds per year or section 112(g) de minimis levels
for HAP.
EPA is requesting comment on the appropriateness of these emission
levels for determining insignificant activities in the State of North
Carolina. This request for comment is not intended to restrict the
ability of the North Carolina State and local agencies to propose and
EPA to approve other emission levels if the State and local agencies
demonstrate that such alternative emission levels are insignificant
compared to the level of emissions from and types of units that are
permitted or subject to applicable requirements.
The DEHNR program, in Regulations 15A NCAC 2Q.0508 through 2Q.0513
and 2Q.0523 (MCAPCO Regulations 1.5508 through 1.5513 and 1.5523,
FCAQTC Regulation 3Q.0508 through 3Q.0513 and 3Q.0523, and WNCRAPCARR
Regulation 17.0508 through 17.0513 and 17.0523), substantially meets
the requirements of 40 CFR Parts 70.4, 70.5, and 70.6 for permit
content (including operational flexibility). The DEHNR, WNCRAPCA,
FCDEA, and MCDEP programs do provide for limited use of off-permit
changes as described in 40 CFR 70.4(b)(14). However, the State and
local agency programs limit the use of off-permit to changes which are
not governed by applicable requirements and changes which are
insignificant activities that remain as insignificant activities after
the change.
Part 70 requires prompt reporting of deviations from the permit
requirements. Section 70.6(a)(3)(iii)(B) requires the permitting
authority to define ``prompt'' in relation to the degree and type of
deviation likely to occur and the applicable requirements. Although the
permit program regulations should define ``prompt'' for purposes of
administrative efficiency and clarity, an acceptable alternative is to
define ``prompt'' in each individual permit. EPA believes that
``prompt'' should generally be defined as requiring reporting within
two to ten days of the deviation. Two to ten days is sufficient time in
most cases to protect public health and safety as well as to provide a
forewarning of potential problems. For sources with a low level of
excess emissions, a longer time period may be acceptable. However,
prompt reporting must be more frequent than the semiannual reporting
requirement, given this is a distinct reporting obligation under 40 CFR
70.6(a)(3)(iii)(A). Where ``prompt'' is defined in the individual
permit but not in the program regulations, EPA may veto permits that do
not contain sufficiently prompt reporting of deviations.
Regulation 15A NCAC 2Q.0508(f)(3) (MCAPCO Regulation 1.5508(f)(3),
FCAQTC Regulation 3Q.0508(f)(3), and WNCRAPCARR Regulation
17.0508(f)(3)) defines ``prompt'' in the DEHNR program with respect to
the reporting of deviations. The regulations require a permittee to
report by the next business day deviations from permit requirements or
any excess emissions and to follow up this report within two business
days with a written report to the respective air pollution control
agency.
The DEHNR, WNCRAPCA, FCDEA, and MCDEP have the authority to issue
variances from requirements imposed by State law. North Carolina
General Statutes (G.S.) 143-215.3E allows the DEHNR, WNCRAPCA, FCDEA,
and MCDEP discretion to grant relief from compliance with State
statutes and rules. EPA regards this provision as wholly external to
the program submitted for approval under part 70, and consequently
proposes to take no action on this provision of State law. EPA has no
authority to approve provisions of state law, such as the variance
provision referred to, that are inconsistent with title V or other
applicable requirements of the Act and would render permits and the
applicable requirements they implement unenforceable. 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 consistent with the applicable requirements of the
Act and 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, 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.''
Regulation 15A NCAC 2Q.0513 through 2Q.0516 and 2Q.0521 (MCAPCO
Regulation 1.5513 through 1.5516 and 1.5521, FCAQTC Regulation 3Q.0513
through 3Q.0516 and 3Q.0521, and WNCRAPCARR Regulation 17.0513 through
17.5516 and 17.5521), substantially meets the permit processing
requirements of 40 CFR 70.7 (including minor permit modifications) and
70.8. However, Regulation 15A NCAC 2Q.0514(a)(4) (MCAPCO Regulation
1.5514(a)(4), FCAQTC Regulation 3Q.0514(a)(4), and WNCRAPCARR
Regulation 17.0514(a)(4)) allows administrative permit amendments to be
used to change test dates or construction dates. While EPA believes
that this is an acceptable way to utilize administrative permit
amendments, EPA is concerned that this provision could be used to alter
other requirements of the Act. The State has proposed changes to this
regulation that if adopted will clarify that such changes can be
accommodated under an administrative amendment such that no applicable
requirements are violated. Regulation 15A NCAC 2Q.0514(a)(5) (MCAPCO
Regulation 1.5514(a)(5), FCAQTC Regulation 3Q.0514(a)(5), and
WNCRAPCARR Regulation 17.0514(a)(5)) allows administrative permit
amendments to move terms and conditions from the State-enforceable only
portion of the permit to the State-and-Federal enforceable portion of
the permit. EPA does not believe that all such changes would qualify to
be treated as administrative permit amendments. The State has proposed
changes to this regulation that if adopted will clarify that 15A NCAC
2Q.0514(a)(5) will only be used for those requirements which have
become Federally enforceable through section 110, 111, or 112 or other
parts of the Clean Air Act. Regulation 15A NCAC 2Q.0515(f) (MCAPCO
Regulation 1.5515(f), FCAQTC Regulation 3Q.0515(f), and WNCRAPCARR
Regulation 17.0515(f)) grants a permit shield for minor permit
modifications once a minor permit modification has been approved by the
State and EPA. Section 70.7(e)(2)(vi) expressly prohibits a permit
shield for minor permit modifications. The State has proposed changes
to this regulation that if adopted will clarify that a permit shield
may not be granted for minor permit modifications. Regulation 15A NCAC
2Q.0515(d) does not make provisions for the event a single minor permit
modification would exceed the thresholds listed in Regulation 15A
[[Page 44809]]
NCAC 2Q.0515(c). In this instance, 40 CFR 70.7 requires that a minor
permit modification be processed within 90 days after receiving an
application or 15 days after the end of EPA's 45-day review period,
whichever is later. The State has proposed changes to this regulation
that if adopted will clarify in the event a single minor permit
modification is submitted that exceeds the thresholds listed in
Regulation 15A NCAC 2Q.0515(c) the minor permit modification will be
processed within 90 days after receiving the minor permit modification
or 15 days after the end of the EPA's 45-day review period, whichever
is later. Regulation 15A NCAC 2Q.0517(b) (MCAPCO Regulation 1.5517(b),
FCAQTC Regulation 3Q.0517(b), and WNCRAPCARR Regulation 17.0517(b))
stipulates that any permit reopening will be completed within 18 months
after submittal of a complete application is required or within 18
months after the applicable requirement is promulgated if no
application is required. Section 70.7(f) requires that a title V permit
be reopened and the newly applicable requirement added within 18 months
after the applicable requirement is promulgated regardless of whether a
permit application is required to be submitted. The State has proposed
changes to this regulation that if adopted will clarify that a title V
permit be reopened and the new applicable requirement added within 18
months after the applicable requirement is promulgated. Regulation 15A
NCAC 2Q.0517(b)(2) (MCAPCO Regulation 1.5517(b)(2), FCAQTC Regulation
3Q.0517(b)(2), and WNCRAPCARR Regulation 17.0517(b)(2)) requires that
no reopening of a permit is required if the effective date of a new
applicable requirement is after the expiration of the permit term.
Section 70.7(f)(1)(i) stipulates that no reopening of a permit term is
required if the effective date of a newly applicable requirement is
after the expiration of the permit term unless the permit term was
extended based on the fact that the State had not renewed the permit
prior to the expiration of the permit. The State has proposed changes
to this regulation that if adopted will clarify that no reopening of a
permit term is required if the effective date of a newly applicable
requirement is after the expiration of the permit term unless the
permit term was extended based on the fact that the State had not
renewed the permit prior to the expiration of the permit. Regulation
15A NCAC 2Q.0518(f) (MCAPCO Regulation 1.5517(f), FCAQTC Regulation
3Q.0517(f), and WNCRAPCARR Regulation 17.0517(f)) provides that final
permit action will be taken within 18 months of a submittal of a
completed application, subject to adjudication, for a significant
permit modification or issuance of a title V permit. Section 70.7(a)(2)
requires that a state must issue a final permit within 18 months after
a complete application is received. Since this requirement is not
subject to adjudication, the State has proposed changes to this
regulation that if adopted will remove the phrase ``subject to
adjudication'' from this regulation. Finalization of these proposed
changes is required as a condition to full approval of the DEHNR,
WNCRAPCA, FCDEA, and MCDEP programs.
The public participation requirements of 40 CFR 70.7(h) were
addressed in Regulation 15A NCAC 2Q.0521 (MCAPCO Regulation 1.5521,
FCAQTC Regulation 3Q.0521, and WNCRAPCARR Regulation 17.0521). The
North Carolina State and local agency programs also substantially meet
the requirements of 40 CFR 70.11 regarding enforcement authority.
The aforementioned TSD contains the detailed analysis of the DEHNR,
WNCRAPCA, FCDEA, and MCDEP programs and describes the manner in which
these program substantially meet all of the operating permit program
requirements of 40 CFR part 70.
3. Permit Fee Demonstration
Section 502(b)(3) of the Act requires each permitting authority to
collect fees sufficient to cover all reasonable direct and indirect
costs necessary for the development and administration of its title V
operating permit program. Each title V program submittal must contain
either a detailed demonstration of fee adequacy or a demonstration that
aggregate fees collected from title V sources meet or exceed $25 per
ton of emissions per year (adjusted from 1989 by the Consumer Price
Index (CPI)). The $25 per ton + CPI is presumed, for program approval,
to be sufficient to cover all reasonable program costs and is thus
referred to as the ``presumptive minimum.''
The State of North Carolina, Forsyth County, and Mecklenburg County
have elected to assess a title V operating permit fee that is
equivalent to the Federal presumptive minimum fee amount. These
agencies do so by collecting an annual recurring flat fee in addition
to collecting a fee per ton of actual emissions. When the annual
recurring fee is added to the corresponding fee per ton of actual
emissions, the result is that each agency is collecting the presumptive
fee. Each agency's fee amounts differ based on program costs, number of
air pollution-emitting facilities, and the amount of each regulated
pollutant emitted that would produce the needed revenue for funding the
title V permit program operations. The DEHNR assesses a $14.63 per ton
fee plus an annual recurring flat fee of $5,100 for existing sources,
$10,900 for a new title V source, $7,200 for every significant
modification, $700 for every minor modification, and a $21,200 fee for
every new title V source which is also a Prevention of Significant
Deterioration (PSD) facility. The MCDEP assesses a per ton fee of $25
per ton plus the CPI. In addition, the County charges application fees
for modifications, initial permit issuance, and a surcharge for complex
processes which require greater staff time to evaluate. The FCDEA
assesses a $24 per ton fee plus an annual recurring flat fee of $4000.
Each of the three agencies submitted a fee demonstration which showed
that the fees collected will adequately cover the anticipated costs of
the operating permit program for the years 1995 through 1999.
The WNCRAPCA opted to charge less than the presumptive minimum fee.
The Agency's program submittal, therefore, included a detailed fee
demonstration in accordance with 40 CFR 70.9(b)(5). The fee
demonstration showed that the Agency was in fact collecting fees
adequate to support the title V permitting program. The Agency is
charging $21.29 per ton as well as an annual recurring flat fee of
$5000 per facility.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority for Section 112 Implementation
In its program submittal, the DEHNR, WNCRAPCA, FCDEA, and MCDEP
agencies demonstrated adequate legal authority to implement and enforce
all section 112 requirements through a title V permit. This legal
authority is contained in the North Carolina General Statutes and in
the North Carolina Administrative Code in regulatory provisions
defining ``applicable requirements'' and provisions stating that
permits must address all applicable requirements. EPA has determined
that this legal authority is sufficient to allow the State to issue
permits that assure compliance with all section 112 requirements.
EPA is interpreting the above legal authority to mean that the
DEHNR, WNCRAPCA, FCDEA, and MCDEP agencies are able to carry out all
section 112 activities with respect to part 70
[[Page 44810]]
and non-part 70 sources. For further rationale on this interpretation,
please refer to the TSD.
b. Implementation of 112(g) Upon Program Approval
EPA issued an interpretive notice on February 14, 1995 (60 FR
8333), which outlines EPA's revised interpretation of 112(g)
applicability. The notice postpones the effective date of 112(g) until
after EPA has promulgated a rule addressing that provision. The notice
sets forth in detail the rationale for the revised interpretation.
The section 112(g) interpretative notice explains that EPA is
considering whether the effective date of section 112(g) should be
delayed beyond the date of promulgation of the Federal rule so as to
allow states time to adopt rules implementing the Federal rule, and
that EPA will provide for any such additional delay in the final
section 112(g) rulemaking. Unless and until EPA provides for such an
additional postponement of section 112(g), the North Carolina State and
local agencies must have a Federally enforceable mechanism for
implementing section 112(g) during the period between promulgation of
the Federal section 112(g) rule and adoption of implementing State
regulations.
EPA is aware that the DEHNR, WNCRAPCA, FCDEA, and MCDEP lack a
program designed specifically to implement section 112(g). However, the
DEHNR, WNCRAPCA, FCDEA, and MCDEP do have preconstruction review
programs that can serve as adequate implementation vehicles during the
transition period because it would allow the State and local programs
to select control measures that would meet maximum achievable control
technology (MACT), as defined in section 112, and incorporate these
measures into a Federally enforceable preconstruction permit.
For this reason, EPA proposes to approve the use of the State of
North Carolina's preconstruction review program found in Regulation 15A
NCAC 2Q.0300 through 15A NCAC 2Q.0311 (MCAPCO Regulation 1.5210 through
1.5221, FCAQTC Regulation 3Q.0300 through 3Q.0311, and WNCRAPCARR
Regulation 17.0300 through 17.0311), under the authority of title V and
part 70, solely for the purpose of implementing section 112(g) to the
extent necessary during the transition period between EPA's section
112(g) regulation promulgation and adoption of a State rule
implementing EPA's section 112(g) regulations. Although section 112(l)
generally provides authority for approval of state air programs to
implement section 112(g), title V and section 112(g) provide for this
limited approval because of the direct linkage between the
implementation of section 112(g) and title V. The scope of this
approval is narrowly limited to section 112(g) and does not confer or
imply approval for purpose of any other provision under the Act (e.g.,
section 110). This approval will be without effect if EPA decides in
the final section 112(g) rule that sources are not subject to the
requirements of the rule until State and local regulations are adopted.
The duration of this approval is limited to 18 months following
promulgation by EPA of the section 112(g) rule to provide adequate time
for the State and local agencies to adopt regulations consistent with
the Federal requirements.
c. Program for Delegation of Section 112 Standards as Promulgated
The requirements for part 70 program approval, specified in 40 CFR
70.4(b), encompass section 112(l)(5) requirements for approval of a
state program for delegation of section 112 standards promulgated by
EPA as they apply to title V sources. Section 112(l)(5) requires that
the DEHNR, WNCRAPCA, FCDEA, and MCDEP programs contain adequate
authorities, adequate resources for implementation, and an expeditious
compliance schedule, which are also requirements under part 70.
Therefore, EPA also proposes to grant approval, under section 112(l)(5)
and 40 CFR 63.91, of the DEHNR, WNCRAPCA, FCDEA, and MCDEP programs for
receiving delegation of future section 112 standards and infrastructure
programs that are unchanged from the Federal standards as promulgated.
In addition, EPA proposes delegation of all existing standards and
infrastructure programs under 40 CFR parts 61 and 63 for part 70
sources and non-part 70 sources.2
\2\The radionuclide National Emission Standards for Hazardous
Air Pollutant (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 radionuclide 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. EPA will work with the State in the development of its
radionuclide program to ensure that permits are issued in a timely
manner.
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The DEHNR, WNCRAPCA, FCDEA, and MCDEP agencies have informed EPA
that they intend to accept the delegation of future section 112
standards on an automatic basis. The details of this delegation
mechanism are set forth in an addendum to the North Carolina State and
local agencies' title V program submittals.
d. Commitment to Implement Title IV of the Act
The DEHNR, WNCRAPCA, FCDEA, and MCDEP committed to take action,
following promulgation by EPA of regulations implementing sections 407
and 410 of the Act, or revisions to either part 72 or the regulations
implementing sections 407 or 410, to either incorporate the revised
provisions by reference or submit State and local regulations
implementing these provisions. In a subsequent review, it was found
that several additions were needed to the acid rain regulations for the
State and local agency rules to be adequate. In a letter dated August
7, 1995, the State committed to ensure that an acid rain rule which is
acceptable to EPA will be state-effective by April 1, 1996. The
WNCRAPCA, FCDEA, and MCDEP have agreed to update their regulations upon
the State's finalization of an acceptable acid rain regulation.
B. Proposed Actions
EPA proposes interim approval of the operating permit programs
submitted by the DEHNR, WNCRAPCA, FCDEA, and MCDEP on November 12,
1993, and as supplemented on December 17, 1993, February 28, 1994, May
31, 1994, and July 27, 1995. If promulgated, the DEHNR, WNCRAPCA,
FCDEA, and MCDEP must make the following changes to receive full
approval:
1. Definition of ``Major Source''
To obtain full approval, the DEHNR, WNCRAPCA, FCDEA, and MCDEP must
complete a rulemaking removing Regulation 15A NCAC 2Q.0502(c) (MCAPCO
Regulation 1.5502(c), FCAQTC Regulation 3Q.0502(c), and WNCRAPCARR
Regulation 17.0502(c)) to assure that R&D facilities which are
collocated with manufacturing facilities and which are under common
control and belonging to a single major industrial grouping will be
considered as the same facility for determining title V major source
applicability for a facility.
2. Inclusion of Fugitive Emissions in Permit Applications
To obtain full approval, the DEHNR, WNCRAPCA, FCDEA, and MCDEP must
amend their regulations such that an applicant must include all
fugitive emissions regardless of whether such emissions will be used to
determine title V applicability.
[[Page 44811]]
3. Insignificant Activities
To obtain full approval, the DEHNR, WNCRAPCA, FCDEA, and MCDEP must
revise Regulation 15A NCAC 2Q.0102(b)(2)(B) to adjust the insignificant
emission threshold levels downward from potential emissions of 40 tpy
to potential per emission unit levels for insignificant activities of 5
tons per year for criteria pollutants and the lesser of 1000 pounds per
year or section 112(g) de minimis levels for HAP. The DEHNR, WNCRAPCA,
FCDEA, and MCDEP must also revise Regulation 15A NCAC 2Q.0102(b)(2)(F)
to provide that the list granted under 15A NCAC 2Q.0102(b)(2)(F) must
be subject to the above-mentioned potential emission caps.
4. Administrative Permit Amendment Applicability
To obtain full approval, the DEHNR, WNCRAPCA, FCDEA, and MCDEP must
change Regulation 15A NCAC 2Q.0514(a)(4) to clarify that administrative
permit amendments may be used to change test dates or construction
dates only as long as no applicable requirements would be violated by
doing so. Also, the DEHNR, WNCRAPCA, FCDEA, and MCDEP agencies must
change the language of Regulation 15A NCAC 2Q.0514(a)(4) to clarify an
administrative permit amendment may used to move terms and conditions
from the State-enforceable side of the permit to the State and Federal
enforceable portion of the permit provided that the term being moved is
a requirement which has become Federally enforceable through sections
110, 111, or 112 or other parts of the Clean Air Act.
5. Minor Permit Modifications
To obtain full approval, the DEHNR, WNCRAPCA, FCDEA, and MCDEP must
change Regulation 15A NCAC 2Q.0515(f) to stipulate that a permit shield
may not be granted for any minor permit modification. In addition, to
obtain full approval, the DEHNR, WNCRAPCA, FCDEA, and MCDEP must change
Regulation 15A NCAC 2Q.0515(d) to specify that in the event an
applicant submits a single minor permit modification which exceeds the
thresholds listed in 15A NCAC 2Q.0515(c), the minor permit modification
must be processed within 90 days after receiving the application or 15
days after the end of EPA's 45 day review period, whichever is later.
6. Permit Reopenings To Incorporate Newly Applicable Requirements
To obtain full approval, the DEHNR, WNCRAPCA, FCDEA, and MCDEP must
amend Regulation 15A NCAC 2Q.0517(b) to provide that a title V permit
shall be reopened and reissued within 18 months after a newly
applicable requirement is promulgated. Also, to obtain full approval,
the DEHNR, WNCRAPCA, FCDEA, and MCDEP must amend Regulation 15A NCAC
2Q.0517(b)(2) to clarify that no reopening of a permit is required only
if the effective date of a newly applicable requirement is after the
expiration of the permit, unless the term of the permit was extended
based on the fact that the DEHNR, WNCRAPCA, FCDEA, and MCDEP had not
renewed the permit prior to its expiration.
7. Final Action on Permit Issuance
To obtain full approval, the DEHNR, WNCRAPCA, FCDEA, and MCDEP must
amend Regulation 15A NCAC 2Q.0518(f) to remove the phrase ``subject to
adjudication.''
This interim approval, which may not be renewed, extends for a
period of up to two years. During the interim approval period, the
DEHNR, WNCRAPCA, FCDEA, and MCDEP are protected from sanctions for
failure to have a program, and EPA is not obligated to promulgate a
Federal operating permit program in the State. Permits issued under a
program with interim approval have full standing with respect to part
70, and the one-year time period for submittal of permit applications
by subject sources begins upon interim approval, as does the three-year
time period for processing the initial permit applications.
The scope of the DEHNR, WNCRAPCA, FCDEA, and MCDEP part 70 programs
that EPA proposes to interimly approve in this notice would apply to
all part 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).
As discussed above in section II.A.4.c., EPA also proposes to grant
approval under section 112(l)(5) and 40 CFR 63.91 to the DEHNR,
WNCRAPCA, FCDEA, and MCDEP for receiving delegation of future section
112 standards and infrastructure programs that are unchanged from
Federal standards as promulgated. In addition, EPA proposes to delegate
existing standards and infrastructure programs under 40 CFR parts 61
and 63 for both part 70 sources and non-part 70 sources.
III. Administrative Requirements
A. Request for Public Comments
EPA requests comments on all aspects of this proposed interim
approval. Copies of the DEHNR, WNCRAPCA, FCDEA, and MCDEP submittals
and other information relied upon for the proposed interim approval are
contained in docket number NC-95-01 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 proposed interim approval. 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 approval
process; and
(2) to serve as the record in case of judicial review. EPA will
consider any comments received by September 28, 1995.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
EPA's actions under section 502 of the Act do not create any new
requirements, but simply address operating permit programs submitted to
satisfy the requirements of 40 CFR part 70. Because this action does
not impose any new requirements, it does not have a significant impact
on a substantial number of small entities.
D. 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
[[Page 44812]]
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 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: August 18, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
[FR Doc. 95-21415 Filed 8-28-95; 8:45 am]
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