[Federal Register Volume 60, Number 185 (Monday, September 25, 1995)]
[Rules and Regulations]
[Pages 49340-49343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23719]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MO-21-1-6443(a); FRL-5289-6]


Approval and Promulgation of Implementation Plans and Delegation 
of 112(l) Authority; State of Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: Missouri submitted its Rule 10 CSR 10-6.065, entitled 
``Operating Permits,'' for Federal approval. The rule would establish a 
mechanism for creating federally enforceable limitations that would 
reduce sources' potential to emit such that sources could avoid major 
source permitting requirements. This action approves this rule as 
satisfying the criteria set forth in the Federal Register of June 28, 
1989, for EPA approval of federally enforceable state operating permit 
programs (FESOP). In addition, this action addresses Missouri's program 
covering both criteria pollutants (regulated under section 110 of the 
Clean Air Act (CAA)) and hazardous air pollutants (HAP) (regulated 
under section 112).

DATES: This final rule is effective November 24, 1995, unless by 
October 25, 1995 adverse or critical comments are received.

ADDRESSES: Written comments should be addressed to: Joshua A. Tapp, Air 
Planning and Development Section, United States Environmental 
Protection Agency, 726 Minnesota Avenue, Kansas City, Kansas 66101.
    Copies of the State Implementation Plan (SIP) revision request and 
EPA's analysis are available for public inspection during normal 
business hours at the following address: United States Environmental 
Protection Agency, Region VII, Air and Toxics Division, 726 Minnesota 
Avenue, Kansas City Kansas 66101.

FOR FURTHER INFORMATION CONTACT: Joshua A. Tapp, Air Planning and 
Development Section, United States Environmental Protection Agency, 
Region VII, Kansas City, Kansas 66101 ((913) 551-7606).

SUPPLEMENTARY INFORMATION:

I. Review of State Submittal

    For many years, Missouri has been issuing permits for major new 
sources and for major modifications of existing sources. Throughout 
this time, Missouri has also been issuing permits establishing 
limitations on the potential emissions from new sources so as to avoid 
major source permitting requirements. This latter type of permitting 
has been the subject of various guidance from EPA, most notably the 
memorandum entitled ``Guidance on Limiting Potential to Emit in New 
Source Permitting'' dated June 13, 1989.
    The operating permit provisions in title V of the Clean Air Act 
Amendments of 1990 have created interest in mechanisms for limiting 
sources' potential-to-emit, thereby allowing the sources to avoid being 
defined as ``major'' with respect to title V operating permit programs. 
A key mechanism for such limitations is the use of FESOPs. EPA issued 
guidance on FESOPs in the Federal Register of June 28, 1989 (54 FR 
27274). On April 6, 1994, Missouri submitted its newly adopted rule 10 
CSR 10-6.065 to provide for FESOPs in Missouri. This rule would 
supplement the preexisting mechanism for establishing federally 
enforceable limitations on potential-to-emit (i.e., new source 
permits). This document evaluates whether Missouri has satisfied the 
requirements for this type of federally enforceable limitation on 
potential-to-emit.
    As specified in the Federal Register of June 28, 1989, the first 
provision necessary for an FESOP program is that the state must have 
approved operating permit regulations. Rule 10 CSR 10-6.065 sections 1, 
2, 3, 4(C)-(P), 5, and 7 serve as the foundation for the FESOP rule and 
the rule defines the ``intermediate'' permitting program. EPA approval 
of the program will satisfy the first provision for Federal 
enforceability.

[[Page 49341]]

    The second provision is that sources have a legal obligation to 
comply with permit terms, and that EPA may deem as ``not federally 
enforceable'' those permits which it finds fail to satisfy applicable 
requirements. Rule 10 CSR 10-6.065 requires sources to obtain permits 
to operate, authorizes Missouri to establish terms and conditions in 
these permits ``to ensure compliance with applicable requirements,'' 
and authorizes the state to suspend or revoke permits if the source 
violates the terms or conditions. In addition, Missouri's definition of 
``federally enforceable'' states that an operating permit is federally 
enforceable only if it establishes terms and conditions which require 
adherence to its requirements (10 CSR 10-6.020(2)F(2)). Thus, this rule 
imposes a legal obligation on sources to comply with permit terms.
    The third requirement for FESOPs is that the program require all 
limits to be at least as stringent as other applicable federally 
enforceable provisions. Rule 10 CSR 10-6.065(5)(C)1 provides that terms 
and conditions in permits must ``be at least as stringent as any other 
applicable limitations and requirements contained in the implementation 
plan or enforceable under the implementation plan.'' These rules 
contain no provisions authorizing terms and conditions any less 
stringent than the applicable requirements.
    The fourth requirement is that the permit provisions must be 
permanent, quantifiable, and otherwise enforceable as a practical 
matter. Permit ``permanence'' does not mean never providing for a 
modification, reissuance, or revocation, for these elements are 
fundamental in all air permit programs. Permanence instead is 
considered in terms of provisions having continuing mandates, i.e., 
that EPA has assurance that the provisions are in effect through the 
life of the permit. In this case, the limitations on potential-to-emit 
will generally be sought by sources so as to be redefined from 
``major'' to ``minor'' for permitting purposes. Sources that obtain 
such limitations must keep these limitations in effect, so as never to 
be a ``major'' source violating the requirement for a ``major'' source 
permit. The requirement for permit provisions to be quantifiable and 
practically enforceable must be met on a permit-by-permit basis. 
Missouri's rules do provide in section 10 CSR 10-6.065(5)(C)2 for the 
issuance of permanent, quantifiable, and enforceable permits. Thus, 
Missouri's rules provide for legally enforceable permits that EPA may 
evaluate for practical enforceability.
    The fifth requirement is that the permits must be subject to public 
notice and review. Rules 10 CSR 10-6.065(5)(C)3 and 10 CSR 10-6.065(7) 
provide that permits intended to establish federally enforceable 
limitations on potential-to-emit may not be issued without first 
providing opportunity for public comment.
    Missouri has requested that EPA authorize federally enforceable 
limitations on potential-to-emit for both pollutants regulated under 
section 110 of the Act (``criteria pollutants'') and pollutants 
regulated under section 112 (HAPs). As discussed above, the June 28, 
1989, Federal Register document provided five specific criteria for 
approval of state operating permit programs for the purpose of 
establishing federally enforceable limits on a source's potential-to-
emit. This 1989 document addressed only SIP programs to control 
criteria pollutants. Federally enforceable limits on criteria 
pollutants (especially volatile organic compounds (VOC) and particulate 
matter) may have the incidental effect of limiting certain HAPs listed 
pursuant to section 112(b). This situation would occur when a pollutant 
classified as an HAP is also classified as a criteria pollutant (e.g., 
benzene). 1 As a legal matter, no additional program approval by 
EPA is required in order for these criteria pollutant limits to be 
recognized for this purpose.

    \1\  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 HAPs to below 
section 112 major source levels.
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    EPA has determined that the five approval criteria for approving 
FESOP 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). Hence, the five criteria discussed 
above are applicable to FESOP approvals under section 112(l) as well as 
under section 110.
    In addition to meeting the criteria in the June 28, 1989, document, 
an FESOP program for HAPs must meet the statutory criteria for approval 
under section 112(l)(5). This section allows EPA to approve a program 
only if it: (1) Contains adequate authority to ensure compliance with 
any section 112 standards or requirements; (2) provides for adequate 
resources; and (3) provides for an expeditious schedule for ensuring 
compliance with section 112 requirements.
    EPA plans to codify the approval criteria for programs limiting 
potential-to-emit HAPs in subpart E of part 63, the regulations 
promulgated to implement section 112(l) of the Act. EPA currently 
anticipates that these criteria, as they apply to FESOP programs, will 
mirror those set forth in the June 28, 1989, document, with the 
addition that the state's authority must extend to HAPs instead of, or 
in addition to, VOCs and particulate matter. EPA currently anticipates 
that FESOP programs that are approved pursuant to section 112(l) prior 
to the subpart E revisions will have had to meet these criteria and, 
hence, will not be subject to any further approval action.
    EPA believes it has authority under section 112(l) to approve 
programs to limit potential-to-emit HAPs 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 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 all instances of approval under section 112(l). EPA 
has already issued regulations under section 112(l) that would satisfy 
this requirement. Given the severe timing problems posed by impending 
deadlines under section 112 and title V, EPA believes it is reasonable 
to read section 112(l) to allow for approval of programs to limit 
potential-to-emit prior to issuance of a rule specifically addressing 
this issue.
    Missouri's satisfaction of the criteria published in the Federal 
Register of June 28, 1989, has been discussed above. In addition, 
Missouri's FESOP program meets the statutory criteria for approval 
under section 112(l)(5). EPA believes that Missouri has adequate 
authority to ensure compliance with section 112 requirements since the 
third criteria of the June 28, 1989, document is met-that is, since the 
program does not provide for waiving any section 112 requirement. 
Nonmajor sources would still be required to meet applicable section 112 
requirements.
    Regarding adequate resources, Missouri has included in its request 
for approval under section 112(l) a commitment to provide adequate 
resources to implement and enforce the program, which will be obtained 
from fees collected under title V. EPA believes that this mechanism 
will be sufficient to provide for adequate resources to implement this 
program, and will monitor the state's implementation of the program to 
ensure that adequate resources continue to be available.

[[Page 49342]]

    Missouri's FESOP program also meets the requirement for an 
expeditious schedule for ensuring compliance. A source seeking a 
voluntary limit on potential-to-emit is probably doing so to avoid a 
Federal requirement applicable on a particular date. Nothing in this 
program would allow a source to avoid or delay compliance with the 
Federal requirement if it fails to obtain the appropriate federally 
enforceable limit by the relevant deadline.

II. Rulemaking Action

    EPA finds that the criteria for Missouri to be able to issue FESOPs 
are met, and is today approving Rule 10 CSR 10-6.065 sections 1, 2, 3, 
4(C)-(P), 5, and 7. It is important to note that Missouri's rule 10 CSR 
10-6.065 contains the requirements for a part 70 permit program, an 
intermediate permit program which EPA is approving in this action, and 
a basic permit program which applies to minor sources. To some extent, 
the requirements for these programs overlap within the rule. EPA wants 
to make clear that it is only approving the language and requirements 
of this rule as they apply to Missouri's intermediate operating permit 
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 the Federal 
Register publication, EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed.
    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.
    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector, or to 
state, local, or tribal governments in the aggregate.
    Through submission of this SIP revision, the state has elected to 
adopt the program provided for under section 110 of the CAA. These 
rules may bind state and local governments to perform certain actions 
and also require the private sector to perform certain duties. To the 
extent that the rules being finalized for approval by this action will 
impose new requirements, sources are already subject to these 
regulations under state law. Accordingly, no additional costs to state 
or local governments, or to the private sector, result from this final 
action. EPA has also determined that this final action does not include 
a mandate that may result in estimated costs of $100 million or more to 
state or local governments in the aggregate or to the private sector.
    Nothing in this action should be construed as permitting, allowing, 
or establishing a precedent for any future request for revision to any 
SIP. EPA shall consider each request for revision to the SIP in light 
of specific technical, economic, and environmental factors, and in 
relation to relevant statutory and regulatory requirements.
    The Office of Management and Budget has exempted these regulatory 
actions from review under Executive Order 12866.
    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. United States EPA, 427 U.S. 246, 256-66 (S.Ct. 
1976); 42 U.S.C. 7410(a)(2)).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 24, 1995. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the 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).)

List of Subjects in 40 CFR Part 52

    Environmental Protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Volatile organic compounds.

    Dated: August 9, 1995.
Dennis Grams,
Regional Administrator.

    Part 52, chapter I, title 40 of the 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 AA--Missouri

    2. Section 52.1320 is amended by adding paragraph (c)(88) to read 
as follows:


Sec. 52.1320   Identification of plan.

* * * * *
    (c)* * *
    (88) This revision submitted by the Missouri Department of Natural 
Resources on March 31, 1994, relates to intermediate sources, and the 
EPA is not approving the basic operating permit program. This revision 
establishes a mechanism for creating federally enforceable limitations. 
Emission limitations and related provisions which are established in 
Missouri operating permits as federally enforceable conditions shall be 
enforceable by EPA. EPA reserves the right to deem permit conditions 
not federally enforceable. Such a determination will be made according 
to appropriate procedures and be based upon the permit, permit approval 
procedures, or permit requirements which do not conform with the 
operating permit program requirements or the requirements of EPA's 
underlying regulations.
    (i) Incorporation by reference.
    (A) 10 C.S.R. 10-6.065 (sections 1, 2, 3, 4(C)-(P), 5, and 7) 
Operating Permits, effective May 9, 1994.
    (ii) Additional material.
    (A) Letter from Missouri to EPA Region VII dated November 7, 1994, 
regarding how Missouri intends to 

[[Page 49343]]
satisfy the requirements set forth in the Clean Air Act Amendments at 
sections 112(l)(5)(A), (B), and (C).
    (B) Two letters from Missouri to EPA Region VII dated October 3, 
1994, and February 10, 1995, supplementing the November 7, 1994, letter 
and clarifying that Missouri does have adequate authority to limit 
potential-to-emit of hazardous air pollutants through the state 
operating permit program.
* * * * *
    3. Section 52.1323 is amended by adding paragraph (i) to read as 
follows:


Sec. 52.1323  Approval status.

* * * * *
    (i) Emission limitations and related provisions which are 
established in Missouri's operation permits as federally enforceable 
conditions shall be enforceable by EPA. EPA reserves the right to deem 
permit conditions not federally enforceable. Such a determination will 
be made according to appropriate procedures, and be based upon the 
permit, permit approval procedures, or permit requirements which do not 
conform with the operating permit program requirements or the 
requirements of EPA's underlying regulations.
[FR Doc. 95-23719 Filed 9-22-95; 8:45 am]
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