[Federal Register Volume 61, Number 71 (Thursday, April 11, 1996)]
[Rules and Regulations]
[Pages 16063-16065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8664]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[AD-FRL-5454-2]


Clean Air Act (CAA) Final Interim Approval of Operating Permits 
Program and Delegation of 112(l) Authority; State of Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final interim approval.

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SUMMARY: The EPA is granting final interim approval of an operating 
permit program submitted by the state of Missouri for the purpose of 
complying with federal requirements for an approvable state program to 
issue operating permits to all major stationary sources and to certain 
other sources. The EPA is also giving interim approval, under section 
112(l) of the Act, to the state program for accepting delegation of the 
section 112 standards to enforce air toxics regulations.

EFFECTIVE DATE: This rule will become effective on May 13, 1996.

ADDRESSES: Copies of the state submittal and other supporting 
information used in developing the final interim approval are available 
for inspection during normal business hours at the following location: 
U.S. Environmental Protection Agency, Region VII, Air Branch, 726 
Minnesota Avenue, Kansas City, Kansas 66101.

FOR FURTHER INFORMATION CONTACT: Joshua Tapp at (913) 551-7606.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    Title V of the 1990 Clean Air Act Amendments (sections 501-507 of 
the Clean Air Act (``the Act'')), and implementing regulations at 40 
Code of Federal Regulations (CFR) Part 70, require that states develop 
and submit operating permits programs to EPA by November 15, 1993, and 
that the EPA act to approve or disapprove each program within one year 
after receiving the submittal. The EPA's program review occurs pursuant 
to section 502 of the Act and the Part 70 regulations, which together 
outline criteria for approval or disapproval. Additionally, section 
502(g) of the Act and the Part 70 regulations outline criteria for 
granting interim approval where a program substantially, but not fully, 
meets the requirements of the Act and Part 70. The EPA may grant 
interim approval to such a program for a period of up to two years.
    On January 13, 1995, the state of Missouri submitted an operating 
permits program to the EPA. Supplemental submissions were made by the 
state on August 14, 1995; September 19, 1995; and October 16, 1995. The 
state of Missouri has demonstrated that its program meets the minimum 
elements required for interim approval as specified in 40 CFR 70.4(d). 
The rationale for the EPA's determination that interim approval is 
appropriate is contained in the December 15, 1995, Federal Register 
document (60 FR 64404) which proposed interim approval of the program. 
In order to receive full approval, the state must adopt and submit to 
the EPA within 18 months of the effective date of this document certain 
rule revisions which were identified in the proposed interim approval 
and which are discussed later in this document.

B. Response to Comments

    On January 16, 1996, the EPA received a request to extend the 
comment period for its proposed interim approval of Missouri's program, 
due to the unavailability of the docket during federal furloughs which 
overlapped the comment period. The EPA granted a 30-day extension of 
the comment period in a February 5, 1996, Federal Register document. On 
February 13, 1996, the EPA received two comments regarding its proposed 
action from one commentor. The first comment requested clarification of 
the status of the permit application forms which Missouri submitted 
with its operating permit program. Specifically, the commentor feels 
that the state should be able to modify the forms as necessary to 
collect the information required for developing operating permits. The 
EPA agrees with the commentor that it is important for the state to 
have the ability to modify the permit application forms in order to 
collect the appropriate information. The EPA wishes to clarify that 
although 40 CFR 70.4(b)(4) requires the submission of such forms with 
the initial operating permit package, as a part of the program 
documentation, the EPA is not taking formal action on the forms 
themselves. The state can modify the forms to the extent that the 
modification is appropriate and sufficient to collect the required 
information.
    The second comment pertains to Missouri's exemption from 
application requirements for ``insignificant activities.'' The 
commentor has requested that the EPA provide the state of Missouri with 
the same flexibility in establishing thresholds for insignificant 
activities which the EPA has extended to other states which were given 
interim approval. In response, the EPA notes that the levels which 
Missouri has established for insignificant activities in its January 
13, 1995, submission are fully approvable by the EPA and are a specific 
element, among other elements, which must be present in order for the 
EPA to take an approval action. The state of Missouri may modify this 
or any other element of its operating permit program to the extent that 
those modifications are consistent with the Clean Air Act, 40 CFR Part 
70 regulations, and applicable EPA guidance. However, the EPA supports 
Missouri's choice to establish insignificant activity levels which are 
fully approvable.

C. Federal Oversight and Sanctions

    This interim approval will extend for 18 months following the 
effective date of final interim approval and cannot be renewed. During 
the interim approval period, the state of Missouri is protected from 
sanctions for failure to have an approved program, and the EPA is not 
obligated to promulgate, administer, and

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enforce a federal permits program for Missouri. 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 the effective date of interim approval, 
as does the three-year time period for processing the initial permit 
applications.
    If Missouri fails to submit a complete corrective program for full 
approval by the date six months before expiration of the interim 
approval, an 18-month clock for mandatory sanctions will commence. If 
Missouri then fails to submit a corrective program that the EPA finds 
complete before the expiration of that 18-month period, the EPA will 
apply sanctions as required by section 502(d)(2) of the Act, which will 
remain in effect until the EPA determines that the state of Missouri 
has corrected the deficiency by submitting a complete corrective 
program.
    If the EPA disapproves Missouri's complete corrective program, the 
EPA will be required under section 502(d)(2) to apply sanctions on the 
date 18 months after the effective date of the disapproval, unless 
prior to that date Missouri had submitted a revised program and the EPA 
had determined that it corrected the deficiencies that prompted the 
disapproval.
    If the EPA has not granted full approval to Missouri's program by 
the expiration of this interim approval, the EPA must promulgate, 
administer, and enforce a federal permits program for Missouri upon 
interim approval expiration.

II. Final Interim Action and Implications

A. Missouri's Submission and EPA-Requested Modifications

    The December 15, 1995, Federal Register document proposing interim 
approval of the Missouri program discussed two rules which are a part 
of the operating permit program that require revisions in order for the 
program to qualify for full approval. These rules are 10 CSR 10-6.020, 
``Definitions and Common Reference Tables'', and 10 CSR 10-6.065, 
``Operating Permits.'' Specifically, Missouri must make the following 
program revisions for full approval: (1) for rule 10 CSR 10-6.020: (a) 
revise (2)(I)7 to update a reference to the Standard Industrial 
Classification Manual, and (b) revise (3)(B), Table 2--List of Named 
Installations, to make it consistent with the list in the definition of 
major source in Sec. 70.2; and (2) for rule 10 CSR 10-6.065: (a) revise 
(1)(D)2 to clarify the meaning of ``fugitive air pollutant'' as it 
relates to Part 70 installations; (b) revise (3)(D) to clarify Part 70 
applicability with respect to emissions from exempt installations and 
emission units; (c) revise (6)(C)1.C.(II)(b) to clarify the retention 
of records requirements in permits, consistent with Sec. 70.6(a)(3); 
(d) revise (6)(C)1.G.(I) to clarify the general requirements for permit 
compliance and noncompliance, consistent with Sec. 70.6(a)(6); (e) 
revise (6)(C)4.A. to correct a citation error and to clarify that the 
requirement for the EPA and affected state review applies to general 
permits, consistent with Sec. 70.6(d)(1); (f) revise (6)(C)7.B.(IV) to 
make the emergency provision notice consistent with Sec. 70.6(g)(3); 
(g) revise (6)(C)8, operational flexibility provisions, to clarify the 
term ``emissions allowable under the permit''; (h) revise 
(6)(E)5.B.(I), minor permit modification criteria, to be consistent 
with Sec. 70.7(e)(2)(i)(A)(3); (i) revise (6)(E)5.B.(I) to add a 
paragraph (b) to incorporate the economic incentive provisions 
consistent with Sec. 70.7(e)(2)(i)(B); (j) revise (6)(E)5.C.(I)(b) to 
correct the threshold for group processing of minor permit 
modifications to be consistent with Sec. 70.7(e)(2)(i)(B); and (k) 
revise (6)(E)5.D.(II)(a), significant permit modification procedures, 
to be consistent with Secs. 70.4(b)(2) and 70.5(c), and make minor 
citation corrections to (6)(B)3.I.(IV), (6)(E)5.B.(II)(a), 
(6)(E)5.C.(V), and (6)(E)6.C.
    Additionally, Missouri has the authority to issue a variance from 
state requirements under Sec. 643.110 of the state statutes. This 
provision was not included by the state in its operating permit program 
submittal, and the EPA regards this provision as wholly external to the 
program submitted for approval under Part 70, and consequently is not 
taking action on this provision of state law. The EPA has no authority 
to approve provisions of state law, such as the variance provision 
referred to, which are inconsistent with the Act. The EPA does not 
recognize the ability of a permitting authority to grant relief from 
the duty to obtain or comply with a federally enforceable Part 70 
permit, except where such relief is granted through the procedures 
allowed by Part 70. A Part 70 permit may be issued or revised 
(consistent with Part 70 permitting procedures) to incorporate those 
terms of a variance that are consistent with applicable requirements. A 
Part 70 permit may also incorporate, via Part 70 permit issuance or 
modification procedures, the schedule of compliance set forth in a 
variance. However, the EPA reserves the right to pursue enforcement of 
applicable requirements, notwithstanding the existence of a compliance 
schedule in a permit to operate. This is consistent with 
Sec. 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.''
    The Technical Support Document describes in detail the revisions to 
these rules which are required for full approval of the program. The 
reader should refer to this document which is located in the public 
docket for further information.

B. Final Interim Action

    The EPA is granting interim approval for 18 months to the operating 
permits program submitted by the state of Missouri on January 13, 1995, 
with supplemental information submitted on August 14, 1995; September 
19, 1995; and October 16, 1995. The state of Missouri has demonstrated 
that its program meets the minimum elements required for interim 
approval as specified in 40 CFR Part 70. In order to receive full 
approval, the state must adopt and submit to the EPA certain rule 
changes within 12 months of receiving final interim approval. 
Specifically, the state must amend rules 10 CSR 10-6.020, Definitions, 
and 10 CSR 10-6.065, Operating permits, for consistency with Part 70, 
as described above.
    1. Regulations. This interim approval of the Missouri operating 
permits program includes the following regulations, solely as they 
relate to the Missouri Part 70 operating permit program: 10 CSR 10-
6.065, Operating Permits; 10 CSR 10-6.110, Submission of Emission Data, 
Emission Fees and Process Information; and 10 CSR 10-6.020, Definitions 
and Common Reference Tables.
    2. Jurisdiction. The scope of the Part 70 program approved in this 
document applies to all Part 70 sources (as defined in the approved 
program), within the state of Missouri, except sources of air 
pollution, if any, over which an Indian Tribe has jurisdiction. See 59 
FR 55813, 55815-18 (November 9, 1994). The term ``Indian Tribe'' is 
defined under the Act as ``any Indian Tribe, Band, Nation, or other 
organized group or community, including any Alaska Native village, 
which is federally recognized as eligible for the special programs and 
services provided by the United States to Indians, because of their 
status as Indians.'' See section 302(r) of the CAA;

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59 FR 43956, 43962 (August 25, 1994); 58 FR 54364 (October 21, 1993).
    3. CAA section 112(l). Requirements for approval, specified in 40 
CFR 70.4(b), encompass section 112(l)(5) requirements for approval of a 
program for delegation of section 112 standards as promulgated by the 
EPA as they apply to Part 70 sources. Section 112(l)(5) requires that 
the state's program contain adequate authorities, adequate resources 
for implementation, and an expeditious compliance schedule, which are 
also requirements under Part 70. Therefore, the EPA is also approving 
under section 112(l)(5) and 40 CFR 63.91 the state's program for 
receiving delegation of section 112 standards for both Part 70 and non-
Part 70 sources that are unchanged from federal standards as 
promulgated.
    4. CAA section 112(g). The EPA issued an interpretive notice on 
February 14, 1995 (60 FR 8333), which outlines the EPA's revised 
interpretation of 112(g) applicability. The notice postpones the 
effective date of 112(g) until after the EPA has promulgated a rule 
addressing that provision. The notice sets forth in detail the 
rationale for the revised interpretation.
    The section 112(g) interpretive notice explains that the EPA is 
still 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 the EPA will provide for any such additional delay in the final 
section 112(g) rulemaking. Unless and until the EPA provides for such 
an additional postponement of section 112(g), Missouri 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 federal regulations.
    The EPA is aware that Missouri lacks a program designed 
specifically to implement section 112(g). However, Missouri does have a 
program for review of new and modified hazardous air pollutant sources 
that can serve as an adequate implementation vehicle during the 
transition period, because it would allow Missouri to select control 
measures that would meet the maximum achievable control technology, as 
defined in section 112, and incorporate these measures into a federally 
enforceable preconstruction permit.
    The EPA is proposing to approve Missouri's preconstruction 
permitting program 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 112(g) promulgation and adoption 
of a state rule implementing the 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 purposes of any other provision under the Act 
(e.g., section 110). This approval will be without effect if the EPA 
decides in the final section 112(g) rule that sources are not subject 
to the requirements of the rule until state regulations are adopted. 
The duration of this approval is limited to 18 months following 
promulgation by the EPA of the 112(g) rule to provide adequate time for 
the state to adopt regulations consistent with the federal 
requirements.

III. Administrative Requirements

A. Docket

    Copies of the state submittal and other information relied upon for 
the final interim approval are contained in a docket maintained at the 
EPA Regional Office. The docket is an organized and complete file of 
all the information submitted to, or otherwise considered by, the EPA 
in the development of this final interim approval. The docket is 
available for public inspection at the location listed under the 
ADDRESSES section of this document.

B. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866 review.

C. Regulatory Flexibility Act

    The EPA's actions under section 502 of the Act do not create any 
new requirements, but simply address operating permits 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

    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, the 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 state operating permit program the state 
has elected to adopt the program provided for under Title V of the CAA. 
These rules may bind the state government to perform certain actions 
and also require the private sector to perform certain duties.
    To the extent that the program approved by this action will impose 
new requirements, sources are already subject to these regulations 
under state law. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this action. 
The EPA has also determined that this proposed action does not include 
a 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.

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.

    Dated: March 27, 1996.
William Rice,
Acting Regional Administrator.

    Part 70, title 40 of the Code of Federal Regulations is amended as 
follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401--7671q.

    2. Appendix A to Part 70 is amended by adding the entry for 
Missouri in alphabetical order to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Missouri

    (a) The Missouri Department of Natural Resources program 
submitted on January 13, 1995; August 14, 1995; September 19, 1995; 
and October 16, 1995. Interim approval effective on May 13, 1996.
    (b) Reserved.
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[FR Doc. 96-8664 Filed 4-10-96; 8:45 am]
BILLING CODE 6560-50-P