[Federal Register Volume 62, Number 106 (Tuesday, June 3, 1997)]
[Proposed Rules]
[Pages 30289-30290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14443]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 62, No. 106 / Tuesday, June 3, 1997 / 
Proposed Rules  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 70

[FRL-5833-4]

Operating Permits Program


Notice of Availability of Draft Rules and Accompanying 
Information

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability.

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SUMMARY: The EPA has placed in the docket for public review and comment 
a draft of the regulations and accompanying preamble that would revise 
the operating permits regulations in part 70 of chapter I, title 40, of 
the Code of Federal Regulations, and requirements for ``minor'' new 
source review (NSR) permitting in part 51 of chapter I, title 40, of 
the Code of Federal Regulations. Revisions to part 70 were proposed on 
August 29, 1994 and August 31, 1995, and revisions to part 51 were 
proposed on August 31, 1995. The draft placed in the docket reflects 
EPA's consideration of comments on the 1994 and 1995 proposals and 
contains additional proposed regulatory revisions and accompanying 
preamble discussion on some aspects of parts 70 and 51 in response to 
those comments, in particular the procedures for ``minor permit 
revisions.'' The draft placed in the docket is styled as a draft 
``final'' rule because EPA does not anticipate substantial additional 
changes. However, EPA is accepting comments on revisions to the draft 
final rule that have changed since the earlier proposals. The Agency 
also has placed in the docket a memorandum of options relating to 
``minor permit revisions'' that EPA is still considering for the final 
rule. The EPA is also accepting comment on these options.

DATES: Comments on the draft notice must be received by July 3, 1997.

ADDRESSES: The draft notice and accompanying information is available 
in EPA's Air Docket number A-93-50 as items VI-A-1, VI-A-2, and VI-A-3. 
This docket is available for public inspection and copying between 8:30 
a.m. and 3:30 p.m., Monday through Friday, at the address listed below. 
A reasonable fee may be charged for copying. The address of the EPA air 
docket is: EPA Air Docket (LE-131), Attention: Docket Number A-93-50, 
Room M-1500, Waterside Mall, 401 M Street SW, Washington, DC, 20460.
    The draft notice and accompanying information may also be 
downloaded from the Internet at: http://134.67.104.12/html/caaa/
t5pg.htm.
    Comments on the materials referenced in today's notice must be 
mailed (in duplicate if possible) to: EPA Air Docket (LE-131), 
Attention: Docket No. A-93-50, at the above address. Please identify 
comments as pertaining to today's notice of availability of items VI-A-
1, VI-A-2, and VI-A-3.

FOR FURTHER INFORMATION CONTACT: Ray Vogel (telephone 919-541-3153) or 
Roger Powell (telephone 919-541-5331), Mail Drop 12, EPA, Information 
Transfer and Program Integration Division, Research Triangle Park, 
North Carolina, 27711. Internet addresses are: 
[email protected] and [email protected].

SUPPLEMENTARY INFORMATION: The part 70 regulations were originally 
promulgated on July 21, 1992 (57 FR 32250). Revisions to part 70 were 
proposed on August 29, 1994 (59 FR 44460). Revisions to parts 51 and 70 
were proposed on August 31, 1995 (60 FR 45530). Due to the length of 
time that has passed since the proposal notices, EPA has received 
numerous inquiries about the Agency's intended final action on those 
proposals. The Agency is making the draft notice available both for 
informational purposes and for purposes of considering any final 
comments from interested parties on the part 51 and part 70 revisions 
prior to final action.
    Following EPA review of any additional comments on these materials, 
the Agency will prepare and publish a final rule that will constitute 
final action on the proposed revisions to parts 70 and 51.
    As noted above, the draft notice reflects EPA's consideration of 
previously submitted comments, and includes further additional 
regulatory changes that might be finally adopted, along with 
accompanying preamble discussion. The EPA seeks comment only on 
revisions and options in materials referenced in today's notice that 
have changed since the earlier proposals, including in particular the 
following issues:
    (1) The provisions for minor permit revisions; review by EPA, 
affected States, and the public; and eligibility criteria for de 
minimis permit revisions;
    (2) The definition of potential to emit, in response to the vacatur 
and remand of the definition in Clean Air Implementation Project, et 
al. v. EPA following petitioners' challenge to the definition's Federal 
enforceability requirement;
    (3) The absence of a mandate for emissions cap permits, including 
plantwide applicability limits and advance new source review, as a 
minimum element of State part 70 programs; and
    (4) Review of EPA's interpretation of the collocation procedures 
for part 70 major sources as applied to unlisted sources of fugitive 
emissions.
    With respect to this last issue, section 501 of the Clean Air Act 
states that a major source for purposes of title V includes any source 
that is a ``major stationary source'' as defined in section 302 or part 
D of title I. In defining a major source in the original part 70 
rulemaking, EPA accordingly looked to the definitions of major sources 
in section 302 and part D of title I, with particular focus on the 
approach followed by EPA in the NSR program as a result of the Alabama 
Power litigation. The EPA concluded that aggregating sources by 
standard industrial classification (SIC) code at the source site to 
determine whether a source would be major is the approach intended by 
Congress (56 FR 21712, 21724). The EPA further concluded that 
aggregation by SIC code should be done in a manner consistent with 
established NSR procedures, including application of the collocation 
rules. The collocation rules applicable to NSR were promulgated on 
August 7, 1980 (45 FR 52695) and further clarified on November 28, 1989 
(54 FR 48870).
    The National Mining Association (formerly the American Mining 
Congress) and the American Forest and Paper Association petitioned for 
review of the original part 70 rule, in part, because of the Agency's 
interpretation

[[Page 30290]]

that the part 70 major source definition must encompass the established 
NSR collocation provisions. In particular, the petitioners asserted 
that the Agency's interpretation of its part 70 collocation provisions 
would have the effect of subjecting unlisted sources of fugitive 
emissions to part 70 without undertaking a section 302(j) rulemaking. 
While not conceding the merits of the petitioners' arguments, EPA 
sought and received from the United States Court of Appeals for the 
District of Columbia Circuit a voluntary remand in early 1995 to allow 
the Agency to reconsider its interpretation.1 The Agency 
concluded that one aspect of that reconsideration should include review 
of whether application of the NSR approach to unlisted sources of 
fugitive emissions is appropriate for title V purposes.
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    \1\ At the time of the remand, EPA anticipated that the relevant 
issues would be addressed in a new rulemaking. However, in comments 
submitted with respect to the supplemental proposal to amend the 
part 70 regulations (60 FR 45530, August 31, 1995), the National 
Mining Association requested that EPA clarify in the preamble to the 
final regulations the terms of the voluntary remand. The EPA now has 
determined that the current part 70 rulemaking is an appropriate 
vehicle for addressing all collocation issues that were the subject 
of the litigation.
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    Prior to the voluntary remand, EPA had clarified its decision to 
apply the NSR approach to major source determinations for purposes of 
title V in its August 1994 notice of proposed rulemaking revising the 
part 70 regulations. Specifically, EPA proposed to amend the definition 
of major source to make clear that the support facility test applied in 
NSR also applied in determining the scope of a source for title V. 
Several industry commenters expressed opposition to including the 
support facility concept in part 70 source determinations, while 
several State and local governments generally supported the 
clarification of the major source definition.
    In responding to comments regarding the support facility test, it 
became apparent to EPA that the issue of whether the NSR approach 
should be applied to unlisted sources of fugitive emissions is closely 
connected with the more fundamental question of whether it is 
appropriate to apply the NSR approach (including the support facility 
concept) in part 70 source determinations generally. The Agency 
accordingly has reviewed the questions raised in the petitioners' 
challenge of the original part 70 regulations of whether the support 
facility test should be applied to unlisted sources of fugitive 
emissions or whether such sources constitute a special case requiring a 
302(j) rulemaking. The EPA has also reviewed the broader question of 
whether EPA's approach to the collocation issues as applied to unlisted 
sources of fugitive emissions should be consistent with the Agency's 
approach in NSR. As explained in the draft part 70 preamble referenced 
herein, the Agency has determined at this time that in making major 
source determinations under title V, it is appropriate to apply the NSR 
approach and that there is no basis for excluding unlisted sources of 
fugitive emissions from this general approach.

    Dated: May 22, 1997.
Mary D. Nichols,
Assistant Administrator for Air and Radiation.
[FR Doc. 97-14443 Filed 6-2-97; 8:45 am]
BILLING CODE 6560-50-P