[Federal Register Volume 67, Number 57 (Monday, March 25, 2002)]
[Notices]
[Pages 13626-13627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6941]


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ENVIRONMENTAL PROTECTION AGENCY

[MO 153-1153; FRL-7161-8]


Notice of Deficiency for Clean Air Act Operating Permit Program 
in Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of deficiency and notice of availability.

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SUMMARY: Pursuant to its authority under section 502(i) of the Clean 
Air Act (Act) and the regulations on Federal oversight and sanctions, 
EPA is publishing this Notice of Deficiency (NOD) for Missouri's Clean 
Air Act title V operating permits program. The NOD is based upon EPA's 
finding that several state requirements do not meet the minimum Federal 
requirements. Publication of this notice is a prerequisite for 
withdrawal of Missouri's title V program approval, but EPA is not 
withdrawing the program through this action. This notice also provides 
information regarding the availability of additional related 
information.

EFFECTIVE DATE: March 25, 2002. Because this Notice of Deficiency is an 
adjudication and not a final rule, the Administrative Procedure Act's 
30-day deferral of the effective date of a rule does not apply.

FOR FURTHER INFORMATION CONTACT: Harriett Jones, EPA, Region 7, Air, 
RCRA, and Toxics Division, Air Permitting and Compliance Branch (ARTD/
APCO), 901 North 5th Street, Kansas City, KS 66101, (913) 551-7703, or 
by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On May 22, 2000, EPA promulgated a rulemaking that extended the 
interim approval period of 86 operating permits programs until December 
1, 2001 (65 FR 32035). The Sierra Club and the New York Public Interest 
Research Group challenged the action. In settling the litigation, EPA 
agreed to publish a notice in the Federal Register, so that the public 
would have the opportunity to identify and bring to EPA's attention 
alleged deficiencies in title V programs. EPA published that notice on 
December 11, 2000 (65 FR 77376).
    As stated in the Federal Register notice, EPA agreed to respond by 
December 1, 2001, to timely public comments on programs that have 
obtained interim approval; and EPA agreed to respond by April 1, 2002, 
to timely comments on fully approved programs. EPA is publishing a NOD 
because the Agency has determined that deficiencies exist and is 
notifying all commenters in writing to explain the reasons for not 
making a finding of deficiency on other issues. EPA received two timely 
comment letters pertaining to Missouri's title V program, one from the 
Sierra Club and the other from the National Environmental Development 
Association/Clean Air Regulatory Project (NEDA/CARP). In reviewing the 
commenters' concerns, EPA agreed that some of the comments identify 
deficiencies in Missouri's program. EPA is addressing those 
deficiencies in this notice. In addition, the commenters raised other 
issues that EPA has determined are not deficiencies. EPA is responding 
to the commenters in writing, explaining the basis for EPA's decision.
    Under EPA's permitting regulations, citizens may, at any time, 
petition EPA regarding alleged deficiencies in state title V operating 
permit programs. In addition, EPA may on its own identify deficiencies. 
If, in the future, EPA agrees with a new citizen petition or otherwise 
identifies deficiencies, EPA may issue a new NOD.

II. Description of Action

1. Modifications to Acid Rain Portion of Operating Permit

    EPA's regulations at 40 CFR 70.7(e), which pertain to minor and 
significant modifications of operating permits, specify that permit 
modifications for purposes of the acid rain portion of the permit shall 
be governed by regulations promulgated under title IV of the Act. 
Although Missouri's regulations do include this requirement at 10 CSR 
10-6.065(6)(E)4.B. for administrative amendments, the requirement is 
not included in the minor and significant permit modification 
procedures at 10 CSR 10-6.065(6)(E)5. Because of the omission of this 
requirement, the state's program does not comply with the requirements 
of the Act and 40 CFR part 70. The state has initiated procedures to 
add this requirement to its regulations.

2. Minor Permit Modifications

    EPA's regulations at 40 CFR 70.7(e)(2)(ii)(C) require that an 
application for a minor permit modification must include certification 
by a responsible official that the requested modification meets the 
criteria for use of the minor permit modification procedures and a 
request that such procedures be used. The state's regulations governing 
minor permit modifications at 10 CSR 10-6.065(6)(E)5.B. fail to include 
this requirement. Because of the omission of this requirement, the 
state's program does not comply with the requirements of the Act and 40 
CFR part 70. The state has initiated procedures to add this requirement 
to its regulations.

3. Contemporaneous Written Notice of Off-Permit Changes

    EPA's regulations at 40 CFR 70.4(b)(14)(ii) mandate that if an 
approved program allows certain ``off-permit'' changes (i.e., changes 
that are not addressed or prohibited by the permit) to be made without 
a permit

[[Page 13627]]

revision, the state's regulations must require that the source provide 
``contemporaneous'' written notice of each change to the permitting 
authority and to EPA, except for those that are determined to be 
insignificant. Missouri's regulations at 10 CSR 10-6.065(6)(C)9.A. do 
allow certain ``off-permit'' changes to be made without a permit 
revision, and written notice of each change is required at 10 CSR 10-
6.065(6)(C)9.B. However, although this regulation is titled 
``Contemporaneous notice, except insignificant activities'', the 
wording of Missouri's regulation (``permittee must provide written 
notice of the change * * * no later than the next annual emissions 
report'') effectively results in allowing up to one year for 
notification of the change to be submitted. Therefore, EPA does not 
believe that the rule ensures ``contemporaneous'' submission of the 
written notice, and finds that the state's program does not comply with 
the requirements of the Act and 40 CFR part 70. The state has initiated 
procedures to revise this regulation accordingly.

III. Availability of EPA Responses to Citizen Comments

    As discussed above, EPA is responding in writing to all timely 
comments that citizens submitted pursuant to the settlement agreement. 
For all comments not resulting in a NOD, EPA will explain why it found 
that a NOD was not warranted. EPA Region 7 will also post its response 
letters on the Internet at http://www.epa.gov/oar/oaqps/permits/response/ or you may obtain a copy by contacting Harriett Jones, EPA 
Region 7, by phone at (913) 551-7730 or by e-mail at 
[email protected].

IV. Effect of Notice of Deficiency

    Part 70 provides that EPA may withdraw a part 70 program approval, 
in whole or in part, whenever the approved program no longer complies 
with the requirements of part 70 and the permitting authority fails to 
take corrective action. 40 CFR 70.10(c)(1). This section lists a number 
of potential bases for program withdrawal, including the case where the 
permitting authority's legal authority no longer meets the requirements 
of part 70. 40 CFR 70.10(b) sets forth the procedures for program 
withdrawal, and requires as a prerequisite to withdrawal, that the 
permitting authority be notified of any finding of deficiency by the 
Administrator and that the document be published in the Federal 
Register. Today's document satisfies this requirement and constitutes a 
finding of program deficiency. If the permitting authority has not 
taken ``significant action to assure adequate administration and 
enforcement of the program'' within 90 days after publication of a NOD, 
EPA may withdraw the state program, apply any of the sanctions 
specified in section 179(b) of the Act, or promulgate, administer, and 
enforce a Federal title V program. 40 CFR 70.10(b)(2). Section 
70.10(b)(3) provides that if a state has not corrected the deficiency 
within 18 months of the finding of deficiency, EPA will apply the 
sanctions under section 179(b) of the Act, in accordance with section 
179(a) of the Act. In addition, section 70.10(b)(4) provides that, if 
the state has not corrected the deficiency within 18 months after the 
date of NOD, EPA must promulgate, administer, and enforce a whole or 
partial program within 2 years of the date of the finding.
    This document is not a proposal to withdraw Missouri's title V 
program. Consistent with 40 CFR 70.10(b), EPA will wait at least 90 
days, at which point it will determine whether Missouri has taken 
significant action to correct the deficiencies.

V. Administrative Requirements

    Under section 307(b)(1) of the Act, petitions for judicial review 
of today's action may be filed in the United States Court of Appeals 
for the appropriate circuit by May 24, 2002.

    Dated: March 12, 2002.
James B. Gulliford,
Regional Administrator, Region 7.
[FR Doc. 02-6941 Filed 3-22-02; 8:45 am]
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