[Federal Register Volume 59, Number 190 (Monday, October 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24372]
[[Page Unknown]]
[Federal Register: October 3, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[MS01; FRL-5082-8]
Clean Air Act Proposed Full Approval of Operating Permits
Program; State of Mississippi
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed full approval.
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SUMMARY: The EPA proposes to grant full approval to the Operating
Permits Program submitted by the State of Mississippi 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
November 2, 1994.
ADDRESSES: Written comments should be addressed to Carla Pierce at the
Region IV address.
Copies of the State's submittal and other supporting information
used in developing the proposed full approval are available for
inspection during normal business hours at the following location: U.S.
Environmental Protection Agency, Region IV, 345 Courtland Street, NE.,
Atlanta, GA 30365. Interested persons wanting to examine these
documents should make an appointment with the appropriate office at
least 24 hours before the visiting day.
FOR FURTHER INFORMATION CONTACT: Carla E. Pierce, Regional Program
Manager, Air Programs Branch, Air Pesticides & Toxics Management
Division, Region IV Environmental Protection Agency, 345 Courtland
Street, NE., Atlanta, GA 30365, telephone (404) 347-2864.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
As required under title V of the Clean Air Act Amendments of 1990,
(Clean Air Act (``Act'') sections 501-507), EPA has promulgated rules
which define the minimum elements of an approvable State operating
permits program and the corresponding standards and procedures by which
EPA will approve, oversee, and withdraw approval of State operating
permits programs (see 57 FR 32250 (July 21, 1992)). These rules are
codified at 40 Code of Federal Regulations (CFR) part 70. Title V
requires States to develop, and submit to EPA, programs for issuing
these operating permits to all major stationary sources and to certain
other sources.
The Act requires that States develop and submit these programs to
EPA by November 15, 1993, and that EPA act to approve or disapprove
each program within 1 year after receiving the submittal. 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. 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 2 years. If EPA has not fully approved a program by 2
years after the November 15, 1993 date, or by the end of an interim
program, it must establish and implement a Federal operating permits
program.
II. Proposed Action and Implications
A. Analysis of State Submission
1. Support Materials
Pursuant to section 502(d) of the Clean Air Act as amended (1990
Amendments), the Governor of each State must develop and submit to the
Administrator an operating permits program under State or local law or
under an interstate compact meeting the requirements of title V of the
Act. The Mississippi Department of Environmental Quality (MDEQ)
requested, under the signature of Governor Kirk Fordice, approval of
its operating permits program with full authority to administer the
program in all areas of the State of Mississippi, with the exceptions
of the Indian reservations and tribal lands.
In the MDEQ operating permits program submittal, Mississippi does
not assert jurisdiction over Indian lands or reservations for purposes
of 40 CFR part 70 and title V. EPA will, at a future date, conduct a
Federal title V operating permits program governing title V sources of
air emissions on Indian lands and reservations in Mississippi.
The Mississippi submittal, provided as Section I-''Program
Description and Implementation Summary,'' addresses 40 CFR 70.4(b)(1)
by describing how the MDEQ intends to carry out its responsibilities
under the part 70 regulations. The program description has been deemed
to be sufficient for meeting the requirement of 40 CFR 70.4(b)(1).
Pursuant to 40 CFR 70.4(b)(3), the Governor 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 a title V
operating permits program. The State of Mississippi submitted an
Attorney General's Opinion and a Supplemental Attorney General's
Opinion demonstrating adequate legal authority as required by Federal
law and regulation.
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. Appendix 10 of the MDEQ
submittal includes the permit application form, and it has been
determined that the application form meets the requirements of 40 CFR
70.5(c).
EPA intends to develop an Implementation Agreement with
Mississippi, although this proposed action does not depend on the
Implementation Agreement.
2. Regulations and Program Implementation
The State of Mississippi has submitted Regulations APC-S-6,
``Mississippi Air Emissions Operating Permit Regulations for the
purposes of title V of the Federal Clean Air Act,'' for implementing
the State part 70 program as required by 40 CFR 70.4(b)(2). Sufficient
evidence of their procedurally correct adoption was included in
Appendices 7 and 12 of the submittal. Copies of all applicable State
statutes and regulations which authorize the part 70 program, including
those governing State administrative procedures, were submitted with
the State's program.
The Mississippi operating permits regulations followed part 70 very
closely. The following requirements, set out in EPA's part 70 operating
permits program review, are addressed in Section II of the State's
submittal: (A) Applicability requirements, (40 CFR 70.3(a)): APC-S-6,
Section I.B; (B) Permit applications, (40 CFR 70.5): APC-S-6, Section
II; (C) Provisions for permit content, (40 CFR 70.6): standard permit
requirements: APC-S-6, Section III.A.1; permit duration: APC-S-6,
Section III.A.2; monitoring and related record keeping and reporting
requirements: APC-S-6, Section III.A.3; compliance requirements: APC-S-
6, Sections III.B and III.C; (D) Operational flexibility provisions,
(40 CFR 70.4(b)(12)): APC-S-6, Section IV.F; (E) Provisions for permit
issuance, renewals, reopenings and revisions, including public
participation (40 CFR 70.7): APC-S-6, Section IV; and (F) Permit review
by EPA and affected States (40 CFR 70.6): APC-S-6, Section V.
Mississippi Code Annotated (MSCA) sections 49-17-36 and 49-17-43,
satisfy the requirements of 40 CFR 70.11, for enforcement authority.
The MDEQ has included criteria to determine insignificant
activities and emissions levels in APC-S-6, Section VII. Section VII.A
includes activities/emissions sources which are not required to be
included in the permit application. Section VII.B includes activities/
emissions sources that must be listed in the permit application, but
their emissions do not have to be quantified. Notwithstanding Sections
VII.A and B, applicants are required to include all emission sources
and quantify emissions if needed to determine major source compliance
with an applicable requirement, or to collect any permit fee.
Applicants shall also include all emission sources with a potential to
emit greater than 1 pound per hour of any regulated air pollutant that
is not a hazardous air pollutant, or greater than 0.1 pound per hour of
any hazardous air pollutant.
Part 70 of the operating permits regulations 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 that 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 require sufficiently prompt reporting
of deviations. The State of Mississippi has not defined prompt in its
program regulations with respect to reporting of deviations. The MDEQ,
however, has committed to define ``prompt'' as discussed above in each
individual permit.
The State statute (MSCA 49-2-9) contains a provision that allows
the State to adopt, modify, repeal, and promulgate, after due notice
and hearing, and where not otherwise prohibited by Federal or State
law, to make exceptions to and grant exceptions and variances from, and
to enforce rules and regulations implementing or effectuating the
powers and duties of the Mississippi Commission on Environmental
Quality under any and all statutes within the Commission's
jurisdiction, and as the Commission may deem necessary to prevent,
control and abate existing or potential pollution. Regulation APC-S-6,
Section I.B.8 prohibits exceptions or variances to be granted from any
of the regulations regarding title V permits. The program submittal is
approvable based on these limitations placed on the state's variance
provision.
The complete MDEQ program submittal and the Technical Support
Document are available for review for more detailed information.
3. Permit Fee Demonstration
MSCA sections 49-17-14 and 49-17-30 require the establishment of a
permit fee sufficient to cover the reasonable direct and indirect costs
of the title V operating permit program. The fee amount is set annually
by order of the Mississippi Commission on Environmental Quality and is
based on either actual or allowable emissions at the request of the
source. Under State law, the minimum annual fee assessment is set at
$250 and the maximum annual fee assessment is set at $250,000.
The MDEQ has elected to assess a title V operating permit fee below
the Federal presumptive minimum permit fee. Mississippi's fee amount
was determined through a detailed fee demonstration study that was
conducted by the John C. Stennis Institute of Government at Mississippi
State University. The basis of the fee demonstration was a
comprehensive workload analysis for the title V program.
Based on the results of the fee demonstration study, the
Mississippi Commission on Environmental Quality issued an Order setting
the title V fee at $23.39 per ton of regulated air pollutants for the
first year of the title V program. The fee may be adjusted annually by
Order of the Commission to account for inflation factors or changing
program costs. EPA has determined that Mississippi's fee demonstration
is adequate and meets the requirements of 40 CFR 70.9.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority and/or Commitments for Section 112 Implementation.
Mississippi has demonstrated in its title V program submittal broad
legal authority to incorporate into permits and enforce all applicable
requirements. Additionally, the State has adopted APC-S-1, Section 8,
``Provisions for Hazardous Air Pollutants,'' which provides adequate
legal authority to implement and enforce applicable section 112 rules,
emission standards, and requirements. Mississippi has further
supplemented its broad legal authority with a commitment to ``take
action, following promulgation by EPA of regulations implementing
section 112 of title III of the Federal Clean Air Act, and to submit,
for EPA approval, MDEQ regulations implementing these provisions.'' EPA
has determined that this commitment, in conjunction with Mississippi's
broad statutory and regulatory authority, adequately assures compliance
with all section 112 requirements. EPA regards this commitment as an
acknowledgement by Mississippi of its obligation to obtain further
regulatory authority as needed to issue permits that assure compliance
with section 112 applicable requirements. This commitment does not
substitute for compliance with part 70 requirements that must be met at
the time of program approval.
EPA is interpreting the above legal authority and commitment to
mean that Mississippi is able to carry out all section 112 activities.
For further rationale on this interpretation, please refer to the
Technical Support Document accompanying this proposed full approval and
the April 13, 1993 guidance memorandum entitled ``Title V Program
Approval Criteria for Section 112 Activities,'' signed by John Seitz.
b. Implementation of 112(g) Upon Program Approval. As a condition
of approval of the part 70 program, Mississippi is required to
implement section 112(g) of the Act from the effective date of the part
70 program. Imposition of case-by-case determinations of MACT or
offsets under section 112(g) will require the use of a mechanism for
establishing federally enforceable restrictions on a source-specific
basis. EPA is proposing to approve Mississippi's preconstruction
permitting program found in APC-S-2 under the authority of title V and
part 70 solely for the purpose of implementing section 112(g) during
the transition period between title V approval and adoption of a State
rule implementing EPA's section 112(g) regulations. EPA believes this
approval is necessary so that Mississippi has a mechanism in place to
establish federally enforceable restrictions for section 112(g)
purposes from the date of part 70 approval. Section 112(l) provides the
authority for approval for the use of State air programs to implement
112(g), and title V and section 112(g) provide authority for this
limited approval because of the direct linkage between 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. If Mississippi does not
wish to implement section 112(g) through its preconstruction permit
program and can demonstrate that an alternative means of implementing
section 112(g) exists, EPA may, in the final action approving
Mississippi's part 70 program, approve the alternative instead.
This approval only extends until such time as the State is able to
adopt regulations consistent with any regulations promulgated by EPA to
implement section 112(g). Accordingly, EPA is proposing to limit the
duration of this approval to a reasonable time following promulgation
of section 112(g) regulations so that Mississippi, acting
expeditiously, will be able to adopt regulations consistent with the
section 112(g) regulations. EPA is proposing here to limit the duration
of this approval to 18 months following promulgation by EPA of section
112(g) regulations.
c. Program for Delegation of Section 112 Standards as Promulgated.
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 General Provisions Subpart A and standards as
promulgated by 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, EPA is
also proposing to grant approval under section 112(l)(5) and 40 CFR
63.91 of the State's program for receiving delegation of section 112
standards that are unchanged from the Federal standards as promulgated,
and to delegate existing standards under 40 CFR parts 61 and 63 for
part 70 sources.1 Mississippi has informed EPA that it intends to
accept delegation of section 112 standards through adoption by
reference. This program applies to both existing and future standards.
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\1\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. The 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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Additionally, Mississippi has requested delegation of current and
future section 112 standards under section 112(l)(5) and 40 CFR 63.91
for sources not subject to part 70 requirements. The State has
demonstrated that it has broad legal authority which covers all section
112 sources. MSCA sections 49-2-9 and 49-17-29(a), and APC-S-1 section
8, give the State the authority to implement each applicable section
112 rule, emission standard, or requirement for sources not subject to
part 70 requirements. Mississippi has demonstrated that it will
expeditiously implement section 112 requirements for these sources
pursuant to a schedule after EPA promulgation, and that it has
sufficient enforcement authority to adequately enforce section 112
requirements. The State has also demonstrated that it has adequate
resources to implement current section 112 standards. With respect to
future section 112 requirements, Mississippi has committed to provide
EPA with future demonstrations of resource adequacy as necessary when
new requirements are promulgated and the resource burdens associated
with those requirements become known. Therefore, for sources not
subject to part 70 requirements, EPA is proposing to grant approval
under section 112(l)(5) and 40 CFR 63.91 of the State's program for
receiving delegation of future section 112 standards that are unchanged
from Federal standards as promulgated, and to delegate existing
standards under 40 CFR parts 61 and 63 for non-part 70 sources.
d. Commitment to implement Title IV of the Act. The MDEQ has
committed to ``take action, following promulgation by EPA of
regulations implementing sections 407 and 410 of the Act, or revising
either part 72 or the regulations implementing sections 407 or 410, to
either incorporate such new revised provisions by reference or submit,
for EPA approval, MDEQ regulations implementing these provisions.'' The
MDEQ committed to adopt and submit to EPA the above referenced
regulations no later than January 1, 1995.
B. Proposed Actions
1. Full Approval of the Program
EPA proposes to fully approve the operating permits program
submitted to EPA from the State of Mississippi on November 15, 1993. As
a condition of full approval, Mississippi has issued a commitment to
EPA which confirms that the State's interpretation of a ``title I
modification'' is consistent with EPA's current interpretation of that
term. In addition, the State's regulatory definition is on its face
consistent with EPA's interpretation. See APC-S-6, Section I.A.31. EPA
believes the better interpretation of the phrase ``modifications under
any provision of title I of the Act'' in 40 CFR 70.7(e)(2)(i)(A)(5) 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 into the State Implementation Plan (SIP) under section
110(a)(2)(C) and regulations addressing source changes that trigger
National Emission Standards for Hazardous Air Pollutants (NESHAPs)
established pursuant to section 112 prior to the 1990 amendments. EPA
is soliciting comment in the current proposal to revise part 70 on the
proper definition of ``title I modification.'' Unless Mississippi
changes its own interpretation from that indicated in its commitment,
the program will be fully approvable under either option discussed in
that proposal. See 56 FR 44460, 44515 (August 29, 1994). EPA has
determined that the program is otherwise adequate to meet the minimum
elements of a State operating permits program as specified in 40 CFR
part 70.
2. Program for Straight Delegation of Section 112 Standards
As discussed above in section II.A.4.c, EPA is proposing to grant
approval under section 112(l)(5) and 40 CFR 63.91 of the State's
program for receiving delegation of section 112 standards that are
unchanged from Federal standards as promulgated. This program for
delegations applies to all section 112 sources. Additionally, EPA is
proposing to delegate existing standards under 40 CFR parts 61 and 63
for all section 112 sources.
III. Administrative Requirements
A. Request for Public Comments
EPA is requesting comments on all aspects of this proposed full
approval. Copies of the State's submittal and other information relied
upon for the proposed full 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, EPA in the development of this proposed full 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 November 2, 1994.
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.
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: September 21, 1994.
Patrick M. Tobin,
Acting Regional Administrator.
[FR Doc. 94-24372 Filed 9-30-94; 8:45 am]
BILLING CODE 6560-50-F
