[Federal Register Volume 63, Number 22 (Tuesday, February 3, 1998)]
[Proposed Rules]
[Pages 5484-5489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2615]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WV026-6004; FRL-5957-7]
Approval and Promulgation of Air Quality Implementation Plans;
Approval Under Section 112(l) of the Clean Air Act; West Virginia;
Revisions to Minor New Source Review and Addition of Minor Operating
Permit Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve in part and disapprove in part a
State Implementation Plan (SIP) revision submitted by the State of West
Virginia. This SIP revision changes portions of West Virginia's minor
new source review permit program and establishes new provisions for
permitting existing stationary sources. This action proposes to
disapprove a new exemption from minor new source review for sources
which have been issued permits pursuant to the State's operating
permits program developed pursuant to Title V of the Clean Air Act
(``the Act''). This action also proposes to disapprove the provisions
governing the issuance of temporary construction and modification
permits. This action proposes to approve all other provisions of West
Virginia's minor new source review and existing stationary source
operating permit program. The intended effect of this action is to
propose approval of those State provisions which meet the requirements
of the Clean Air Act, and disapprove those State provisions which do
not. This action is being taken under section 110 of the Clean Air Act.
EPA is also proposing approval of West Virginia's minor new source
review and existing stationary source operating permit program pursuant
to Section 110 of the Act for the purpose of creating federally
enforceable permit conditions for sources of criteria air pollutants.
EPA is also proposing approval of West Virginia's minor new source
review and existing stationary source operating permit program under
section 112(l) of the Clean Air Act in order to extend the Federal
enforceability of State permits to include hazardous air pollutants
(HAPs).
DATES: Comments must be received on or before March 5, 1998.
ADDRESSES: Comments may be mailed to Kathleen Henry, Chief, Permit
Programs Section, Mailcode 3AP11, U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107.
Copies of the documents relevant to this action are available for
public inspection during normal business hours at the Air, Radiation,
and Toxics Division, U.S. Environmental Protection Agency, Region III,
841 Chestnut Building, Philadelphia, Pennsylvania 19107 and the West
Virginia Department of Environmental Protection, Office of Air Quality,
1558 Washington Street, East, Charleston, West Virginia, 25311.
FOR FURTHER INFORMATION CONTACT: Jennifer M. Abramson,(215) 566-2066,
or by e-mail at Abramson.Jennifer@epamail.epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
A. Minor New Source Review
Section 110(a)(2)(C) of the CAA requires every SIP to ``include a
program for the * * * regulation of the modification and construction
of any stationary source within the areas covered by the plan as
necessary to assure that national ambient air quality standards are
achieved.'' EPA's regulations now codified at Sec. Sec. 51.160 through
51.164 have since the early 1970s required a new source review (NSR)
program, and one is included in every state implementation plan (SIP).
This requirement predates and is separate from the requirement also set
forth in section 110(a)(2)(C) that States have ``major'' NSR permitting
programs under part C for the prevention of significant deterioration
of air quality (PSD) and part D for nonattainment area permitting
(nonattainment NSR) of title I.
B. Federally Enforceable State Operating Permit Programs
Many stationary source requirements of the CAA apply only to
``major sources''. Major sources are those sources whose emissions of
air pollutants exceed threshold emissions levels specified in the Act.
To determine whether a source is major, the Act focuses not only on a
source's actual emissions, but also on its potential emissions. Thus, a
source that has maintained actual emissions at levels below the major
source threshold could still be subject to major source requirements if
it has the potential to emit major amounts of air pollutants. However,
in situations where unrestricted operation of a source would result in
a potential to emit above major-source levels, such sources may legally
avoid program requirements by taking federally-enforceable permit
conditions which limit emissions to levels below the applicable major
source threshold, becoming what is termed a ``synthetic minor'' source.
1Federally-enforceable permit conditions, if violated, are
subject to enforcement by the Environmental Protection Agency (EPA) or
by citizens in addition to the state or local agency. On June 28, 1989,
EPA published guidance on the basic requirements for EPA approval of
(non-title V) federally enforceable state operating permit programs
(FESOPPs). See 54 FR 27274. Permits issued pursuant to such programs
may be used to establish federally enforceable limits on a source's
potential emissions to create ``synthetic minor'' sources.
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\1\ Several other mechanisms for major sources to become
``synthetic minors'' and legally avoid major source program
requirements exist. For more information, refer to the memorandums
entitled ``Extension of January 25, 1995 Potential to Emit
Transition Policy'' (August 28, 1996), ``Release of Interim Policy
on Federal Enforceability of Limitations on Potential to Emit''
(January 22, 1996), ``Options for Limiting the Potential to Emit
(PTE) of a Stationary Source under Section 112 and Title V of the
Clean Air Act (Act)'' (January 25, 1995), and ``Approaches to
creating Federally-Enforceable Emissions Limits'' (November 3,
1993).
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C. Federally Enforceable Permit Conditions for Hazardous Air Pollutants
Section 112(l) of the Act provides EPA with the authority to
approve state programs which regulate sources of HAPs, analogous to the
section 110 authority provided to EPA for sources of criteria air
pollutants. EPA believes it
[[Page 5485]]
has the authority under section 112(l) to approve state programs for
the purpose of making permit conditions involving HAPs federally
enforceable. EPA believes it is consistent with the intent of section
112 of the CAA for states to provide mechanisms through which sources
may avoid classification as major sources by obtaining federally
enforceable limits on potential to emit. Other available mechanisms for
sources of hazardous air pollutants to avoid classification as major
sources are available (See footnote 1).
II. Summary and Analysis
On August 26, 1994, the West Virginia Department of Environmental
Protection (WVDEP) submitted for EPA approval a revision to the West
Virginia State Implementation Plan (SIP) regarding the issuance of
minor new source review and federally enforceable state operating
permits. This SIP revision, entitled 45CSR13- ''Permits for
Construction, Modification, Relocation and Operation of Stationary
Sources of Air Pollutants, Notification Requirements, Temporary
Permits, General Permits, and Procedures for Evaluation'', amends and
replaces 45CSR13 ``Permits for Construction, Modification, or
Relocation of Stationary Sources of Air Pollutants, and Procedures for
Registration and Evaluation'', effective June 1, 1974, which was
approved into the SIP November 10, 1975. On September 5, 1996, the West
Virginia Department of Environmental Protection (WVDEP) submitted a
letter clarifying that West Virginia also requests EPA approval under
CAA section 112(l) of the 45CSR13 program submitted on August 26, 1994.
In order to evaluate the approvability of West Virginia's submittal
as a SIP revision, the changes from the SIP approved version of 45CSR13
must meet all applicable requirements (procedural and substantive) of
40 CFR part 51 and the CAA. EPA has reviewed this SIP revision package
in accordance with the completeness criteria described in section
110(k)(1) and 40 CFR part 51, appendix V and has found it to be
administratively and technically complete. The technical support
document (TSD) prepared in support of this proposed action contains a
detailed analysis of West Virginia's SIP submittal. The formal SIP
submittal, completeness determination and TSD are available for review
as part of the public docket at the times and locations listed in the
ADDRESSES section of this document.
EPA's requirements for SIP approval applicable to minor new source
review permitting programs are established in part 51, subpart I--
Review of New Sources and Modifications, Sec. Sec. 51.160. through
51.164. Other sections of subpart I, applicable only to new sources and
modifications which are major, do not apply and are thus not addressed
in this analysis. 2West Virginia's SIP submittal must also
satisfy the criteria discussed in the June 28, 1989 Federal Register
(54 FR 27274) in order for EPA to consider operating permits issued
pursuant to 45CSR13 to be federally enforceable on a permanent basis.
3These same criteria, in conjunction with the statutory
requirements of section 112(l)(5) of the Act, are used to evaluate the
approvability of the 45CSR13 program for the purpose of creating
federally enforceable permit conditions for sources hazardous air
pollutants (HAPs).
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\2\ West Virginia has developed separate rules to meet the
requirements of subpart I applicable to major sources, namely,
45CSR14 - ``Permits for Construction and Major Modification of Major
Stationary Sources of Air Pollution for the Prevention of
Significant Deterioration'' and 45CSR19 - ``Requirements for Pre-
Construction Review, Determination of Emissions Offsets for Proposed
New or Modified Sources of Air Pollutants and Emission Trading for
Intrasource Pollutants''.
\3\ In the memorandums entitled ``Release of Interim Policy on
Federal Enforceability of Limitations on Potential to Emit''
(January 22, 1996) and ``Options for Limiting the Potential to Emit
(PTE) of a Stationary Source under Section 112 and Title V of the
Clean Air Act (Act)'' (January 25, 1995), EPA announces a temporary
recognition of practically enforceable state limits on potential
emissions as being federally enforceable.
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A. Minor New Source Review
The SIP revision represents comprehensive changes from the SIP
approved version of West Virginia's minor new source review program.
For purposes of efficiency, the discussion and analysis of these
changes are grouped according to the following categories:
applicability, permit issuance procedures (including public
participation), and program features and nomenclature.
1. Applicability
West Virginia's submittal exempts constructions, modifications, and
relocations which are subject to the major preconstruction permit
requirements of West Virginia's 45CSR14 (PSD) or 45CSR19 (non-
attainment NSR) programs from minor new source review permitting
requirements. The purpose of this exemption is to avoid duplicative
permitting obligations for the construction and relocation of new major
sources, and for sources which undergo major modifications since such
activities are subject to the State's major new source review
permitting programs. The submittal also exempts a category of sources
referred to as ``Indirect Affected sources'' from West Virginia's minor
new source review program. Indirect sources are facilities such as
parking lots, highway projects, and airport constructions or expansions
which attract or potentially attract mobile sources of pollution. The
Federal requirement for state SIPs to include ``indirect source review
programs'' has been removed (see CAA section 110(a)(5)). West
Virginia's submittal also attempts to exempt sources which have been
issued operating permits pursuant to Title V of the Clean Air (herein
after referred to as ``Title V sources'') from minor new source review.
If approved into the SIP, such an exemption will apply to virtually all
major sources in West Virginia. Although constructions and
modifications at Title V sources are subject to the permit revision
procedures of West Virginia's Title V permitting program, such
procedures do not replace the Federal requirements for new source
review (major or minor) applicable to such activities. The effect of
this exemption is to allow constructions of new non-major sources and
non-major modifications at Title V sources to proceed without
considering the impact of such activities on the State's control
strategy (including applicable PSD increments) or ability to attain or
maintain national ambient air quality standards (NAAQS). Accordingly,
West Virginia is unable to prevent activities at Title V sources which
result in violations of the State's control strategy, or interfere with
attainment or maintenance of the NAAQS, a fundamental requirement of
new source review programs.
In addition to the categorical exemptions discussed above, West
Virginia's submittal changes applicability to minor new source review
in other ways. The program uses the terms ``stationary source'' and
``modification'' to define the scope of activities which are subject to
review. Both these terms are defined with emissions levels determining
what qualifies as either a ``stationary source'' or a ``modification''.
Unless subject to an emissions control rule promulgated by the
Commission, sources with emissions or potential emissions below the
specified ``stationary source'' emissions levels are not considered to
be ``stationary sources''. West Virginia employs a (six) 6 lb/hr
threshold for sources of VOC or any of the pollutants for which the
State has promulgated an ambient air quality standard (SO2, PM10, NO2,
CO, O3 and non-methane
[[Page 5486]]
hydrocarbons). The 6 lb/hr size threshold for stationary sources, a
component of West Virginia's SIP since the 1970's, now also applies to
sources of VOCs, a category of pollutants which are regulated as ozone
precursors. For sources of hazardous or toxic air pollutants (HAPS/
TAPS), West Virginia employs a new threshold equal to or above levels
employed in the State's toxic emissions control rule(45CSR27). These
levels range from (eight-tenths) 0.8 lbs/yr (Beryllium) to (ten
thousand)10,000 lbs/yr (Allyl Chloride, Trichloroethylene). Lead and
lead compounds are defined as HAPS/TAPS with a (twelve thousand) 12,000
lbs/year threshold.
Accordingly, West Virginia's minor new source review program
captures all non-major sources which are subject to State emission
control rules, and other non-major sources with potential or actual
emissions above established thresholds. Similarly, physical or
operational changes at stationary sources which result in emissions
increases below the ``modification'' emission levels are not considered
to be ``modifications''. Where the SIP-approved version of 45CSR13
contained no such emission levels to define modifications, West
Virginia's submittal employs a modification threshold of (two) 2 lbs/hr
or (five) 5 tons/year or more of any pollutant which is not a toxic or
hazardous air pollutant. For sources with potential emissions of
hazardous or toxic air pollutants equal to or greater than the levels
specified in West Virginia's toxic emissions control rule (45CSR27),
any change which results in an emissions increase is considered to be a
modification and subject to minor new source review. Changes at sources
with potential emissions below the 45CSR27 levels are also considered
to be modifications if the emissions increase would result in total
emissions at the source above the 45CSR27. Regardless of the pollutants
involved, the program requires changes which result in emission
increases below the modification emissions thresholds to be reported to
the State. On a case-by-case basis, the State may determine that such
activities must also be permitted. This notification requirement for
modifications provides an additional layer of protection which will
enable the State to determine whether small changes at sources will
interfere with the attainment and maintenance of the NAAQS, or violate
the control strategy (including PSD increments).
Similar to the Federal definition of the term ``major
modification'' in 40 CFR part 51, the definition of ``modification'' in
45CSR13 exempts certain types of actions. As a new exemption, section
2.18.d.A. precludes from being considered a modification the
installation or replacement of air pollution control equipment if the
new equipment is at least as effective as the equipment replaced and no
new air pollutant is discharged from its installation. EPA believes
that this exemption employs adequate safeguards for purposes of West
Virginia's minor new source review program. West Virginia's program
uses the terms ``major stationary source'' and ``major modification''
to establish the upper limits of the scope of the 45CSR13 program.
Identical terms are used to determine applicability in West Virginia's
major pre-construction permitting programs, 45CSR14 (PSD) and 45CSR19
(non-attainment NSR). 4Since 45CSR13 exempts construction
and modification-related activities which are subject to either 45CSR14
or 45CSR19, it is critical that these programs define ``major
stationary source'' and ``major modification'' consistently to avoid
confusion when determining which pre-construction permitting program
applies in a given instance. 5The 45CSR13 definition of the
term ``Major modification'' references the definitions continued in
45CSR14 and 45CSR19 and thus inherently satisfies EPA's concern about
definition parity. While the 45CSR13 definition of ``Major stationary
source'' is consistent with the definitions found in 45CSR14 and
45CSR19 in terms of emissions thresholds, the 45CSR13 definition does
not delineate when fugitive emissions need to be included as is done in
the major permit program rules. Without such a distinction, the 45CSR13
definition could be interpreted to require fugitive emissions to be
included in all cases so that certain sources of fugitive emissions are
``major sources'' under 45CSR13 but not under 45CSR14 and 45CSR19. This
presents a consistency problem since such sources would be exempt from
all new source review requirements. To address this issue, West
Virginia submitted a written clarification indicating that, with
respect to the inclusion of fugitive emissions in major stationary
source determinations, the definition of ``Major stationary source'' in
45CSR13 will be interpreted consistently with 45CSR14 and 45CSR19.
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\4\ The definition of the terms ``major stationary'' source and
``major modification'' in West Virginia's 45CSR14 (PSD) and 45CSR19
(non-attainment NSR), must be consistent with the federal
definitions found in section 40 CFR 51.165 (non-attainment New
Source Review(NSR)) and Sec. 51.166 (Prevention of Significant
Deterioration (PSD)).
\5\ The issue of consistency of terms is addressed in the
proposed revisions to title 40 of the Code of Federal Regulations
(40 CFR) parts 51, 70 and 71 published in the Federal Register on
August 31, 1995 (see 60 FR 45564). In this document, EPA proposes
rulemaking to clarify that all of the terms used in Sec. Sec. 51.160
through 51.164 have the same meaning as provided elsewhere in
subpart I of part 51, or in the Act.
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2. Permit Issuance Procedures
The procedures for permit issuance applicable to the issuance of
construction, modification, relocation, and existing stationary source
operating permits have been enhanced to satisfy the requirements of
Sec. 51.161 for new source review programs and the criteria set forth
by EPA on June 28, 1989 (57 FR 27274) for federally enforceable state
operating permit programs (FESOPPs). Other changes affecting permit
issuance include the addition of new provisions for conducting
completeness evaluations of permit applications, revised deadlines for
permit issuance, and the removal of outdated source registration
provisions. Provisions allowing sources to construct or modify by
default have also been removed.
The revised procedures also allow the Chief to issue temporary
permits which authorize experimental product or process changes for up
to six (6) months (which may be extended in writing up to twelve (12)
additional months). In acting to issue or deny an application for a
temporary permit, the Chief is required to provide a fifteen (15) day
public comment period on the temporary permit application.
EPA recognizes that, in some cases, a full-scale six (6) month
minor new source review permit issuance process for proposed
experimental product or process changes may be impracticable and/or
unnecessarily burdensome. EPA also recognizes that states should have
the ability to limit the public participation for certain minor new
source permitting actions. Since states can exempt certain activities
from minor NSR based on de minimis or administrative necessity grounds
in accordance with the criteria set forth in Alabama Power Co. V.
Costle, 636 F.2d 323(D.C. Cir. 1979), it follows that states should
also be able to provide partial or full exemption from the full public
process requirements of Sec. 51.160(e). Any such limitation on the full
public participation requirements of Sec. 51.160(e), however, should be
applied consistent with the environmental significance of the activity.
6Although
[[Page 5487]]
temporary permits are issued only in specific instances and for limited
periods of time, such conditions do not characterize situations of an
inherently less environmentally significant nature. The effect of the
temporary permitting procedure is that environmentally significant
constructions or modifications may be authorized on a temporary basis
without adequate opportunity for public participation. Without a
correlation to the environmental significance of the activity, EPA
cannot consider the minimum public process afforded, fifteen (15) days,
to be adequate in all instances.
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\6\ On August 31, 1995, EPA proposed a new paragraph (c) in
Sec. 51.161 to clarify that, except for certain specified
activities; state programs may vary procedures for, and timing of,
public review in light of the environmental significance of the
activity (see 60 FR 45564).
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3. Program Features and Nomenclature
The revisions to 45CSR13 include new administrative provisions for
issuing general permits authorizing construction or relocation of a
category of sources by the same operator, or involving the same or
similar precesses or pollutants, in accordance with the terms and
conditions specified in the general permit. The revised 45CSR13 also
establishes new provisions allowing for permit transfers after the
Chief determines that the proposed permittee has all necessary permit
responsibility. The new permittee must certify that a complete copy of
the permit application and permit has been reviewed, and that all terms
and conditions in the permit and operating parameters contained in the
application will be adhered to. The Chief must also be provided a
written agreement between the existing and new permittee with regard to
the specific transfer date and the extent of permit responsibility
between them. The revised 45CSR13 also includes a new provision for
permit cancellation requiring permit holders to submit requests for
cancellation in writing. The cancellation provision specifies that no
permit cancellation shall become effective until the permittee and EPA
have been given at least 30 days written notice. The cancellation
provision further specifies that permit cancellation will not excuse
any violation of permit terms or conditions prior to the effective date
of the permit cancellation.
The revisions to 45CSR13 include the addition of several new terms
and the modification of existing terms which are defined in a manner
consistent with the program's proper implementation and with the
corresponding definitions of Sec. Sec. 51.165 and 51.166 applicable to
major new source review permitting programs. The revisions also delete
several outdated terms such as ``indirect affected source''. These
changes update the programs definitions consistent with the current
terminology employed by the Act and with EPA's regulations.
B. Federally Enforceable State Operating Permit Programs
On June 28, 1989 EPA amended the definition of ``federally
enforceable'' to clarify that terms and conditions contained in state-
issued operating permits are federally enforceable provided that the
state's operating permits program is approved into the SIP under
section 110 of the CAA as meeting certain criteria, and provided that
the permit conforms to the requirements of the approved program (54 FR
27282). The five criteria set forth by EPA require state programs to:
(a) Be approved into the SIP; (b) impose legal obligations to conform
to the permit limitations; (c) provide for limits that are enforceable
as a practical matter; (d) issue permits through a process that
provides for review and an opportunity for comment by the public and by
EPA; and (e) ensure that there will be no relaxation of otherwise
applicable Federal requirements. West Virginia's revised 45CSR13
includes a new ``opt-in'' provision where sources not otherwise
required to be permitted for purposes of new source review may
voluntarily apply for an existing stationary source operating permit.
This provision was added so that 45CSR13 could serve dually as West
Virginia's minor new source review program and as its FESOPP. The
procedures for issuing existing stationary source operating permits
under 45CSR13 are identical to those followed for issuing minor new
source review permits. West Virginia's revised 45CSR13 program meets
the June 28, 1989 criteria by ensuring that permit terms are permanent,
quantifiable, and practically enforceable and by providing adequate
notice and comment to both EPA and the public. However, since such
requirements must be satisfied on a permit by permit basis, EPA may
deem individual permits which contain terms and conditions that are not
quantifiable or practically enforceable not ``federally enforceable''.
Regarding ``permanence'', section 11.3 of West Virginia's rule provides
that the issuance of a Title V operating permit will operate to revoke
an existing stationary source operating permit. EPA expects that many
of the existing stationary source operating permits issued are to
sources which are seeking to avoid Title V permitting obligations. For
these sources, the ``automatic revocation'' provision will not be
triggered. However, some sources may rely on limitations on potential
emissions established in existing stationary source operating permits
to avoid other ``major source'' program requirements such as major NSR,
PSD, or Title III MACT standards and will trigger the ``automatic
revocation'' provisions. For these sources, the superseding Title V
permit will need to address such limitations as applicable requirements
(similar to how minor NSR permit conditions are addressed in the Title
V permit), or else place the source at risk for violating applicable
``major source'' program requirements. EPA is assured that sources that
obtain limitations on potential emissions in existing stationary source
operating permits will keep such limitations in effect, so as to never
be in violation of ``major source'' permitting or other program
requirements. EPA interprets section 11.3 to authorize supersession of
existing stationary source operating permits only, and not
construction, modification or relocation permits. The TSD provides a
thorough analysis of the West Virginia's 45CSR13 program against EPA's
June 28, 1989 criteria.
C. Federally Enforceable Permit Conditions for Hazardous Air Pollutants
West Virginia's revised 45CSR13 defines the term ``regulated air
pollutant'' to include nineteen (19) hazardous/toxic pollutants which
are regulated by the State's air toxic rule (45CSR27), and ``..any
other pollutants subject to an emissions standard promulgated by the
Commission including mineral acids in 45CSR7.'' West Virginia has
adopted specific regulations which incorporate Federal National
Emissions Standards for Hazardous Air Pollutants (NESHAPS) promulgated
at 40 CFR parts 61 and 63 by reference. West Virginia updates these
authorities in State regulations on an annual basis. EPA interprets the
45CSR13 definition of ``regulated air pollutant'' to provide the
necessary authority for 45CSR13 permits to contain conditions on HAPs
which are regulated by 40 CFR parts 61 and 63 NESHAPS and which have
been adopted into West Virginia's regulations. On September 5, 1996,
the West Virginia Department of Environmental Protection (WVDEP)
submitted a letter clarifying that West Virginia also requests EPA
approval under section 112(l) of the 45CSR13 program submitted on
August 26, 1994.
EPA approval of 45CSR13 program under section 112(l) of the Act is
necessary to extend West Virginia's authority under section 110 of the
Act to include the authority to create federally enforceable limits on
the potential to emit HAPs. EPA has determined that the five approval
criteria for approving FESOPPs into the
[[Page 5488]]
SIP, as specified in the June 28, 1989 Federal Register notice, are
also appropriate for evaluating and approving programs under section
112(l). Although the June 28, 1989 notice did not address HAPs, this is
because it was written prior to the 1990 amendments to section 112 of
the CAA. EPA believes that the use of the same criteria for evaluating
programs for both criteria and hazardous pollutants is appropriate
since the approval criteria are not based or dependent on pollutant,
but on general program elements which must be present for the program
to be deemed minimally approvable by EPA. Hence, the five criteria
discussed above are applicable to FESOPP approvals under section 112(l)
as well as under section 110.
In addition to meeting the criteria discussed above, state programs
must meet the statutory criteria for approval under section 112(l)(5)
of the CAA. This section allows EPA to approve a program only if it:
(1) Contains adequate authority to assure compliance with any Section
112 standard or requirement; (2) provides for adequate resources; (3)
provides for an expeditious schedule for assuring compliance with
Section 112 requirements; and (4) is otherwise likely to satisfy the
objectives of the CAA. EPA plans to codify the approval criteria for
programs limiting the potential to emit of HAPs through amendments to
Subpart E of 40 CFR part 63, the regulations promulgated to implement
section 112(l) of the Act. (See 58 FR 62262). EPA currently anticipates
that these criteria, as they apply to FESOPP programs, will mirror
those set forth in the June 28, 1989 notice, with the addition that the
State's authority must extend to HAPs instead of or in addition to
VOC's and PM10. The EPA currently anticipates that FESOPP programs that
are approved pursuant to Section 112(l) prior to the planned 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 the authority under section 112(l) to approve
programs to limit potential to emit of 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 every possible instance of approval under
section 112(l). EPA has already issued regulations under section 112(l)
that would satisfy any section 112(l)(2) requirement for rulemaking.
Given the timing problems posed by impending deadlines set forth in
``maximum achievable control technology'' (MACT) emission standards
under section 112 and for submittal of Title V permit applications, the
EPA believes it is reasonable to read section 112(l) to allow for
approval of programs to limit potential to emit prior to promulgation
of a rule specifically addressing this issue.
West Virginia's satisfaction of the criteria published in the
Federal Register of June 28, 1989, has been discussed above. In
addition, West Virginia's 45CSR13 program meets the statutory criteria
for approval under 112(l)(5). EPA believes West Virginia's 45CSR13
program contains adequate authority to assure compliance with section
112 requirements since it does not provide for waiving any section 112
requirement(s). Sources would still be required to meet section 112
requirements applicable to non-major sources. Regarding adequate
resources, West Virginia subjects sources required to be permitted
under 45CSR13 to the State's fee regulation, 45CSR22 ``Air Quality Fee
Program''. Furthermore, EPA believes that West Virginia's 45CSR13
program provides for an expeditious schedule for assuring compliance
because it allows a source to establish a voluntary limit on potential
to emit and avoid being subject to a Federal Clean Air Act requirement
applicable on a particular date. Nothing in West Virginia's 45CSR13
program would allow a source to avoid or delay compliance with a
Federal requirement if it fails to obtain the appropriate federally
enforceable limit by the relevant deadline. Finally, West Virginia's
45CSR13 program is consistent with the objectives of the Section 112
program because its purpose is to enable sources to obtain federally
enforceable limits on potential to emit to avoid major source
classification under section 112. EPA believes that this purpose is
consistent with the overall intent of section 112. The Technical
Support Document contains a more thorough analysis of West Virginia's
45CSR13 program against the statutory criteria for approval under
112(l)(5).
EPA is soliciting public comments on the issues discussed in this
document or on other relevant matters. These comments will be
considered before taking final action. Interested parties may
participate in the Federal rulemaking procedure by submitting written
comments to the EPA Regional office listed in the Addresses section of
this document.
III. Proposed Action
EPA is proposing to disapprove the exemption from minor new source
review for sources issued Title V permits as such an exemption does not
comport with the Federal requirements of 40 CFR 51.160. EPA is also
proposing to disapprove the new provisions governing the issuance of
temporary construction or modifications permits as such provisions do
not satisfy the Federal requirements for public participation of 40 CFR
51.161. EPA is proposing to approve all other portions of 45CSR13 as a
revision to the West Virginia SIP. Such an action will enable EPA to
approve and make federally enforceable the many updates and
improvements from the SIP approved version of the program, and at the
same time prevent serious relaxations of the SIP related to the
program's scope and public participation requirements.
EPA is proposing to approve 45CSR13 under section 110 of the Act
because the program meets the June 28, 1989 approval criteria for
federally enforceable state operating permit programs. For this reason
and because the program meets the statutory requirements of section
112(l)(5) of the Act, EPA is also proposing approval of West Virginia's
45CSR13 program pursuant to section 112(l) of the Act for the purpose
of limiting the potential to emit of HAPs. Such an action will confer
Federal enforceability status to existing stationary source operating
permits which are issued to sources of criteria pollutants or HAPs in
accordance with 45CSR13 and the five June 28, 1989 criteria, including
permits which have been issued prior to EPA's final action.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic and environmental factors and in
relation to relevant statutory and regulatory authority.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare
[[Page 5489]]
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 sections 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, the administrator
certifies 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 flexibility analysis would
constitute Federal inquiry into the economic reasonableness of state
action. The Clean Air Act forbids EPA to base its actions concerning
SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246,
255-66 (1976); 42 U.S.C. 7410(a)(2).
EPA's disapproval of the State request under section 110 and
subchapter I, part D of the CAA does not affect any existing
requirements applicable to small entities. Any pre-existing Federal
requirements remain in place after this disapproval. Federal
disapproval of the state submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not
impose any new requirements. Therefore, EPA certifies that this
disapproval action does not have a significant impact on a substantial
number of small entities because it does not remove existing
requirements and impose any new requirements.
C. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
private sector, of $100 million or more. Under Section 205, EPA must
select the most cost-effective and least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Section 203 requires EPA to establish a plan for
informing and advising any small governments that may be significantly
or uniquely impacted by the rule.
EPA has determined that the approval action proposed does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
The Administrator's decision to approve or disapprove this revision
to the West Virginia SIP for minor sources will be based on whether it
meets the requirements of section 110(a)(2)(A)-K) and of the Clean Air
Act, as amended, and EPA regulations in 40 CFR part 51.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 22, 1998.
W. Michael McCabe,
Regional Administrator, Region III.
[FR Doc. 98-2615 Filed 2-2-98; 8:45 am]
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