[Federal Register Volume 60, Number 55 (Wednesday, March 22, 1995)]
[Proposed Rules]
[Pages 15105-15109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7063]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[UT-001; FRL-5176-6]
Clean Air Act Proposed Full Approval of Operating Permits
Program; Approval of Construction Permit Program Under Section 112(l);
State of Utah
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed full approval.
-----------------------------------------------------------------------
SUMMARY: The EPA proposes full approval of the Operating Permits
Program submitted by the State of Utah 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. EPA also proposes approval of the Utah Construction Permit
Program under section 112(l) of the Clean Air Act for the purpose of
creating Federally enforceable permit conditions for sources of
hazardous air pollutants listed pursuant to section 112(b) of the Clean
Air Act.
DATES: Comments on this proposed action must be received in writing by
April 21, 1995.
ADDRESSES: Comments should be addressed to the contact indicated below.
Copies of the State's submittal and other supporting information used
in developing these proposed approvals are available for inspection
during normal business hours at the following location: U.S.
Environmental Protection Agency, Region 8, 999 18th Street, suite 500,
Denver, Colorado 80202.
FOR FURTHER INFORMATION CONTACT: Laura Farris, 8ART-AP, U.S.
Environmental Protection Agency, Region 8, Air Programs Branch, 999
18th Street, suite 500, Denver, Colorado 80202, (303) 294-7539.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
As required under title V of the 1990 Clean Air Act Amendments
(sections 501-507 of the Clean Air Act (``the Act'')), EPA has
promulgated rules which define the minimum elements of an approvable
State operating permits program and the corresponding standards and
procedures by which the EPA will approve, oversee, and withdraw
approval of State operating [[Page 15106]] permits programs (see 57 FR
32250 (July 21, 1992)). These rules are codified at 40 Code of Federal
Regulations (CFR) part 70 (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. 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. 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 program.
II. Proposed Action and Implications
A. Analysis of State Submission
1. Support Materials
The Governor of Utah submitted the State of Utah Title V Operating
Permit Program (PROGRAM) to EPA on April 14, 1994. EPA deemed the
PROGRAM administratively and technically complete in a letter to the
Governor dated May 12, 1994. Additional documentation for the PROGRAM
submittal was received on August 25, 1994. The PROGRAM submittal
includes a legal opinion from the Attorney General of Utah stating that
the laws of the State provide adequate legal authority to carry out all
aspects of the PROGRAM, and a description of how the State intends to
implement the PROGRAM. The submittal additionally contains evidence of
proper adoption of the PROGRAM regulations and a permit fee
demonstration.
2. Regulations and Program Implementation
The Utah PROGRAM, including the operating permit regulation (Utah
Administrative Code Rule R307-15, Operating Permit Requirements), meets
the requirements of 40 CFR parts 70.2 and 70.3 with respect to
applicability; parts 70.4, 70.5, and 70.6 with respect to permit
content including operational flexibility; part 70.5 with respect to
complete application forms and criteria which define insignificant
activities; part 70.7 with respect to public participation and minor
permit modifications; and part 70.11 with respect to requirements for
enforcement authority.
R307-15-3 contains the PROGRAM definitions. EPA is aware that other
Utah regulations may contain similar, but not identical, definitions as
those contained in R307-15-3. For purposes of this PROGRAM approval,
EPA wishes to clarify that the binding definitions are those contained
in R307-15-3.
R307-15-5(5) of the State's permitting regulation lists the
insignificant activities that sources do not have to include in their
operating permit application. This list includes specific activities
and sources which are considered to be insignificant. This provision
states that the source's application may not omit information needed to
determine applicable requirements or to evaluate the fee amount
required.
Utah has the authority to issue a variance from requirements
imposed by State law. Section 16-2-113, Utah Code Ann., provides that
any person may apply to the board for a variance from its rules. The
board may grant the requested variance, ``if it determines that the
hardship imposed by compliance would outweigh the benefit to the
public.'' This authority is limited by regulation: Utah Administrative
Code section R307-1-2.3 provides that the board may grant variances to
the extent provided under law, unless prohibited by the Act. Other
statutory provisions of State law require that the operating permit
program must meet the requirements of title V of the Act. See, section
19-2-104(1)(f) and 19-1-109.1 (c)-(d), Utah Code Ann.
In addition to these limitations, EPA regards Utah's variance
provision as wholly external to the PROGRAM submitted for approval
under part 70, and consequently is proposing to take no action on this
provision of State law. EPA has no authority to approve provisions of
State law, such as the variance provision referred to, which are
inconsistent with part 70. EPA does not recognize the ability of a
permitting authority to grant relief from the duty to comply with a
Federally enforceable part 70 permit, except where such relief is
granted through procedures allowed by part 70. If the State uses its
variance provision strictly to establish a compliance schedule for a
source that will be incorporated into a title V permit, then EPA would
consider this an acceptable use of a variance provision. However, the
routine process for establishing a compliance schedule is through
appropriate enforcement action. EPA reserves the right to enforce the
terms of the part 70 permit where the permitting authority purports to
grant relief from the duty to comply with a part 70 permit in a manner
inconsistent with part 70 procedures.
Part 70 of the Federal operating permit regulation requires prompt
reporting of deviations from the permit requirements. Section
70.6(a)(3)(iii)(B) of that regulation 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. The 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 this is
a distinct reporting obligation under section 70.6(a)(3)(iii)(A) of the
Federal operating permit regulation. Where ``prompt'' is defined in the
individual permit but not in the program regulations, EPA may veto
permits that do not contain sufficiently prompt reporting of
deviations. The Utah PROGRAM will define prompt reporting of deviations
in each permit consistent with the degree and type of deviation likely
and the applicable requirements (see subsection R307-15-6(1)(c)(iii)(B)
of the Utah permitting rule). Deviations from permit requirements due
to unavoidable breakdowns shall be reported according to the
unavoidable breakdown provisions of the Utah Administrative Code
section R307-1-4.7.
R307-15-7(4)(a)(ii) allows for emissions trading within a permitted
facility where the State Implementation Plan (SIP) allows for such
emissions trades without requiring a permit revision, consistent with
40 CFR 70.4(b)(12)(ii). However, the approved Utah SIP does not provide
for such trading at this time.
R307-15-7(5)(a)(v) correctly allows the State to incorporate the
terms of a construction permit (i.e., an ``approval order'') into an
operating permit using the administrative permit amendment process.
This process will be available when a source requests enhanced
procedures in the issuance of its construction permit that are
``substantially equivalent'' to the operating permit issuance or
[[Page 15107]] modification procedures. ``Substantial equivalence''
between the construction permit and operating permit issuance
procedures necessarily includes, among other things, public and
affected state review as well as EPA's 45-day review period and veto
authority.
Comments noting deficiencies in the Utah PROGRAM were sent to the
State in a letter dated October 28, 1994. The deficiencies were
segregated into those that require corrective action prior to interim
PROGRAM approval, and those that require corrective action prior to
full PROGRAM approval. In a letter dated November 30, 1994, the State
committed to complete the corrective actions required for interim
PROGRAM approval. The Utah Air Quality Board adopted amendments to
R307-15 on February 23, 1995 which adequately addressed all
deficiencies identified in the PROGRAM regulations. A letter from the
Attorney General's office dated February 27, 1995 transmitted these
regulation changes, which become effective April 15, 1995. The changes
that addressed the deficiencies in the PROGRAM summary were transmitted
to EPA by the State in a letter dated February 28, 1995.
Refer to the Technical Support Document accompanying this
rulemaking for a detailed explanation of each PROGRAM deficiency and
the corrective actions completed by the State.
3. Permit Fee Demonstration
The State of Utah established an initial fee for regulated air
pollutants below the presumptive minimum set in title V, section 502
and part 70, and was required to submit a detailed permit fee
demonstration as part of its PROGRAM submittal. The basis of this fee
demonstration included a workload analysis, which estimated the annual
cost of running the PROGRAM in fiscal year (FY) 1995 to be $2,386,895
based on the estimated direct and indirect costs of the PROGRAM, and a
projected emission inventory for fiscal year 1995. The permit fee
established for FY 1995 is $21.70 per ton of actual emissions of a
regulated pollutant, with an emissions cap of 4,000 tons per year per
pollutant. This fee structure will be reevaluated each year. After
careful review, the State of Utah has determined that these fees would
support the Utah PROGRAM costs as required by section 70.9(a) of the
Federal operating permit regulation. Upon review of this demonstration,
the EPA noted the following concern: State law generally provides
authority to assess and collect annual permit fees in an amount
sufficient to cover all reasonable direct and indirect costs of the
program. However, section A.1 of the PROGRAM description found in
volume 1, part II.A., of the State's title V submittal indicates that
the Utah Legislature must authorize permit fees on a yearly basis. If
permit fees sufficient to fund all the costs of the PROGRAM are not
authorized, and the State is not able to fully implement the PROGRAM,
then EPA would be required to disapprove or withdraw the part 70
program, impose sanctions, and implement a Federal permitting program.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority and/or Commitments for Section 112 Implementation.
Utah has demonstrated in its PROGRAM submittal adequate legal authority
to implement and enforce all section 112 requirements through the title
V permit. This legal authority is contained in Utah's enabling
legislation and in regulatory provisions defining ``applicable
requirements'' and stating that the permit must incorporate all
applicable requirements. EPA has determined that this legal authority
is sufficient to allow Utah to issue permits that assure compliance
with all section 112 requirements, and to carry out all section 112
activities. For further rationale on this interpretation, please refer
to the Technical Support Document accompanying this rulemaking and the
April 13, 1993 guidance memorandum titled ``Title V Program Approval
Criteria for Section 112 Activities,'' signed by John Seitz, Director
of the Office of Air Quality Planning and Standards.
b. Implementation of Section 112(g). On February 14, 1995 EPA
published an interpretive notice (see 60 FR 8333) that postpones the
effective date of section 112(g) until after EPA has promulgated a rule
addressing that provision. The section 112(g) interpretive notice
explains that 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 EPA will provide for any such additional delay
in the final section 112(g) rulemaking. Unless and until EPA provides
for such an additional postponement of section 112(g), Utah must be
able to implement section 112(g) during the period between promulgation
of the Federal section 112(g) rule and adoption of implementing State
regulations. EPA believes that Utah can utilize its construction review
program to serve as a procedural vehicle for implementing section
112(g) and making these requirements Federally enforceable between
promulgation of the Federal section 112(g) rule and adoption of
implementing State regulations. For this reason, EPA is proposing to
approve Utah's construction permitting program found in section R307-1-
3 of the State's regulations under the authority of title V and part 70
solely for the purpose of implementing section 112(g) during the
transition period to meet the requirements of section 112(g). Since the
approval would be for the single purpose of providing a mechanism to
implement section 112(g) during the transition period, the approval
would be without effect if 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. Also, since the approval would be for
the limited purpose of allowing the State sufficient time to adopt
regulations, EPA proposes to limit the duration of the approval to 12
months following promulgation by EPA of its section 112(g) rule. Utah's
construction permitting program allows permit requirements to be
established for all air contaminants (which is defined in R307-1-1 of
the Utah Administrative Code and includes all of the hazardous air
pollutants (HAPs) listed in section 112(b) of the Act).
c. Program for Straight Delegation of Section 112 Standards.
Requirements for approval, specified in 40 CFR Sec. 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of the provisions of 40 CFR part 63, Subpart A, and section 112
standards promulgated by EPA as they apply to part 70 sources, as well
as non-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 part 63.91 of the State's
program for receiving delegation of section 112 standards that are
unchanged from the Federal standards as promulgated. Utah has informed
EPA that it intends to accept delegation of section 112 standards
through incorporation by reference. This program applies to both
existing and future standards.
The radionuclide national emission standard for HAPs (NESHAP) is a
section 112 regulation and an applicable requirement under the State
PROGRAM. Currently the State of Utah has no part 70 sources which emit
radionuclides. However, sources which are not currently part 70 sources
may be [[Page 15108]] defined as major and become part 70 sources under
forthcoming Federal radionuclide regulations. In that event, the State
will be responsible for issuing part 70 permits to those sources.
d. Approval of Construction Permit Program Under Section 112(l).
Also in this action, EPA is proposing to approve Utah's construction
permit program in R307-1-3.1 of the State's regulations under the
authority provided in section 112(l) of the amended Act for the purpose
of creating Federally enforceable permit conditions for sources of HAPs
listed pursuant to section 112(b) of the Act. The State's construction
permitting rules referenced above were approved by EPA as part of the
SIP on February 19, 1980 (45 FR 10761-10765). Approval of the State's
construction permit program under section 112(l) is necessary to allow
the State to create Federally enforceable limits on the potential to
emit of HAPs, because SIP approval of the State's construction permit
rules only extends to the control of HAPs which are photochemically
reactive organic compounds or particulate matter. Federally enforceable
limits on photochemically reactive organic compounds or particulate
matter may have the incidental effect of limiting certain HAPs. As a
legal matter, no additional program approval by the EPA is required in
order for those ``criteria'' pollutant limits to be recognized as
Federally enforceable. However, section 112 of the Act provides the
underlying authority for controlling all HAP emissions.
The State's construction permit program applies to new and modified
sources which would emit ``air contaminants,'' which is defined in the
State's rules as ``any particulate matter or any gas, vapor, suspended
solid or any combination of them, excluding steam and water vapors.''
The State has defined ``air contaminant'' in such a broad manner that
it includes HAPs. Consequently, the State's construction permit program
provides authority for the State to issue construction permits to
sources of HAPs.
The criteria used in approving Utah's construction permit program
in the SIP are located in 40 CFR 51.160-164. As detailed in the
Technical Support Document accompanying this notice, EPA believes the
State's construction permit program meets the requirements of 40 CFR
51.160-164. EPA believes the most significant criteria in 40 CFR Part
51 for creating Federally enforceable limits through construction
permits are those in 40 CFR 51.160-162. Further, as discussed in EPA's
January 25, 1995 memorandum from John S. Seitz, Director of the Office
of Air Quality Planning and Standards, and Robert I. Van Heuvelen,
Director of the Office of Regulatory Enforcement, entitled ``Options
for Limiting the Potential to Emit of a Stationary Source Under Section
112 and Title V of the Clean Air Act,'' in order for EPA to consider
any construction permit terms Federally enforceable, such permit
conditions must be enforceable as a practical matter. Utah's program
will allow the State to issue permits that are enforceable as a
practical matter. Thus, any permits issued in accordance with the Utah
program and which are practically enforceable would be considered
Federally enforceable.
In addition to meeting the criteria discussed above, a construction
permit program for HAPs must meet the statutory criteria for approval
under section 112(l)(5) of the Act. This section allows EPA to approve
a program only if it: (1) Contains adequate authority to assure
compliance with any section 112 standards or requirements; (2) provides
for adequate resources to implement the program; (3) provides for an
expeditious schedule for assuring compliance with section 112
requirements; and (4) is otherwise likely to satisfy the objectives of
the Act.
The 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. EPA believes it has the authority under section 112(l) to approve
programs to limit potential to emit HAPs directly under section 112(l)
prior to this revision to Subpart E of 40 CFR part 63. Given the timing
problems posed by impending deadlines under section 112 and title V,
EPA believes it is reasonable to read section 112(l) to allow for
approval of programs to limit potential to emit prior to issuance of a
rule specifically addressing this issue. The EPA is therefore proposing
approval of Utah's construction permit program to limit the potential
to emit of HAPs now, so that the State may begin to issue Federally
enforceable synthetic minor permits as soon as possible. The EPA also
plans to codify programs approved under section 112(l) without further
rulemaking once the revisions to Subpart E are promulgated.
As discussed above, Utah's construction permit program in R307-1-
3.1 has already been approved in the SIP, and it satisfies the criteria
for such programs, including the relevant criteria related to creating
Federally enforceable limits in 40 CFR 51.160-162. In addition, Utah's
construction permit program meets the statutory criteria for approval
under section 112(l)(5), as follows:
Regarding the statutory criteria of section 112(l)(5) referred to
above, EPA believes Utah's construction permit program contains
adequate authority to assure compliance with section 112 requirements
because the State's program does not provide for the waiver of any
section 112 requirement. Sources that become minor through a permit
issued pursuant to the State's construction permit program would still
be required to meet section 112 requirements applicable to non-major
sources.
Regarding the requirement for adequate resources, the State has
committed in its SIP to provide adequate resources for all program
activities required by the annual State/EPA agreement, which includes
construction permitting. Thus, EPA believes the State has adequate
resources to support the construction permit program for HAPs, and EPA
will monitor the State's implementation of the program to assure that
adequate resources continue to be available.
The EPA also believes that the State's rules provide for an
expeditious schedule for assuring compliance with section 112
requirements. A source seeking a voluntary limit on its potential to
emit is probably doing so to avoid a Federal requirement applicable on
a particular date. Nothing in the State's program would allow a source
to avoid or delay compliance with the Federal requirement if it fails
to obtain the appropriate Federally enforceable limit by the relevant
deadline.
Finally, EPA believes it is consistent with the intent of section
112 of the Act for States to provide a mechanism through which sources
may avoid classification as a major source by obtaining a Federally
enforceable limit on potential to emit.
Accordingly, EPA believes that Utah's construction permit program
in R307-1-3.1 of its air quality regulations satisfies the applicable
criteria for establishing Federally enforceable limitations for sources
of HAPs. Therefore, EPA is proposing approval of Utah's construction
permit program in R307-1-3 of the State's rules under section 112(l) of
the Act.
Refer to the Technical Support Document accompanying this
rulemaking for a detailed explanation of this approval under section
112(l) of the Act.
e. Program for Implementing Title IV of the Act. Utah's PROGRAM
contains adequate authority to issue permits which reflect the
requirements of Title [[Page 15109]] IV of the Act, and Utah commits to
adopt the rules and requirements promulgated by EPA to implement an
acid rain program through the title V permit.
B. Proposed Action
EPA is proposing full approval of the operating permits program
submitted to EPA by the State of Utah on April 14, 1994. Among other
things, Utah has demonstrated that the PROGRAM will be adequate to meet
the minimum elements of a State operating permits program as specified
in 40 CFR part 70. EPA also proposes approval of the Utah Construction
Permit Program found in section R307-1-3 of the State's regulations
under section 112(l) of the Act for the purpose of creating Federally
enforceable permit conditions for sources of hazardous air pollutants
listed pursuant to section 112(b) of the Act, and, under the authority
of title V and 40 CFR part 70, for the purpose of providing a mechanism
to implement section 112(g) of the Act during any transition period
between EPA's promulgation of a section 112(g) rule and adoption by the
State of rules to implement section 112(g).
In Utah's part 70 program submission, the State indicated that it
is not seeking approval from EPA to administer the State's part 70
PROGRAM within the exterior boundaries of Indian Reservations in Utah.
In this notice, EPA proposes to approve Utah's part 70 PROGRAM for all
areas within the State except the following: lands within the exterior
boundaries of Indian Reservations (including the Uintah and Ouray,
Skull Valley, Paiute, Navajo, Goshute, White Mesa, and Northwestern
Shoshoni Indian Reservations) and any other areas which are ``Indian
Country'' within the meaning of 18 U.S.C. 1151 (excepted areas).
In proposing not to extend the scope of Utah's part 70 PROGRAM to
sources located in the excepted areas, EPA is not making a
determination that the State either has adequate jurisdiction or lacks
jurisdiction over such sources. Should the State of Utah choose to seek
program approval within these areas, it may do so without prejudice.
Before EPA would approve the State's part 70 PROGRAM for any portion of
the excepted areas, EPA would have to be satisfied that the State has
authority, either pursuant to explicit Congressional authorization or
applicable principles of Federal Indian law, to enforce its laws
against existing and potential pollution sources within any
geographical area for which it seeks program approval and that such
approval would constitute sound administrative practice.
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 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 part 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
sources covered by the part 70 program, as well as non-part 70 sources.
III. Administrative Requirements
A. Request for Public Comments
The 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 title V and section 112(l) approvals 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 these proposed
approvals. 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. The EPA will
consider any comments received by April 21, 1995.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
EPA's actions under section 502 and section 112(l) 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 and
the creation of Federally enforceable permit conditions for sources of
hazardous air pollutants listed pursuant to section 112(b) of the Act.
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. sections 7401-7671q.
Dated: March 14, 1995.
William P. Yellowtail,
Regional Administrator.
[FR Doc. 95-7063 Filed 3-21-95; 8:45 am]
BILLING CODE 6560-50-P
