[Federal Register Volume 61, Number 46 (Thursday, March 7, 1996)]
[Proposed Rules]
[Pages 9125-9132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5415]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 70
[PA65-1; AD-FRL-5436-7]
Clean Air Act Proposed Full Approval of the Operating Permits
Program; Approval of Construction Permit and Plan Approval Programs
Under Section 112(l); Proposed Approval of State Implementation Plan
Revision for the Issuance of Federally Enforceable State Plan Approval
and Operating Permits Under Section 110; Commonwealth of Pennsylvania
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed full approval of Title V Operating Permit Program and
proposed approval of State Operating Permit and Plan Approval Programs.
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SUMMARY: The EPA proposes full approval, under Title V of the Clean Air
Act (the Act), of the Operating Permits Program submitted by the
Commonwealth of Pennsylvania 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 is
also proposing to approve Pennsylvania's Operating Permit and Plan
Approval Programs pursuant to Section 110 of the Act for the purpose of
creating Federally enforceable operating permit and plan approval
conditions for sources of criteria air pollutants. In order to extend
the federal enforceability of State operating permits and plan
approvals to include hazardous air pollutants (HAPs), EPA is also
proposing approval of Pennsylvania's plan approval and operating
permits program regulations pursuant to Section 112 of the Act. Today's
action also proposes approval of Pennsylvania's mechanism for receiving
straight delegation of Section 112 standards.
DATES: Comments on this proposed action must be received in writing by
April 8, 1996.
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 3, 841 Chestnut Building,
Philadelphia, Pennsylvania 19107.
FOR FURTHER INFORMATION CONTACT: Michael H. Markowski, 3AT23, U.S.
[[Page 9126]]
Environmental Protection Agency, Region 3, 841 Chestnut Building,
Philadelphia, Pennsylvania, 19107, (215) 597-3023.
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 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. 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.
On June 28, 1989 (54 FR 27274) EPA published criteria for approving
and incorporating into the SIP regulatory programs for the issuance of
federally enforceable state operating permits. Permits issued pursuant
to an operating permit program meeting these criteria and approved into
the SIP are considered federally enforceable. EPA has encouraged States
to consider developing such programs in conjunction with Title V
operating permit programs for the purpose of creating federally
enforceable limits on a source's potential to emit. This mechanism
would enable sources to reduce their potential to emit of criteria
pollutants to below the Title V applicability thresholds and avoid
being subject to Title V. (See the guidance document entitled,
``Limitation of Potential to Emit with Respect to Title V Applicability
Thresholds,'' dated September 18, 1992, from John Calcagni, Director of
EPA's Air Quality Management Division).
Also as part of this action, EPA is proposing to approve
Pennsylvania's plan approval (i.e., construction permit) and operating
permit programs pursuant to Section 112(l) of the Clean Air Act for the
purpose of allowing the State to issue plan approvals and operating
permits which limit source's potential to emit hazardous air pollutants
(HAPs). Section 112(l) of the Clean Air Act provides the underlying
authority for controlling emissions of HAPs. Therefore, in order to
extend federal enforceability of the State's operating permit and plan
approval programs to include HAPs, EPA today proposes to approve
Pennsylvania's plan approval and operating permit program submittals
pursuant to Section 112(l) of the Act.
II. Proposed Action and Implications
A. Analysis of State Submission
EPA has concluded that the operating permit program submitted by
Pennsylvania meets the requirements of Title V and is proposing to
grant full approval to the program. For more detailed information on
the analysis of the State's submission, please refer to the technical
support document (TSD) included in the docket at the address noted
above.
1. Title V Support Materials
On November 15, 1993, the Commonwealth of Pennsylvania submitted an
operating permits program for review by EPA. The submittal was found to
be administratively incomplete pursuant to 40 CFR 70.4(e)(1) on January
18, 1994. Additional materials were submitted on May 18, 1995. Based on
additional information received in the May 18, 1995 submittal, EPA
found the submittal to be administratively and technically complete on
May 31, 1995. The Commonwealth submitted supplemental information on
November 28, 1995. The submittal includes a letter from the Secretary
of the Department of Environmental Resources, as the designee of the
Governor of the Commonwealth of Pennsylvania, requesting approval of
the Commonwealth's Title V program, a legal opinion from the State
Attorney General stating that the laws of the Commonwealth provide
adequate legal authority to carry out all aspects of the program, and a
description of how the Commonwealth intends to implement the program.
The submittal additionally contains evidence of proper adoption of the
program regulations, a permit fee demonstration, a description of the
State's Title V program, and a proposed draft of an implementation
agreement (IA) to be negotiated between EPA and the Commonwealth of
Pennsylvania.
2. Title V Operating Permit Program Regulations and Program
Implementation
The Commonwealth of Pennsylvania's Title V regulations were adopted
and became effective on November 26, 1994. They include 25 Pa. Code
Chapter 127, Subchapters F and G, as well as the definitions provided
in 25 Pa. Code Chapter 121.1. EPA has determined that these regulations
``fully meet'' the requirements of 40 CFR Part 70, Sections 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. The TSD contains a
detailed analysis of Pennsylvania's program and describes the manner in
which the State's program meets all the operating permit program
requirements of 40 CFR Part 70. However, several issues were identified
by EPA during its review of Pennsylvania's Title V operating permit
program which warrant a more detailed discussion and analysis. These
issues are outlined below.
a. Absence of Part 70 Emergency Defense Provisions--Pennsylvania
has incorporated by reference New Source Performance Standards (NSPS),
National Emission Standards for Hazardous Air Pollutants (NESHAP), and
Maximum Available Control Technology (MACT) technology-based emissions
limitations/standards in 25 Pa. Code 122.1, 124.1, and 127.35,
respectively. Where these technology-based standards incorporate an
emergency defense, that emergency defense becomes part of Pennsylvania
law by reference. Pennsylvania's program does not provide for any other
emergency defense, and does not specifically provide for a Part 70
emergency defense. While it is true that a specific Part 70 emergency
defense is lacking, EPA clarified, in its August 31, 1995, supplemental
Part 70 notice, that ``the Part 70 rule does not require the States to
adopt the emergency defense. A State may include such a defense in its
Part 70 program to the extent it finds appropriate, although it may not
adopt an emergency defense less stringent than that set forth at 40 CFR
70.6(g).'' 60 FR 45530, 45559. Thus, since State
[[Page 9127]]
adoption of emergency defense provisions under Part 70 is
discretionary, Pennsylvania's failure to include such a defense in its
Part 70 program is not inconsistent with 70.6(g).
b. Origin of and Authority for Permit Terms and Conditions--40 CFR
70.6(a)(1)(I) requires that each Title V permit, as issued by the
permitting authority, specify and reference the origin of and authority
for each permit term or condition, and identify any difference in form
as compared to the applicable requirement upon which the term or
condition is based. These requirements for permit content related to
specification of the origin and authority for permit terms and
conditions in Title V permits have been met by the Pennsylvania program
primarily through the language of Section IV.B.16(a)(1) of the
Commonwealth's Title V program description and through relevant
provisions of an Implementation Agreement (IA) that has been negotiated
between EPA and PADEP (the rulemaking docket includes an IA that was
signed by PADEP on January 31, 1996, and by EPA on February 15, 1996).
Section IV.B.16(a)(1) of the PADEP's Title V program description
provides that Title V permit applications shall require sources to
identify all applicable requirements, including citations to the origin
of and authority for each requirement. EPA regards this language, along
with the Title V permit application form itself and the relevant
provisions of an IA that has been negotiated between EPA and PADEP, as
sufficient assurance that Pennsylvania's Title V operating permits will
include citation to the origin of and authority for each permit term
and condition.
c. 45 Day EPA Review Prior to Permit Issuance--Under
Sec. 127.522(f) of the Commonwealth's regulations, EPA is afforded a 45
day period to review proposed permits for conformity with Clean Air Act
and Part 70 requirements. Section Sec. 127.522(f) further specifies
that EPA may veto a permit within this review period.
It is noted that Sec. 127.522 does not ensure that EPA will have an
opportunity for a 45 day period of pre-issuance review of permits that
are revised as a result of the public and affected State's comments. It
appears that pursuant to Sec. 127.521(d) and (e) and Sec. 127.522(f),
the 30 day public comment period may commence at the same time as EPA's
45 day review period. Thus, it is possible that Pennsylvania could
modify and issue the proposed permit on the basis of public (or
affected State) comments.
However, Sec. 127.522(f) does provide that the final permit shall
be provided to EPA ``upon issuance if material substantive changes are
made to the proposed permit.'' If EPA objects within 45 days of final
permit issuance, ``the permit will be revoked.'' Both Section
IV.B.17(h) of the program description and Sec. 127.522(f) state that if
EPA objects to the issuance of the final revised permit within 45 days,
the permit will be revoked. EPA concludes from the regulatory language
and program description that post-issuance revocation will be
straightforward and automatic, in the event that EPA objects (within 45
days of receipt of the revised permit) to permit conditions that result
from public or affected state comments.
Provisions defining ``material substantive changes'' are included
in the IA that has been negotiated between EPA and PADEP. The IA will
help to clarify the criteria to be used by Pennsylvania in determining
which final permits must be provided to EPA for post-issuance review.
Moreover, the IA will confirm that post-issuance permit revocation is
indeed automatic for revised permits issued by Pennsylvania but
objected to by EPA within 45 days of issuance.
EPA believes that the provisions in the regulation and the IA
regarding EPA review of permits that are revised on the basis of public
and affected state comments are adequate to protect EPA's oversight
function.
d. Insignificant Activities--Under Part 70, EPA may approve as part
of a State program a list of insignificant activities and emission
levels which need not be included in permit applications. Pennsylvania
has not requested EPA approval of such a list of insignificant
activities or emission levels.
e. Proposed Exemption from Title V for R&D Facilities--Under 25 Pa.
Code Sec. 127.502(c) of the Commonwealth's Title V operating permit
program regulations, Research and Development (R&D) facilities located
at a Title V facility are not required to be included as part of the
Title V facility. However, for the purpose of determining Title V
applicability, emissions from R&D facilities are aggregated with the
rest of the facility's emissions. R&D facilities are defined in 25 Pa.
Code Sec. 121.1 as a stationary source whose purpose is to conduct
research and development of products and processes, or basic research
``for education or the general advancement of technology and
knowledge'' under the ``close supervision of technically trained
personnel.'' R&D facilities may not engage in the manufacture of
products for commercial sale or internal manufacturing use ``except in
deminimus amounts on an infrequent basis.'' The emissions from the R&D
facility must be less than the Title V threshold.
EPA interprets the Commonwealth's regulations as providing an
exemption from Title V requirements for co-located R&D facilities. The
current Part 70 rule does not provide any specific exemption from Title
V for co-located R&D facilities. However, EPA's August 31, 1995 (60 FR
45530) and August 29, 1994 supplemental Part 70 notices and the
preamble to the original Part 70 rule do provide for the separate
treatment of co-located R&D activities under Title V. In the August
1995 notice, EPA proposed to revise the Part 70 definition of ``major
source'' so that R&D activities could be considered separately for the
purpose of determining whether a source is major. EPA further stated in
that notice that it believes it appropriate to continue to implement
the current Part 70 rule to allow for the separate treatment of co-
located R&D activities. Thus, EPA believes that co-located R&D
facilities may be treated separately for purposes of determining Title
V applicability, and determining whether the Title V facility and the
co-located R&D facility are major sources.
Pursuant to the August 1995 notice, emissions from R&D activities
need not be aggregated with those of co-located stationary sources
unless the R&D activities contribute to the product produced or service
rendered by the co-located sources in a more than deminimus manner. As
a result of this approach, nonmajor R&D facilities are exempted from
Title V. The separate treatment of co-located R&D facilities, as
provided for in EPA's August 1995 notice, exempts non-major R&D
facilities from Title V since only major sources are required to obtain
a Title V permit at this time. Under the EPA's August 1995 proposal,
research and development activities would be required to have a Title V
permit only if the R&D facility itself were a major source.
The Sec. 121.1 definition of ``Research and Development Facility''
provided in the Commonwealth's regulations is reserved exclusively for
those research and development activities ``with emissions less than
the emissions thresholds for a Title V facility.'' Thus, by definition,
only non-major research and development activities qualify as ``R&D
facilities'' under the Pennsylvania regulations. Section 127.502(c) of
the Commonwealth's regulations further requires that emissions from a
co-located R&D facility be included when evaluating Title V
applicability. In its
[[Page 9128]]
August 1995 supplemental Part 70 notice, however, EPA proposed to
exempt non-major R&D facilities not only from Title V applicability but
also from the need to aggregate emissions from the R&D facility with
emissions from the Title V facility for the purpose of determining
whether a major source is present. Therefore, the Pennsylvania Title V
operating permit program is at least as stringent in this regard than
is required by EPA for program approval.
f. Acid Rain Requirements- Section 6.5 of Pennsylvania's Air
Pollution Control Act (``APCA''), 35 P.S. Sec. 4006.5, and 25 Pa. Code
Sec. 127.531 contain special operating permit provisions related to
Title IV of the Clean Air Act, the legislation's ``acid rain'' section.
In pertinent part, APCA Section 6.5 authorizes DEP to develop an acid
rain permit program; incorporates the definitions of sections 402 and
501 of the Clean Air Act; establishes a schedule for permit application
and compliance plan submission; and establishes certain permit
requirements for permits concerning sulfur dioxide emissions and
allowances.
25 Pa. Code Sec. 127.531 sets out an appropriate schedule for
submission of acid rain permits and compliance plans (Sec. 127.531(b));
provides that the permit application and compliance plan is binding and
enforceable until permit issuance (Sec. 127.531(c)); requires the
source to comply with permit conditions ``no later than the date
required by the Clean Air Act or regulations thereunder''
(Sec. 127.531(d)); allows permit revisions any time after submission of
the application and compliance plan (Sec. 127.531(e)); prohibits
emissions in excess of allowances or applicable emission limitations,
premature use of allowances, or contravention of any permit term
(Sec. 127.531 (f) and (g)); and requires compliance with accounting
procedures for allowances promulgated under Title IV
(Sec. 127.531(g)(3)).
It is noted that Pennsylvania has not directly incorporated by
reference EPA's Title IV regulations found at 40 CFR Part 72, and has
not adopted EPA's model rules. However, several regulatory provisions
require that Pennsylvania's Title V program be operated in accordance
with the requirements of Title IV and its implementing regulations.
Section 127.531(a) provides that the acid rain provisions of that
section ``shall be interpreted in a manner consistent with the Clean
Air Act and the regulations thereunder.'' Section 127.531(b) requires
that affected sources submit a permit application and compliance plan
``that meets the requirements of * * * the Clean Air Act and the
regulations thereunder.'' Further, the Sec. 121.1 definition of
``applicable requirements'' for Title V sources includes standards or
other requirements ``of the acid rain program under Title IV of the
Clean Air Act * * * or the regulations thereunder.''
The statute and regulations cited above support the Pennsylvania
Attorney General's opinion that ``Commonwealth law is consistent with,
and cannot be used to modify, the Acid Rain requirements of 40 CFR Part
72.'' Attorney General Opinion at 8-9.
For additional assurance that Pennsylvania's operating permit
program will operate in compliance with applicable acid rain
requirements, the Commonwealth has agreed to accept delegation of the
applicable provisions of 40 C.F.R. Parts 70, 72, and 78 for the purpose
of implementing the Title IV requirements of its operating permit
program. PADEP shall apply these provisions for purposes of
incorporating Acid Rain program requirements into each affected
source's operating permit; identifying designated representatives;
establishing permit application deadlines; issuing, denying, modifying,
reopening, and renewing permits; establishing compliance plans;
processing permit appeals; and issuing written exemptions under 40
C.F.R. Secs. 72.7 and 72.8. This commitment is contained in the IA that
has been negotiated between EPA and PADEP.
Furthermore, at EPA's request, Pennsylvania's Title V program
description has been revised to clarify that the Commonwealth will
implement its acid rain program in accordance with applicable
provisions of 40 C.F.R. Parts 70, 72, and 78; and that PADEP will
perform completeness and substantive reviews of acid rain permit
applications, and that acid rain permits will be issued in accordance
with EPA's acid rain permit writer's guidance. The revised program
description also states Pennsylvania will initiate appropriate
enforcement activities to compel compliance with permit conditions.
3. Title V Permit Fee Demonstration
Section 502(b)(3) of the Act requires that each permitting
authority collect fees sufficient to cover all reasonable direct and
indirect costs required to develop and administer its Title V operating
permits program. Each Title V program submittal must contain either a
detailed demonstration of fee adequacy or a demonstration that
aggregate fees collected from Title V sources meet or exceed $25 per
ton of emission per year (adjusted from 1989 by the Consumer Price
Index (CPI)). The $25 per ton amount is presumed, for program approval,
to be sufficient to cover all reasonable program costs and is thus
referred to as the ``presumptive minimum'' [Section 70.9(b)(2)(I)].
Pennsylvania has opted to make a presumptive minimum fee
demonstration. Pennsylvania's existing fee schedule, under Section
127.705 of the Commonwealth's regulations, requires Title V facilities
to pay an annual Title V emission fee of $37 per ton for each ton of a
regulated pollutant actually emitted from the facility. This amount
exceeds the $25 per ton presumptive minimum. Section 127.705 also
includes a provision that ties the amount of the fee to the Consumer
Price Index (CPI) as required by 40 CFR 70.9(b)(2)(iv). The $37 per ton
amount was derived by dividing the total annual estimated Title V
operating permit program cost by the total annual number of billable
tons of emissions. Pennsylvania used actual operating hours and
production rates, and considered in-place control equipment and the
types of materials processed, stored, or combusted in calculating the
total actual billable tons figure. EPA has determined that these fees
will result in collection and retention of revenues sufficient to cover
the Title V operating permit program costs.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Section 112--Pennsylvania 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 Pennsylvania's enabling legislation (the Air Pollution
Control Act, ``APCA'') and in regulatory provisions defining
``applicable requirements'' and ``Title V facility'' and mandating that
permits must incorporate all applicable requirements. EPA has
determined that this legal authority is sufficient to allow
Pennsylvania to issue permits that assure compliance with all section
112 requirements, and to carry out all section 112 activities,
including those required under section 112(g). For further rationale on
this interpretation, please refer to the Technical Support Document
accompanying this rulemaking and the April 13, 1993 guidance memorandum
entitled ``Title V Program Approval Criteria for Section 112
Activities,'' signed by John Seitz, Director of the Office of Air
Quality Planning and Standards.
b. Program for Straight Delegation of Section 112 Standards--The
requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a
[[Page 9129]]
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.
Because Pennsylvania has historically accepted delegation of Section
112 standards through automatic delegation, EPA proposes to approve the
delegation of Section 112 standards and requirements through automatic
delegation. The details of this delegation mechanism have been set
forth in an Implementation Agreement (IA) between Pennsylvania and EPA.
This approval applies to both existing and future standards but is
limited to sources covered by the Part 70 operating permit program.
c. Limiting HAP Emissions Through FESOP and Plan Approval
Programs--As part of this action EPA proposes to approve, pursuant to
Section 112(l) of the Clean Air Act, the Commonwealth's request for
authority to regulate HAPs through the issuance of federally
enforceable State operating permits and plan approvals. As explained
more fully in the Technical Support Document accompanying this proposed
rulemaking, EPA proposes to approve and incorporate into the SIP
Pennsylvania's operating permit and plan approval (i.e., construction
permit) programs codified in Subchapters F and B, respectively, of the
PADEP's air quality regulations. This would grant the PADEP authority
to issue plan approvals and operating permits which limit potential to
emit of criteria pollutants. However, as part of this action, EPA also
proposes to approve both State programs under Section 112(l) of the Act
for the purpose of extending Pennsylvania's authority to create
federally enforceable limits to include HAPs in addition to criteria
pollutants. Please refer to the Technical Support Document for a
thorough analysis of Pennsylvania's operating permit and plan approval
programs in accordance with applicable federal approval criteria.
d. Program for Implementing Title IV of the Act--Pennsylvania's
program contains adequate authority to issue permits which reflect the
requirements of Title IV of the Act, and Pennsylvania commits to adopt
the rules and requirements promulgated by EPA to implement an acid rain
program through the Title V permit.
B. Proposed Action
1. Title V Operating Permits Program
EPA is proposing full approval of the operating permits program
submitted to EPA by the Commonwealth of Pennsylvania on May 18, 1995.
Among other things, Pennsylvania 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. The scope of the Pennsylvania
program that EPA proposes to approve in this notice would apply to all
Title V facilities (as defined in the approved program) within the
Commonwealth of Pennsylvania, except for those areas where a separate
local agency Title V operating permits program has been approved by
EPA.
EPA also proposes approval of Pennsylvania's Plan Approval and
Operating Permit Programs, found in Subchapters B and F, respectively,
of Chapter 127 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 (HAPs) listed pursuant to
Section 112(b) of the Act.
2. 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 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. Because Pennsylvania has historically
accepted delegation of Section 112 standards through automatic
delegation, EPA proposes to approve the delegation of Section 112
standards and requirements through automatic delegation. The details of
this delegation mechanism are set forth in an Implementation Agreement
(IA) that has been negotiated between Pennsylvania and EPA. This
approval applies to both existing and future standards but is limited
to sources covered by the Part 70 operating permit program.
III. Proposed Approval of State Operating Permit and Plan Approval
Programs Under Section 110 of the Act
A. Background
As part of the May 18, 1995 submittal, PADEP submitted to EPA for
review and approval a revision to its State Implementation Plan (SIP)
designed to create federally enforceable limits on a source's potential
to emit. The revision consists of regulations establishing a State
operating permit program and a plan approval program, codified in
Subchapters F and B, respectively, of the Commonwealth's air quality
regulations. Pennsylvania refers to construction permits as ``plan
approvals.'' The proposed SIP revision generally strengthens the
Pennsylvania SIP by establishing a comprehensive operating permit and
plan approval program and by making the operating permit program
regulations consistent with the Title V operating permit regulations
codified in Chapter 127, Subchapter G of the Commonwealth's
regulations.
Limiting a source's potential to emit to below major source
thresholds through the use of federally enforceable terms and
conditions in a State operating permit or plan approval exempts such a
source from Title V permitting requirements. State operating permit
programs which have been incorporated into the SIP renders operating
permits issued pursuant to such a program as federally enforceable, and
the program itself is referred to as a federally enforceable State
operating permit program, or ``FESOP'' program. This FESOP mechanism
will allow sources to reduce their potential to emit to below the Title
V applicability thresholds and avoid being subject to Title V.
Similarly, construction permit (i.e., plan approval) programs which
have been incorporated into the SIP renders construction permits, or,
in Pennsylvania's case, plan approvals, issued pursuant to such a
program as federally enforceable.
Pennsylvania's FESOP and plan approval program regulations were
adopted and became effective on November 26, 1994. The operating permit
program regulations are codified under Chapter 127, Subchapter F of the
Commonwealth's air quality regulations, and the plan approval program
regulations are codified under Chapter 127, Subchapter B of the
Commonwealth's air quality regulations.
[[Page 9130]]
EPA found the SIP submittal complete on May 31, 1995.
EPA's review of this submittal indicates that the operating permit
and plan approval programs both meet applicable federal criteria for
approval. Accordingly, EPA is today proposing to approve the
Pennsylvania SIP revision for the plan approval and operating permit
programs, which was submitted on May 18, 1995.
B. Federal Criteria for Approval of Pennsylvania's FESOP and Plan
Approval Programs Pursuant to Section 110 of the Act
The five criteria for approving a State operating permit program
into a SIP were set forth in the June 28, 1989 Federal Register
document (54 FR 27282). Permits issued under an approved program are
federally enforceable and may be used to limit the potential to emit of
sources of criteria pollutants. Pennsylvania's FESOP provisions of
Subchapter F, Chapter 127 meet the June 28, 1989 criteria by ensuring
that the limits will be permanent, quantifiable, and practically
enforceable and by providing adequate notice and comment to both EPA
and the public. Please refer to the Technical Support Document for a
thorough analysis of the June 28, 1989 criteria as applied to
Pennsylvania's FESOP program.
EPA is proposing to approve pursuant to Section 110 of the Act and
the approval criteria specified in the June 28, 1989 Federal Register
document the following regulations that were submitted to make permits
issued pursuant to the Commonwealth's FESOP program federally
enforceable and to make the program consistent with it's Title V
operating permit program: Subchapter F, Chapter 127, Sections 127.401
through 127.464, inclusive.
As described above, Pennsylvania also submitted on May 18, 1995 for
EPA approval revisions to its existing new source review (NSR)
construction permit (i.e., plan approval) program. Pennsylvania's new
source review construction permit is called a ``plan approval.'' The
Commonwealth's plan approval program has been part of its SIP for many
years and meets the requirements in Section 110(a)(2)(C) of the Act
which requires all SIPs to provide for the regulation of the
modification and construction of any stationary source within the areas
covered by the plan implementation as necessary to assure that national
ambient air quality standards (NAAQS) are achieved. Pennsylvania's plan
approval regulations referenced above were originally approved by EPA
into the SIP on May 31, 1972 (37 FR 10842) for the purpose of meeting
the Section 110(a)(2)(C) requirement.
In order to make its program consistent with the Clean Air Act
Amendments of 1990, Pennsylvania had previously submitted, on February
10, 1994, its new source review (NSR) construction permit program to
EPA for review and approval. EPA is reviewing this program submittal
and will take the appropriate approval/disapproval action at a later
date. As part of this action, Pennsylvania is making changes to its
public hearing and administrative procedures in order to achieve
consistency of such procedures throughout all of its permitting
programs. EPA has reviewed these proposed changes to Pennsylvania's
plan approval program and has determined that they meet all applicable
federal requirements for approval.
C. Proposed Approval of Pennsylvania's Plan Approval and FESOP Programs
Under Section 112(1)
On May 18, 1995, PADEP requested approval of Pennsylvania's FESOP
and plan approval programs under Section 112 of the Act for the purpose
of creating federally enforceable limitations on the potential to emit
of HAPs. As described above, the Commonwealth's plan approval program
regulations were initially approved by EPA and incorporated into the
Pennsylvania SIP on May 31, 1972. EPA is today proposing to approve and
incorporate into the SIP Pennsylvania's operating permit and plan
approval program regulations submitted May 18, 1995.
EPA approval of the Commonwealth's plan approval and FESOP programs
under Section 112(l) of the Act is necessary to extend Pennsylvania's
existing authority under Section 110 of the Act to include authority to
create federally enforceable limits on the potential to emit HAPs.
EPA's previous rulemaking actions on the various Pennsylvania permit
programs for incorporation into the SIP provides a mechanism only for
controlling criteria air pollutants which does not extend to HAPs. Only
Section 112 of the Act provides the underlying authority for States to
limit potential to emit of HAPs in federally enforceable State
operating permits and construction permits. This necessitates EPA
approval of Pennsylvania's operating permit and plan approval programs
pursuant to Section 112(l) of the Act.
The criteria used by EPA for the original SIP approval of
Pennsylvania's plan approval program are located in 40 CFR 51.160-164.
EPA believes that the PADEP's existing plan approval program meets the
requirements of 40 CFR 51.160 through 51.164.
EPA has determined that the five approval criteria for approving
FESOP programs into the SIP, as specified in the June 28, 1989 Federal
Register notice referenced above, are also appropriate for evaluating
and approving the programs under Section 112(l). The June 28, 1989
notice does not address HAPs because it was written prior to the 1990
amendments to Section 112 of the Act. Hence, the following five
criteria are applicable to FESOP approvals under Section 112(l): (1)
the program must be submitted to and approved by EPA; (2) the program
must impose a legal obligation on the operating permit holders to
comply with the terms and conditions of the permit, and permits that do
not conform with the June 28, 1989 criteria shall be deemed not
federally enforceable; (3) the program must contain terms and
conditions that are at least as stringent as any requirements contained
in the SIP or enforceable under the SIP or any other Section 112 or
other Clean Air Act standard or requirement; (4) permits issued under
the program must contain conditions that are permanent, quantifiable,
and enforceable as a practical matter; and (5) permits issued under the
program must be subject to public participation. Please refer to the
TSD for a thorough analysis of how Pennsylvania's operating permits
program satisfies each of the five approval criteria. Since the State's
operating permits program meets the five program approval criteria for
both criteria and hazardous air pollutants, the Pennsylvania program
may be used to limit the potential to emit of both criteria and
hazardous air pollutants.
In addition to meeting the criteria discussed above, Pennsylvania's
plan approval and operating permits programs for limiting potential to
emit of 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 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 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.
[[Page 9131]]
(See 58 Fed. Reg. 62262, November 26, 1993). The EPA currently
anticipates that these criteria, as they apply to FESOP 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
FESOP 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.
The 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 the 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, the
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). The EPA has already issued regulations
under section 112(l) that would satisfy any section 112(l)(2)
requirement for rulemaking. Given the severe 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. The EPA is therefore proposing approval of
Pennsylvania's FESOP and plan approval programs now so that
Pennsylvania may begin to issue federally enforceable operating permits
and plan approvals limiting potential to emit as soon as possible. This
will allow Pennsylvania to immediately begin exempting sources from
Title V requirements where this is possible and appropriate.
The EPA proposes approval of Pennsylvania's FESOP and plan approval
programs pursuant to Section 112(l) of the Act because the programs
meet applicable approval criteria specified in the June 28, 1989
Federal Register document and in Section 112(l)(5) of the Act.
Regarding the statutory criteria of Section 112(l)(5) of the Act
referred to above, the EPA believes Pennsylvania's FESOP and plan
approval programs contain adequate authority to assure compliance with
Section 112 requirements since neither program provides 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, Pennsylvania has included in its FESOP and plan
approval programs provisions for collecting fees from sources making
application for either a plan approval, an operating permit, or both.
Furthermore, EPA believes that Pennsylvania's FESOP and plan approval
programs provide for an expeditious schedule for assuring compliance
because they allow 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 Pennsylvania's plan
approval or operating permit programs 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, Pennsylvania's FESOP and plan approval programs are consistent
with the objectives of the Section 112 program because their purpose is
to enable sources to obtain federally enforceable limits on potential
to emit to avoid major source classification under Section 112. The EPA
believes that this purpose is consistent with the overall intent of
Section 112.
IV. Administrative Requirements
A. Request for Public Comments
The EPA is soliciting public comments on all aspects of this
proposed full approval. 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 notice. These
comments will be considered before taking final action. Copies of the
State's submittal and other information relied upon for the proposed
Title V and section 112(l) approvals and the approval of Pennsylvania's
SIP revision pertaining to its plan approval and FESOP programs 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 8, 1996.
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 sections 502, 110 and 112 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, the
creation of Federally enforceable permit conditions for sources of
hazardous air pollutants listed pursuant to section 112(b) of the Act,
and plan approval and FESOP requirements that the State is already
imposing. Because this action does not impose any new requirements, it
does not have a significant impact on a substantial number of small
entities.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare 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 section 110 and subchapter I, part D of the
Clean Air Act 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 Act, 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).
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,
[[Page 9132]]
and environmental factors and in relation to relevant statutory and
regulatory requirements.
D. 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.
This Federal action approves pre-existing requirements under State
or local law, and imposes no new Federal requirements. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector, result from this action.
This action proposing approval of Pennsylvania's Title V program
has been classified as a Table 3 action for signature by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by a July 10, 1995
memorandum from Mary Nichols, Assistant Administrator for Air and
Radiation. The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
Authority: 42 U.S.C. 7401-7671q.
Dated: February 23, 1996.
Stanley L. Laskowski,
Acting Regional Administrator, EPA Region III.
[FR Doc. 96-5415 Filed 3-6-96; 8:45 am]
BILLING CODE 6560-50-P
