[Federal Register Volume 61, Number 71 (Thursday, April 11, 1996)]
[Rules and Regulations]
[Pages 16063-16065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8664]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5454-2]
Clean Air Act (CAA) Final Interim Approval of Operating Permits
Program and Delegation of 112(l) Authority; State of Missouri
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval.
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SUMMARY: The EPA is granting final interim approval of an operating
permit program submitted by the state of Missouri 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. The EPA is also giving interim approval, under section
112(l) of the Act, to the state program for accepting delegation of the
section 112 standards to enforce air toxics regulations.
EFFECTIVE DATE: This rule will become effective on May 13, 1996.
ADDRESSES: Copies of the state submittal and other supporting
information used in developing the final interim approval are available
for inspection during normal business hours at the following location:
U.S. Environmental Protection Agency, Region VII, Air Branch, 726
Minnesota Avenue, Kansas City, Kansas 66101.
FOR FURTHER INFORMATION CONTACT: Joshua Tapp at (913) 551-7606.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
Title V of the 1990 Clean Air Act Amendments (sections 501-507 of
the Clean Air Act (``the Act'')), and implementing regulations at 40
Code of Federal Regulations (CFR) Part 70, require that states develop
and submit operating permits programs to EPA by November 15, 1993, and
that the EPA act to approve or disapprove each program within one 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. Additionally, section
502(g) of the Act and the Part 70 regulations outline criteria for
granting interim approval where a program substantially, but not fully,
meets the requirements of the Act and Part 70. The EPA may grant
interim approval to such a program for a period of up to two years.
On January 13, 1995, the state of Missouri submitted an operating
permits program to the EPA. Supplemental submissions were made by the
state on August 14, 1995; September 19, 1995; and October 16, 1995. The
state of Missouri has demonstrated that its program meets the minimum
elements required for interim approval as specified in 40 CFR 70.4(d).
The rationale for the EPA's determination that interim approval is
appropriate is contained in the December 15, 1995, Federal Register
document (60 FR 64404) which proposed interim approval of the program.
In order to receive full approval, the state must adopt and submit to
the EPA within 18 months of the effective date of this document certain
rule revisions which were identified in the proposed interim approval
and which are discussed later in this document.
B. Response to Comments
On January 16, 1996, the EPA received a request to extend the
comment period for its proposed interim approval of Missouri's program,
due to the unavailability of the docket during federal furloughs which
overlapped the comment period. The EPA granted a 30-day extension of
the comment period in a February 5, 1996, Federal Register document. On
February 13, 1996, the EPA received two comments regarding its proposed
action from one commentor. The first comment requested clarification of
the status of the permit application forms which Missouri submitted
with its operating permit program. Specifically, the commentor feels
that the state should be able to modify the forms as necessary to
collect the information required for developing operating permits. The
EPA agrees with the commentor that it is important for the state to
have the ability to modify the permit application forms in order to
collect the appropriate information. The EPA wishes to clarify that
although 40 CFR 70.4(b)(4) requires the submission of such forms with
the initial operating permit package, as a part of the program
documentation, the EPA is not taking formal action on the forms
themselves. The state can modify the forms to the extent that the
modification is appropriate and sufficient to collect the required
information.
The second comment pertains to Missouri's exemption from
application requirements for ``insignificant activities.'' The
commentor has requested that the EPA provide the state of Missouri with
the same flexibility in establishing thresholds for insignificant
activities which the EPA has extended to other states which were given
interim approval. In response, the EPA notes that the levels which
Missouri has established for insignificant activities in its January
13, 1995, submission are fully approvable by the EPA and are a specific
element, among other elements, which must be present in order for the
EPA to take an approval action. The state of Missouri may modify this
or any other element of its operating permit program to the extent that
those modifications are consistent with the Clean Air Act, 40 CFR Part
70 regulations, and applicable EPA guidance. However, the EPA supports
Missouri's choice to establish insignificant activity levels which are
fully approvable.
C. Federal Oversight and Sanctions
This interim approval will extend for 18 months following the
effective date of final interim approval and cannot be renewed. During
the interim approval period, the state of Missouri is protected from
sanctions for failure to have an approved program, and the EPA is not
obligated to promulgate, administer, and
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enforce a federal permits program for Missouri. Permits issued under a
program with interim approval have full standing with respect to Part
70, and the one-year time period for submittal of permit applications
by subject sources begins upon the effective date of interim approval,
as does the three-year time period for processing the initial permit
applications.
If Missouri fails to submit a complete corrective program for full
approval by the date six months before expiration of the interim
approval, an 18-month clock for mandatory sanctions will commence. If
Missouri then fails to submit a corrective program that the EPA finds
complete before the expiration of that 18-month period, the EPA will
apply sanctions as required by section 502(d)(2) of the Act, which will
remain in effect until the EPA determines that the state of Missouri
has corrected the deficiency by submitting a complete corrective
program.
If the EPA disapproves Missouri's complete corrective program, the
EPA will be required under section 502(d)(2) to apply sanctions on the
date 18 months after the effective date of the disapproval, unless
prior to that date Missouri had submitted a revised program and the EPA
had determined that it corrected the deficiencies that prompted the
disapproval.
If the EPA has not granted full approval to Missouri's program by
the expiration of this interim approval, the EPA must promulgate,
administer, and enforce a federal permits program for Missouri upon
interim approval expiration.
II. Final Interim Action and Implications
A. Missouri's Submission and EPA-Requested Modifications
The December 15, 1995, Federal Register document proposing interim
approval of the Missouri program discussed two rules which are a part
of the operating permit program that require revisions in order for the
program to qualify for full approval. These rules are 10 CSR 10-6.020,
``Definitions and Common Reference Tables'', and 10 CSR 10-6.065,
``Operating Permits.'' Specifically, Missouri must make the following
program revisions for full approval: (1) for rule 10 CSR 10-6.020: (a)
revise (2)(I)7 to update a reference to the Standard Industrial
Classification Manual, and (b) revise (3)(B), Table 2--List of Named
Installations, to make it consistent with the list in the definition of
major source in Sec. 70.2; and (2) for rule 10 CSR 10-6.065: (a) revise
(1)(D)2 to clarify the meaning of ``fugitive air pollutant'' as it
relates to Part 70 installations; (b) revise (3)(D) to clarify Part 70
applicability with respect to emissions from exempt installations and
emission units; (c) revise (6)(C)1.C.(II)(b) to clarify the retention
of records requirements in permits, consistent with Sec. 70.6(a)(3);
(d) revise (6)(C)1.G.(I) to clarify the general requirements for permit
compliance and noncompliance, consistent with Sec. 70.6(a)(6); (e)
revise (6)(C)4.A. to correct a citation error and to clarify that the
requirement for the EPA and affected state review applies to general
permits, consistent with Sec. 70.6(d)(1); (f) revise (6)(C)7.B.(IV) to
make the emergency provision notice consistent with Sec. 70.6(g)(3);
(g) revise (6)(C)8, operational flexibility provisions, to clarify the
term ``emissions allowable under the permit''; (h) revise
(6)(E)5.B.(I), minor permit modification criteria, to be consistent
with Sec. 70.7(e)(2)(i)(A)(3); (i) revise (6)(E)5.B.(I) to add a
paragraph (b) to incorporate the economic incentive provisions
consistent with Sec. 70.7(e)(2)(i)(B); (j) revise (6)(E)5.C.(I)(b) to
correct the threshold for group processing of minor permit
modifications to be consistent with Sec. 70.7(e)(2)(i)(B); and (k)
revise (6)(E)5.D.(II)(a), significant permit modification procedures,
to be consistent with Secs. 70.4(b)(2) and 70.5(c), and make minor
citation corrections to (6)(B)3.I.(IV), (6)(E)5.B.(II)(a),
(6)(E)5.C.(V), and (6)(E)6.C.
Additionally, Missouri has the authority to issue a variance from
state requirements under Sec. 643.110 of the state statutes. This
provision was not included by the state in its operating permit program
submittal, and the EPA regards this provision as wholly external to the
program submitted for approval under Part 70, and consequently is not
taking action on this provision of state law. The EPA has no authority
to approve provisions of state law, such as the variance provision
referred to, which are inconsistent with the Act. The EPA does not
recognize the ability of a permitting authority to grant relief from
the duty to obtain or comply with a federally enforceable Part 70
permit, except where such relief is granted through the procedures
allowed by Part 70. A Part 70 permit may be issued or revised
(consistent with Part 70 permitting procedures) to incorporate those
terms of a variance that are consistent with applicable requirements. A
Part 70 permit may also incorporate, via Part 70 permit issuance or
modification procedures, the schedule of compliance set forth in a
variance. However, the EPA reserves the right to pursue enforcement of
applicable requirements, notwithstanding the existence of a compliance
schedule in a permit to operate. This is consistent with
Sec. 70.5(c)(8)(iii)(C), which states that a schedule of compliance
``shall be supplemental to, and shall not sanction noncompliance with,
the applicable requirements on which it is based.''
The Technical Support Document describes in detail the revisions to
these rules which are required for full approval of the program. The
reader should refer to this document which is located in the public
docket for further information.
B. Final Interim Action
The EPA is granting interim approval for 18 months to the operating
permits program submitted by the state of Missouri on January 13, 1995,
with supplemental information submitted on August 14, 1995; September
19, 1995; and October 16, 1995. The state of Missouri has demonstrated
that its program meets the minimum elements required for interim
approval as specified in 40 CFR Part 70. In order to receive full
approval, the state must adopt and submit to the EPA certain rule
changes within 12 months of receiving final interim approval.
Specifically, the state must amend rules 10 CSR 10-6.020, Definitions,
and 10 CSR 10-6.065, Operating permits, for consistency with Part 70,
as described above.
1. Regulations. This interim approval of the Missouri operating
permits program includes the following regulations, solely as they
relate to the Missouri Part 70 operating permit program: 10 CSR 10-
6.065, Operating Permits; 10 CSR 10-6.110, Submission of Emission Data,
Emission Fees and Process Information; and 10 CSR 10-6.020, Definitions
and Common Reference Tables.
2. Jurisdiction. The scope of the Part 70 program approved in this
document applies to all Part 70 sources (as defined in the approved
program), within the state of Missouri, except sources of air
pollution, if any, over which an Indian Tribe has jurisdiction. See 59
FR 55813, 55815-18 (November 9, 1994). The term ``Indian Tribe'' is
defined under the Act as ``any Indian Tribe, Band, Nation, or other
organized group or community, including any Alaska Native village,
which is federally recognized as eligible for the special programs and
services provided by the United States to Indians, because of their
status as Indians.'' See section 302(r) of the CAA;
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59 FR 43956, 43962 (August 25, 1994); 58 FR 54364 (October 21, 1993).
3. CAA section 112(l). 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 the
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, the EPA is also approving
under section 112(l)(5) and 40 CFR 63.91 the state's program for
receiving delegation of section 112 standards for both Part 70 and non-
Part 70 sources that are unchanged from federal standards as
promulgated.
4. CAA section 112(g). The EPA issued an interpretive notice on
February 14, 1995 (60 FR 8333), which outlines the EPA's revised
interpretation of 112(g) applicability. The notice postpones the
effective date of 112(g) until after the EPA has promulgated a rule
addressing that provision. The notice sets forth in detail the
rationale for the revised interpretation.
The section 112(g) interpretive notice explains that the 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 the EPA will provide for any such additional delay in the final
section 112(g) rulemaking. Unless and until the EPA provides for such
an additional postponement of section 112(g), Missouri must have a
federally enforceable mechanism for implementing section 112(g) during
the period between promulgation of the federal section 112(g) rule and
adoption of implementing federal regulations.
The EPA is aware that Missouri lacks a program designed
specifically to implement section 112(g). However, Missouri does have a
program for review of new and modified hazardous air pollutant sources
that can serve as an adequate implementation vehicle during the
transition period, because it would allow Missouri to select control
measures that would meet the maximum achievable control technology, as
defined in section 112, and incorporate these measures into a federally
enforceable preconstruction permit.
The EPA is proposing to approve Missouri's preconstruction
permitting program under the authority of Title V and Part 70, solely
for the purpose of implementing section 112(g) to the extent necessary
during the transition period between 112(g) promulgation and adoption
of a state rule implementing the EPA's section 112(g) regulations.
Although section 112(l) generally provides authority for approval of
state air programs to implement section 112(g), Title V and section
112(g) provide for this limited approval because of the direct linkage
between the implementation of section 112(g) and Title V. The scope of
this approval is narrowly limited to section 112(g) and does not confer
or imply approval for purposes of any other provision under the Act
(e.g., section 110). This approval will be without effect if the 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.
The duration of this approval is limited to 18 months following
promulgation by the EPA of the 112(g) rule to provide adequate time for
the state to adopt regulations consistent with the federal
requirements.
III. Administrative Requirements
A. Docket
Copies of the state submittal and other information relied upon for
the final interim approval are contained in a docket maintained at the
EPA Regional Office. The docket is an organized and complete file of
all the information submitted to, or otherwise considered by, the EPA
in the development of this final interim approval. The docket is
available for public inspection at the location listed under the
ADDRESSES section of this document.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
C. Regulatory Flexibility Act
The EPA's actions under section 502 of the Act do not create any
new requirements, but simply address operating permits programs
submitted to satisfy the requirements of 40 CFR Part 70. Because this
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.
D. Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, the EPA must undertake various actions in association with
proposed or final rules that include a federal mandate that may result
in estimated costs of $100 million or more to the private sector, or to
state, local, or tribal governments in the aggregate.
Through submission of this state operating permit program the state
has elected to adopt the program provided for under Title V of the CAA.
These rules may bind the state government to perform certain actions
and also require the private sector to perform certain duties.
To the extent that the program approved by this action will impose
new requirements, sources are already subject to these regulations
under state law. Accordingly, no additional costs to state, local, or
tribal governments, or to the private sector, result from this action.
The EPA has also determined that this proposed action does not include
a mandate that may result in estimated costs of $100 million or more to
state, local, or tribal governments in the aggregate or to the private
sector.
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.
Dated: March 27, 1996.
William Rice,
Acting Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401--7671q.
2. Appendix A to Part 70 is amended by adding the entry for
Missouri in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Missouri
(a) The Missouri Department of Natural Resources program
submitted on January 13, 1995; August 14, 1995; September 19, 1995;
and October 16, 1995. Interim approval effective on May 13, 1996.
(b) Reserved.
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[FR Doc. 96-8664 Filed 4-10-96; 8:45 am]
BILLING CODE 6560-50-P
