[Federal Register Volume 63, Number 65 (Monday, April 6, 1998)]
[Proposed Rules]
[Pages 16751-16754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8960]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[DE-031-1011; FRL-5991-4]
Approval and Promulgation of Air Quality Implementation Plans;
Delaware--Minor New Source Review and federally Enforceable State
Operating Permit Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing limited approval of a State Implementation
Plan (SIP) revision submitted by the State of Delaware pursuant to
requirements of the Clean Air Act (CAA). This SIP revision amends
Delaware's minor New Source Review (NSR) permit program. It also
creates a federally Enforceable State Operating Permits Program
(FESOPP) which provides a mechanism for the terms and conditions of a
permit issued pursuant to Regulation No. 2 to be made ``federally
enforceable'' for purposes of limiting a source's potential to emit
(PTE) a regulated air pollutant. EPA is proposing limited approval of
changes to the minor NSR program, because while the SIP revision
submitted by Delaware strengthens the SIP, it does not fully meet the
current Federal requirements for public participation. EPA is proposing
full approval of the FESOPP.
DATES: Comments must be received on or before May 6, 1998.
[[Page 16752]]
ADDRESSES: Comments may be mailed to Ms. MaryBeth Bray, Engineer,
Permit Programs Section, Air Protection Division (3AP11), U.S.
Environmental Protection Agency, Region III, 841 Chestnut Building,
Philadelphia, Pennsylvania 19107. Copies of the documents relevant to
this action are available for public inspection during normal business
hours at the Air, Radiation, and Toxics Division, U.S. Environmental
Protection Agency, Region III, 841 Chestnut Building, Philadelphia,
Pennsylvania 19107; and Delaware Department of Natural Resources &
Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware
19903.
FOR FURTHER INFORMATION CONTACT: Ms. MaryBeth Bray, (215) 566-2632, at
the EPA Region III address.
SUPPLEMENTARY INFORMATION:
I. Background
On June 4, 1997, the State of Delaware submitted a revision of its
SIP for Regulation No. 2--PERMITS. This revision amends the State's
minor NSR program and creates a FESOPP which provides a mechanism for
the terms and conditions of a permit issued pursuant to Regulation No.
2 to be made ``federally enforceable'' for purposes of limiting a
source's PTE a regulated air pollutant.
A. Minor New Source Review
Section 110(a)(2)(C) of the Clean Air Act (CAA) requires every SIP
to ``include a program for the . . . regulation of the modification and
construction of any stationary source within the areas covered by the
plan as necessary to assure that national ambient air quality standards
are achieved.'' EPA's regulations now codified at 40 CFR 51.160-51.164
have since the early 1970s required a NSR program be included in every
SIP. This requirement is separate from the requirement also set forth
in section 110(a)(2)(C) that a State's SIP have ``major'' NSR
permitting programs under part C for the prevention of significant
deterioration of air quality (PSD) and part D for nonattainment area
permitting (nonattainment NSR) of title I.
B. Federally Enforceable State Operating Permit Programs
Many stationary source requirements of the CAA apply only to
``major'' sources. Major sources are those sources whose emissions of
air pollutants exceed applicability threshold emissions levels
specified in various portions of the CAA. To determine whether a source
is major, the CAA focuses not only on a source's actual emissions, but
also on its potential emissions (i.e., ``PTE''). Thus, a source that
has maintained actual emissions at levels below the major source
threshold could still be subject to major source requirements if it has
the PTE major amounts of air pollutants. In situations where
unrestricted operation of a source would result in a PTE above major
source levels, one way such a source may legally avoid program
requirements is by accepting federally-enforceable permit conditions
which limit its PTE below the applicable major source thresholds. As a
result, the source becomes what is commonly referred to as a
``synthetic minor'' source. 1Federally-enforceable permit
conditions, if violated, are subject to enforcement by EPA and by
citizens in addition to the state or local agency. On June 28, 1989,
EPA published guidance on the basic requirements for EPA approval of
(non-title V) federally enforceable state operating permit programs
commonly referred to as FESOPPs. See 54 FR 27274. Permits issued
pursuant to such programs may be used to establish federally
enforceable limits on a source's potential emissions to create
``synthetic minor'' sources.
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\1\ Several other mechanisms for major sources (including major
sources of hazardous air pollutants) to become ``synthetic minors''
and legally avoid major source program requirements exist. For more
information, refer to the memorandums entitled ``Extension of
January 25, 1995 Potential to Emit Transition Policy (August 28,
1996), ``Release of Interim Policy on Federal Enforceability of
Limitations on Potential to Emit'' (January 22, 1996), ``Options for
Limiting the Potential to Emit (PTE) of a Stationary Source under
Section 112 and Title V of the Clean Air Act (Act)'' (January 25,
1995), and ``Approaches to Creating Federally-Enforceable Emissions
Limits'' (November 3, 1993).
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II. Summary of Delaware's SIP Revisions
A. Minor NSR
In order to evaluate the approvability of Delaware's submittal as a
SIP revision, the changes from the current SIP-approved version of
Regulation No. 2 must meet all applicable requirements (procedural and
substantive) of 40 CFR part 51 and the CAA. EPA's requirements for SIP
approval applicable to minor NSR permitting programs are established in
40 CFR part 51, subpart I--Review of New Sources and Modifications,
Sec. Sec. 51.160. through 51.164. Other sections of subpart I,
applicable only to new sources and modifications which are major, do
not apply and are thus not addressed in this analysis. 2The
docket for this rulemaking action contains a Technical Support Document
(TSD) prepared by EPA which more fully details the evaluation it
performed to determine that Delaware's SIP revision meets the
requirements of 40 CFR 51.160-51.164. The TSD is available, upon
request, from the EPA Region listed in the Addresses section of this
document. Overall, the revised Regulation No. 2 is a strengthening of
Delaware's current SIP-approved minor NSR program.
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\2\ 2 Delaware has a separate rule to meet the requirements of
subpart I applicable to major sources, namely, Regulation No. 25--
``Requirements for Preconstruction Review''.
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With the exception of certain public participation requirements, as
described below, EPA has determined that Delaware's revised Regulation
No. 2 fully meets the requirements of 40 CFR 51.160-51.164 for minor
NSR programs.
Public Participation--The requirements for public participation of
minor NSR programs are set forth in 40 CFR 51.161 (Public Availability
of Information). Among the requirements for public participation are
the following:
(a) Availability for public inspection in at least one location in
the area affected of the information submitted by the owner or operator
and of the permitting authority's analysis of the effect on air
quality;
(b) A 30-day period for submittal of public comment; and
(c) A notice by prominent advertisement in the area affected of the
location of the source information and the agency's analysis of the
effect on air quality.
Section 12.2 of Delaware's Regulation No. 2 requires the Delaware
Department of Natural Resources and Environmental Control (Department)
to make available in at least one location in the state a public file
containing a copy of all materials submitted by the applicant (except
those granted confidential treatment). It also requires the Department
to place an advertisement in a newspaper of general circulation in the
county in which the source is located and in a daily newspaper of
general circulation throughout the state. These notices must include:
(1) The fact that the application has been received and the
facility's name and location;
(2) A brief description of the nature of the application, including
the activities and emissions involved; and
(3) A contact person for the Department, the place where the permit
file can be inspected, and procedures to request a hearing.
[[Page 16753]]
The Department must also send the above information by mail to
anyone who has requested to be placed on a mailing list. The Department
must hold a public hearing on the application if it receives a
meritorious request to do so within 15 days of the public notice, or if
the Department deems it to be in the best interest of the State to do
so. Within 20 days of a public hearing, the Department must issue a
public notice announcing the date, time and location of the hearing.
The Department must consider all comments submitted by the applicant
and the public in reaching its final determination.
The current SIP-approved version of Regulation No. 2 does not
contain any provisions for public participation of minor NSR permits.
However, prior to the revision of Regulation No. 2, EPA understands
that Delaware followed the public participation provisions of its
statute, 7 Del. C., Chapter 60, Section 6004, which is not part of the
SIP. The statute provides that the public shall have a minimum of 15
days to request a public hearing, unless Federal law requires a longer
time, in which case the longer time shall be stated. However, the
revised Regulation No. 2 defers to the statutory minimum 15-day public
comment period. Since the current SIP-approved version of Regulation
No. 2 does not provide any public participation procedures, the revised
Regulation No. 2 is a strengthening of the SIP, even though it does not
fully meet the public comment requirements of 40 CFR 51.161 which
specify a 30-day public comment period.
On August 31, 1995, EPA proposed revisions to 40 CFR 51.161 to
provide that, except for certain specified activities (which would
still be required to have a 30-day comment period), states may vary the
procedures for, and timing of, public participation in light of the
environmental significance of the activity. See 60 FR 45564. EPA is in
the process of finalizing this rulemaking action. It is, therefore,
possible that Delaware's revised Regulation No. 2, which provides for a
minimum 15-day public comment period, would be consistent with EPA's
final revisions to 40 CFR 51.161, at least for some types of minor NSR
activities.
EPA has determined that the revised Regulation No. 2 overall is a
strengthening of the current minor NSR program in Delaware's SIP. The
revised Regulation No. 2 meets the criteria of 40 CFR 51.160-51.164,
with the exception of the requirements of 40 CFR 51.161(b)(2), which
requires a 30-day period for submittal of public comment. As explained
above, Delaware's revised Regulation No. 2 strengthens the SIP by
specifying public participation procedures and by providing a minimum
15-day public comment period (i.e., time period provided for the public
to request a public hearing). Therefore, EPA believes that Delaware's
revised minor NSR regulation warrants limited approval.
Under a limited approval, if EPA's future final rulemaking action
for revisions to 40 CFR 51.161 is consistent with Delaware's public
participation requirements under Regulation No. 2, the limited approval
would convert to a full approval. However, if the final revisions to 40
CFR 51.161 are not consistent, but more stringent than, Delaware's
Regulation No. 2, EPA would make a SIP call for Delaware to amend its
minor NSR public participation procedures in accordance with EPA's
final regulatory changes to 40 CFR 51.161.
B. Federally Enforceable State Operating Permits Program
EPA's Federal enforceability criteria applicable to state operating
permit program (non-title V) SIP submittals are discussed in a June 28,
1989 Federal Register (54 FR 27274). In the June 28, 1989 notice, EPA
amended the definition of ``federally enforceable'' to clarify that
terms and conditions contained in state-issued operating permits are
federally enforceable for purposes of limiting a source's PTE, provided
that the state's operating permits program is approved into the SIP
under section 110 of the CAA as meeting certain conditions, and
provided that the permit conforms to the requirements of the approved
program. The conditions for EPA approval discussed in the June 28, 1989
notice establish five criteria for approving a state operating permit
program. See 54 FR 27274-27286. In summary, the criteria require state
programs to:
(a) Be approved into the SIP;
(b) Impose legal obligations to conform to the permit limitations;
(c) Provide for limits that are enforceable as a practical matter;
(d) Issue permits through a process that provides for review and an
opportunity for comment by the public and by EPA; and
(e) Ensure that there will be no relaxation of otherwise applicable
Federal requirements.
The TSD prepared by EPA for this rulemaking action describes each
of the criteria for approval of a state's program for the issuance of
federally enforceable operating permits for purposes of limiting a
source's PTE and how Delaware's SIP submittal satisfies those criteria.
The revised Regulation No. 2 establishes a process whereby sources
can voluntarily seek to identify terms and conditions of an operating
permit as federally-enforceable. EPA interprets this to mean that
limits on PTE would be recognized for purposes of avoiding the
applicability of major source requirements. Such terms and conditions
would be specifically designated as ``federally enforceable'' within
each permit. Regulation No. 2 establishes a separate public
participation process, including a 30-day public comment period, for
sources that opt to make terms and conditions federally-enforceable.
As explained above, Regulation No. 2 also implements Delaware's
minor NSR program, as required under the CAA and 40 CFR 51.160-51.164.
In this proposed rulemaking notice, EPA is also taking action on
revisions to Delaware's minor NSR program. Since construction permits
under Regulation No. 2 are converted into operating permits after the
source completes construction, any permit terms designed to meet minor
NSR requirements are transferred to a Regulation No. 2 operating
permit. Because Regulation No. 2 operating permits become the permits
in which the minor NSR applicable requirements reside, EPA considers
the terms and conditions of Regulation No. 2 operating permits to be
federally-enforceable (as well as Regulation No. 2 construction
permits). In other words, EPA views Delaware's minor NSR program as
being comprised of Regulation No. 2 as a whole--including both
construction and operating permits issued under Regulation No. 2.
However, although Regulation No. 2 operating permits are considered
federally-enforceable, EPA currently does not recognize PTE limits
contained in those permits as legitimate limits for sources wishing to
avoid major source applicability, because the existing SIP-approved
version of Regulation No. 2 does not meet EPA's minimum criteria for
establishing PTE limits, including practical enforceability and public
participation. (See 54 FR 27274; June 28, 1989). Today's action
proposes to approve the revised Regulation No. 2 because it now does
meet EPA's criteria for establishing federally enforceable PTE limits,
so that EPA will recognize a source's limits on PTE for avoiding major
source applicability, so long as the individual permit issued under the
approved program meets those same requirements. EPA reserves the right
to deem any individual permit as not
[[Page 16754]]
``federally enforceable'' for purposes of limiting PTE (and, thus,
avoiding major source requirements) if a permit contains terms and
conditions which are not quantifiable or practically enforceable in
accordance with the revised version of Regulation No.2 proposed for SIP
approval and the June 28, 1989 criteria.
EPA has determined that the Federal enforceability ``opt-in''
process established in revised Regulation No. 2 (whereby sources can
request to have certain permit terms and conditions be designated as
federally enforceable for purposes of limiting PTE) fully meets the
requirements of EPA's June 28, 1989 criteria for federally enforceable
state operating permits programs. EPA proposes full approval of the
Regulation No. 2 provisions as meeting the June 28, 1989 criteria for a
FESOPP.
EPA is soliciting public comments on the issues discussed in this
document or on other relevant matters. These comments will be
considered before taking final action. Interested parties may
participate in the Federal rulemaking procedure by submitting written
comments to the EPA Regional office listed in the Addresses section of
this document.
III. Proposed Action
EPA is proposing limited approval of revisions to the Delaware
minor NSR program submitted on June 4, 1997, because the revised
Regulation No. 2 strengthens the SIP, but does not fully meet the
current requirements for public participation of minor NSR programs
under 40 CFR 51.161. EPA is proposing full approval of the provisions
of Regulation No. 2 establishing a FESOPP which provides a mechanism
for sources to request that certain terms and conditions of Regulation
No. 2 permits be designated as federally-enforceable for purposes of
limiting the PTE regulated air pollutants. Final action by EPA to
approve Delaware's FESOPP would confer Federal enforceability status,
and EPA would recognize limits on PTE for sources to avoid major source
requirements, to existing permits which are issued in accordance with
the revised Regulation No. 2 and the June 28, 1989 criteria, including
permits which have been issued prior to EPA's final action.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000. SIP approvals under sections 110 and 301, and subchapter I,
part D of the CAA do not create any new requirements but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, EPA
certifies that it does not have a significant impact on any small
entities affected. Moreover, due to the nature of the Federal-State
relationship under the CAA, preparation of a flexibility analysis would
constitute Federal inquiry into the economic reasonableness of state
action. The Clean Air Act forbids EPA to base its actions concerning
SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246,
255-66 (1976); 42 U.S.C. 7410(a)(2).
C. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
private sector, of $100 million or more. Under Section 205, EPA must
select the most cost-effective and least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Section 203 requires EPA to establish a plan for
informing and advising any small governments that may be significantly
or uniquely impacted by the rule. EPA has determined that the approval
action proposed does not include a Federal mandate that may result in
estimated costs of $100 million or more to either State, local, or
tribal governments in the aggregate, or to the private sector. This
Federal action approves pre-existing requirements under State or local
law, and imposes no new requirements. Accordingly, no additional costs
to State, local, or tribal governments, or to the private sector,
result from this action.
The Regional Administrator's decision to approve or disapprove this
revision to Delaware Regulation 2 will be based on whether it meets the
requirements of section 110(a)(2)(a)-(K) and part D of the Clean Air
Act, as amended, and EPA regulations in 40 CFR part 51.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, New source review, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: March 25, 1998.
Thomas Voltaggio,
Acting Regional Administrator, Region III.
[FR Doc. 98-8960 Filed 4-3-98; 8:45 am]
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