[Federal Register Volume 60, Number 119 (Wednesday, June 21, 1995)]
[Proposed Rules]
[Pages 32292-32298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15174]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[FL01; FRL-5225-2]
Clean Air Act Proposed Interim Approval of Operating Permit
Program; Florida
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim approval.
-----------------------------------------------------------------------
SUMMARY: EPA proposes interim approval of the operating permit program
submitted by the State of Florida for the purpose of complying with
Federal requirements which mandate that states develop, and submit to
EPA, programs for issuing operating permits to all major stationary
sources, and to certain other sources.
DATES: Comments on this proposed action must be received in writing by
July 21, 1995.
ADDRESSES: Written comments on this action should be addressed to Carla
E. Pierce, Chief, Air Toxics Unit/Title V Program Development Team, Air
Programs Branch, at the EPA Region 4 office listed below. Copies of
Florida's submittal and other supporting information used in developing
the proposed interim approval are available for inspection during
normal business hours at the following location: U.S. Environmental
Protection Agency, Region 4, 345 Courtland Street, NE, Atlanta, GA
30365.
FOR FURTHER INFORMATION CONTACT: Kim Gates, Title V Program Development
Team, Air Programs Branch, Air Pesticides & Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 345 Courtland Street,
NE, Atlanta, GA 30365, (404) 347-3555, Ext. 4146.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
As required under title V of the Clean Air Act (``the Act'') as
amended by the 1990 Clean Air Act Amendments, EPA promulgated rules on
July 21, 1992 (57 FR 32250), that define the minimum elements of an
approvable state operating permit program and the corresponding
standards and procedures by which EPA will approve, oversee, and
withdraw approval of state operating permit programs. These rules
[[Page 32293]] are codified at 40 Code of Federal Regulations (CFR)
part 70. Title V and part 70 require that states develop, and submit to
EPA, programs for issuing operating permits to all major stationary
sources and to certain other sources.
The Act requires states to develop and submit these programs to EPA
by November 15, 1993, and EPA to approve or disapprove each program
within one year after receiving the submittal. If the State's
submission is materially changed during the one-year review period, 40
CFR 70.4(e)(2) allows EPA to extend the review period for no more than
one year following receipt of the additional materials. EPA received
Florida's title V operating permit program submittal on November 16,
1993. The State provided EPA with additional materials in supplemental
submittals dated July 8, 1994, November 28, 1994, December 21, 1994,
December 22, 1994, and January 11, 1995. Because these supplements
materially changed the State's title V program submittal, EPA has
extended the one-year review period.
EPA reviews state operating permit programs pursuant to section 502
of the Act and 40 CFR part 70, 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 two years. If EPA has not fully approved
a program by November 15, 1995, or by the end of an interim program, it
must establish and implement a Federal operating permit program for
that state.
B. Federal Oversight and Sanctions
If EPA grants interim approval to Florida's program, the interim
approval would extend for two years following the effective date of
final interim approval, and could not be renewed. During the interim
approval period, the State of Florida would not be subject to
sanctions, and EPA would not be obligated to promulgate, administer,
and enforce a Federal operating permit program for the State. Permits
issued under a program with interim approval are fully effective with
respect to part 70. The 12-month time period for submittal of permit
applications by sources subject to part 70 requirements and the three-
year time period for processing the initial permit applications begin
upon the effective date of final interim approval.
Following the granting of final interim approval, if Florida fails
to submit a complete corrective program for full approval by the date
six months before expiration of the interim approval, EPA will start an
18-month clock for mandatory sanctions. If Florida then fails to submit
a corrective program that EPA finds complete before the expiration of
that 18-month period, EPA is required to apply one of the sanctions in
section 179(b) of the Act, which will remain in effect until EPA
determines that Florida has corrected the deficiency by submitting a
complete corrective program. Moreover, if the Administrator finds a
lack of good faith on the part of Florida, both sanctions under section
179(b) will apply after the expiration of the 18-month period until the
Administrator determines that Florida has come into compliance. In any
case, if, six months after application of the first sanction, Florida
still has not submitted a corrective program that EPA determines to be
complete, a second sanction will be required.
If, following final interim approval, EPA disapproves Florida's
complete corrective program, EPA will be required to apply one of the
section 179(b) sanctions on the date 18 months after the effective date
of the disapproval, unless prior to that date Florida has submitted a
revised program and EPA has determined that it corrected the
deficiencies that prompted the disapproval. Moreover, if the
Administrator finds a lack of good faith on the part of Florida, both
sanctions under section 179(b) will apply after the expiration of the
18-month period until the Administrator determines that Florida has
come into compliance. In all cases, if six months after EPA applies the
first sanction, Florida has not submitted a revised program that EPA
determines to have corrected the deficiencies that prompted
disapproval, a second sanction will be required.
In addition, discretionary sanctions may be applied where warranted
any time after the end of an interim approval period if a state has not
timely submitted a complete corrective program or EPA has disapproved a
submitted corrective program. Moreover, if EPA has not granted full
approval to a state program by the expiration of an interim approval
and that expiration occurs after November 15, 1995, EPA must
promulgate, administer, and enforce a Federal operating permit program
for that state upon interim approval expiration.
II. Proposed Action and Implications
A. Analysis of State Submission
EPA has concluded that the operating permit program submitted by
Florida substantially meets the requirements of title V and part 70,
and proposes to grant interim approval to the program. For detailed
information on the analysis of the State's submission, please refer to
the Technical Support Document (TSD) contained in the docket at the
address noted above.
1. Support Materials
Pursuant to section 502(d) of the Act, each state must develop and
submit to the Administrator an operating permit program under state or
local law or under an interstate compact meeting the requirements of
title V of the Act. On November 16, 1993, EPA received the title V
operating permit program submitted by the State of Florida. The Florida
Department of Environmental Protection (FDEP) requested, under the
signature of the Florida Governor's designee, approval of its operating
permit program with full authority to administer the program in all
areas of the State of Florida, with the exceptions of Indian
reservations and tribal lands. The State supplemented the program
submittal on July 8, 1994, November 28, 1994, and December 22, 1994.
The Florida submittal addresses, in Section II entitled ``Complete
Program Description,'' the requirement of 40 CFR 70.4(b)(1) by
describing how the State intends to carry out its responsibilities
under the part 70 regulations. EPA has deemed the program description
to be sufficient for meeting the requirement of 40 CFR 70.4(b)(1).
Pursuant to 40 CFR 70.4(b)(3), each state is required to submit a
legal opinion from the Attorney General (or the attorney for the state
air pollution control agency that has independent legal counsel)
demonstrating adequate authority to carry out all aspects of the title
V operating permit program. The State of Florida submitted a General
Counsel Opinion and a Supplementary General Counsel Opinion
demonstrating adequate legal authority as required by Federal law and
regulation.
Section 70.4(b)(4) requires the submission of relevant permitting
program documentation not contained in the regulations, such as permit
application forms, permit forms, and relevant guidance to assist in the
State's implementation of its permit program. Appendix I of Florida's
submittal includes the permit application form, and EPA has determined
that the application form meets the requirements of 40 CFR 70.5(c).
2. Regulations and Program Implementation
The State of Florida developed Chapter 62-213 of the Florida
Administrative Code (F.A.C.) for the implementation of the substantive
requirements of 40 CFR part 70. The State also made changes to Chapters
62- [[Page 32294]] 103 and 62-210, F.A.C. to implement other part 70
requirements. These rules, and several other rules and statutes
providing for State permitting and administrative actions, were
submitted by Florida with sufficient evidence of procedurally correct
adoption as required by 40 CFR 70.4(b)(2).
The Florida program, in Rules 62-213.100 and 62-213.200, F.A.C.,
substantially meets the requirements of 40 CFR 70.2 and 70.3 with
regards to applicability. However, the portion of the State's
definition of ``major source'' in Rule 62-213.200(19)(a), F.A.C.,
implies that emissions of criteria pollutants from any oil or gas
exploration or production well (with its associated equipment) and
emissions from any pipeline compressor or pump station will not be
aggregated with emissions of criteria pollutants from other similar
units. Since the State's definition of ``major source'' conflicts with
the part 70 definition, Florida has initiated rulemaking to clarify
that the non-aggregation in the described situations applies only to
hazardous air pollutants (HAPs). Finalization of this rulemaking is a
condition of full program approval.
Florida's program, in Rules 62-210.900 and 62-213.420, F.A.C.,
substantially meets the requirements of 40 CFR 70.5 for complete permit
application forms. However, the State's program, in Rule 62-4.090,
F.A.C., requires renewal applications to be submitted 60 days prior to
expiration of existing operating permits. This requirement conflicts
with the requirement of 40 CFR 70.5(a)(1)(iii) because the State's
timeframe does not ensure that a permit will not expire prior to
renewal. Florida has initiated rulemaking to require submittal of
renewal applications six months prior to expiration of existing
operating permits. Finalization of this rulemaking is a condition of
full program approval.
Section 70.4(b)(2) requires states to include in their part 70
programs any criteria used to determine insignificant activities or
emission levels for the purposes of determining complete applications.
Section 70.5(c) states that an application for a part 70 permit may not
omit information needed to determine the applicability of, or to
impose, any applicable requirement, or to evaluate appropriate fee
amounts. Section 70.5(c) also states that EPA may approve, as part of a
state program, a list of insignificant activities and emissions levels
which need not be included in permit applications. Under part 70, a
state must request and EPA may approve as part of that state's program
any activities or emission levels that the state wishes to consider
insignificant. Part 70, however, does not establish emissions
thresholds for insignificant activities. EPA has accepted emissions
thresholds of five tons per year for criteria pollutants, and the
lesser of 1000 pounds per year or section 112(g) de minimis levels for
HAPs, as reasonable.
Florida's title V program includes three different approaches to
establishing insignificant activities and emissions levels. Rule 62-
213.420(3)(c), F.A.C., establishes threshold levels for reporting
emissions of pollutants for which no standard applies. Rule 62-
210.300(3), F.A.C., provides for the exemption of certain facilities,
emissions units, or pollutant-emitting activities from the title V
permitting process. Rule 62-4.040(1)(b), F.A.C., allows the State to
determine insignificant activities on a case-by-case basis during the
permitting process.
The threshold levels in Rule 62-213.420(3)(c), F.A.C., do not
exempt any units or activities from permitting requirements or any
other requirements, except the reporting of emissions below the
thresholds established. Rule 62-213.420(3)(c)2., F.A.C., provides for
the reporting of emissions if the title V source emits or has the
potential to emit at the following aggregate thresholds: 50 tons/year
for carbon monoxide; 500 lbs/year for lead and lead compounds
(expressed as lead); and five tons/year for particulates (PM-10),
sulfur dioxide, nitrogen oxides, and volatile organic compounds (VOCs).
Once these aggregate thresholds have been met, emissions are reported
on a per unit basis for units which have a potential to emit at the
following thresholds: 10 tons/year for carbon monoxide; 100 lbs/year
for lead and lead compounds (expressed as lead); and one ton/year for
particulates (PM-10), sulfur dioxide, nitrogen oxides, and VOCs.
Fugitive emissions and emissions from units with the potential to emit
less than the unit thresholds mentioned above shall be considered as
source-wide emissions and shall be reported as source-wide emissions
if, in the aggregate, the source-wide emissions equal or exceed the
following thresholds: 10 tons/year for carbon monoxide; 100 lbs/year
for lead and lead compounds (expressed as lead); and one ton/year of
particulates (PM-10), sulfur dioxide, nitrogen oxides, and VOCs.
Rule 62-213.420(3)(c)3.b., F.A.C., provides for the reporting of
HAPs when a title V source emits or has the potential to emit eight
tons or more per year of any single HAP, or 20 tons or more per year of
any combination of HAPs. Once these thresholds have been met, emissions
are identified and reported from each emissions unit with the potential
to emit one ton per year of any individual HAP. All fugitive emissions
not associated with any specific emissions units are also reportable
when such emissions exceed one ton per year of any individual HAP.
In the State's Supplement 1 (dated July 8, 1994) to the original
title V program submittal, Florida noted that the emissions thresholds
in its program were based on the presumption that reporting
requirements need to be stringent enough to identify applicable
requirements and to suffice for inventorying emissions to evaluate the
impact on ambient air concentrations. The aggregate threshold for
carbon monoxide of 50 tons/year appears to be inconsistent with this
objective. Since the aggregate threshold of 50 tons/year must be met
prior to the reporting of carbon monoxide in the application, the
potential exists for carbon monoxide to be inappropriately excluded
because of miscalculations. EPA proposes that, as a condition of full
approval, the State provide EPA with an acceptable justification for
establishing an aggregate carbon monoxide emissions threshold of 50
tons/year rather than five tons/year. Otherwise, the State must
establish aggregate and individual unit thresholds that trigger the
reporting of carbon monoxide emissions consistent with the emissions
levels established for particulates (PM-10), sulfur dioxide, nitrogen
oxides, and volatile organic compounds.
Moreover, since insignificant emissions levels are reviewed
relative to threshold levels for determining major source status, as
well as levels at which applicable requirements are triggered,
Florida's thresholds for the reporting of HAP emissions must be revised
as a condition of full program approval. For other state and local
programs, EPA has accepted HAPs emission thresholds of the lesser of
1000 lbs/year or section 112(g) de minimis levels as sufficient for
full approval.
Rule 62-210.300(3), F.A.C., exempts specific facilities, emissions
units, or pollutant-emitting activities from the title V permitting
process. As a condition of full approval, the State must revise Rule
62-210.300(3), F.A.C. to provide that (1) no insignificant activities
or emissions units subject to applicable requirements (as defined in
Rule 62-213.200(6), F.A.C.) will be exempted from title V permitting
requirements; (2) insignificant activities or emissions units
exemptions will not be used to lower the potential to emit below major
source thresholds; and (3) emissions thresholds for individual
[[Page 32295]] activities or units that are exempted will not exceed
five tons per year for criteria pollutants, and the lesser of 1000
pounds per year or section 112(g) de minimis levels for HAPs.
In addition, several of the specific exemptions in Rule 62-
210.300(3), F.A.C. must either be removed from the rule or revised as a
condition of full approval. Specifically, Rule 62-210.300(3)(a), F.A.C.
exempts ``[s]team and hot water generating units located within a
single facility and having a total heat input, individually or
collectively, equaling 50 million BTU/hr or less, and fired exclusively
by natural gas except for periods of natural gas curtailment during
which fuel oil containing no more than one percent sulfur is fired * *
*'' However, during the periods fuel oil is fired, these sources could
potentially emit sulfur dioxide in excess of major source thresholds.
Since the potential emissions from these sources would not be
``insignificant,'' this exemption must be removed from Rule 62-
210.300(3), F.A.C. as a condition of full approval.
Rule 62-210.300(3)(r), F.A.C. exempts ``[p]erchloroethylene dry
cleaning facilities with a solvent consumption of less than 1,475
gallons per year.'' However, at the annual consumption rate of 1,475
gallons of perchloroethylene, these facilities could potentially emit
over eight tons per year of perchloroethylene. Since the potential HAPs
emissions from these sources is not ``insignificant,'' this exemption
must be removed from Rule 62-210.300(3), F.A.C. as a condition of full
approval.
Rule 62-210.300(3)(u), F.A.C. exempts ``[e]mergency electrical
generators, heating units, and general purpose diesel engines operating
no more than 400 hours per year * * *'' These sources could potentially
have emissions in excess of major source thresholds, depending on the
fuel used and the unit's size. Since the potential emissions from these
sources would not be ``insignificant,'' this exemption must be removed
from Rule 62-210.300(3), F.A.C. as a condition of full approval.
Rule 62-210.300(3)(x), F.A.C. exempts ``[p]hosphogypsum disposal
areas and cooling ponds.'' This exemption potentially includes
phosphogypsum stacks, which emit radon and are subject to the
radionuclide National Emissions Standards for Hazardous Air Pollutants
(NESHAPS) found in 40 CFR 61, Subpart R. Therefore, as a condition of
full approval, this exemption must be revised to exclude phosphogypsum
stacks.
Rule 62-4.040(1)(b), F.A.C., allows Florida to determine
insignificant activities on a case-by-case basis during the permitting
process. As a condition of full approval, the State must revise Rule
62-4.040(1)(b), F.A.C. to provide that (1) no insignificant activities
or emissions units subject to applicable requirements (as defined in
Rule 62-213.200(6), F.A.C.) will be exempted from title V permitting
requirements; (2) no insignificant activities or emissions units
exemptions will be used to lower the potential to emit below major
source thresholds; and (3) emissions thresholds for individual
activities or units that are exempted will not exceed five tons per
year for criteria pollutants, and the lesser of 1000 pounds per year or
section 112(g) de minimis levels for HAPs.
Florida's program, in Rules 62-4.130, 62-4.160, 62-210.700, 62-
213.410, and 62-213.440, F.A.C., substantially meets the requirements
of 40 CFR 70.4, 70.5, and 70.6 for permit content (including
operational flexibility). The State's program does not provide for off-
permit changes as described in 40 CFR 70.4(b)(14).
Part 70 requires prompt reporting of deviations from the permit
requirements. Section 70.6(a)(3)(iii)(B) 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. 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). 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.
Florida has not defined ``prompt'' in its program with respect to
the reporting of deviations. Rule 62-213.440(1)(b)3.b., F.A.C.,
requires reporting, in accordance with the requirements of Rules 62-
210.700(6) and 62-4.130, F.A.C., of deviations from permit
requirements. Rule 62-210.700(6), F.A.C., requires notification in
accordance with Rule 62-4.130, F.A.C. Rule 62-4.130, F.A.C., requires
immediate notification ``if the permittee is temporarily unable to
comply with any of the conditions of the permit due to breakdown of
equipment or destruction by hazard of fire, wind or by other cause.''
This requirement is reiterated in Rule 62-4.160(8), F.A.C., which is a
general condition of each permit that extends the requirement to
include immediate reporting if, for any reason, the permittee does not
comply with or will be unable to comply with any condition or
limitation specified in the permit. Florida has stated that
``immediately'' is not reasonably interpreted to mean a time beyond the
next workday.
Florida has the authority to issue variances from requirements
imposed by State law. Rule 62-103.100, F.A.C., allows Florida
discretion to grant relief from compliance with State statutes and
rules. EPA regards this provision as wholly external to the program
submitted for approval under part 70, and consequently proposes 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, that are inconsistent with title V. 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 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, 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 40 CFR 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.''
Florida's program, in Rules 62-210.360, 62-213.400, 62-213.412, 62-
213.420, and 62-213.430, F.A.C., substantially meets the permit
processing requirements of 40 CFR 70.7 (including minor permit
modifications) and 70.8. However, the State's regulations do not
provide for permit reopenings for cause consistent with 40 CFR
70.7(f)(1)(i), (iii), and (iv). As a condition of full approval, the
State's program must provide the following: (1) [[Page 32296]] if a
permit is reopened and revised because additional applicable
requirements become applicable to a major source with a remaining
permit term of 3 or more years, such a reopening shall be completed
within 18 months after promulgation of the applicable requirement; (2)
a permit shall be reopened and revised if EPA or the State determines
that the permit contains a material mistake or that inaccurate
statements were made in establishing the emissions standards or other
terms or conditions of the permit; and (3) a permit shall be reopened
if EPA or the State determine that the permit must be revised or
revoked to assure compliance with the applicable requirements.
The public participation requirements of 40 CFR 70.7(h) were
addressed in Rules 62-103.150, 62-210.350, 62-213.430, and 62-213.450,
F.A.C. The program also, in Sections 403.131, 403.141, and 403.161 of
the Florida Statutes (F.S.), substantially meets the requirements of 40
CFR 70.11 with respect to enforcement authority.
The aforementioned TSD contains the detailed analysis of Florida's
program and describes the manner in which the State's program meets all
of the operating permit program requirements of 40 CFR part 70.
3. Permit Fee Demonstration
Section 502(b)(3) of the Act requires each permitting authority to
collect fees sufficient to cover all reasonable direct and indirect
costs necessary for the development and administration of its title V
operating permit 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 emissions per year (adjusted from 1989 by the Consumer Price
Index (CPI)). The $25 per ton is presumed, for program approval, to be
sufficient to cover all reasonable program costs and is thus referred
to as the ``presumptive minimum.''
The State of Florida has elected to assess a title V operating
permit fee below the Federal presumptive minimum fee amount. The
State's program submittal, therefore, included a detailed fee
demonstration in accordance with 40 CFR 70.9(b)(5). The fee
demonstration showed that the fees collected will adequately cover the
anticipated costs of the operating permit program for the years 1995
through 1999.
In Rule 62-213.205, F.A.C., the State established a 1995 license
fee for title V sources of $25 per ton of each regulated air pollutant
allowed to be emitted annually. Rule 62-213.205(1)(a), F.A.C., provides
that the license fee may be increased beyond $25 per ton in years
succeeding 1995 if the Secretary of FDEP finds that a shortage of
revenue will occur in the absence of a fee adjustment. The State
asserts that since one of the program's mandates is that it be self-
supporting, it is expected that the Secretary's discretionary power
will be exercised as the need arises to adjust the fee accordingly.
The program activities that will constitute the State's title V
operating permit program are consistent with the activities described
in 40 CFR 70.9(b)(1). Rule 62-213.205(3), F.A.C., provides that an
audit of the State's operating permit program will be conducted 2 years
after EPA has given full approval of the program or by December 31,
1996, whichever comes later, to ascertain whether the annual fees
collected are used solely to support reasonable direct and indirect
costs of the title V program. After the first audit, the program will
be audited biennially. And though Rule 62-213.205(1)(a), F.A.C.,
provides that the annual fee may not exceed $35 per ton without
legislative approval, Florida has assured EPA that it will seek
legislative action to raise the fee amount above the $35 per ton limit
if it becomes necessary.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority for section 112 implementation. In its program
submittal, Florida demonstrates adequate legal authority to implement
and enforce all section 112 requirements through the title V permit.
This legal authority is contained in the Florida Statutes (i.e.,
Section 403.0872), and in the Florida Administrative Code in regulatory
provisions defining ``applicable requirements'' and stating that
permits must address all applicable requirements. Moreover, Florida has
initiated rulemaking to clearly state that each permit shall
incorporate all applicable requirements for the title V source. EPA has
determined that this legal authority is sufficient to allow the State
to issue permits that assure compliance with all section 112
requirements.
EPA is interpreting the above legal authority to mean that Florida
is able to carry out all section 112 activities with respect to part 70
and non-part 70 sources. For further rationale on this interpretation,
please refer to the TSD.
b. Implementation of section 112(g) upon program approval. EPA
issued an interpretive notice on February 14, 1995 (60 FR 8333), which
outlines EPA's revised interpretation of section 112(g) applicability.
The notice postpones the effective date of section 112(g) until after
EPA has promulgated a rule addressing that provision. The notice sets
forth in detail the rationale for the revised interpretation.
The section 112(g) interpretative notice explains that EPA is
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), Florida 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 State regulations.
EPA is aware that Florida lacks a program designed specifically to
implement section 112(g). However, Florida does have a preconstruction
review program that can serve as an adequate implementation vehicle
during the transition period because it would allow the State to select
control measures that would meet the maximum achievable control
technology (MACT), as defined in section 112, and incorporate these
measures into a Federally enforceable preconstruction permit.
For this reason, EPA proposes to approve the use of Florida's
preconstruction review program found in Rule 62-212, F.A.C., 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 section 112(g) promulgation and adoption of a
State rule implementing 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 purpose of any other provision under the Act (e.g.,
section 110). This approval will 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. The
duration of this approval is limited to 18 months following
promulgation by EPA of the section 112(g) rule to provide
[[Page 32297]] adequate time for the State to adopt regulations
consistent with the Federal requirements.
c. Program for delegation of section 112 standards as promulgated.
The requirements for part 70 program approval, specified in 40 CFR
70.4(b), encompass section 112(l)(5) requirements for approval of a
state program for delegation of section 112 standards promulgated by
EPA as they apply to title V 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 also proposes to grant
approval, under section 112(l)(5) and 40 CFR 63.91, of Florida's
program for receiving delegation of section 112 standards that are
unchanged from the Federal standards as promulgated. In addition, EPA
proposes delegation of all existing standards and programs under 40 CFR
parts 61 and 63 for part 70 sources and non-part 70 sources.1
\1\The radionuclide National Emission Standards for Hazardous
Air Pollutant (NESHAP) is a section 112 regulation and therefore,
also an applicable requirement under the State operating permits
program for part 70 sources. There is not yet a Federal definition
of ``major'' for radionuclide sources. Therefore, until a major
source definition for radionuclide is promulgated, no source would
be a major section 112 source solely due to its radionuclide
emissions. However, a radionuclide source may, in the interim, be a
major source under part 70 for another reason, thus requiring a part
70 permit. EPA will work with the State in the development of its
radionuclide program to ensure that permits are issued in a timely
manner.
---------------------------------------------------------------------------
Florida has informed EPA that it intends to accept the delegation
of future section 112 standards using the mechanisms of adoption-by-
reference and case-by-case delegation. The details of the State's use
of these delegation mechanisms are set forth in a letter dated January
11, 1995, submitted by the State as a title V program addendum.
d. Commitment to implement title IV of the Act. Florida has
committed to take action, following promulgation by EPA of regulations
implementing sections 407 and 410 of the Act, or revisions to either
part 72 or the regulations implementing sections 407 or 410, to either
incorporate the revised provisions by reference or submit, for EPA
approval, State regulations implementing these provisions. On January
3, 1995, Florida's acid rain rule for the permitting of Phase II
sources became state-effective. On March 10, 1995, the State submitted
proposed changes to its acid rain rule to address discrepancies between
the State's rule and the Federal requirements in part 72. The State is
expediting rule revisions to ensure that an acid rain rule that is
acceptable to EPA will be state-effective before November 15, 1995.
B. Proposed Actions
EPA proposes interim approval of the operating permit program
submitted by the State of Florida on November 16, 1993, and as
supplemented on July 8, 1994, November 28, 1994, and December 22, 1994.
If promulgated, the State must make the changes discussed below to
receive full program approval.
1. Definition of ``Major Source''
As a condition of full approval, Florida is revising the definition
of ``major source'' in Rule 62-213.200(19)(a), F.A.C. for consistency
with the Federal definition. This rulemaking, when state-effective,
will clarify that the non-aggregation in the situations described
previously in section II.A.2. applies only to HAPs.
2. Timely Application for Permit Renewal
As a condition of full approval, Florida is revising Rule 62-4.090,
F.A.C., to require submittal of permit renewal applications six months
prior to expiration of existing title V permits. This rulemaking, when
state-effective, will address the Federal requirement in 40 CFR
70.5(a)(1)(iii) for timely application for purposes of permit renewal.
3. Insignificant Activities Provisions
As a condition of full program approval, Florida must complete the
following:
(a) Provide EPA with an acceptable justification for establishing
an aggregate carbon monoxide emissions threshold of 50 tons/year rather
than five tons/year. Otherwise, the State must establish aggregate and
individual unit thresholds that trigger the reporting of carbon
monoxide emissions consistent with the emissions levels established for
particulates (PM-10), sulfur dioxide, nitrogen oxides, and volatile
organic compounds. The State must also reduce the thresholds for HAP
emissions to the lesser of 1000 lbs/year or section 112(g) de minimis
levels.
(b) Revise Rule 62-210.300(3), F.A.C. to provide that (1) no
insignificant activities or emissions units subject to applicable
requirements (as defined in Rule 62-213.200(6)) will be exempted from
title V permitting requirements; (2) insignificant activities or
emissions units exemptions will not be used to lower the potential to
emit below major source thresholds; and (3) emissions thresholds for
individual activities or units that are exempted will not exceed five
tons per year for criteria pollutants, and the lesser of 1000 pounds
per year or section 112(g) de minimis levels for HAPs. In addition, as
discussed previously in section II.A.2., several exemptions in Rule 62-
210.300(3), F.A.C. must either be removed from the rule or revised.
(c) Revise Rule 62-4.040(1)(b), F.A.C. to provide that (1) no
insignificant activities or emissions units subject to applicable
requirements (as defined in Rule 62-213.200(6), F.A.C.) will be
exempted from title V permitting requirements; (2) no insignificant
activities or emissions units exemptions will be used to lower the
potential to emit below major source thresholds; and (3) emissions
thresholds for individual activities or units that are exempted will
not exceed five tons per year for criteria pollutants, and the lesser
of 1000 pounds per year or section 112(g) de minimis levels for HAPs.
4. Permit Reopenings Provisions
As a condition of full approval, Florida must provide for permit
reopenings for cause consistent with 40 CFR 70.7(f)(1)(i), (iii), and
(iv).
This interim approval, which may not be renewed, extends for a
period of up to two years. During the interim approval period, Florida
is protected from sanctions for failure to have a program, and EPA is
not obligated to promulgate a Federal operating permit program in the
State. Permits issued under a program with interim approval are fully
effective with respect to part 70, and the one-year time period for
submittal of permit applications by subject sources begins upon interim
approval, as does the three-year time period for processing the initial
permit applications.
The scope of Florida's part 70 program that EPA proposes to
interimly approve in this notice would apply to all part 70 sources (as
defined in the approved program) within the State, except any sources
of air pollution over which an Indian Tribe has jurisdiction. See,
e.g., 59 FR 55813, 55815-18 (Nov. 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; see also 59 FR
43956, 43962 (Aug. 25, 1994); 58 FR 54364 (Oct. 21, 1993).
As discussed previously in section II.A.4.b., EPA proposes to
approve [[Page 32298]] Florida's preconstruction review program found
in Rule 62-212, F.A.C., 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 EPA's section 112(g) regulations.
In addition, as discussed in section II.A.4.c., EPA proposes to
grant approval under section 112(l)(5) and 40 CFR 63.91 to Florida's
program for receiving delegation of section 112 standards that are
unchanged from Federal standards as promulgated. EPA also proposes to
delegate existing standards under 40 CFR parts 61 and 63 for both part
70 sources and non-part 70 sources.
III. Administrative Requirements
A. Request for Public Comments
EPA requests comments on all aspects of this proposed interim
approval. Copies of the State's submittal and other information relied
upon for the proposed interim approval are contained in docket number
FL-95-01 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 this proposed
interim approval. 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. EPA will
consider any comments received by July 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 of the Act do not create any new
requirements, but simply address operating permit 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 Reform Act of 1995
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
the 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 proposed interim approval action
promulgated today does not include a Federal 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. 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.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
and Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: June 9, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
[FR Doc. 95-15174 Filed 6-20-95; 8:45 am]
BILLING CODE 6560-50-P
