[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38715-38718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18527]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NC-065-1-6431a; FRL-5226-7]
Approval and Promulgation of Implementation Plans: Approval of
Revisions to the Mecklenburg County Portion of the North Carolina State
Implementation Plan (SIP)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving revisions to the Mecklenburg County portion
of the North Carolina State Implementation Plan (SIP) to allow the
Mecklenburg County Department of Environment to issue Federally
enforceable local operating permits (FELOP). On November 24, 1993, the
Mecklenburg County Department of Environment through the North Carolina
Department of Environment, Health, and Natural Resources (DEHNR)
submitted a SIP revision fulfilling the requirements necessary to issue
FELOP. The submittal conforms with the requirements necessary for a
local agency's minor source operating permit program to become
federally enforceable. In order to extend the Federal enforceability of
local operating permits to hazardous air pollutants (HAP), EPA is also
proposing approval of the Mecklenburg County minor source operating
permit regulations pursuant to section 112 of the Act.
DATES: This final rule will be effective on September 26, 1995 unless
adverse or critical comments are received by August 28, 1995. If the
effective date is delayed, timely notice will be published in the
Federal Register.
ADDRESSES: Written comments should be addressed to Scott Miller at the
EPA Regional office listed below.
Copies of the material submitted by Mecklenburg County may be
examined during normal business hours at the following locations:
Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street SW., Washington, DC
20460.
Environmental Protection Agency, Region 4 Air Programs Branch, 345
Courtland Street NE., Atlanta, Georgia 30365.
North Carolina Department of Health, Environment and Natural Resources,
Air Quality Section, P.O. Box 29535, Raleigh, North Carolina 27626.
FOR FURTHER INFORMATION CONTACT: Scott Miller, Air Programs Branch,
Air, Pesticides & Toxics Management Division, Region 4 Environmental
[[Page 38716]]
Protection Agency, 345 Courtland Street NE., Atlanta, Georgia 30365.
The telephone number is (404) 347-2864.
SUPPLEMENTARY INFORMATION: On November 24, 1993, Mecklenburg County,
North Carolina through DEHNR submitted a SIP revision designed to allow
Mecklenburg County to issue FELOP which conform to EPA requirements for
federal enforceability as specified in a Federal Register notice,
``Requirements for the preparation, adoption, and submittal of
implementation plans; air quality, new source review; final rules.''
(See 54 FR 22274, June 28, 1989). This voluntary SIP revision allows
EPA and citizens under the Act to enforce terms and conditions of
local-issued minor source operating permits. Operating permits that are
issued under the County's minor source operating permit program that is
approved into the State SIP and under section 112(l) will provide
federally enforceable limits to an air pollution source's potential to
emit. Limiting of a source's potential to emit through federally
enforceable operating permits can affect a source's applicability to
federal regulations such as title V operating permits, New Source
Review (NSR) preconstruction permits, Prevention of Significant
Deterioration (PSD) preconstruction permits for criteria pollutants and
federal air toxics requirements.
In the aforementioned June 28, 1989, Federal Register document, EPA
listed five criteria necessary to make a local agency's minor source
operating permit program federally enforceable and, therefore,
approvable into the SIP. This revision satisfies the five criteria for
federal enforceability of the County's minor source operating permit
program.
The first criteria for a local agency's minor source operating
permit to become federally enforceable is that the regulations
governing permit issuance are approved into the SIP. On November 24,
1993, Mecklenburg County through the DEHNR submitted a SIP revision
fulfilling the requirements necessary to make Mecklenburg County's
minor source operating permit program federally enforceable. This
action will approve these regulations into the North Carolina SIP,
thereby, meeting the first criteria for federal enforceability.
The second criteria for a state's operating permit program to
become federally enforceable is that the regulations approved into the
SIP impose a legal obligation that operating permit holders adhere to
the terms and limitations of such permits. Mecklenburg County Air
Pollution Control Ordinance (MCAPCO) Regulation 1.5232(b) states that
failure to apply for or to act in accordance with the terms,
conditions, or requirements of any permit shall be cause for
enforcement sanctions in MCAPCO Regulation 1.5300 and Chapter 143,
Article 21B of the General Statutes of North Carolina. MCAPCO
Regulation 1.5300 lists criminal and civil enforcement remedies that
the County may take in the event that an air pollution source violates
the terms, conditions, or requirements of the permit. Hence, the second
criteria for federal enforceability is met.
The third criteria necessary for Mecklenburg County's operating
permit program to be federally enforceable is that the local operating
permit program require that all emissions limitations, controls, and
other requirements imposed by such permits will be at least as
stringent as any other applicable limitations and requirements
contained in the SIP or enforceable under the SIP, and that the program
may not issue permits that waive, or make less stringent, any
limitations or requirements contained in or issued pursuant to the SIP,
or that are otherwise ``federally enforceable'' (e.g. standards
established under sections 111 and 112 of the Act). MCAPCO Regulation
1.5232(b) mandates that approval of construction, modification, or
operation of any source shall not affect the responsibility of the
owner or operator to comply with applicable portions of the SIP.
Therefore, the third criteria for federal enforceability is met.
The fourth criteria for a local agency's operating permit program
to become federally enforceable is that limitations, controls, and
requirements in the operating permits are quantifiable, and otherwise
enforceable as a practical matter. While a determination of what is
practically enforceable will generally differ based on process type and
emissions, the County has included several regulations designed to
ensure that permit limitations are enforceable as a practical matter.
MCAPCO Regulation 1.5212(d) requires that upon request an air pollution
source prove to the Department that it has complied with air quality
emission standards and has been in compliance with federal and state
laws and regulations. MCAPCO Regulation 1.5213(b) provides that the
Department will attach as a condition of any permit which is issued, a
requirement that the applicant prior to construction or operation of a
facility under the permit, comply with all lawfully adopted ordinances.
MCAPCO Regulation 1.5214 requires that after a permit is issued a
source must submit written notification to the Department before it
commences operation of the newly permitted activity. Within 90 days
after the source notifies the Department, the Department will inspect
the source, equipment, process, or device in order to determine
compliance with permit conditions and limitations. Therefore, the
fourth criteria for federal enforceability is met.
The fifth criteria for a local agency's operating permit program to
become federally enforceable is to provide EPA and the public with
timely notice of the proposal and issuance of such permits, and to
provide EPA, on a timely basis, with a copy of each proposed (or draft)
and final permit intended to be federally enforceable. This process
also must provide for an opportunity for public comment on the permit
applications prior to issuance of the final permit. MCAPCO Regulation
1.5213(g) requires a 30 day public notice period for every permit
issued by the County. In addition, every permit issued by the County
goes through a public hearing prior to permit issuance. MCAPCO
Regulation 1.5213(h) requires the Department to submit the proposed
permit to EPA for review during the 30 day comment period, and also
provides that after final permit issuance the Department will submit a
copy of the final permit to EPA. Hence, the fifth criteria for federal
enforceability is met.
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 (FESOP).
Permits issued pursuant to an operating permit program approved into
the SIP as meeting these criteria may be considered federally
enforceable. The EPA has encouraged states to develop such FESOP
programs in conjunction with title V operating permits programs to
enable sources to limit their potential to emit to below the title V
applicability thresholds. (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,
Air Quality Management Division, Office of Air Quality Planning and
Standards (OAQPS), Office of Air and Radiation, U.S. EPA.) On November
3, 1993, the EPA announced in a guidance document entitled,
``Approaches to Creating Federally Enforceable Emissions Limits,''
signed by John S. Seitz, Director, OAQPS, that this mechanism could be
extended to create federally enforceable limits for emissions of HAP if
the program were approved pursuant to section 112(l) of the Act.
[[Page 38717]]
In addition to requesting approval into the SIP, Mecklenburg County
also requested on July 12, 1994, approval of its minor source operating
permit program under section 112(l) of the Act for the purpose of
creating federally enforceable limitations on the potential to emit of
HAP. Approval under section 112(l) is necessary because the proposed
SIP approval discussed above only extends to the control of criteria
pollutants. Federally enforceable limits on criteria pollutants (i.e.,
VOC's or PM-10) may have the incidental effect of limiting certain HAP
listed pursuant to section 112(b).1
\1\ The EPA intends to issue guidance addressing the technical
aspects of how these criteria pollutant limits may be recognized for
purposes of limiting a source's potential to emit of HAP to below
section 112 major source levels.
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However, section 112 of the Act provides the underlying authority
for controlling all HAP emissions.
EPA believes that the five approval criteria for approving FELOP
programs into the SIP, as specified in the June 28, 1989 Federal
Register document, are also appropriate for evaluating and approving
the programs under section 112(l). The June 28, 1989, document does not
address HAP because it was written prior to the 1990 amendments to
section 112, not because it establishes requirements unique to criteria
pollutants. Hence, the following five criteria are applicable to FELOP
approvals under section 112(l): (1) The program must be submitted to
and approved by the 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 or the EPA's underlying regulations 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, enforceable under the SIP, or any section 112 or other CAA
requirement, and may not allow for the waiver of any CAA requirement;
(4) permits issued under the program must contain conditions that are
permanent, quantifiable, and enforceable as a practical matter; and (5)
permits that are intended to be federally enforceable must be issued
subject to public participation and must be provided to the EPA in
proposed form on a timely basis.
In addition to meeting the criteria in the June 28, 1989, document,
a FELOP program that addresses HAP must meet the statutory criteria for
approval under section 112(l)(5). Section 112(l) allows EPA to approve
a program only if it: (1) Contains adequate authority to assure
compliance with any section 112 standards or requirements; (2) provides
for adequate resources; (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.
EPA plans to codify the approval criteria for programs limiting
potential to emit of HAP, such as FELOP programs, through amendments to
Subpart E of Part 63, the regulations promulgated to implement section
112(l) of the Act. (See 58 FR 62262, November 26, 1993.) EPA currently
anticipates that these regulatory criteria, as they apply to FELOP
programs, will mirror those set forth in the June 28, 1989, notice. EPA
also anticipates that given FELOP programs approved pursuant to section
112(l) prior to the planned Subpart E revisions will have been approved
as meeting these criteria, further approval actions for those programs
will not be necessary.
EPA has authority under section 112(l) to approve programs to limit
potential to emit of HAP directly under section 112(l) prior to this
revision to Subpart E. Section 112(l)(5) requires EPA to disapprove
programs that are inconsistent with guidance required to be issued
under section 112(l)(2). This could 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, 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). 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, 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. Therefore, EPA is approving Mecklenburg County's
minor source operating permit program to allow the County to begin
issuing FELOPs as soon as possible.
Regarding the statutory criteria of section 112(l)(5) referred to
above, EPA believes Mecklenburg County's minor source operating permit
program contains adequate authority to assure compliance with section
112 requirements because the third criterion of the June 28, 1989,
document is met, that is, because the program does not allow for the
waiver of any section 112 requirement. Sources that become minor
through a permit issued pursuant to this program would still be
required to meet section 112 requirements applicable to non-major
sources.
Regarding the requirement for adequate resources, EPA believes
Mecklenburg County has demonstrated that it can provide for adequate
resources to support the minor source operating permit program. EPA
expects that since Mecklenburg County has administered a minor source
operating permit program for several years, resources will continue to
be adequate to administer the minor source operating permit program.
EPA will monitor Mecklenburg County's implementation of its FELOP to
ensure that adequate resources are in fact available. EPA also believes
that Mecklenburg County's minor source operating permit program
provides for an expeditious schedule for assuring compliance with
section 112 requirements. This program will be used to allow a source
to establish a voluntary limit on potential to emit to avoid being
subject to a CAA requirement applicable on a particular date. Nothing
in Mecklenburg County's program would allow a source to avoid or delay
compliance with a CAA requirement if it fails to obtain an appropriate
federally enforceable limit by the relevant deadline. Finally, EPA
believes it is consistent with the intent of section 112 and the Act
for States to provide a mechanism through which sources may avoid
classification as a major source by obtaining a federally enforceable
limit on potential to emit.
With the addition of these provisions, Mecklenburg County's minor
source operating permit program satisfies all the requirements listed
in the June 28, 1989, Federal Register document. Therefore, EPA is
approving this revision to the Mecklenburg County portion of the North
Carolina SIP making the County's minor source operating permit program
federally enforceable which will allow the County to issue FELOP.
Final Action
In this action, EPA is approving the Mecklenburg County minor
source operating permit program. EPA is publishing this action without
prior proposal because the EPA views this as a noncontroversial
amendment and anticipates no adverse comments. However, in a separate
document in the Federal Register publication, EPA is proposing to
approve the SIP revision should adverse or critical comments be
[[Page 38718]]
filed. This action will be effective on September 26, 1995 in the
Federal Register unless, by August 28, 1995, adverse or critical
comments are received. If EPA receives such comments, this action will
be withdrawn before the effective date by publishing a subsequent
document that will withdraw the final action. All public comments
received will then be addressed in a subsequent final rule based on
this action serving as a proposed rule. EPA will not institute a second
comment period on this action. Any parties interested in commenting on
this action should do so at this time. If no such comments are
received, the public is advised that this action will be effective on
September 26, 1995.
EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Amendments
enacted on November 15, 1990. EPA has determined that this action
conforms with those requirements.
Under Section 307(b)(1) of the Act, 42 U.S.C. 7607(b)(1), petitions
for judicial review of this action must be filed in the United States
Court of Appeals for the appropriate circuit by September 26, 1995.
Filing a petition for reconsideration by the Administrator of this
final rule does not affect the finality of this rule for purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See Section 307(b)(2) of the
CAA, 42 U.S.C. 7607(b)(2).)
The Office of Management and Budget has exempted this action from
review under Executive Order 12866.
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a 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.
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 Action
SIP approvals under 110 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, I certify 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 regulatory flexibility analysis would constitute federal inquiry into
the economic reasonableness of state action. The CAA forbids EPA to
base its actions concerning SIPs on such grounds. Union Electric Co. v.
U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. Section
7410(a)(2).
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 52
Environmental protection, Air pollution control, Carbon Monoxide,
Hydrocarbons, Incorporation by Reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
Recordkeeping requirements, Sulfur oxides.
Dated: June 23, 1995.
William A. Waldrop,
Regional Administrator.
Part 52 of chapter I, title 40, Code of Federal Regulations, is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart II--North Carolina
2. Section 52.1770 is amended by adding paragraph (c)(70) to read
as follows:
Sec. 52.1770 Identification of plan.
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(c) * * *
(70) The minor source operating permit program for Mecklenburg
County, North Carolina, submitted by the Mecklenburg County Department
of Environmental Protection on November 24, 1993, and as part of the
Mecklenburg County portion of the North Carolina SIP.
(i) Incorporation by reference.
MCAPCO Regulations 1.5211 through 1.5214, 1.5216, 1.5219, 1.5221,
1.5222, 1.5232, 1.5234, and 1.5306 of the Mecklenburg County portion of
the North Carolina SIP adopted June 6, 1994.
(ii) Other material. None.
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[FR Doc. 95-18527 Filed 7-27-95; 8:45 am]
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