[Federal Register Volume 61, Number 147 (Tuesday, July 30, 1996)]
[Rules and Regulations]
[Pages 39597-39601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19205]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 70
[PA065-4025; AD-FRL-5535-3]
Clean Air Act Final Full Approval Of Operating Permits Program;
Final Approval of Operating Permit and Plan Approval Programs Under
Section 112(l); Final Approval of State Implementation Plan Revision
for the Issuance of Federally Enforceable State Plan Approvals and
Operating Permits Under Section 110; Commonwealth of Pennsylvania
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final full approval of Title V Operating Permit Program and
final approval of State Operating Permit and Plan Approval Programs.
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SUMMARY: The EPA is promulgating full approval of the Operating Permits
Program submitted by the Commonwealth of Pennsylvania for the purpose
of complying with Federal
[[Page 39598]]
requirements for an approvable State program to issue operating permits
to all major stationary sources, and to certain other sources. EPA is
also granting final approval to Pennsylvania's Operating Permit and
Plan Approval Programs pursuant to Section 110 of the Clean Air Act
(the ``Act'') for the purpose of creating Federally enforceable
operating permit and plan approval conditions for sources of criteria
air pollutants. In order to extend the federal enforceability of State
operating permits and plan approvals to include hazardous air
pollutants (HAPs), EPA is also approving Pennsylvania's plan approval
and operating permits program regulations pursuant to Section 112 of
the Act. Today's action also approves Pennsylvania's mechanism for
receiving straight delegation of Section 112 standards.
EFFECTIVE DATE: August 29, 1996.
ADDRESSES: Copies of the State's submittal and other supporting
information used in developing this final full approval 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;
the Air and Radiation Docket and Information Center, U.S. Environmental
Protection Agency, 401 M Street, SW, Washington, DC 20460; Pennsylvania
Department of Environmental Protection, Bureau of Air Quality, Rachel
Carson State Office Building, 400 Market Street, P.O. Box 8468,
Harrisburg, Pennsylvania 17105-8468.
FOR FURTHER INFORMATION CONTACT: Michael H. Markowski, 3AT23, U.S.
Environmental Protection Agency, Region 3, 841 Chestnut Building,
Philadelphia, Pennsylvania, 19107, (215) 566-2063.
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), 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 EPA
act to approve or disapprove each program within 1 year after receiving
the submittal. The EPA's program review occurs pursuant to section 502
of the Act and the part 70 regulations, which together outline criteria
for approval or disapproval. Where a program substantially, but not
fully, meets the requirements of Part 70, EPA may grant the program
interim approval for a period of up to 2 years. If EPA has not fully
approved a program by 2 years after the November 15, 1993 date, or by
the end of an interim program, it must establish and implement a
Federal program.
On March 7, 1996, EPA proposed full approval of the operating
permits program for the Commonwealth of Pennsylvania. See 61 FR 9125-
9132. EPA did not receive any public comments on the proposal, and in
this document is taking final action to promulgate full approval of the
Commonwealth's program.
As part of this action, EPA is also taking final action to approve
Pennsylvania's plan approval (i.e., construction permit) and operating
permit programs pursuant to Section 110 of the Act. On June 28, 1989
(54 FR 27274) EPA published criteria for approving and incorporating
into the State Implementation Plan (SIP) regulatory programs for the
issuance of federally enforceable state operating permits. Permits
issued pursuant to an operating permit program meeting these criteria
and approved into the SIP are considered federally enforceable. EPA has
encouraged States to consider developing such programs in conjunction
with Title V operating permit programs for the purpose of creating
federally enforceable limits on a source's potential to emit. This
mechanism enables sources to reduce their potential to emit of criteria
pollutants to below the Title V applicability thresholds and avoid
being subject to Title V. (See the guidance document entitled,
``Limitation of Potential to Emit with Respect to Title V Applicability
Thresholds,'' dated September 18, 1992, from John Calcagni, Director of
EPA's Air Quality Management Division).
Also as part of this action, EPA is taking final action to approve
Pennsylvania's plan approval (i.e., construction permit) and operating
permit programs pursuant to Section 112(l) of the Clean Air Act for the
purpose of allowing the Commonwealth to issue plan approvals and
operating permits which limit source's potential to emit hazardous air
pollutants (HAPs). Section 112(l) of the Clean Air Act provides the
underlying authority for controlling emissions of HAPs. Therefore, in
order to extend federal enforceability of the Commonwealth's operating
permit and plan approval programs to include HAPs, EPA is today
approving Pennsylvania's plan approval and operating permit program
submittals pursuant to Section 112(l) of the Act.
II. Final Action and Implications
A. Analysis of State Submission
The Secretary of the Department of Environmental Resources, as the
designee of the Governor of the Commonwealth of Pennsylvania, submitted
an administratively complete title V Operating Permit Program for the
Commonwealth of Pennsylvania on May 18, 1995. The Pennsylvania program,
including the operating permit regulations (25 Pa. Code Chapter 127,
Subchapter G, ``Title V Operating Permits'') fully meets the
requirements of 40 CFR parts 70.2 and 70.3 with respect to
applicability; parts 70.4, 70.5, and 70.6 with respect to permit
content including operational flexibility; part 70.5 with respect to
complete application forms and criteria which define insignificant
activities; part 70.7 with respect to public participation and minor
permit modifications; and part 70.11 with respect to requirements for
enforcement authority.
Section 127.531 of Subchapter G contains the acid rain provisions
of the Commonwealth's Title V operating permits program. EPA is aware
that Pennsylvania has not directly incorporated by reference EPA's
Title IV regulations found at 40 CFR Part 72, and has not adopted EPA's
model rule. However, as referenced in EPA's March 7, 1996 Federal
Register notice proposing full approval of Pennsylvania's program (61
FR 9125), several regulatory provisions require that Pennsylvania's
Title V program be operated in accordance with the requirements of
Title IV and its implementing regulations. Section 127.531(a) provides
that the acid rain provisions of that section ``shall be interpreted in
a manner consistent with the Clean Air Act and the regulations
thereunder.'' Section 127.531(b) requires that affected sources submit
a permit application and compliance plan ``that meets the requirements
of * * * the Clean Air Act and the regulations thereunder.'' Further,
the Sec. 121.1 definition of ``applicable requirements'' for Title V
sources includes standards or other requirements ``of the acid rain
program under Title IV of the Clean Air Act * * * or the regulations
thereunder.''
For additional assurance that Pennsylvania's operating permit
program will operate in compliance with applicable acid rain
requirements, EPA notes that the Commonwealth has agreed to accept
delegation of the applicable provisions of 40 C.F.R. Parts
[[Page 39599]]
70, 72, and 78 for the purpose of implementing the Title IV
requirements of its operating permit program. The Pennsylvania
Department of Environmental Protection (PADEP) shall apply these
provisions for purposes of incorporating Acid Rain program requirements
into each affected source's operating permit; identifying designated
representatives; establishing permit application deadlines; issuing,
denying, modifying, reopening, and renewing permits; establishing
compliance plans; processing permit appeals; and issuing written
exemptions under 40 C.F.R. 72.7 and 72.8. This commitment is contained
in an Implementation Agreement which has been negotiated between EPA
and PADEP.
As part of the May 18, 1995 submittal, PADEP submitted to EPA for
review and approval a revision to its State Implementation Plan (SIP)
designed to create federally enforceable limits on a source's potential
to emit. The revision consists of regulations establishing a State
operating permit program and a plan approval (i.e., construction
permit) program, codified in Subchapters F and B, respectively, of the
Commonwealth's air quality regulations. Pennsylvania refers to
construction permits as ``plan approvals.'' As explained more fully in
EPA's March 7, 1996 Notice of Proposed Rulemaking, 61 FR 9125, and in
the Technical Support Document which accompanied that proposed
rulemaking, the SIP revision submitted by Pennsylvania generally
strengthens the SIP by establishing a comprehensive operating permit
and plan approval program designed to limit source's potential to emit
of both criteria and hazardous air pollutants. As explained in the
March 7, 1996 Notice, EPA's review of this revision to the federally
enforceable Pennsylvania SIP indicates that the operating permit and
plan approval programs both meet applicable federal criteria for
approval. Specifically, EPA's review of the State operating permit
program submitted by Pennsylvania indicates that the program meets the
five criteria for approval set forth in the June 28, 1989 Federal
Register document (54 FR 27282) and the statutory criteria for approval
under Section 112(l)(5) of the Act. Please refer to EPA's March 7, 1996
Federal Register Notice for further information.
EPA's review of the Pennsylvania plan approval program indicates
that this program also meets applicable federal criteria for approval.
Specifically, EPA has determined that the Pennsylvania plan approval
program meets the statutory criteria for approval under Section
112(l)(5) of the Act. As explained in EPA's March 7, 1996 Notice, a
State operating permit or plan approval (i.e., construction permit)
issued pursuant to a program which has been approved by EPA and
incorporated into the SIP, and which meets the June 28, 1989 Federal
Register document and Clean Air Act Section 112(l) criteria, are deemed
federally enforceable and may be used to limit the potential to emit of
both criteria and hazardous air pollutants (HAPs). This will, in many
cases, allow a source to voluntarily limit its potential to emit of air
pollutants and avoid being subject to otherwise applicable major source
requirements of the Act, including Title V operating permit
requirements. Accordingly, EPA is today approving and incorporating
into the SIP Pennsylvania's operating permit and plan approval program
regulations pursuant to Sections 110 and 112 of the Act.
On January 31, 1996, PADEP proposed for public review and comment a
draft ``Voluntary Environmental Compliance Audit Policy.'' EPA is
concerned that this policy may impermissibly limit PADEP's authority to
seek civil penalties for certain violations disclosed by a source after
a voluntary audit. See Clean Air Act Sections 113(e)(1) and 502(b)(5);
40 CFR 70.11(a)(3) and (c). This policy has not been finalized and
implemented by PADEP, and thus its final scope and applicability are
uncertain. However, EPA advised Pennsylvania by letter on June 5, 1996
that if PADEP's final audit policy impermissibly limits PADEP's
authority to seek civil penalty from sources subject to this
rulemaking, then EPA will consider this to be grounds for reopening
this rulemaking and reconsidering its decision to fully approve the
programs that are the subject of this rulemaking.
B. Response to Comments
EPA did not receive any comments on its March 7, 1996 Federal
Register notice proposing full approval of the Pennsylvania Title V
operating permit, State operating permit, and plan approval programs.
C. Final Action
The EPA is promulgating full approval of the operating permits
program submitted to EPA by the Commonwealth of Pennsylvania on May 18,
1995. Among other things, Pennsylvania has demonstrated that the
program will be adequate to meet the minimum elements of a State
operating permits program as specified in 40 CFR Part 70.
In addition, the EPA is approving the Pennsylvania Operating Permit
and Plan Approval programs, codified in 25 Pa. Code Chapter 127
Subchapters F and B, respectively, pursuant to Section 110 of the Act
for the purpose of creating Federally enforceable permit conditions for
sources of criteria air pollutants. In order to extend Pennsylvania's
authority under Section 110 of the Act to include authority to create
federally enforceable limits on the potential to emit of hazardous air
pollutants (HAPs) listed pursuant to Section 112(b) of the Act, EPA is
approving Pennsylvania's Operating Permit and Plan Approval programs
pursuant to Section 112(l) of the Act.
The scope of the Commonwealth's part 70 program approved in this
document applies to all Title V facilities (as defined in the approved
program) within the Commonwealth, 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 Clean Air Act; see also 59 FR 43956, 43962
(Aug. 25, 1994); 58 FR 54364 (Oct. 21, 1993).
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of section 112 standards as promulgated by EPA as they apply to Part 70
sources. Section 112(l)(5) requires that the State's program contain
adequate authorities, adequate resources for implementation, and an
expeditious compliance schedule, which are also requirements under Part
70. Therefore, the EPA is also promulgating full approval under section
112(l)(5) and 40 CFR 63.91 of the State's program for receiving
delegation of section 112 standards that are unchanged from Federal
standards as promulgated. This program for delegations only applies to
sources covered by the Part 70 program.
III. Administrative Requirements
A. Docket
Copies of the Commonwealth's submittal and other information relied
upon for the final full approval are contained in docket number PA065-
4025 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 final
[[Page 39600]]
full approval. The docket is available for public inspection at the
location listed under the ADDRESSES section of this document.
B. Executive Order 12866
This action granting final full approval of Pennsylvania's Title V
program and final approval of Pennsylvania's plan approval and State
operating permit programs has been classified as a Table 3 action for
signature by the Regional Administrator under the procedures published
in the Federal Register on January 19, 1989 (54 FR 2214-2225), as
revised by a July 10, 1995 memorandum from Mary Nichols, Assistant
Administrator for Air and Radiation. The Office of Management and
Budget (OMB) has exempted this regulatory action from E.O. 12866
review.
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 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/promulgated
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 Federal requirements. Accordingly, no additional costs
to State, local, or tribal governments, or to the private sector,
result from this action.
E. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
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.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 30, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the 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).)
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
40 CFR Part 70
Administrative practice and procedure, Air pollution control,
Environmental protection, Intergovernmental relations, Operating
permits, Reporting and recordkeeping requirements.
Dated: June 26, 1996.
Stanley L. Laskowski,
Acting Regional Administrator, EPA Region III.
Chapter I, title 40 of the 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 NN--Pennsylvania
2. Section 52.2020 is amended by adding paragraph (c)(110) to read
as follows:
Sec. 52.2020 Identification of plan.
* * * * *
(c) * * *
(110) Revisions to the Operating Permit, Plan Approval and Sampling
and Testing Program Regulations submitted on May 18, 1995 by the
Pennsylvania Department of Environmental Resources:
(i) Incorporation by reference.
(A) Letter of May 15, 1995 from the Pennsylvania Department of
Environmental Resources transmitting Pennsylvania's Title V operating
permit, plan approval, and State operating permit programs.
(B) Revisions to the definition of ``Potential to emit'' and
addition of the following definitions in Title 25, Chapter 121, Section
121.1, effective on November 26, 1994: ``Air pollution'', ``Applicable
requirements'', ``Compliance docket'', ``Compliance review form'',
``Deviation'', ``Documented conduct'', ``Federally enforceable
emissions cap'', ``General plan approval'', ``General operating
permit'', ``Minor operating permit modification'', ``Performance
standard'', ``Related party'', ``Renewal'', ``Research and development
facility'', ``Responsible official'', ``Title V facility'', ``Title V
permit'', and ``Title V regulated air pollutant.''
(C) The following amendments to Title 25, Chapter 127, effective on
November 26, 1994: Sec. 127.1, 127.3, 127.11 through 127.14, 127.25,
127.32, 127.35, 127.36, 127.44, 127.45, 127.47, 127.49 through 127.51,
127.401 through 127.404, 127.411 through 127.414, 127.421 through
127.431, 127.441 through 127.450, 127.461 through 127.464, 127.701
through 127.703, and 127.707.
(D) The following amendments to Title 25, Chapter 139, effective on
November 26, 1994: Sec. 139.4, 139.5, 139.12, 139.13, 139.14, 139.32,
139.101 through 139.104, and 139.108.
[[Page 39601]]
(ii) Additional material.
(A) Remainder of May 18, 1995 State submittal.
3. Section 52.2061 is added to read as follows:
Sec. 52.2061 Operating permits.
(a) Emission limitations and related provisions which are
established in Pennsylvania operating permits as federally enforceable
conditions shall be enforceable by EPA. EPA reserves the right to deem
permit conditions not federally enforceable. Such a determination will
be made according to appropriate procedures, and be based upon the
permit, permit approval procedures, or permit requirements which do not
conform with the operating permit program requirements or the
requirements of EPA's underlying regulations.
(b) (reserved)
4. Section 52.2062 is added to read as follows:
Sec. 52.2062 Plan approvals.
(a) Emission limitations and related provisions which are
established in Pennsylvania plan approvals as federally enforceable
conditions shall be enforceable by EPA. EPA reserves the right to deem
plan approval conditions not federally enforceable. Such a
determination will be made according to appropriate procedures, and be
based upon the plan approval, the relevant approval procedures, or plan
requirements which do not conform with the plan approval program
requirements or the requirements of EPA's underlying regulations.
(b) (reserved)
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding the entry for
Pennsylvania in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Pennsylvania
(a) Pennsylvania Department of Environmental Resources [now known
as the Pennsylvania Department of Environmental Protection]: submitted
on May 18, 1995; full approval effective on August 29, 1996.
(b) (Reserved)
[FR Doc. 96-19205 Filed 7-29-96; 8:45 am]
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