[Federal Register Volume 60, Number 177 (Wednesday, September 13, 1995)]
[Proposed Rules]
[Pages 47515-47521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22490]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 69
[AD-FRL-5291-2]
Proposed Conditional Special Exemption From Requirements of the
Clean Air Act for the Territory of American Samoa, the Commonwealth of
the Northern Mariana Islands, and the Territory of Guam
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed actions.
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SUMMARY: The Governors of the Territory of American Samoa (American
Samoa), the Commonwealth of the Northern Mariana Islands (CNMI), and
the Territory of Guam (Guam) each submitted a petition under section
325(a) of the Clean Air Act (the Act) for a waiver from title V of the
Act. Title V requires that states, including the petitioners, adopt and
submit to EPA a title V operating permits program for major sources and
certain other stationary sources. Title V also requires that sources
located in areas that do not adopt a state title V permitting program
obtain a federal permit from the US EPA. Section 325(a) allows American
Samoa, CNMI, and Guam to petition for an exemption from certain Clean
Air Act requirements.
The EPA received petitions requesting an exemption from title V of
the CAA from American Samoa on November 18, 1994, from CNMI on July 14,
1994, and Guam on November 21, 1994. This document describes the
petition submitted by each agency, EPA's analysis, and EPA's proposed
action on each petition. The EPA is proposing to grant conditional
waivers from the requirement that American Samoa and CNMI adopt and
submit title V operating permit programs. The EPA proposes to require
the implementation of alternative programs to protect local air quality
as a condition of these waivers. The EPA is proposing to grant Guam a
three-year extension of the deadlines in title V. The EPA is also
proposing to exempt sources from the requirement to obtain a federal
title V permit during the period of the waivers, except for certain
major sources of hazardous air pollutants. While this proposal
addresses all three petitions, EPA's action is based on a separate
evaluation of each petition.
DATES: Comments on these proposed actions must be received in writing
by October 13, 1995.
ADDRESSES: Comments should be addressed to Norm Lovelace at the address
indicated. Copies of the petitions and other supporting information,
including air quality modeling, used in developing the proposed interim
approval are available for inspection during normal business hours at
the following location: Office of Pacific Islands and Native American
Programs, US EPA Region IX, 75 Hawthorne Street, San Francisco,
California 94105.
FOR FURTHER INFORMATION CONTACT: Norm Lovelace (telephone 415/744-1599,
fax 415/744-1604), Chief, Office of Pacific Islands and Native American
Programs, or Ed Pike (telephone 415/744-1248), Operating Permits
Section, Air and Toxics Division, at US EPA-Region IX, 75 Hawthorne
Street, San Francisco, California 94105. Comments should be addressed
to Norm Lovelace, mailcode E-4.
[[Page 47516]]
I. Background
Title V of the Act requires states to develop and submit operating
permit programs by November 15, 1993. EPA has promulgated certain
minimum requirements (57 FR 32250 (July 21, 1992)) that are codified at
40 Code of Federal Regulations (CFR) part 70. States must develop
programs for issuing permits that contain monitoring and compliance
terms and conditions that ensure sources comply with all applicable
federal air regulations, and the permit issuance process must include
public participation and EPA oversight. EPA is required to impose
sanctions on any state, including the petitioners (see 40 CFR 70.2
definition of ``state''), that has not submitted a complete title V
permit program. For any state that does not have an approved program by
November 15, 1995, the EPA must promulgate, administer, and enforce a
federal air permit program.
Section 325(a) of the Act allows the petitioners to request that
the Administrator of EPA waive requirements of the Clean Air Act other
than section 112 (Hazardous Air Pollutant or HAPs) requirements or any
requirement under section 110 or part D of subchapter 1 that would be
necessary to attain or maintain a national primary ambient air quality
standard. The petitioners request a waiver from title V and do not
request a waiver from any requirements under section 112 of the Act,
including requirements that are triggered by the approval of a title V
permit program. In addition, the petitions for American Samoa and CNMI
commit to implementing alternative programs to protect ambient air
quality, including the national ambient air quality standards.
Section 325(a) also specifies the criteria for approving
exemptions: ``Such exemption may be granted if the Administrator finds
that compliance with such requirement is not feasible or is
unreasonable due to unique geographical, meteorological, or economic
factors of such territory, or such other local factors as the
Administrator deems significant.'' EPA's determinations are based on
whether the petitions meet these criteria. Although EPA is publishing
its proposed action on the petitions in a single rulemaking, each
action is considered a separate decision and can be considered
independently. If significant comments are received pertaining to a
specific petition, EPA may take final action on each petition
independently.
II. Analysis and Proposed Action
A. American Samoa
1. Description of Petition and Supporting Documents
The Governor of American Samoa submitted the Government's petition
on November 28, 1994. The petition consists of the following sections:
1) a description of the waiver request and geographical and political
conditions; 2) a description of American Samoa's commitment to ensure
attainment and maintenance of national ambient air quality standards;
3) a commitment to work with EPA to ensure that the hazardous air
pollutant program under Section 112 of CAA is administered and enforced
on American Samoa; 4) a description of the unique local economic burden
that the title V operating permit program would create; and 5) other
unique geographical, meteorological, and local factors that support the
petition. The supporting information includes: 1) maps of American
Samoa; 2) an emissions inventory for American Samoa; 3) screening
analysis of ambient air quality impacts on American Samoa; 4) economic
analysis of an operating permit program on American Samoa; and 5)
newspaper articles illustrating the financial difficulties of the
American Samoa Government (ASG).
2. Analysis of the Petition
EPA believes that the unique local circumstances presented in the
petition satisfy the criteria in section 325(a) for granting an
exemption from title V of the CAA. EPA also believes that the
petition's proposed mitigating air quality program is appropriate for
American Samoa and would result in air quality benefits equivalent to a
title V program.
The petition makes a convincing argument that a title V operating
permit program would have a unique negative economic impact on American
Samoa. Implementing this program would be economically unreasonable for
the American Samoa Government (ASG) and the general public due to
extremely limited local resources. Only five sources have potential
emissions exceeding the major source level (40 CFR 70.2) and would be
subject to the program. If ASG imposed fees based on emissions as
required by part 70, the two power plants run by the American Samoa
Power Authority (ASPA), a semi-autonomous government utility agency,
would incur most of these costs. Projected costs to be incurred by ASPA
would likely be passed to its electrical consumers, which include
private industry, the public and the American Samoa Government.
Increased power bills to the latter two consumers would strain already
limited resources. Per capita income is only $3,039 (compared to
$14,420 for the mainland United States) and the population is only
49,000. The ASG has had major financial difficulties over the past
years, and as the major consumer of power it has unpaid power bills of
over $2 million.
The petition estimates that the total regulatory and compliance
costs of the program would be $143,000. The relative economic impact of
these fees would be high compared to the limited economic resources of
American Samoa. Given the limited number of sources, the limitations of
the ASEPA staff, the more pressing environmental priorities of American
Samoa (such as safe drinking water and solid waste disposal), and the
fact that the major costs will be borne by an area with limited
economic resources, EPA believes that it is appropriate for ASG to
focus its limited resources on an alternative permitting program, which
could be expected to achieve equivalent environmental benefits. EPA
believes that these economic resource constraints support American
Samoa's position that the title V program is unreasonable in American
Samoa and justify a more narrowly focused program.
3. Alternative Air Quality Program Proposed by American Samoa
American Samoa proposes an air quality program to address potential
exceedances of the National Ambient Air Quality Standards (NAAQS). This
program more appropriately addresses unique meteorological
circumstances and the protection of local air quality. While the title
V program is expected to increase compliance with emission limits,
other mechanisms (such as source-specific SIP limits or direct
enforcement of federal standards) may be a practical and effective
means of controlling air pollution on American Samoa. In addition, no
major sources of air toxics are identified in the petition. Major
source of air toxics may require case-by-case title V permitting review
for implementation of a current or future section 112 standard.
Screening model results submitted with the petition indicate that
sulfur dioxide (SO2) NAAQS exceedances may occur in the Pago Pago
Harbor area. In the petition, American Samoa commits to ensuring that
primary ambient air quality standards in the Pago Pago Harbor area are
met. American Samoa will collect meteorological data and undertake
additional refined air
[[Page 47517]]
modeling of the Pago Pago Harbor area. American Samoa will also require
sources impacting the Pago Pago Harbor area to implement physical and
operational changes if necessary to assure compliance with the NAAQS.
EPA agrees with American Samoa that possible emission control
strategies for correcting any sulfur dioxide NAAQS exceedances include,
but are not limited to, a reduction in the sulfur content of the fuel
burned, the addition of scrubbers or other control devices, a reduction
in the hours of operation for some units, or a combination thereof. EPA
also believes that amendments to American Samoa's State Implementation
Plan (SIP) are the most practical method of imposing any controls and
compliance methods that are necessary.
EPA believes that American Samoa's proposed mitigating air quality
program, which is tailored to prevent and remedy potential air quality
violations, will achieve equivalent benefits for air quality and is
more appropriate than the title V program due to the geographic
isolation, economic circumstances, and the limited number of sources in
American Samoa. Furthermore, because the few sources in American Samoa
do not appear to compete with mainland sources, the exempted sources
will not gain a competitive advantage over sources subject to title V.
4. Conditional Waiver
EPA is proposing to exempt American Samoa from the requirement to
develop a part 70 permitting program and sources on American Samoa from
the requirement to apply for a part 71 permit (except when specifically
required by EPA), provided that the following conditions are met. EPA
is proposing that American Samoa collect complete meteorological data
and complete a refined air quality modeling analysis within two years
of the effective date of this rulemaking. EPA is also proposing that
American Samoa require affected sources to implement changes necessary
to ensure NAAQS achievement in a timely manner if the modeling
demonstrates a violation of the NAAQS. EPA believes that a period of
five years, which is three years from the completion of modeling by
American Samoa, will allow sufficient time to implement strategies to
meet the NAAQS if exceedances have occurred.
EPA is also proposing that American Samoa implement an alternative
local operating permit program. The permitting program will ensure that
the emission limits used to verify compliance with the NAAQS are met.
At a minimum, the program should meet the guidelines established in the
June 29, 1989 Federal Register for federally enforceable operating
permit programs. These guidelines are more flexible than the title V
guidelines but ensure that permits are federally enforceable on a
practical and legal basis. The permits should include applicable Clean
Air Act requirements, adequate compliance measures, and allow for
public participation. In addition, this alternative program can be used
to implement other air quality requirements.
EPA proposes to reopen the waiver if these conditions are not met
or if EPA determines that implementation of a title V permitting
program is necessary to ensure compliance with applicable Clean Air Act
requirements and protect air quality.
B. CNMI
1. Description of Petition and Supporting Documents
The Governor of CNMI submitted the petition to EPA on July 14,
1994. The petition consists of a 15-page narrative and supporting
information. The narrative portion of the petition is organized into
sections which describe: (1) the purpose of the petition; (2) unique
local geographical, meteorological, and economic factors; (3) major air
emission sources and sources of hazardous air pollutants emissions in
CNMI; and (4) information on the existing CNMI permitting regulations,
which CNMI suggests as an alternative mitigating program. CNMI also
submitted copies of local statutes and regulations, maps of CNMI,
emissions information, and cost estimates for the title V program as
supporting information.
2. Analysis of the Petition
EPA believes that the unique local circumstances presented in the
petition satisfy the criteria in section 325(a) for granting an
exemption from title V of the CAA. CNMI's petition states that title V
is overly burdensome due to local circumstances and proposes a
mitigating local permit program. The petition describes unique local
factors that make the economic burden of implementing the title V
permitting program greater for CNMI than for most state air agencies.
CNMI's population (43,345) is far smaller than mainland state agencies.
In addition, per capita income ($7,200) in CNMI is only half that of
the United States. Therefore, the economic resources available to
address air quality problems are much more limited than the resources
available in areas under the jurisdiction of mainland state air quality
agencies.
The CNMI petition states that Clean Air Act programs, particularly
title V, are not necessary because ambient air quality is not impacted
by emissions from stationary sources on CNMI, and that an alternative
local program is sufficient to protect air quality. EPA air quality
modeling conducted to evaluate this claim predicted violations of the
National Ambient Air Quality Standards (NAAQS). However, EPA's analysis
also shows that the alternative permitting program described by CNMI
would address exceedances of the NAAQS as effectively as a title V
program. CNMI's emission inventory shows that emissions result almost
exclusively from internal combustion engines, and EPA believes that
options other than case-by-case title V permitting of these sources
(such as a SIP rule with specific control and compliance measures)
would be appropriate for controlling these sources due to their
similarity. In addition, none of the sources identified in the petition
are identified as a major air toxics source that may require case-by-
case permitting review for implementation of a current or future
section 112 standard.
3. Air Quality Modeling
EPA performed screening level modeling on the main Commonwealth
Utilities Company (CUC) power plant on Saipan, the main island in the
CNMI and the island with the largest emission sources, to assess
potential air quality problems on Saipan. EPA's SCREEN2 model predicts
significant violations of the sulfur dioxide (SO2) three-hour and
24-hour NAAQS due to low stack heights, high sulfur fuel, and the lack
of control equipment. The model also indicates that violations of the
eight-hour carbon monoxide (CO) and the annual nitrogen oxide
(NOX) NAAQS may occur. United States Air Force meteorological data
indicate that a significant percent of the predicted violations will
impact onshore areas of the island.
The SCREEN2 model does not use detailed site specific
meteorological data. CNMI could choose to perform additional modeling
using site specific meteorological data. EPA does not believe that the
concentrations of air pollutants predicted under the SCREEN2 model
would change enough using refined modeling to show compliance with the
NAAQS. However, EPA believes that additional modeling may help verify
the extent of the predicted SOX NAAQS exceedances and the
effectiveness of different strategies for achieving compliance with the
[[Page 47518]]
NAAQS. CNMI may choose to use the existing SCREEN2 modeling results or
conduct additional refined modeling.
4. Alternative Permitting Program Proposed by CNMI
The CNMI proposed an alternative program to address sources of air
pollution based on its current regulations and several proposed
changes. CNMI updated the petition on October 20, 1994, by submitting
the currently effective CNMI Air Pollution Control Regulations (CNMI
Regulations). The CNMI Regulations (part V.A) require the registration
of certain new and existing sources. The Director of the Division of
Environmental Quality may allow the construction or modification of a
major new source if the source will not endanger the attainment or
maintenance of NAAQS or violate the allowable air quality increments in
40 CFR 52.21 (c) and (d) (CNMI Regulations part V.E). EPA interprets
these rules to prohibit the air quality violations predicted by the
screening model. EPA is conditioning the waiver to require that CNMI
fully implement and enforce these currently effective regulations,
including provisions that require sources built after the effective
date of the regulations to apply physical and operational controls to
assure that NAAQS and PSD increments are not exceeded.
The CNMI petition also proposed revisions to the CNMI program that
would provide elements of an operating permit program similar to the
title V permitting program. On February 17, 1995, CNMI committed to
obtain additional authority to enforce permits and provide public
process if required by EPA. The petition also stated that CNMI could
modify the program to include all applicable Clean Air Act requirements
in the program and require monitoring and/or recordkeeping requirements
to ensure that sources comply with their emission limits. Therefore,
EPA is proposing that the CNMI adopt these elements in the alternative
operating permit program and submit the adopted regulations as a
revision to CNMI's SIP as a condition to granting the waiver. The CNMI
petition stated that CNMI could collect fees to fund the permitting
program, but did not commit to collecting these resources. EPA believes
that CNMI should have the flexibility to determine appropriate funding
mechanisms, but that sufficient resources must be available to fund an
alternate program.
5. Conditional Waiver
EPA is proposing to exempt CNMI from the requirement to develop a
part 70 permitting program and sources on CNMI from the requirement to
apply for a part 71 permit (unless specifically required by EPA) on the
condition that CNMI implement the alternative permitting program. This
would require that CNMI implement existing air quality regulations
addressing potential existing violations of air quality standards.
EPA is proposing that CNMI may conduct any additional modeling it
believes is necessary to yield more site-specific ambient emission
estimates. EPA is proposing a 1-year deadline for the completion of any
such modeling. CNMI's petition does not address what meterological data
is available, but EPA will consider any new information or comments
that address whether additional time would be necessary to collect
meterological data or whether existing sources of meterological data
are acceptable in the final rulemaking.
EPA is also proposing that CNMI submit a State Implementation Plan
(SIP) to address any confirmed violations within two years of the
effective date of the waiver, and ensure compliance with the NAAQS
within four years of the effective date of this waiver. In addition,
EPA is proposing that CNMI fully adopt enhancements to its existing
operating permit program and implement the alternative operating permit
program within two years of the effective date of the waiver and submit
these requirements as revisions to its SIP rules.
EPA will reopen the waiver if these conditions are not met or if
EPA determines that implementation of a title V permitting program is
necessary to ensure compliance with applicable Clean Air Act
requirements and protect air quality. If EPA determines that any area
will not meet the NAAQS, as determined under CAA section 110, within
four years of the effective date of the waiver, EPA will redesignate
that area non-attainment and require the appropriate attainment plans.
C. Guam
1. Description of Petition and Supporting Documents
The Governor of Guam submitted a petition to EPA on November 18,
1994. The petition consists of a 12-page narrative and 5 supporting
exhibits. The narrative portion of the petition is organized into
sections which describe: 1) the petition, the type of waiver requested,
and the basis for the petition; 2) compliance with primary ambient air
quality standards; 3) compliance with Section 112 of the CAA; 4) the
local economic effect of a title V operating permit program; and, 5)
additional unique geographical, meteorological, and local factors. The
supporting information includes: 1) a map of Guam; 2) an emissions
inventory; 3) source profiles and estimates of their actual and
potential emissions; and, 4) an economic analysis of an operating
permit program on Guam.
2. Analysis of Guam's Petition
EPA believes that the unique local circumstances presented in the
petition justify an extension of the deadlines in title V but do not
warrant a permanent exemption from title V of the Act. Guam's petition
requests a waiver based on several factors. The petition states that
implementing title V would be a burden for Guam and that Guam currently
lacks the technical resources to implement the program. In addition,
the petition states that title V is not necessary to ensure compliance
with air quality standards.
EPA agrees that Guam needs additional technical resources to
implement a title V permitting program and believes a three-year
extension in the deadline to adopt a title V program would allow the
Guam Environmental Protection Agency (GEPA) to secure additional
training and technical resources. In addition, an extension would allow
Guam the option of saving resources by adopting the federal operating
permit rule (currently proposed at 60 FR 20804; to be codified at 40
CFR part 71) by reference or by using a state or local rule as a
guideline rather than developing their own permitting rule. EPA
believes that three years will allow GEPA sufficient time to acquire
the technical resources to develop and implement a title V permitting
program.
While the petition states that imposing a title V permit program
would impose an economic burden, the data does not support this
assertion. Although businesses on Guam are unlikely to relocate due to
these fees, title V fees could have an impact on small businesses.
However, EPA believes that part 70 gives Guam flexibility to assess
different fees to different sources based on the expected economic
burden. The petition also states that per capita income in Guam is less
than per capita income on the mainland United States ($9,928 versus
$14,420 in 1990 dollars). EPA does not believe that the title V
permitting program would have a noticeable economic impact on citizens.
For instance, Guam's petition estimates that
[[Page 47519]]
title V costs to residential and local government electric users is
$183,000 (assuming the local utility increase rates to cover 100% of
its permit fees and other permit costs) for a population of 133,000.
For these reasons, EPA does not believe that implementation of a title
V permitting program on Guam is economically infeasible.
In addition, many significant sources of air pollution are located
on Guam. The petition identified 14 title V sources with actual
emissions in excess of 100 tons per year and 55 sources with actual
emissions of up to 85 tons per year, some of which may be subject to
title V because they have a potential to emit exceeding the major
source levels (see 40 CFR part 70.2). Guam has more title V sources
than the other two petitioners and more title V sources than most State
and local agencies in EPA Region IX. Air emissions on Guam result
mainly from equipment needed to generate electric power, including
boilers, fuel-oil storage tanks, diesel engines and combustion
turbines. According to Guam's petition, the major pollutant emitted in
1993 was SOx, with 12,500 tons from the largest source and 5,570 from
the second largest source. The total emissions inventory of 30,490 tons
per year was larger than the other areas requesting a waiver and larger
than 32 of the 40 State and local agencies in EPA Region IX that have
completed emissions inventories for their title V sources. EPA believes
that the large point sources on Guam, including major air toxics
sources, that would be subject to a title V program have a greater
impact on local air quality than sources on American Samoa and CNMI.
3. Alternative Air Quality Program
Title V is intended to implement Clear Air Act programs that are
designed to protect air quality. Guam's petition does not commit to or
propose an alternative operating permit or compliance program that
would ensure that air quality protections, such as air toxics controls
and emission limits for criteria pollutants, are achieved. Therefore,
it is not clear from the petition what procedures Guam would institute
to ensure that Clean Air Act objectives are achieved.
4. Conditional Extension
EPA is proposing to grant Guam an extension of the deadline for
developing and submitting a title V permitting program for three years
from the effective date of this rulemaking action, but not later than
November 15, 1998, which is five years beyond the statutory deadline
for submitting a complete title V permitting program. The Clean Air Act
originally gave state and local agencies three years to develop and
submit operating permit programs, and EPA believes that this time
period is sufficient for Guam to acquire sufficient technical resources
and to utilize EPA's part 71 regulation or develop its own program
using an approved state or local program as a model.
EPA is also granting title V sources on Guam a waiver from the
effective date of the part 71 permit program until five years from the
effective date of this rulemaking action, but not later than November
15, 2000, providing that Guam submits a timely and complete permitting
program. This two year difference between the deadline for submitting a
timely and complete title V program and the effective date of the part
71 program will allow EPA time to review Guam's program and allow Guam
an opportunity to correct any incomplete areas of their program or any
approval issues in their program. If a timely and complete program is
not submitted by Guam, the part 71 program will be effective three
years after the effective date of this rulemaking, or November 15,
1998, whichever is earlier. As proposed, the part 71 regulation
requires that sources submit permit applications within one year of the
effective date unless EPA establishes an earlier submittal date. For
more information, see the part 71 proposal at 60 FR 20804 (April 27,
1995).
D. Hazardous Air Pollutant Requirements for American Samoa, CNMI, and
Guam
1. Effective Date of Requirements Triggered by Title V
The Act prohibits section 325 waivers from section 112
requirements, and the petitioners do not request a waiver from section
112 requirements. This notice does not waive any requirements under
section 112 of the Act, including case-by-case Maximum Achievable
Control Technology (MACT) determinations under sections 112(g) and
112(j) of the Act. New and modified major HAP sources must apply MACT
under section 112(g) if EPA has not promulgated an applicable National
Emission Standard for Hazardous Air Pollutants (NESHAP; NESHAPs
promulgated after the 1990 Amendments to the Act are also commonly
referred to as MACT standards) for the source category. Existing major
HAP sources must apply for a title V permit containing MACT under
section 112(j) if EPA misses a NESHAP deadline for their source
category by 18 months (59 FR 26429). These two requirements are, in the
absence of a section 325 waiver, triggered by the effective date of a
title V program.
EPA is proposing to grant the waivers on the condition that these
section 112 requirements will be implemented from the effective date of
the waiver. Therefore, EPA is proposing that the effective date of this
waiver constitute the effective date of a title V program for American
Samoa, CNMI and Guam for the purposes of triggering section 112(g) and
112(j) requirements. While no sources subject to the requirements of
the 112(g) and 112(j) have yet been identified, this condition will
ensure that sources built or identified in the future will be subject
to these hazardous air pollutant reductions.
2. Implementation of Section 112 requirements
EPA will issue part 71 permits to any source subject to the 112(g)
and 112(j) programs in American Samoa, CNMI, and Guam under today's
proposal. Sources that are required to apply for a 112(g) or 112(j)
determination would be required to submit a complete part 71
application to EPA and EPA would issue a permit that includes 112(g)
and 112(j) requirements under the part 71 regulations. While the final
part 71 rule has not yet been promulgated, EPA is not aware of any
sources that would be subject to this provision in the near future and
anticipates that the part 71 rule (see 60 FR 20804 for proposal) will
be finalized before any sources become subject. For instance, EPA
expects that the 112(j) provisions will not be effective before 1997.
In addition, EPA has stated in its February 14, 1995 interpretive
notice (60 FR 8333) that the requirements of 112(g) are not effective
until EPA promulgates a final 112(g) rule. EPA anticipates that the
part 71 rule will be promulgated before any case-by-case determinations
in American Samoa, CNMI or Guam are necessary. EPA will consider any
comments received on the appropriate mechanism for implementing case-
by-case MACT determinations, and is specifically soliciting comments on
the appropriate mechanism for implementing case-by-case MACT if
promulgation of the part 71 rulemaking is delayed. EPA requests
information on any source that may be subject to section 112(g) in the
next two years in case the part 71 promulgation date is delayed past
the effective date of this waiver and the promulgation of the 112(g)
rule.
EPA is currently considering whether major sources of air toxics
subject to EPA MACT standards should also be subject to permitting
under part 71 in
[[Page 47520]]
the absence of a approved local title V program. Future MACT standards
may utilize title V permits (i.e. a part 70 or part 71 permit) to
establish specific compliance requirements or to allow operators
flexible options for meeting emission limits. EPA is also considering
whether title V permits are necessary to implement section 129(e)
municipal waste incinerator standards (see proposals at 59 FR 48198-
48228 (NSPS) and 48228-48258 (state programs for existing sources)),
which cover both criteria pollutants and hazardous air pollutants. The
proposal does not currently require these sources to obtain title V
permits. EPA will consider any comments on this issue and determine in
the final rulemaking whether proper implementation of the section 112
and section 129(e) standards require the permitting of subject sources
under title V.
Other section 112 requirements, such as 112(d) MACT standards,
automatically apply to all subject sources in American Samoa, CNMI, and
Guam and are enforceable by EPA. EPA will develop appropriate
mechanisms with the petitioners to identify subject sources and ensure
that sources comply with the standards. The petitioners have
demonstrated that they currently lack the technical resources to
develop a title V program, and EPA believes that greater technical
resources will be necessary to determine case-by-case MACT limits for
HAPs. If the petitioners develop the necessary technical resources and
meet other specified criteria, they may apply for delegation of the
section 112(g) and 112(j) programs by developing a title V program or
applying under section 112(l) of the Act (58 FR 62262 (November 16,
1993)).
III. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of these proposed
waivers. Copies of the petitions, modeling data, and other information
relied upon for the proposed approval are contained in a docket
maintained at the EPA Regional Office. The docket is an organized and
complete file of all the information submitted to, or otherwise
considered by, 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. The EPA will
consider any comments received by October 13, 1995.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
The EPA's actions under section 502 of the Act do not create any
new requirements, but simply address operating permits programs
submitted to satisfy the requirements of 40 CFR Part 70. Because this
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.
D. Unfunded Mandates
Under 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 waiver proposed today 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 waivers requested
by the petitioners to reduce the cost of implementing the Clean Air
Act. 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 69
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Nitrogen oxides,
Operating permits, Reporting and recordkeeping requirements, Sulfur
dioxide, Volatile organic compounds.
Dated: August 25, 1995.
Felicia Marcus,
Regional Administrator.
Chapter I, title 40 of the Code of Federal Regulations is amended
as follows:
PART 69--[AMENDED]
1. The authority citation for part 69 continues to read as follows:
Authority: Sec. 325, Clean Air Act, as amended (42 U.S.C. 7625-
1).
Subpart A--Guam
2. Subpart A is amended by adding Sec. 69.13 to read as follows:
Sec. 69.13 Title V extension.
(a) The Administrator of the EPA grants the Territory of Guam an
extension until three years from [the effective date of the final
rule], but no later than November 15, 1998, from the requirement to
develop a title V permit program by November 15, 1993. The
Administrator of the EPA grants all title V sources located in Guam a
waiver, except as described in paragraph (b) of this section, from the
requirement to apply for and obtain a part 71 permit. The part 71
waiver shall expire on the earlier of three years from the earlier of
[the effective date of the final rule], or November 15, 1998. If Guam
does not submit a complete permit program, as defined in 40 CFR part
70, by the expiration date of the waiver, then 40 CFR part 71 shall
become effective for all subject sources in Guam on that date. 40 CFR
part 71 shall become effective for all sources on Guam two years from
the expiration of the waiver if Guam submits a timely and complete
program but does not have an approved program on that date.
(b) All section 112 requirements shall be implemented during the
period of the waiver. Sections 112 (g) and (j) of the Act shall apply
to all sources on Guam during the term of this waiver, and any subject
source shall submit a timely part 71 permit application to EPA
requesting a case-by-case 112(g) or 112(j) MACT determination. In
addition, Guam will develop a Memorandum of Understanding with EPA to
identify sources of hazardous air pollutants (HAPs).
Subpart B--American Samoa
3. Subpart B is amended by adding Sec. 69.22 to read as follows:
Sec. 69.22 Title V waiver.
(a) The Administrator of the EPA grants the Territory of American
Samoa an exemption from the requirement to
[[Page 47521]]
develop, implement, and submit for approval a title V operating permit
program and grants title V sources located in American Samoa an
exemption from the requirement to apply for and obtain a part 71 permit
except as described in paragraph (a)(3) of this section. This waiver is
subject to the following conditions:
(1) American Samoa shall implement the following program to protect
attainment of National Ambient Air Quality Standards as a condition of
the waiver:
(i) American Samoa shall collect complete meteorological data and
complete refined air quality modeling for the Pago Pago Harbor and
submit such data and modeling results to EPA within two years of
[effective date of the final rule].
(ii) American Samoa shall address any NAAQS exceedances discovered
through the modeling results with a State Implementation Plan (SIP)
that ensure compliance with the NAAQS within the earlier of three years
from the date such results are submitted to EPA and five years from
[the effective date of the final rule]. This plan shall be submitted by
three years from [the effective date of the final rule].
(2) American Samoa shall develop, implement, and submit to EPA for
approval an alternative permit program that meets the requirements
specified in EPA's June 28, 1989 guidelines.\1\ The program must be
submitted within two years of [effective date of the final rule] and
include the following elements:
\1\ These guidelines were published in the Federal Register on
June 28, 1989 at 54 FR 27282.
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(i) Permit content:
(A) Permits must contain and ensure compliance with all applicable
federal requirements, as defined under section 40 CFR 70.2; and
(B) Contain monitoring, recordkeeping and reporting requirements
sufficient to assure compliance with applicable federal requirements;
(ii) The collection of fees from permitted sources or other
revenues in an amount that will pay for the cost of operation of such a
program;
(iii) Public notice and a 30-day public comment on each major
source permit, including an opportunity for EPA review;
(iv) Civil and criminal penalties up to $10,000 per day per
violation; and
(v) A schedule for issuing permits to all major sources, as defined
under 40 CFR 70.2, within three years of EPA approval of the alternate
operating program.
(3) All section 112 requirements shall be implemented during the
period of the waiver. Sections 112(g) and (j) of the Act shall apply to
all sources on American Samoa during the term of this waiver, and any
subject source shall submit a timely part 71 permit application to EPA
requesting a case-by-case 112(g) or 112(j) MACT determination. American
Samoa shall develop a Memorandum of Understanding with EPA to identify
sources of hazardous air pollutants (HAPs).
(b) EPA may modify or revoke this waiver for cause, and shall
reopen the waiver if the conditions under paragraph (a) of this section
are not met.
Subpart C--Commonwealth of the Northern Mariana Islands
4. Subpart C is amended by adding Sec. 69.32 to read as follows:
Sec. 69.32 Title V exemption.
(a) The Administrator of the EPA grants the Commonwealth of the
Northern Mariana Islands an exemption from the requirement to develop,
implement, and submit for approval a title V operating permit program
and grants title V sources located in CNMI an exemption from the
requirement to apply for and obtain a part 71 permit except as
described in paragraph (a)(3) of this section. This waiver is subject
to the following conditions:
(1) CNMI shall implement the following program to protect
attainment of National Ambient Air Quality Standards as a condition of
the waiver:
(i) CNMI shall enforce its January 19, 1987 Air Pollution Control
(APC) regulations, including the requirement that all new or modified
sources comply with the NAAQS and Prevention of Significant
Deterioration (PSD) increments.
(ii) CNMI may conduct air emissions modeling, using EPA guidelines,
for power plants located on Saipan to assess EPA's preliminary
determination of non-compliance with the SOx NAAQS. CNMI shall complete
and submit any additional modeling to EPA within one year from [the
effective date of the final rule] to determine whether existing power
plants cause or contribute to violation of the NAAQS and PSD increments
in the APC and 40 CFR 52.21.
(iii) If CNMI's additional modeling demonstrates non-attainment
with NAAQS based on EPA guidelines, or if CNMI elects to accept EPA's
preliminary determination that the NAAQS have been exceeded, CNMI shall
submit a revised State Implementation Plan that ensures compliance with
the NAAQS. The Plan shall be submitted within one year from [the
effective date of the final rule] or, if CNMI elects to conduct
additional modeling, within two years of [the effective date of the
final rule]. CNMI shall take appropriate corrective actions through the
SIP to demonstrate compliance with applicable NAAQS within four years
from [the effective date of the final rule].
(2) CNMI shall develop, implement, and submit to EPA for approval
into CNMI's SIP an alternative permit program that meets the
requirements specified in EPA's June 28, 1989 guidelines. The program
shall be submitted within two years of [the effective date of the final
rule] and include the following elements:
(i) Permit content requirements:
(A) Permits must contain and ensure compliance with all applicable
federal requirements, as defined under section 40 CFR 70.2; and
(B) Contain monitoring, recordkeeping and reporting requirements
sufficient to assure compliance with applicable federal requirements;
(ii) The collection of fees from permitted sources or other
revenues in an amount that will pay for the cost of operation of such a
program;
(iii) Public notice and a 30-day public comment on each major
source permit, including an opportunity for EPA review;
(iv) Civil and criminal penalties up to $10,000 per day per
violation; and
(v) A schedule for issuing permits to all major sources, as defined
under 40 CFR 70.2, within three years of EPA approval of the alternate
operating program.
(3) All section 112 requirements shall be implemented during the
period of the waiver. Sections 112 (g) and (j) of the Act shall apply
to all sources on CNMI during the term of this waiver and all subject
sources shall submit a timely application for a part 71 permit. CNMI
shall develop a Memorandum of Understanding with EPA to identify
sources of hazardous air pollutants (HAPs).
(b) EPA may modify or revoke this waiver for cause, and shall
reopen the waiver if the conditions under paragraph a are not met. This
exemption from requirements of title V of the Act shall continue until
modified or terminated through rulemaking procedures.
[FR Doc. 95-22490 Filed 9-12-95; 8:45 am]
BILLING CODE 6560-50-P
