[Federal Register Volume 60, Number 185 (Monday, September 25, 1995)]
[Rules and Regulations]
[Pages 49340-49343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23719]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MO-21-1-6443(a); FRL-5289-6]
Approval and Promulgation of Implementation Plans and Delegation
of 112(l) Authority; State of Missouri
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: Missouri submitted its Rule 10 CSR 10-6.065, entitled
``Operating Permits,'' for Federal approval. The rule would establish a
mechanism for creating federally enforceable limitations that would
reduce sources' potential to emit such that sources could avoid major
source permitting requirements. This action approves this rule as
satisfying the criteria set forth in the Federal Register of June 28,
1989, for EPA approval of federally enforceable state operating permit
programs (FESOP). In addition, this action addresses Missouri's program
covering both criteria pollutants (regulated under section 110 of the
Clean Air Act (CAA)) and hazardous air pollutants (HAP) (regulated
under section 112).
DATES: This final rule is effective November 24, 1995, unless by
October 25, 1995 adverse or critical comments are received.
ADDRESSES: Written comments should be addressed to: Joshua A. Tapp, Air
Planning and Development Section, United States Environmental
Protection Agency, 726 Minnesota Avenue, Kansas City, Kansas 66101.
Copies of the State Implementation Plan (SIP) revision request and
EPA's analysis are available for public inspection during normal
business hours at the following address: United States Environmental
Protection Agency, Region VII, Air and Toxics Division, 726 Minnesota
Avenue, Kansas City Kansas 66101.
FOR FURTHER INFORMATION CONTACT: Joshua A. Tapp, Air Planning and
Development Section, United States Environmental Protection Agency,
Region VII, Kansas City, Kansas 66101 ((913) 551-7606).
SUPPLEMENTARY INFORMATION:
I. Review of State Submittal
For many years, Missouri has been issuing permits for major new
sources and for major modifications of existing sources. Throughout
this time, Missouri has also been issuing permits establishing
limitations on the potential emissions from new sources so as to avoid
major source permitting requirements. This latter type of permitting
has been the subject of various guidance from EPA, most notably the
memorandum entitled ``Guidance on Limiting Potential to Emit in New
Source Permitting'' dated June 13, 1989.
The operating permit provisions in title V of the Clean Air Act
Amendments of 1990 have created interest in mechanisms for limiting
sources' potential-to-emit, thereby allowing the sources to avoid being
defined as ``major'' with respect to title V operating permit programs.
A key mechanism for such limitations is the use of FESOPs. EPA issued
guidance on FESOPs in the Federal Register of June 28, 1989 (54 FR
27274). On April 6, 1994, Missouri submitted its newly adopted rule 10
CSR 10-6.065 to provide for FESOPs in Missouri. This rule would
supplement the preexisting mechanism for establishing federally
enforceable limitations on potential-to-emit (i.e., new source
permits). This document evaluates whether Missouri has satisfied the
requirements for this type of federally enforceable limitation on
potential-to-emit.
As specified in the Federal Register of June 28, 1989, the first
provision necessary for an FESOP program is that the state must have
approved operating permit regulations. Rule 10 CSR 10-6.065 sections 1,
2, 3, 4(C)-(P), 5, and 7 serve as the foundation for the FESOP rule and
the rule defines the ``intermediate'' permitting program. EPA approval
of the program will satisfy the first provision for Federal
enforceability.
[[Page 49341]]
The second provision is that sources have a legal obligation to
comply with permit terms, and that EPA may deem as ``not federally
enforceable'' those permits which it finds fail to satisfy applicable
requirements. Rule 10 CSR 10-6.065 requires sources to obtain permits
to operate, authorizes Missouri to establish terms and conditions in
these permits ``to ensure compliance with applicable requirements,''
and authorizes the state to suspend or revoke permits if the source
violates the terms or conditions. In addition, Missouri's definition of
``federally enforceable'' states that an operating permit is federally
enforceable only if it establishes terms and conditions which require
adherence to its requirements (10 CSR 10-6.020(2)F(2)). Thus, this rule
imposes a legal obligation on sources to comply with permit terms.
The third requirement for FESOPs is that the program require all
limits to be at least as stringent as other applicable federally
enforceable provisions. Rule 10 CSR 10-6.065(5)(C)1 provides that terms
and conditions in permits must ``be at least as stringent as any other
applicable limitations and requirements contained in the implementation
plan or enforceable under the implementation plan.'' These rules
contain no provisions authorizing terms and conditions any less
stringent than the applicable requirements.
The fourth requirement is that the permit provisions must be
permanent, quantifiable, and otherwise enforceable as a practical
matter. Permit ``permanence'' does not mean never providing for a
modification, reissuance, or revocation, for these elements are
fundamental in all air permit programs. Permanence instead is
considered in terms of provisions having continuing mandates, i.e.,
that EPA has assurance that the provisions are in effect through the
life of the permit. In this case, the limitations on potential-to-emit
will generally be sought by sources so as to be redefined from
``major'' to ``minor'' for permitting purposes. Sources that obtain
such limitations must keep these limitations in effect, so as never to
be a ``major'' source violating the requirement for a ``major'' source
permit. The requirement for permit provisions to be quantifiable and
practically enforceable must be met on a permit-by-permit basis.
Missouri's rules do provide in section 10 CSR 10-6.065(5)(C)2 for the
issuance of permanent, quantifiable, and enforceable permits. Thus,
Missouri's rules provide for legally enforceable permits that EPA may
evaluate for practical enforceability.
The fifth requirement is that the permits must be subject to public
notice and review. Rules 10 CSR 10-6.065(5)(C)3 and 10 CSR 10-6.065(7)
provide that permits intended to establish federally enforceable
limitations on potential-to-emit may not be issued without first
providing opportunity for public comment.
Missouri has requested that EPA authorize federally enforceable
limitations on potential-to-emit for both pollutants regulated under
section 110 of the Act (``criteria pollutants'') and pollutants
regulated under section 112 (HAPs). As discussed above, the June 28,
1989, Federal Register document provided five specific criteria for
approval of state operating permit programs for the purpose of
establishing federally enforceable limits on a source's potential-to-
emit. This 1989 document addressed only SIP programs to control
criteria pollutants. Federally enforceable limits on criteria
pollutants (especially volatile organic compounds (VOC) and particulate
matter) may have the incidental effect of limiting certain HAPs listed
pursuant to section 112(b). This situation would occur when a pollutant
classified as an HAP is also classified as a criteria pollutant (e.g.,
benzene). 1 As a legal matter, no additional program approval by
EPA is required in order for these criteria pollutant limits to be
recognized for this purpose.
\1\ 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 HAPs to below
section 112 major source levels.
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EPA has determined that the five approval criteria for approving
FESOP 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). Hence, the five criteria discussed
above are applicable to FESOP approvals under section 112(l) as well as
under section 110.
In addition to meeting the criteria in the June 28, 1989, document,
an FESOP program for HAPs must meet the statutory criteria for approval
under section 112(l)(5). This section allows EPA to approve a program
only if it: (1) Contains adequate authority to ensure compliance with
any section 112 standards or requirements; (2) provides for adequate
resources; and (3) provides for an expeditious schedule for ensuring
compliance with section 112 requirements.
EPA plans to codify the approval criteria for programs limiting
potential-to-emit HAPs in subpart E of part 63, the regulations
promulgated to implement section 112(l) of the Act. EPA currently
anticipates that these criteria, as they apply to FESOP programs, will
mirror those set forth in the June 28, 1989, document, with the
addition that the state's authority must extend to HAPs instead of, or
in addition to, VOCs and particulate matter. EPA currently anticipates
that FESOP programs that are approved pursuant to section 112(l) prior
to the subpart E revisions will have had to meet these criteria and,
hence, will not be subject to any further approval action.
EPA believes it has authority under section 112(l) to approve
programs to limit potential-to-emit HAPs 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 might 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 all instances of approval under section 112(l). EPA
has already issued regulations under section 112(l) that would satisfy
this requirement. Given the severe timing problems posed by impending
deadlines under section 112 and title V, EPA believes it is reasonable
to read section 112(l) to allow for approval of programs to limit
potential-to-emit prior to issuance of a rule specifically addressing
this issue.
Missouri's satisfaction of the criteria published in the Federal
Register of June 28, 1989, has been discussed above. In addition,
Missouri's FESOP program meets the statutory criteria for approval
under section 112(l)(5). EPA believes that Missouri has adequate
authority to ensure compliance with section 112 requirements since the
third criteria of the June 28, 1989, document is met-that is, since the
program does not provide for waiving any section 112 requirement.
Nonmajor sources would still be required to meet applicable section 112
requirements.
Regarding adequate resources, Missouri has included in its request
for approval under section 112(l) a commitment to provide adequate
resources to implement and enforce the program, which will be obtained
from fees collected under title V. EPA believes that this mechanism
will be sufficient to provide for adequate resources to implement this
program, and will monitor the state's implementation of the program to
ensure that adequate resources continue to be available.
[[Page 49342]]
Missouri's FESOP program also meets the requirement for an
expeditious schedule for ensuring compliance. A source seeking a
voluntary limit on potential-to-emit is probably doing so to avoid a
Federal requirement applicable on a particular date. Nothing in this
program would allow a source to avoid or delay compliance with the
Federal requirement if it fails to obtain the appropriate federally
enforceable limit by the relevant deadline.
II. Rulemaking Action
EPA finds that the criteria for Missouri to be able to issue FESOPs
are met, and is today approving Rule 10 CSR 10-6.065 sections 1, 2, 3,
4(C)-(P), 5, and 7. It is important to note that Missouri's rule 10 CSR
10-6.065 contains the requirements for a part 70 permit program, an
intermediate permit program which EPA is approving in this action, and
a basic permit program which applies to minor sources. To some extent,
the requirements for these programs overlap within the rule. EPA wants
to make clear that it is only approving the language and requirements
of this rule as they apply to Missouri's intermediate operating permit
program.
EPA is publishing this action without prior proposal because the
Agency 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 filed.
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.
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
state, local, or tribal governments in the aggregate.
Through submission of this SIP revision, the state has elected to
adopt the program provided for under section 110 of the CAA. These
rules may bind state and local governments to perform certain actions
and also require the private sector to perform certain duties. To the
extent that the rules being finalized for approval by this action will
impose new requirements, sources are already subject to these
regulations under state law. Accordingly, no additional costs to state
or local governments, or to the private sector, result from this final
action. EPA has also determined that this final action does not include
a mandate that may result in estimated costs of $100 million or more to
state or local governments in the aggregate or to the private sector.
Nothing in this action should be construed as permitting, allowing,
or establishing a precedent for any future request for revision to any
SIP. EPA shall consider each request for revision to the SIP in light
of specific technical, economic, and environmental factors, and in
relation to relevant statutory and regulatory requirements.
The Office of Management and Budget has exempted these regulatory
actions from review under Executive Order 12866.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 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. United States EPA, 427 U.S. 246, 256-66 (S.Ct.
1976); 42 U.S.C. 7410(a)(2)).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 24, 1995. 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 in 40 CFR Part 52
Environmental Protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Volatile organic compounds.
Dated: August 9, 1995.
Dennis Grams,
Regional Administrator.
Part 52, 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 AA--Missouri
2. Section 52.1320 is amended by adding paragraph (c)(88) to read
as follows:
Sec. 52.1320 Identification of plan.
* * * * *
(c)* * *
(88) This revision submitted by the Missouri Department of Natural
Resources on March 31, 1994, relates to intermediate sources, and the
EPA is not approving the basic operating permit program. This revision
establishes a mechanism for creating federally enforceable limitations.
Emission limitations and related provisions which are established in
Missouri 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.
(i) Incorporation by reference.
(A) 10 C.S.R. 10-6.065 (sections 1, 2, 3, 4(C)-(P), 5, and 7)
Operating Permits, effective May 9, 1994.
(ii) Additional material.
(A) Letter from Missouri to EPA Region VII dated November 7, 1994,
regarding how Missouri intends to
[[Page 49343]]
satisfy the requirements set forth in the Clean Air Act Amendments at
sections 112(l)(5)(A), (B), and (C).
(B) Two letters from Missouri to EPA Region VII dated October 3,
1994, and February 10, 1995, supplementing the November 7, 1994, letter
and clarifying that Missouri does have adequate authority to limit
potential-to-emit of hazardous air pollutants through the state
operating permit program.
* * * * *
3. Section 52.1323 is amended by adding paragraph (i) to read as
follows:
Sec. 52.1323 Approval status.
* * * * *
(i) Emission limitations and related provisions which are
established in Missouri's operation 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.
[FR Doc. 95-23719 Filed 9-22-95; 8:45 am]
BILLING CODE 6560-50-F
