[Federal Register Volume 60, Number 174 (Friday, September 8, 1995)]
[Rules and Regulations]
[Pages 46771-46774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22086]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AR-FRL-5293-1]
Clean Air Act Final Interim Approval of Operating Permits
Program; the State of Arkansas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Interim Approval.
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SUMMARY: The EPA is promulgating interim approval of the Operating
Permits program submitted by the Arkansas Department of Pollution
Control and Ecology (ADPCE) for the State of Arkansas for the purpose
of complying with Federal requirements for an approvable State program
to issue operating permits to all major stationary sources, and to
certain other sources.
EFFECTIVE DATE: October 10, 1995.
ADDRESSES: Copies of the State's submittal and other supporting
information used in developing the final interim approval are available
for inspection during normal business hours at the following location:
U. S. Environmental Protection Agency, Region 6, Air Programs Branch
(6PD-R), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.
Arkansas Department of Pollution Control and Ecology, 8001 National
Drive, Little Rock, Arkansas 72219-8913.
FOR FURTHER INFORMATION CONTACT: Wm. Nicholas Stone, Air Permits
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7226.
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 (``the Act''), and implementing regulations at 40
Code of Federal Regulations (CFR) part 70 require that States develop
and submit Operating Permits programs to the EPA by November 15, 1993,
and that the EPA act to approve or disapprove each program within one
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, the
EPA may grant the program interim approval for a period of up to two
years. If the EPA has not fully approved a program by two years after
the date of November 15, 1993, or by the end of an interim program, it
must establish and implement a Federal program.
On September 19, 1994, the EPA proposed interim approval of the
Operating Permits program for the State of Arkansas. See 59 FR 47828
(September 19, 1994). The EPA received public comment on the proposal
and compiled a Technical Support Document which describes the Operating
Permits program in greater detail. In this document, the EPA is taking
final action to promulgate interim approval of the Operating Permits
program for the State of Arkansas.
II. Final Action and Implications
A. Analysis of State Submission
The State of Arkansas submitted to the EPA, under a cover letter
from the Governor dated October 29, 1993, the State's Operating Permits
program. The submittal has adequately addressed all 16 elements
required for full approval as discussed in part 70, with the exception
of five interim issues listed in the proposal: (1) Reference of
Prevention of Significant Deterioration (PSD) applicability for new
construction and modification, (2) incorporation by reference of the
part 70 provisions regarding complete application requirements and
permit content requirements, (3) revision of the minor modification
procedure, (4) providing a definition of the term ``prompt'', and (5)
submission of a State Implementation Plan (SIP) revision for Regulation
19 consistent with Regulation 26. The State of Arkansas appropriately
addressed all requirements necessary to receive interim approval of the
State Operating Permits program pursuant to title V of the Act and 40
CFR part 70.
B. Response to Comments
Comments were received from three groups during the comment period
that ran from September 19, 1994, until October 19, 1994. Listed below
are the responses to comments received on the proposed interim approval
for the Arkansas Operating Permits program.
1. Section 112(g) Implementation
Comments were made that the EPA should not allow Arkansas to
implement section 112(g) until Federal rulemaking is complete. Also,
objections were made to the State's use of its preconstruction permit
process to implement section 112(g) requirements.
The EPA does not agree with the comment. In its proposed interim
approval of Arkansas' part 70 program, the EPA proposed to approve the
State's preconstruction review program for the purpose of implementing
section 112(g) during the transition period before promulgation of a
Federal rule implementing section 112(g). This proposal was based in
part on an interpretation of the Act that would require sources to
comply with section 112(g) beginning on the date of approval of the
title V program, regardless of whether the EPA had completed its
section 112(g) rulemaking. The EPA has since revised this
interpretation of the Act in a Federal Register notice published on
February 14, 1995, 60 FR 8333. The revised interpretation postpones the
effective date of section 112(g) until after the EPA has promulgated a
rule addressing that provision. The revised notice sets forth in detail
the rationale for the revised interpretation.
The section 112(g) interpretive notice explains that the EPA is
still considering whether the effective date of section 112(g) should
be delayed beyond the date of promulgation of the Federal rule so as to
allow States time to adopt rules implementing the Federal rule, and
that the EPA will provide for any such additional delay in the final
section 112(g) rulemaking. Unless and until the EPA provides for such
an additional postponement of section 112(g), Arkansas must be able to
implement section 112(g) during the transition period between
promulgation of the Federal section 112(g) rule and
[[Page 46772]]
adoption of implementing State regulations.
For this reason, the EPA is finalizing its approval of Arkansas'
preconstruction review program. This approval clarifies that the
preconstruction review program is available as a mechanism to implement
section 112(g) during the transition period between promulgation of the
section 112(g) rule and adoption by Arkansas of rules established to
implement section 112(g). However, since the approval is for the single
purpose of providing a mechanism to implement section 112(g) during the
transition period, the approval itself will be without effect if the
EPA decides in the final section 112(g) rule that sources are not
subject to the requirements of the rule until State regulations are
adopted. Further, the EPA is limiting the duration of this approval to
18 months following promulgation by EPA of the section 112(g) rule.
The EPA believes that, although Arkansas currently lacks a program
designed specifically to implement section 112(g), the preconstruction
review program will serve as an adequate implementation vehicle during
a transition period because it will allow Arkansas to select control
measures that would meet Maximum Achievable Control Technology, as
defined in section 112, and incorporate these measures into a federally
enforceable preconstruction permit.
2. Title I Modification Definition
Comments were made that the EPA has proposed interim approval of
the Arkansas program because the State definition of title I
modification is inconsistent with the new definition of ``title I
modification'' which the EPA has proposed in the revision to 40 CFR
part 70 (59 FR 44460, August 29, 1994). Comments objected to the EPA's
reinterpretation of title I modification as an interim approval issue.
The EPA does not agree with the comment. As noted in the proposal
for interim approval, the Arkansas Plan of Implementation for Air
Pollution Control SIP at Regulation 19.2 clearly defines a modification
as any increase in emissions. This definition does not provide for a
threshold of emissions that could avoid New Source Review. Therefore,
the threshold of emission levels at Regulation 26.10(b)(1) is
inconsistent with the approved SIP definition of a modification. The
Operating Permits program is consistent with part 70 by disallowing
``title I modifications'' from using the minor modification procedure
at Regulation 26.10(b)(7) which includes actions under the SIP. Because
the SIP is federally approved and the provision at Regulation
26.10(b)(7) is consistent with part 70, it is clear that the provision
at Regulation 26.10(b)(1) is inconsistent with both the existing State
law (the SIP) and with the Federal rule at 40 CFR 70.7(e)(2)(i)(A)(5).
This inconsistency is discussed further under Number 3 below.
The EPA required the State to revise the Operating Permits
regulation because of this inconsistency and required the State to
delete Regulation 26.10(b)(1) because it was inconsistent with the
federally approved definition in the State's SIP. The EPA explained its
reasoning for not allowing the use of a narrower definition of ``title
I modifications'' in the Washington State final approval notice (see 59
FR 55813, November 9, 1994) and incorporates that discussion here by
reference.
3. Minor Modification Process
Comments were made that the EPA lacked the authority to require the
State to revise its minor modification process to delete the emissions
level threshold for minor modification applicability. Comments stated
their belief that the ``20% of the applicable definition of major
source'' constituted a de minimus emissions increase and was allowable
under the minor modification rule contained in part 70.
The EPA does not agree. The Federal rule, 40 CFR 70.7(e)(3)(i),
allows group processing of minor modifications that collectively meet
an emission threshold of 10% of the emissions allowed by the permit for
the emissions unit for which the change is requested, 20% of the
applicable definition of major source, or five tons per year whichever
is less, provided the minor modification criteria for individual
changes at 40 CFR 70.7(e)(2)(i)(A) are also met. The criteria at 40 CFR
70.7(e)(2)(i)(A)(5) and Regulation 26.10(b)(7) disallow changes that
are title I modifications. As discussed under Number 2 above, the SIP
at Regulation 19.2 defines ``modification'' as any increase in
emissions. Because Regulation 26.10(b)(1) allows certain emissions
increases to be processed under the minor modification procedure, the
EPA considers the minor modification process in Regulation 26 to be
inconsistent with itself and the Federal part 70 rule.
The EPA is currently revising part 70 to clarify the definition of
``title I modification'' (see 59 FR 44460, August 29, 1994). After this
revision, the provision at Regulation 26.10(b)(1) might be interpreted
as a de minimis threshold. As the promulgated Federal rule exists and
the federally approved SIP exist, any increase in emissions would not
be allowed under the minor modification procedure. The title I
modification issue is discussed in detail in Number 2 above. The
State's regulations must be consistent with the Federal rule as
currently promulgated. Therefore, the EPA maintains that the State's
regulations are inconsistent with the Federal rule because an emissions
increase is allowed for individual changes under Regulation 26.10(b)(1)
while the State's regulations at Regulation 26.10(b)(7) and the Federal
rule at 40 CFR 70.7(e)(2)(i)(A)(5) disallow emissions increases.
4. Incorporation by Reference of PSD Requirements
Comment was made that the State should not have to formally
incorporate by reference the PSD requirements into Regulation 26 as
stated in the proposal for this action.
The EPA concurs with this comment. The proposal recommended
incorporation of the PSD requirements in order to clarify the
regulation for major sources. The State can effectively meet this
requirement by amending the regulations at 26.3(b) with:
(4) Any source subject to Sec. 19.9 of the Compilation of
Regulations of the Arkansas State Implementation Plan for Air Pollution
Control.
5. PSD Applicability for Constructed/Modified Sources
Comment was made that the EPA should require Arkansas to revise its
operating permit regulation so that the operating permit need only be
revised before a change is placed in operation, rather than before
construction begins.
The EPA does not agree with this comment. The State of Arkansas has
clearly demonstrated that major sources will be regulated by Regulation
26. These sources are required to obtain a modification to the
operating permit that incorporates the applicable requirements
reflected in the SIP (Regulation 19) before construction begins. This
procedure allows the facility to obtain a pre-construction permit as
well as a modification to the operating permit. Also, this process
allows for adequate public comment without duplicating the public
notice process.
If the State chose to revise the regulation as the comment
suggests, the facility would still have to obtain a pre-construction
permit under Regulation 19 before construction. This includes the
requirement of full public review for significant modifications. Then,
the
[[Page 46773]]
facility would have to obtain a significant modification for the
operating permit under Regulation 26 before operating the modified
unit.
6. Deviation Reporting
All three comments objected to the EPA requirement that the State
define ``prompt'' in the regulations with respect to deviations.
The EPA concurs with these comments. The notice for proposed
approval reflected the most prudent position the EPA could take that
would offer clear guidance to the regulated community while protecting
the environment. Since publication of the notice, the EPA has
reconsidered this position and agrees with the comments that the term
``prompt'' may be defined in the permit.
The EPA maintains that ``prompt'' should be defined as two to ten
days after a deviation. This timeframe is sufficient in most cases to
protect public health and safety as well as provide a forewarning of
potential problems. The regulating authority should give consideration
to shorter timeframes where potential health and safety concerns exist.
Where ``prompt'' is defined in the individual permit but not in the
program regulations, the EPA may veto permits that do not require
sufficiently prompt reporting of deviations.
7. Variance Provisions
Comments objected to the EPA's position that variance provisions
under State statute do not apply to title V permits unless title V
processes are followed.
The EPA does not agree with these comments. As discussed in the
proposed notice, the EPA recognizes the State's statutory authority to
grant variances. However, 40 CFR part 70 does not allow States to grant
variances from title V requirements. The EPA recognizes that title V
permits may include compliance schedules for sources which are out of
compliance with applicable requirements. However, such measures to
bring a source into compliance are not the same as variances, which
normally provide a complete exemption from a requirement for the
duration of the variance. The EPA also recognizes that Arkansas may
exercise enforcement discretion when addressing permit violations, but
such discretion is not unlimited.
8. Incorporation by Reference of Application and Permit Content
Comment was made that the State should not have to formally
incorporate by reference the application and permit content
requirements from 40 CFR 70.5(c) and 70.6(a-c) into Regulation 26 as
stated in the proposal.
The EPA does not agree with this comment. Though it may appear
clear that the application content and permit content are fully
incorporated into the State regulations, formal incorporation by
reference will provide a date of promulgation to the incorporated
provisions. Changes to the State's program are certain as the Clean Air
Act Amendments are implemented, and in this way the State regulations
are made clear for enforcement and implementation purposes.
C. Final Action
The EPA is promulgating interim approval of the operating permits
program submitted by the State of Arkansas on November 9, 1994. The
State must make the following changes to receive full approval:
1. Incorporation by Reference
The State must amend Regulation 26.4 and 26.7 to incorporate the
date of promulgation of the rule at 40 CFR part 70 as referenced in the
regulation. By incorporating the promulgation date of July 21, 1992,
the State regulations will be made clear.
2. Minor Modification Procedures
The language in the State's Regulation 26.10(b)(1) regarding
emission levels must be deleted to make the regulations consistent with
the Federal rule at 40 CFR 70.7(e)(2)(i)(A) and the State's Regulations
26.10(b)(7) and 19.2.
3. Submission of Regulation 19
The State of Arkansas must ensure consistency between the operating
permits program (Regulation 26) and the SIP (Regulation 19). The State
is working on a revision to Regulation 19.4 to make the SIP consistent
with Regulation 26. A SIP revision must be submitted that is consistent
with the rule at 40 CFR part 70 during the interim approval period.
Arkansas' part 70 program approved in this notice applies to all
part 70 sources (as defined in the approved program) within the State
of Arkansas, except any sources of air pollution over which an Indian
Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-55818 (November
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 (August 25,
1994); 58 FR 54364 (October 21, 1993).
This interim approval, which may not be renewed, extends until
October 8, 1997. During this interim approval period, the State of
Arkansas is protected from sanctions, and the EPA is not obligated to
promulgate, administer and enforce a Federal Operating Permits program
in the State of Arkansas. Permits issued under a program with interim
approval have full standing with respect to part 70, and the one year
time period for submittal of permit applications by subject sources
begins upon the effective date of this interim approval, as does the
three year time period for processing the initial permit applications.
If Arkansas fails to submit a complete corrective program for full
approval by April 8, 1997, the EPA will start an 18 month clock for
mandatory sanctions. If Arkansas then fails to submit a corrective
program that the EPA finds complete before the expiration of that 18
month period, the EPA will apply sanctions as required by section
502(d)(2) of the Act, which will remain in effect until the EPA
determines that the State of Arkansas has corrected the deficiency by
submitting a complete corrective program.
If the EPA disapproves Arkansas' complete corrective program, the
EPA will apply sanctions as required by section 502(d)(2) on the date
18 months after the effective date of the disapproval, unless prior to
that date Arkansas has submitted a revised program and the EPA has
determined that it corrected the deficiencies that prompted the
disapproval.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if the
State of Arkansas has not timely submitted a complete corrective
program or the EPA has disapproved its submitted corrective program.
Moreover, if the EPA has not granted full approval to the Arkansas
program by the expiration of this interim approval and that expiration
occurs after November 15, 1995, the EPA must promulgate, administer and
enforce a Federal permits program for the State of Arkansas upon
interim approval expiration.
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 the EPA as they apply to
part 70 sources. Section 112(l)(5) requires that the State's program
contain adequate authorities,
[[Page 46774]]
adequate resources for implementation, and an expeditious compliance
schedule, which are also requirements under part 70. Therefore, the EPA
is also promulgating 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
Docket
Copies of the State's submittal and other information relied upon
for the final interim approval, including the eight public comments
received and reviewed by the EPA on the proposal, are contained in
docket number OPP-2-9-1 maintained at the EPA Regional Office. The
docket is an organized and complete file of $100 million or more. Under
Section 205, the 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 the EPA to
establish a plan for informing and advising any small governments that
may be significantly or uniquely impacted by the rule.
The EPA has determined that the approval action promulgated 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 pre-existing requirements under State or local law, and
imposes no new Federal requirements. Accordingly, no additional costs
to State, local, or tribal governments, or to the private sector,
result from this action.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Dated: August 25, 1995.
A. Stanley Meiburg,
Acting Regional Administrator (6RA).
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
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 the
State of Arkansas in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Arkansas
(a) The ADPCE submitted its Operating Permits program on
November 9, 1993, for approval. Interim approval is effective on
October 10, 1995. Interim approval will expire October 8, 1997.
(b) (Reserved)
* * * * *
[FR Doc. 95-22086 Filed 9-7-95; 8:45 am]
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