Clean Air Act Proposed Full Approval of Operating Permits Program; State of Mississippi

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[MS01; FRL-5082-8]

Clean Air Act Proposed Full Approval of Operating Permits

Program; State of Mississippi

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed full approval.

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SUMMARY: The EPA proposes to grant full approval to the Operating

Permits Program submitted by the State of Mississippi for the purpose

of complying with Federal requirements which mandate that States

develop, and submit to EPA, programs for issuing operating permits to

all major stationary sources, and to certain other sources.

DATES: Comments on this proposed action must be received in writing by

November 2, 1994.

ADDRESSES: Written comments should be addressed to Carla Pierce at the

Region IV address.

Copies of the State's submittal and other supporting information

used in developing the proposed full approval are available for

inspection during normal business hours at the following location: U.S.

Environmental Protection Agency, Region IV, 345 Courtland Street, NE.,

Atlanta, GA 30365. Interested persons wanting to examine these

documents should make an appointment with the appropriate office at

least 24 hours before the visiting day.

FOR FURTHER INFORMATION CONTACT: Carla E. Pierce, Regional Program

Manager, Air Programs Branch, Air Pesticides & Toxics Management

Division, Region IV Environmental Protection Agency, 345 Courtland

Street, NE., Atlanta, GA 30365, telephone (404) 347-2864.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

As required under title V of the Clean Air Act Amendments of 1990,

(Clean Air Act (``Act'') sections 501-507), EPA has promulgated rules

which define the minimum elements of an approvable State operating

permits program and the corresponding standards and procedures by which

EPA will approve, oversee, and withdraw approval of State operating

permits programs (see 57 FR 32250 (July 21, 1992)). These rules are

codified at 40 Code of Federal Regulations (CFR) part 70. Title V

requires States to develop, and submit to EPA, programs for issuing

these operating permits to all major stationary sources and to certain

other sources.

The Act requires that States develop and submit these programs to

EPA by November 15, 1993, and that EPA act to approve or disapprove

each program within 1 year after receiving the submittal. 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 operating permits

program.

II. Proposed Action and Implications

A. Analysis of State Submission

1. Support Materials

Pursuant to section 502(d) of the Clean Air Act as amended (1990

Amendments), the Governor of each State must develop and submit to the

Administrator an operating permits program under State or local law or

under an interstate compact meeting the requirements of title V of the

Act. The Mississippi Department of Environmental Quality (MDEQ)

requested, under the signature of Governor Kirk Fordice, approval of

its operating permits program with full authority to administer the

program in all areas of the State of Mississippi, with the exceptions

of the Indian reservations and tribal lands.

In the MDEQ operating permits program submittal, Mississippi does

not assert jurisdiction over Indian lands or reservations for purposes

of 40 CFR part 70 and title V. EPA will, at a future date, conduct a

Federal title V operating permits program governing title V sources of

air emissions on Indian lands and reservations in Mississippi.

The Mississippi submittal, provided as Section I-''Program

Description and Implementation Summary,'' addresses 40 CFR 70.4(b)(1)

by describing how the MDEQ intends to carry out its responsibilities

under the part 70 regulations. The program description has been deemed

to be sufficient for meeting the requirement of 40 CFR 70.4(b)(1).

Pursuant to 40 CFR 70.4(b)(3), the Governor is required to submit a

legal opinion from the Attorney General (or the attorney for the State

air pollution control agency that has independent legal counsel)

demonstrating adequate authority to carry out all aspects of a title V

operating permits program. The State of Mississippi submitted an

Attorney General's Opinion and a Supplemental Attorney General's

Opinion demonstrating adequate legal authority as required by Federal

law and regulation.

Section 70.4(b)(4) requires the submission of relevant permitting

program documentation not contained in the regulations, such as permit

application forms, permit forms and relevant guidance to assist in the

State's implementation of its permit program. Appendix 10 of the MDEQ

submittal includes the permit application form, and it has been

determined that the application form meets the requirements of 40 CFR

70.5(c).

EPA intends to develop an Implementation Agreement with

Mississippi, although this proposed action does not depend on the

Implementation Agreement.

2. Regulations and Program Implementation

The State of Mississippi has submitted Regulations APC-S-6,

``Mississippi Air Emissions Operating Permit Regulations for the

purposes of title V of the Federal Clean Air Act,'' for implementing

the State part 70 program as required by 40 CFR 70.4(b)(2). Sufficient

evidence of their procedurally correct adoption was included in

Appendices 7 and 12 of the submittal. Copies of all applicable State

statutes and regulations which authorize the part 70 program, including

those governing State administrative procedures, were submitted with

the State's program.

The Mississippi operating permits regulations followed part 70 very

closely. The following requirements, set out in EPA's part 70 operating

permits program review, are addressed in Section II of the State's

submittal: (A) Applicability requirements, (40 CFR 70.3(a)): APC-S-6,

Section I.B; (B) Permit applications, (40 CFR 70.5): APC-S-6, Section

II; (C) Provisions for permit content, (40 CFR 70.6): standard permit

requirements: APC-S-6, Section III.A.1; permit duration: APC-S-6,

Section III.A.2; monitoring and related record keeping and reporting

requirements: APC-S-6, Section III.A.3; compliance requirements: APC-S-

6, Sections III.B and III.C; (D) Operational flexibility provisions,

(40 CFR 70.4(b)(12)): APC-S-6, Section IV.F; (E) Provisions for permit

issuance, renewals, reopenings and revisions, including public

participation (40 CFR 70.7): APC-S-6, Section IV; and (F) Permit review

by EPA and affected States (40 CFR 70.6): APC-S-6, Section V.

Mississippi Code Annotated (MSCA) sections 49-17-36 and 49-17-43,

satisfy the requirements of 40 CFR 70.11, for enforcement authority.

The MDEQ has included criteria to determine insignificant

activities and emissions levels in APC-S-6, Section VII. Section VII.A

includes activities/emissions sources which are not required to be

included in the permit application. Section VII.B includes activities/

emissions sources that must be listed in the permit application, but

their emissions do not have to be quantified. Notwithstanding Sections

VII.A and B, applicants are required to include all emission sources

and quantify emissions if needed to determine major source compliance

with an applicable requirement, or to collect any permit fee.

Applicants shall also include all emission sources with a potential to

emit greater than 1 pound per hour of any regulated air pollutant that

is not a hazardous air pollutant, or greater than 0.1 pound per hour of

any hazardous air pollutant.

Part 70 of the operating permits regulations requires prompt

reporting of deviations from the permit requirements. Section

70.6(a)(3)(iii)(B) requires the permitting authority to define prompt

in relation to the degree and type of deviation likely to occur and the

applicable requirements. Although the permit program regulations should

define prompt for purposes of administrative efficiency and clarity, an

acceptable alternative is to define prompt in each individual permit.

EPA believes that prompt should generally be defined as requiring

reporting within two to ten days of the deviation. Two to ten days is

sufficient time in most cases to protect public health and safety as

well as to provide a forewarning of potential problems. For sources

with a low level of excess emissions, a longer time period may be

acceptable. However, prompt reporting must be more frequent than the

semiannual reporting requirement, given that this is a distinct

reporting obligation under 40 CFR 70.6(a)(3)(iii)(A). Where ``prompt''

is defined in the individual permit but not in the program regulations,

EPA may veto permits that do not require sufficiently prompt reporting

of deviations. The State of Mississippi has not defined prompt in its

program regulations with respect to reporting of deviations. The MDEQ,

however, has committed to define ``prompt'' as discussed above in each

individual permit.

The State statute (MSCA 49-2-9) contains a provision that allows

the State to adopt, modify, repeal, and promulgate, after due notice

and hearing, and where not otherwise prohibited by Federal or State

law, to make exceptions to and grant exceptions and variances from, and

to enforce rules and regulations implementing or effectuating the

powers and duties of the Mississippi Commission on Environmental

Quality under any and all statutes within the Commission's

jurisdiction, and as the Commission may deem necessary to prevent,

control and abate existing or potential pollution. Regulation APC-S-6,

Section I.B.8 prohibits exceptions or variances to be granted from any

of the regulations regarding title V permits. The program submittal is

approvable based on these limitations placed on the state's variance

provision.

The complete MDEQ program submittal and the Technical Support

Document are available for review for more detailed information.

3. Permit Fee Demonstration

MSCA sections 49-17-14 and 49-17-30 require the establishment of a

permit fee sufficient to cover the reasonable direct and indirect costs

of the title V operating permit program. The fee amount is set annually

by order of the Mississippi Commission on Environmental Quality and is

based on either actual or allowable emissions at the request of the

source. Under State law, the minimum annual fee assessment is set at

$250 and the maximum annual fee assessment is set at $250,000.

The MDEQ has elected to assess a title V operating permit fee below

the Federal presumptive minimum permit fee. Mississippi's fee amount

was determined through a detailed fee demonstration study that was

conducted by the John C. Stennis Institute of Government at Mississippi

State University. The basis of the fee demonstration was a

comprehensive workload analysis for the title V program.

Based on the results of the fee demonstration study, the

Mississippi Commission on Environmental Quality issued an Order setting

the title V fee at $23.39 per ton of regulated air pollutants for the

first year of the title V program. The fee may be adjusted annually by

Order of the Commission to account for inflation factors or changing

program costs. EPA has determined that Mississippi's fee demonstration

is adequate and meets the requirements of 40 CFR 70.9.

4. Provisions Implementing the Requirements of Other Titles of the Act

a. Authority and/or Commitments for Section 112 Implementation.

Mississippi has demonstrated in its title V program submittal broad

legal authority to incorporate into permits and enforce all applicable

requirements. Additionally, the State has adopted APC-S-1, Section 8,

``Provisions for Hazardous Air Pollutants,'' which provides adequate

legal authority to implement and enforce applicable section 112 rules,

emission standards, and requirements. Mississippi has further

supplemented its broad legal authority with a commitment to ``take

action, following promulgation by EPA of regulations implementing

section 112 of title III of the Federal Clean Air Act, and to submit,

for EPA approval, MDEQ regulations implementing these provisions.'' EPA

has determined that this commitment, in conjunction with Mississippi's

broad statutory and regulatory authority, adequately assures compliance

with all section 112 requirements. EPA regards this commitment as an

acknowledgement by Mississippi of its obligation to obtain further

regulatory authority as needed to issue permits that assure compliance

with section 112 applicable requirements. This commitment does not

substitute for compliance with part 70 requirements that must be met at

the time of program approval.

EPA is interpreting the above legal authority and commitment to

mean that Mississippi is able to carry out all section 112 activities.

For further rationale on this interpretation, please refer to the

Technical Support Document accompanying this proposed full approval and

the April 13, 1993 guidance memorandum entitled ``Title V Program

Approval Criteria for Section 112 Activities,'' signed by John Seitz.

b. Implementation of 112(g) Upon Program Approval. As a condition

of approval of the part 70 program, Mississippi is required to

implement section 112(g) of the Act from the effective date of the part

70 program. Imposition of case-by-case determinations of MACT or

offsets under section 112(g) will require the use of a mechanism for

establishing federally enforceable restrictions on a source-specific

basis. EPA is proposing to approve Mississippi's preconstruction

permitting program found in APC-S-2 under the authority of title V and

part 70 solely for the purpose of implementing section 112(g) during

the transition period between title V approval and adoption of a State

rule implementing EPA's section 112(g) regulations. EPA believes this

approval is necessary so that Mississippi has a mechanism in place to

establish federally enforceable restrictions for section 112(g)

purposes from the date of part 70 approval. Section 112(l) provides the

authority for approval for the use of State air programs to implement

112(g), and title V and section 112(g) provide authority for this

limited approval because of the direct linkage between implementation

of section 112(g) and title V. The scope of this approval is narrowly

limited to section 112(g), and does not confer or imply approval for

purposes of any other provision under the Act. If Mississippi does not

wish to implement section 112(g) through its preconstruction permit

program and can demonstrate that an alternative means of implementing

section 112(g) exists, EPA may, in the final action approving

Mississippi's part 70 program, approve the alternative instead.

This approval only extends until such time as the State is able to

adopt regulations consistent with any regulations promulgated by EPA to

implement section 112(g). Accordingly, EPA is proposing to limit the

duration of this approval to a reasonable time following promulgation

of section 112(g) regulations so that Mississippi, acting

expeditiously, will be able to adopt regulations consistent with the

section 112(g) regulations. EPA is proposing here to limit the duration

of this approval to 18 months following promulgation by EPA of section

112(g) regulations.

c. Program for Delegation of Section 112 Standards as Promulgated.

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 General Provisions Subpart A and 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, EPA is

also proposing to grant 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 the Federal standards as promulgated,

and to delegate existing standards under 40 CFR parts 61 and 63 for

part 70 sources.1 Mississippi has informed EPA that it intends to

accept delegation of section 112 standards through adoption by

reference. This program applies to both existing and future standards.

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\1\The radionuclide National Emission Standards for Hazardous

Air Pollutant (NESHAP) is a section 112 regulation and therefore,

also an applicable requirement under the State operating permits

program for part 70 sources. There is not yet a Federal definition

of ``major'' for radionuclide sources. Therefore, until a major

source definition for radionuclide is promulgated, no source would

be a major section 112 source solely due to its radionuclide

emissions. However, a radionuclide source may, in the interim, be a

major source under part 70 for another reason, thus requiring a part

70 permit. The EPA will work with the State in the development of

its radionuclide program to ensure that permits are issued in a

timely manner.

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Additionally, Mississippi has requested delegation of current and

future section 112 standards under section 112(l)(5) and 40 CFR 63.91

for sources not subject to part 70 requirements. The State has

demonstrated that it has broad legal authority which covers all section

112 sources. MSCA sections 49-2-9 and 49-17-29(a), and APC-S-1 section

8, give the State the authority to implement each applicable section

112 rule, emission standard, or requirement for sources not subject to

part 70 requirements. Mississippi has demonstrated that it will

expeditiously implement section 112 requirements for these sources

pursuant to a schedule after EPA promulgation, and that it has

sufficient enforcement authority to adequately enforce section 112

requirements. The State has also demonstrated that it has adequate

resources to implement current section 112 standards. With respect to

future section 112 requirements, Mississippi has committed to provide

EPA with future demonstrations of resource adequacy as necessary when

new requirements are promulgated and the resource burdens associated

with those requirements become known. Therefore, for sources not

subject to part 70 requirements, EPA is proposing to grant approval

under section 112(l)(5) and 40 CFR 63.91 of the State's program for

receiving delegation of future section 112 standards that are unchanged

from Federal standards as promulgated, and to delegate existing

standards under 40 CFR parts 61 and 63 for non-part 70 sources.

d. Commitment to implement Title IV of the Act. The MDEQ has

committed to ``take action, following promulgation by EPA of

regulations implementing sections 407 and 410 of the Act, or revising

either part 72 or the regulations implementing sections 407 or 410, to

either incorporate such new revised provisions by reference or submit,

for EPA approval, MDEQ regulations implementing these provisions.'' The

MDEQ committed to adopt and submit to EPA the above referenced

regulations no later than January 1, 1995.

B. Proposed Actions

1. Full Approval of the Program

EPA proposes to fully approve the operating permits program

submitted to EPA from the State of Mississippi on November 15, 1993. As

a condition of full approval, Mississippi has issued a commitment to

EPA which confirms that the State's interpretation of a ``title I

modification'' is consistent with EPA's current interpretation of that

term. In addition, the State's regulatory definition is on its face

consistent with EPA's interpretation. See APC-S-6, Section I.A.31. EPA

believes the better interpretation of the phrase ``modifications under

any provision of title I of the Act'' in 40 CFR 70.7(e)(2)(i)(A)(5) to

mean literally any change at a source that would trigger permitting

authority review under regulations approved or promulgated under title

I of the Act. This would include State preconstruction review programs

approved into the State Implementation Plan (SIP) under section

110(a)(2)(C) and regulations addressing source changes that trigger

National Emission Standards for Hazardous Air Pollutants (NESHAPs)

established pursuant to section 112 prior to the 1990 amendments. EPA

is soliciting comment in the current proposal to revise part 70 on the

proper definition of ``title I modification.'' Unless Mississippi

changes its own interpretation from that indicated in its commitment,

the program will be fully approvable under either option discussed in

that proposal. See 56 FR 44460, 44515 (August 29, 1994). EPA has

determined that the program is otherwise adequate to meet the minimum

elements of a State operating permits program as specified in 40 CFR

part 70.

2. Program for Straight Delegation of Section 112 Standards

As discussed above in section II.A.4.c, EPA is proposing to grant

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 applies to all section 112 sources. Additionally, EPA is

proposing to delegate existing standards under 40 CFR parts 61 and 63

for all section 112 sources.

III. Administrative Requirements

A. Request for Public Comments

EPA is requesting comments on all aspects of this proposed full

approval. Copies of the State's submittal and other information relied

upon for the proposed full 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 full 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. EPA will

consider any comments received by November 2, 1994.

B. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

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.

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.

Authority: 42 U.S.C. 7401-7671q.

Dated: September 21, 1994.

Patrick M. Tobin,

Acting Regional Administrator.

[FR Doc. 94-24372 Filed 9-30-94; 8:45 am]

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