Clean Air Act Final Full Approval Of 40 CFR Part 70 Operating Permits Program; State of Mississippi

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[MS01; FRL-5082-8]

Clean Air Act Final Full Approval Of 40 CFR Part 70 Operating

Permits Program; State of Mississippi

AGENCY: U.S. Environmental Protection Agency (EPA).

ACTION: Final Full Approval.

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SUMMARY: The EPA is promulgatring full approval of the Operating

Permits Program submitted by the State of Mississippi 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: January 27, 1995.

ADDRESSES: Copies of the State's submittal and other supporting

information used in developing the final 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, 3rd floor, Tower Building. 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:

Scott Miller, Title V Program Development Team, Air Programs Branch,

Air, Pesticides & Toxics Management Division, Region IV Environmental

Protection Agency, 345 Courtland Street, NE, Atlanta, GA 30365, (404)

347-2864.

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 EPA by November 15, 1993, and

that EPA act to approve or disapprove each program within 1 year after

receiving the submittal. The EPA's program review occurs pursuant to

section 502 of the Act and the part 70 regulations, which together

outline criteria for approval or disapproval. Where a program

substantially, but not fully, meets the requirements of Part 70, EPA

may grant the program interim approval for a period of up to 2 years.

If EPA has not fully approved a program by 2 years after the November

15, 1993 date, or by the end of an interim program, it must establish

and implement a Federal program.

On October 3, 1994, EPA proposed full approval of the operating

permits program for the State of Mississippi. See 59 FR 50214. The EPA

received public comment on the proposal, and compiled a Technical

Support Document (TSD) which describes the operating permits program in

greater detail. EPA received seven comments on the proposed full

approval of the Mississippi program. Generally, these comments

addressed the issues of what changes at a source constitute a ``title I

modification'' under the State's regulations and the requirement that

Mississippi make 112(g) determinations prior to EPA promulgating final

rules implementing section 112(g) of the Act. In this notice EPA is

taking final action to promulgate full approval of the operating

permits program for the State of Mississippi.

II. Final Action and Implications

A. Analysis of State Submission and Response to Public Comments

On October 3, 1994, EPA proposed full approval of the State of

Mississippi's Title V Operating Permit Program. See 59 FR 50214. The

program elements discussed in the proposed notice are unchanged from

the original analysis in the proposed notice and continue to fully meet

the requirements of 40 CFR part 70.

1. Definition of Title I Modification

The proposal discussed the State's definition of the phrase

``modification under any provision of Title I of the Act.'' At the time

of the proposal, EPA believed that for a State's program to be fully

approvable, it would be necessary for the State's definition of

``modification under any provision of Title I of the Act'' 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 of the Act prior to the 1990

amendments. Mississippi adopted the more encompassing definition of

what constitutes a ``title I modification'' into its program

regulations as discussed above in order to obtain full approval of its

operating permits program. Two commenters, the National Environmental

Development Association/Clean Air Regulatory Project (NEDA/CARP) and

the American Forest and Paper Association (AFPA), contended that

neither EPA nor Mississippi have any authority to include as ``title I

modifications'' those changes made pursuant to a preconstruction

permitting program approved under the SIP. Furthermore, the commenters

believe that requiring Mississippi's program regulations to include the

more encompassing definition of ``title I modification'' would reverse

the Agency's current operating permits rule.

On August 29, 1994, EPA proposed revisions to the interim approval

criteria in 40 CFR 70.4(d) to, among other things, allow state programs

with a more narrow definition of ``title I modification'' to receive

interim approval (59 FR 44572). EPA intended to finalize its revisions

to the interim approval criteria under 40 CFR 70.4(d) before taking

action on part 70 programs submitted by the states. However, that is no

longer possible. Publication of the proposed revisions was delayed

until August 29, 1994, and EPA received several requests to extend the

public comment period.\1\ Given the importance of the issues in that

rulemaking to States, sources and the public, but mindful of the need

to take action quickly, EPA agreed to extend the comment period until

October 28, 1994 (see 59 FR 52122 (October 14, 1994)). Consequently,

final action to revise the interim approval criteria will not occur

before the deadline for EPA action on State programs such as

Mississippi's that were submitted on or before November 15, 1993.\2\

EPA believes it would be inappropriate to delay action on Mississippi's

program, perhaps for several months, until final action is taken on the

interim approval revisions. EPA also believes it would be inappropriate

to grant interim approval to Mississippi on this issue before final

action is taken to revise the current interim approval criteria of 40

CFR 70.4(b) to provide a legal basis for such an interim approval. In

lieu of EPA's final promulgation of interim approval criteria, the

State has decided that it will implement the narrower definition of

what constitutes a ``title I modification.'' Upon EPA's final decision

of what constitutes a ``title I modification,'' the State has committed

to revise its definition of what constitutes a ``title I

modification''.

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\1\EPA originally established a 30-day public comment period for

the August 29, 1994 proposal. In response to several requests for

extension, however, EPA agreed to allow an additional thirty days

for public comments. (See 59 FR 52122 (October 14, 1994).

\2\Section 502(d) requires, in relevant part, that ``[n]ot later

than 1 year after receiving a program, and after notice and

opportunity for public comment, the Administrator shall approve or

disapprove such program, in whole or in part.''

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EPA is allowing this approach to ``title I modification'' for a

number of reasons. First, EPA has not yet conclusively determined that

a narrower definition of ``title I modification'' is incorrect and thus

a basis for disapproval (or even interim approval). The Agency has

received numerous comments on this issue as a result of the August 29,

1994, Federal Register notice, and EPA cannot and will not make a final

decision on this issue until it has evaluated all of the comments.

Second, EPA believes that the Mississippi program should not be

disapproved because EPA itself has not yet been able to resolve this

issue through rulemaking. Moreover, disapproving programs from states

such as Mississippi that submitted their programs to EPA on or before

the November 15, 1993, statutory deadline could lead to the perverse

result that these states would receive disapprovals, while states which

were late in submitting programs could take advantage of revised

interim approval criteria if and when these criteria become final. In

effect, States would be severely penalized for having made timely

program submissions to EPA. Finally, disapproval of a State program for

a potential problem that primarily affects permit revision procedures

would delay the issuance of part 70 permits, hampering state/federal

efforts to improve environmental protection through the operating

permits system.

For the reasons mentioned above, EPA is approving the Mississippi

program's use of a narrower definition of ``title I modification'' at

this time.\3\ However, should EPA in the interim approval criteria

rulemaking make a final determination that such a narrow definition of

``title I modification'' is incorrect and that a revision of the

interim approval criteria is warranted, the Agency will propose further

action on Mississippi's program so that the State's definition of

``title I modification'' could become grounds for interim approval.\4\

A State program like Mississippi's that receives full approval of its

narrower definition pending completion of EPA's rulemaking must

ultimately be placed on an equal footing with states that receive

interim approval in later months under any revised interim approval

criteria because of the same issue. Converting the full approval on

this issue to an interim approval after EPA completes its rulemaking

will avoid this inequity. EPA anticipates that an action to convert the

full approval on the ``title I modification'' issue to an interim

approval would be effected through an additional rulemaking, so as to

ensure that there is adequate notice of the change in approval status.

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\3\For similar reasons, the EPA will not construe 40 CFR

70.7(e)(2)(i)(A)(3) to prohibit Mississippi from allowing minor NSR

changes to be processed as minor permit modifications. See 59 FR

44573-44574.

\4\State programs with a narrower ``title I modification''

definition that are acted upon by EPA after an Agency decision that

such narrower definition is inappropriate would be considered

deficient, but would be eligible for interim approval under revised

40 CFR 70.4(b).

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2. Section 112(g) Modifications

EPA received a comment regarding the proposed approval of

Mississippi's preconstruction permitting program 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. The commenter argued that Mississippi should not,

and cannot, implement section 112(g) until: 1) EPA has promulgated a

section 112(g) regulation, and 2) the State has a section 112(g)

program in place. The commenter also argued that Mississippi's

preconstruction review program can not serve as a means to implement

section 112(g) because it was not designed for that purpose.

EPA disagrees with the commenter's contention that section 112(g)

does not take effect until after EPA has promulgated implementing

regulations. The statutory language in section 112(g)(2) prohibits the

modification, construction, or reconstruction of a source after the

effective date of a title V program unless MACT (determined on a case-

by-case basis, if necessary) is met. The unambiguous meaning of this

provision is that the prohibition takes effect on the effective date of

program approval regardless of whether EPA or a state has promulgated

implementing regulations.

The EPA has acknowledged that states may encounter difficulties

implementing section 112(g) prior to the promulgation of final EPA

regulations (See June 28, 1994 memorandum entitled, ``Guidance for

Initial Implementation of Section 112(g),'' signed by John Seitz,

Director of the Office of Air Quality Planning and Standards). EPA has

issued guidance, in the form of a proposed rule, which may be used to

determine whether a physical or operational change at a source is not a

modification either because it is below de minimis levels or because it

has been offset by a decrease of more hazardous emissions. See 59 FR

15004 (April 1, 1994). EPA believes the proposed rule provides

sufficient guidance to Mississippi and sources until such time as EPA's

section 112(g) rulemaking is finalized.

EPA is aware that Mississippi lacks a program designed specifically

to implement section 112(g). However, Mississippi does have a

preconstruction review program that can serve as a procedural vehicle

for rendering federally enforceable a case-by-case MACT or offset

determination. EPA's approval of Mississippi's preconstruction review

program clarifies that it may be used for this purpose during the

transition period to meet the requirements of section 112(g).

EPA believes Mississippi's preconstruction review program will be

adequate in most if not all cases because it will allow Mississippi to

select control measures that would meet MACT, as defined in section

112, and incorporate these measures into a federally enforceable

preconstruction permit. While it is true that Mississippi's

preconstruction review authority extends only to criteria pollutants,

Mississippi should nevertheless be able to impose federally enforceable

measures reflecting MACT for most if not all changes qualifying as

modification, construction, or reconstruction under section 112(g).

This is because most section 112(b) HAPs are also criteria pollutants,

and moreover because measures designed to limit criteria pollutant

emissions will often have the incidental effect of limiting non-

criteria pollutant HAPs. In the event of a situation where

Mississippi's preconstruction permit program cannot be used, the State

may utilize its title V permitting program to do any required MACT

determinations as a result of 112(g).

Another consequence of the fact that Mississippi lacks a program

designed specifically to implement section 112(g) is that the

applicability criteria found in its preconstruction review program may

differ from those in section 112(g). However, whether a particular

source change qualifies as a modification, construction, or

reconstruction for section 112(g) purposes will be determined according

to the statutory provisions of section 112(g), using the proposed rule

as guidance. As noted in the June 28, 1994 guidance, EPA intends to

defer wherever possible to a State's judgment regarding applicability

determinations. This deference must be subject to obvious limitations.

For instance, a physical or operational change resulting in a net

increase in HAP emissions above 10 tons per year could not be viewed as

a de minimis increase under any interpretation of the CAA. The EPA

would expect Mississippi to be able to issue a preconstruction permit

containing a case-by-case determination of MACT in such a case even if

review under its own preconstruction review program would not be

triggered.

3. ``Prompt'' Reporting of Deviations From Permit Limits

In the proposed full approval notice EPA stated that Mississippi's

regulations should define the meaning of ``prompt'' as used in the

requirement found at 40 CFR 70.6(a)(3)(iii)(B) which require ``prompt''

reporting of deviations from applicable requirements. The Agency

indicated that an acceptable alternative to defining what constitutes

``prompt'' reporting of deviations from applicable requirements is to

define ``prompt'' in each individual permit.

One commenter supports this approach and asserts that it is

necessary for EPA to revise several of its earlier interim approval

notices, in which the Agency conditioned final approval on including a

definition of ``prompt'' in the state operating permits program, in

order to provide a consistent application of the appropriate

interpretation of its rules. EPA has consistently asserted that this is

an acceptable alternative to defining prompt in the body of the

permitting regulations and sees no need to revisit past interim

approval actions to clarify this interpretation of the definition of

what constitutes ``prompt'' reporting of deviations from applicable

requirements.

4. Full Approval Under Current Part 70 Regulations

One commenter submitted comments previously submitted on the

proposed part 70 operating permits rule, and objected to the full

approval of Mississippi on the same grounds that it objected to the

promulgation of the part 70 rule itself. The EPA believes the

appropriate forum for pursuing objections to the legal validity of the

Part 70 rule is through a petition for review of the rule in the D.C.

Circuit Court of Appeals. The EPA notes that this commenter has filed

such a petition. However, unless and until the part 70 rule is revised,

EPA must evaluate programs according to the rule that is in effect.

B. Final Action

The EPA is promulgating full approval of the operating permits

program submitted to EPA by the State of Mississippi program on

November 12, 1993. Mississippi has demonstrated that the program will

be adequate to meet the minimum elements of a State operating permits

program as specified in 40 CFR part 70.

The scope of the State's part 70 program approved in this notice

applies to all 70 sources (as defined in the approved program) within

the State, except any sources of air pollution over which an Indian

Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-18 (Nov. 9,

1994). The term ``Indian Tribe'' is defined under the Act as ``any

Indian tribe, band, nation, or other organized group or community,

including any Alaska Native village, which is federally recognized as

eligible for the special programs and services provided by the United

States to Indians because of their status as Indians.'' See section

302(r) of the CAA; see also 59 FR 43956, 43962 (Aug. 25, 1994); 58 FR

54364 (Oct. 21, 1993).

Requirements for approval, specified in 40 CFR 70.4(b), encompass

section 112(1)(5) requirements for approval of a program for delegation

of section 112 standards as promulgated by EPA as they apply to part 70

sources. Section 112(1)(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 promulgating full approval under section

112(1)(5) and 40 CFR part 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

sources covered by the part 70 program as well as nonpart 70 sources.

III. Administrative Requirements

A. Docket

Copies of the State's submittal and other information relied upon

for the final full approval, including the seven public comments

received and reviewed by EPA on the proposal, are contained in docket

number [insert docket number] maintained at the EPA Regional Office.

The docket is an organized and complete file of all the information

submitted to, or otherwise considered by, EPA in the development of

this final full approval. The docket is available for public inspection

at the location listed under the ADDRESSES section of this document.

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.

List of Subjects in 40 CFR Part 70

Administrative practice and procedure, Air pollution control,

Environmental Protection, Intergovernmental relations, Operating

permits, and Reporting and recordkeeping requirements.

Dated: December 15, 1994

John H. Hankinson, Jr.,

Regional Administrator.

Part 70, title 40 of the Code of Federal Regulations is amended as

follows:

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

Mississippi in alphabetical order to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating

Permits Programs

* * * * *

Mississippi

(a) Department of Environmental Quality: submitted on November

15, 1993; full approval effective on January 27, 1995.

(b) Reserved

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[FR Doc. 94-31941 Filed 12-27-94; 8:45 am]

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