Clean Air Act Proposed Interim Approval of Operating Permit Program; Florida

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[FL01; FRL-5225-2]

Clean Air Act Proposed Interim Approval of Operating Permit

Program; Florida

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed interim approval.

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SUMMARY: EPA proposes interim approval of the operating permit program

submitted by the State of Florida 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

July 21, 1995.

ADDRESSES: Written comments on this action should be addressed to Carla

E. Pierce, Chief, Air Toxics Unit/Title V Program Development Team, Air

Programs Branch, at the EPA Region 4 office listed below. Copies of

Florida's submittal and other supporting information used in developing

the proposed interim approval are available for inspection during

normal business hours at the following location: U.S. Environmental

Protection Agency, Region 4, 345 Courtland Street, NE, Atlanta, GA

30365.

FOR FURTHER INFORMATION CONTACT: Kim Gates, Title V Program Development

Team, Air Programs Branch, Air Pesticides & Toxics Management Division,

U.S. Environmental Protection Agency, Region 4, 345 Courtland Street,

NE, Atlanta, GA 30365, (404) 347-3555, Ext. 4146.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

As required under title V of the Clean Air Act (``the Act'') as

amended by the 1990 Clean Air Act Amendments, EPA promulgated rules on

July 21, 1992 (57 FR 32250), that define the minimum elements of an

approvable state operating permit program and the corresponding

standards and procedures by which EPA will approve, oversee, and

withdraw approval of state operating permit programs. These rules

[[Page 32293]] are codified at 40 Code of Federal Regulations (CFR)

part 70. Title V and part 70 require that states develop, and submit to

EPA, programs for issuing operating permits to all major stationary

sources and to certain other sources.

The Act requires states to develop and submit these programs to EPA

by November 15, 1993, and EPA to approve or disapprove each program

within one year after receiving the submittal. If the State's

submission is materially changed during the one-year review period, 40

CFR 70.4(e)(2) allows EPA to extend the review period for no more than

one year following receipt of the additional materials. EPA received

Florida's title V operating permit program submittal on November 16,

1993. The State provided EPA with additional materials in supplemental

submittals dated July 8, 1994, November 28, 1994, December 21, 1994,

December 22, 1994, and January 11, 1995. Because these supplements

materially changed the State's title V program submittal, EPA has

extended the one-year review period.

EPA reviews state operating permit programs pursuant to section 502

of the Act and 40 CFR part 70, 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 two years. If EPA has not fully approved

a program by November 15, 1995, or by the end of an interim program, it

must establish and implement a Federal operating permit program for

that state.

B. Federal Oversight and Sanctions

If EPA grants interim approval to Florida's program, the interim

approval would extend for two years following the effective date of

final interim approval, and could not be renewed. During the interim

approval period, the State of Florida would not be subject to

sanctions, and EPA would not be obligated to promulgate, administer,

and enforce a Federal operating permit program for the State. Permits

issued under a program with interim approval are fully effective with

respect to part 70. The 12-month time period for submittal of permit

applications by sources subject to part 70 requirements and the three-

year time period for processing the initial permit applications begin

upon the effective date of final interim approval.

Following the granting of final interim approval, if Florida fails

to submit a complete corrective program for full approval by the date

six months before expiration of the interim approval, EPA will start an

18-month clock for mandatory sanctions. If Florida then fails to submit

a corrective program that EPA finds complete before the expiration of

that 18-month period, EPA is required to apply one of the sanctions in

section 179(b) of the Act, which will remain in effect until EPA

determines that Florida has corrected the deficiency by submitting a

complete corrective program. Moreover, if the Administrator finds a

lack of good faith on the part of Florida, both sanctions under section

179(b) will apply after the expiration of the 18-month period until the

Administrator determines that Florida has come into compliance. In any

case, if, six months after application of the first sanction, Florida

still has not submitted a corrective program that EPA determines to be

complete, a second sanction will be required.

If, following final interim approval, EPA disapproves Florida's

complete corrective program, EPA will be required to apply one of the

section 179(b) sanctions on the date 18 months after the effective date

of the disapproval, unless prior to that date Florida has submitted a

revised program and EPA has determined that it corrected the

deficiencies that prompted the disapproval. Moreover, if the

Administrator finds a lack of good faith on the part of Florida, both

sanctions under section 179(b) will apply after the expiration of the

18-month period until the Administrator determines that Florida has

come into compliance. In all cases, if six months after EPA applies the

first sanction, Florida has not submitted a revised program that EPA

determines to have corrected the deficiencies that prompted

disapproval, a second sanction will be required.

In addition, discretionary sanctions may be applied where warranted

any time after the end of an interim approval period if a state has not

timely submitted a complete corrective program or EPA has disapproved a

submitted corrective program. Moreover, if EPA has not granted full

approval to a state program by the expiration of an interim approval

and that expiration occurs after November 15, 1995, EPA must

promulgate, administer, and enforce a Federal operating permit program

for that state upon interim approval expiration.

II. Proposed Action and Implications

A. Analysis of State Submission

EPA has concluded that the operating permit program submitted by

Florida substantially meets the requirements of title V and part 70,

and proposes to grant interim approval to the program. For detailed

information on the analysis of the State's submission, please refer to

the Technical Support Document (TSD) contained in the docket at the

address noted above.

1. Support Materials

Pursuant to section 502(d) of the Act, each state must develop and

submit to the Administrator an operating permit program under state or

local law or under an interstate compact meeting the requirements of

title V of the Act. On November 16, 1993, EPA received the title V

operating permit program submitted by the State of Florida. The Florida

Department of Environmental Protection (FDEP) requested, under the

signature of the Florida Governor's designee, approval of its operating

permit program with full authority to administer the program in all

areas of the State of Florida, with the exceptions of Indian

reservations and tribal lands. The State supplemented the program

submittal on July 8, 1994, November 28, 1994, and December 22, 1994.

The Florida submittal addresses, in Section II entitled ``Complete

Program Description,'' the requirement of 40 CFR 70.4(b)(1) by

describing how the State intends to carry out its responsibilities

under the part 70 regulations. EPA has deemed the program description

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

Pursuant to 40 CFR 70.4(b)(3), each state 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 the title

V operating permit program. The State of Florida submitted a General

Counsel Opinion and a Supplementary General Counsel 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 I of Florida's

submittal includes the permit application form, and EPA has determined

that the application form meets the requirements of 40 CFR 70.5(c).

2. Regulations and Program Implementation

The State of Florida developed Chapter 62-213 of the Florida

Administrative Code (F.A.C.) for the implementation of the substantive

requirements of 40 CFR part 70. The State also made changes to Chapters

62- [[Page 32294]] 103 and 62-210, F.A.C. to implement other part 70

requirements. These rules, and several other rules and statutes

providing for State permitting and administrative actions, were

submitted by Florida with sufficient evidence of procedurally correct

adoption as required by 40 CFR 70.4(b)(2).

The Florida program, in Rules 62-213.100 and 62-213.200, F.A.C.,

substantially meets the requirements of 40 CFR 70.2 and 70.3 with

regards to applicability. However, the portion of the State's

definition of ``major source'' in Rule 62-213.200(19)(a), F.A.C.,

implies that emissions of criteria pollutants from any oil or gas

exploration or production well (with its associated equipment) and

emissions from any pipeline compressor or pump station will not be

aggregated with emissions of criteria pollutants from other similar

units. Since the State's definition of ``major source'' conflicts with

the part 70 definition, Florida has initiated rulemaking to clarify

that the non-aggregation in the described situations applies only to

hazardous air pollutants (HAPs). Finalization of this rulemaking is a

condition of full program approval.

Florida's program, in Rules 62-210.900 and 62-213.420, F.A.C.,

substantially meets the requirements of 40 CFR 70.5 for complete permit

application forms. However, the State's program, in Rule 62-4.090,

F.A.C., requires renewal applications to be submitted 60 days prior to

expiration of existing operating permits. This requirement conflicts

with the requirement of 40 CFR 70.5(a)(1)(iii) because the State's

timeframe does not ensure that a permit will not expire prior to

renewal. Florida has initiated rulemaking to require submittal of

renewal applications six months prior to expiration of existing

operating permits. Finalization of this rulemaking is a condition of

full program approval.

Section 70.4(b)(2) requires states to include in their part 70

programs any criteria used to determine insignificant activities or

emission levels for the purposes of determining complete applications.

Section 70.5(c) states that an application for a part 70 permit may not

omit information needed to determine the applicability of, or to

impose, any applicable requirement, or to evaluate appropriate fee

amounts. Section 70.5(c) also states that EPA may approve, as part of a

state program, a list of insignificant activities and emissions levels

which need not be included in permit applications. Under part 70, a

state must request and EPA may approve as part of that state's program

any activities or emission levels that the state wishes to consider

insignificant. Part 70, however, does not establish emissions

thresholds for insignificant activities. EPA has accepted emissions

thresholds of five tons per year for criteria pollutants, and the

lesser of 1000 pounds per year or section 112(g) de minimis levels for

HAPs, as reasonable.

Florida's title V program includes three different approaches to

establishing insignificant activities and emissions levels. Rule 62-

213.420(3)(c), F.A.C., establishes threshold levels for reporting

emissions of pollutants for which no standard applies. Rule 62-

210.300(3), F.A.C., provides for the exemption of certain facilities,

emissions units, or pollutant-emitting activities from the title V

permitting process. Rule 62-4.040(1)(b), F.A.C., allows the State to

determine insignificant activities on a case-by-case basis during the

permitting process.

The threshold levels in Rule 62-213.420(3)(c), F.A.C., do not

exempt any units or activities from permitting requirements or any

other requirements, except the reporting of emissions below the

thresholds established. Rule 62-213.420(3)(c)2., F.A.C., provides for

the reporting of emissions if the title V source emits or has the

potential to emit at the following aggregate thresholds: 50 tons/year

for carbon monoxide; 500 lbs/year for lead and lead compounds

(expressed as lead); and five tons/year for particulates (PM-10),

sulfur dioxide, nitrogen oxides, and volatile organic compounds (VOCs).

Once these aggregate thresholds have been met, emissions are reported

on a per unit basis for units which have a potential to emit at the

following thresholds: 10 tons/year for carbon monoxide; 100 lbs/year

for lead and lead compounds (expressed as lead); and one ton/year for

particulates (PM-10), sulfur dioxide, nitrogen oxides, and VOCs.

Fugitive emissions and emissions from units with the potential to emit

less than the unit thresholds mentioned above shall be considered as

source-wide emissions and shall be reported as source-wide emissions

if, in the aggregate, the source-wide emissions equal or exceed the

following thresholds: 10 tons/year for carbon monoxide; 100 lbs/year

for lead and lead compounds (expressed as lead); and one ton/year of

particulates (PM-10), sulfur dioxide, nitrogen oxides, and VOCs.

Rule 62-213.420(3)(c)3.b., F.A.C., provides for the reporting of

HAPs when a title V source emits or has the potential to emit eight

tons or more per year of any single HAP, or 20 tons or more per year of

any combination of HAPs. Once these thresholds have been met, emissions

are identified and reported from each emissions unit with the potential

to emit one ton per year of any individual HAP. All fugitive emissions

not associated with any specific emissions units are also reportable

when such emissions exceed one ton per year of any individual HAP.

In the State's Supplement 1 (dated July 8, 1994) to the original

title V program submittal, Florida noted that the emissions thresholds

in its program were based on the presumption that reporting

requirements need to be stringent enough to identify applicable

requirements and to suffice for inventorying emissions to evaluate the

impact on ambient air concentrations. The aggregate threshold for

carbon monoxide of 50 tons/year appears to be inconsistent with this

objective. Since the aggregate threshold of 50 tons/year must be met

prior to the reporting of carbon monoxide in the application, the

potential exists for carbon monoxide to be inappropriately excluded

because of miscalculations. EPA proposes that, as a condition of full

approval, the State provide EPA with an acceptable justification for

establishing an aggregate carbon monoxide emissions threshold of 50

tons/year rather than five tons/year. Otherwise, the State must

establish aggregate and individual unit thresholds that trigger the

reporting of carbon monoxide emissions consistent with the emissions

levels established for particulates (PM-10), sulfur dioxide, nitrogen

oxides, and volatile organic compounds.

Moreover, since insignificant emissions levels are reviewed

relative to threshold levels for determining major source status, as

well as levels at which applicable requirements are triggered,

Florida's thresholds for the reporting of HAP emissions must be revised

as a condition of full program approval. For other state and local

programs, EPA has accepted HAPs emission thresholds of the lesser of

1000 lbs/year or section 112(g) de minimis levels as sufficient for

full approval.

Rule 62-210.300(3), F.A.C., exempts specific facilities, emissions

units, or pollutant-emitting activities from the title V permitting

process. As a condition of full approval, the State must revise Rule

62-210.300(3), F.A.C. to provide that (1) no insignificant activities

or emissions units subject to applicable requirements (as defined in

Rule 62-213.200(6), F.A.C.) will be exempted from title V permitting

requirements; (2) insignificant activities or emissions units

exemptions will not be used to lower the potential to emit below major

source thresholds; and (3) emissions thresholds for individual

[[Page 32295]] activities or units that are exempted will not exceed

five tons per year for criteria pollutants, and the lesser of 1000

pounds per year or section 112(g) de minimis levels for HAPs.

In addition, several of the specific exemptions in Rule 62-

210.300(3), F.A.C. must either be removed from the rule or revised as a

condition of full approval. Specifically, Rule 62-210.300(3)(a), F.A.C.

exempts ``[s]team and hot water generating units located within a

single facility and having a total heat input, individually or

collectively, equaling 50 million BTU/hr or less, and fired exclusively

by natural gas except for periods of natural gas curtailment during

which fuel oil containing no more than one percent sulfur is fired * *

*'' However, during the periods fuel oil is fired, these sources could

potentially emit sulfur dioxide in excess of major source thresholds.

Since the potential emissions from these sources would not be

``insignificant,'' this exemption must be removed from Rule 62-

210.300(3), F.A.C. as a condition of full approval.

Rule 62-210.300(3)(r), F.A.C. exempts ``[p]erchloroethylene dry

cleaning facilities with a solvent consumption of less than 1,475

gallons per year.'' However, at the annual consumption rate of 1,475

gallons of perchloroethylene, these facilities could potentially emit

over eight tons per year of perchloroethylene. Since the potential HAPs

emissions from these sources is not ``insignificant,'' this exemption

must be removed from Rule 62-210.300(3), F.A.C. as a condition of full

approval.

Rule 62-210.300(3)(u), F.A.C. exempts ``[e]mergency electrical

generators, heating units, and general purpose diesel engines operating

no more than 400 hours per year * * *'' These sources could potentially

have emissions in excess of major source thresholds, depending on the

fuel used and the unit's size. Since the potential emissions from these

sources would not be ``insignificant,'' this exemption must be removed

from Rule 62-210.300(3), F.A.C. as a condition of full approval.

Rule 62-210.300(3)(x), F.A.C. exempts ``[p]hosphogypsum disposal

areas and cooling ponds.'' This exemption potentially includes

phosphogypsum stacks, which emit radon and are subject to the

radionuclide National Emissions Standards for Hazardous Air Pollutants

(NESHAPS) found in 40 CFR 61, Subpart R. Therefore, as a condition of

full approval, this exemption must be revised to exclude phosphogypsum

stacks.

Rule 62-4.040(1)(b), F.A.C., allows Florida to determine

insignificant activities on a case-by-case basis during the permitting

process. As a condition of full approval, the State must revise Rule

62-4.040(1)(b), F.A.C. to provide that (1) no insignificant activities

or emissions units subject to applicable requirements (as defined in

Rule 62-213.200(6), F.A.C.) will be exempted from title V permitting

requirements; (2) no insignificant activities or emissions units

exemptions will be used to lower the potential to emit below major

source thresholds; and (3) emissions thresholds for individual

activities or units that are exempted will not exceed five tons per

year for criteria pollutants, and the lesser of 1000 pounds per year or

section 112(g) de minimis levels for HAPs.

Florida's program, in Rules 62-4.130, 62-4.160, 62-210.700, 62-

213.410, and 62-213.440, F.A.C., substantially meets the requirements

of 40 CFR 70.4, 70.5, and 70.6 for permit content (including

operational flexibility). The State's program does not provide for off-

permit changes as described in 40 CFR 70.4(b)(14).

Part 70 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 this is a distinct reporting obligation under

section 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 contain sufficiently prompt reporting of

deviations.

Florida has not defined ``prompt'' in its program with respect to

the reporting of deviations. Rule 62-213.440(1)(b)3.b., F.A.C.,

requires reporting, in accordance with the requirements of Rules 62-

210.700(6) and 62-4.130, F.A.C., of deviations from permit

requirements. Rule 62-210.700(6), F.A.C., requires notification in

accordance with Rule 62-4.130, F.A.C. Rule 62-4.130, F.A.C., requires

immediate notification ``if the permittee is temporarily unable to

comply with any of the conditions of the permit due to breakdown of

equipment or destruction by hazard of fire, wind or by other cause.''

This requirement is reiterated in Rule 62-4.160(8), F.A.C., which is a

general condition of each permit that extends the requirement to

include immediate reporting if, for any reason, the permittee does not

comply with or will be unable to comply with any condition or

limitation specified in the permit. Florida has stated that

``immediately'' is not reasonably interpreted to mean a time beyond the

next workday.

Florida has the authority to issue variances from requirements

imposed by State law. Rule 62-103.100, F.A.C., allows Florida

discretion to grant relief from compliance with State statutes and

rules. EPA regards this provision as wholly external to the program

submitted for approval under part 70, and consequently proposes to take

no action on this provision of State law. EPA has no authority to

approve provisions of state law, such as the variance provision

referred to, that are inconsistent with title V. EPA does not recognize

the ability of a permitting authority to grant relief from the duty to

comply with a Federally enforceable part 70 permit, except where such

relief is granted through the procedures allowed by part 70. A part 70

permit may be issued or revised (consistent with part 70 permitting

procedures) to incorporate those terms of a variance that are

consistent with applicable requirements. A part 70 permit may also

incorporate, via part 70 permit issuance or modification procedures,

the schedule of compliance set forth in a variance. However, EPA

reserves the right to pursue enforcement of applicable requirements

notwithstanding the existence of a compliance schedule in a permit to

operate. This is consistent with 40 CFR 70.5(c)(8)(iii)(C), which

states that a schedule of compliance ``shall be supplemental to, and

shall not sanction noncompliance with, the applicable requirements on

which it is based.''

Florida's program, in Rules 62-210.360, 62-213.400, 62-213.412, 62-

213.420, and 62-213.430, F.A.C., substantially meets the permit

processing requirements of 40 CFR 70.7 (including minor permit

modifications) and 70.8. However, the State's regulations do not

provide for permit reopenings for cause consistent with 40 CFR

70.7(f)(1)(i), (iii), and (iv). As a condition of full approval, the

State's program must provide the following: (1) [[Page 32296]] if a

permit is reopened and revised because additional applicable

requirements become applicable to a major source with a remaining

permit term of 3 or more years, such a reopening shall be completed

within 18 months after promulgation of the applicable requirement; (2)

a permit shall be reopened and revised if EPA or the State determines

that the permit contains a material mistake or that inaccurate

statements were made in establishing the emissions standards or other

terms or conditions of the permit; and (3) a permit shall be reopened

if EPA or the State determine that the permit must be revised or

revoked to assure compliance with the applicable requirements.

The public participation requirements of 40 CFR 70.7(h) were

addressed in Rules 62-103.150, 62-210.350, 62-213.430, and 62-213.450,

F.A.C. The program also, in Sections 403.131, 403.141, and 403.161 of

the Florida Statutes (F.S.), substantially meets the requirements of 40

CFR 70.11 with respect to enforcement authority.

The aforementioned TSD contains the detailed analysis of Florida's

program and describes the manner in which the State's program meets all

of the operating permit program requirements of 40 CFR part 70.

3. Permit Fee Demonstration

Section 502(b)(3) of the Act requires each permitting authority to

collect fees sufficient to cover all reasonable direct and indirect

costs necessary for the development and administration of its title V

operating permit program. Each title V program submittal must contain

either a detailed demonstration of fee adequacy or a demonstration that

aggregate fees collected from title V sources meet or exceed $25 per

ton of emissions per year (adjusted from 1989 by the Consumer Price

Index (CPI)). The $25 per ton is presumed, for program approval, to be

sufficient to cover all reasonable program costs and is thus referred

to as the ``presumptive minimum.''

The State of Florida has elected to assess a title V operating

permit fee below the Federal presumptive minimum fee amount. The

State's program submittal, therefore, included a detailed fee

demonstration in accordance with 40 CFR 70.9(b)(5). The fee

demonstration showed that the fees collected will adequately cover the

anticipated costs of the operating permit program for the years 1995

through 1999.

In Rule 62-213.205, F.A.C., the State established a 1995 license

fee for title V sources of $25 per ton of each regulated air pollutant

allowed to be emitted annually. Rule 62-213.205(1)(a), F.A.C., provides

that the license fee may be increased beyond $25 per ton in years

succeeding 1995 if the Secretary of FDEP finds that a shortage of

revenue will occur in the absence of a fee adjustment. The State

asserts that since one of the program's mandates is that it be self-

supporting, it is expected that the Secretary's discretionary power

will be exercised as the need arises to adjust the fee accordingly.

The program activities that will constitute the State's title V

operating permit program are consistent with the activities described

in 40 CFR 70.9(b)(1). Rule 62-213.205(3), F.A.C., provides that an

audit of the State's operating permit program will be conducted 2 years

after EPA has given full approval of the program or by December 31,

1996, whichever comes later, to ascertain whether the annual fees

collected are used solely to support reasonable direct and indirect

costs of the title V program. After the first audit, the program will

be audited biennially. And though Rule 62-213.205(1)(a), F.A.C.,

provides that the annual fee may not exceed $35 per ton without

legislative approval, Florida has assured EPA that it will seek

legislative action to raise the fee amount above the $35 per ton limit

if it becomes necessary.

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

a. Authority for section 112 implementation. In its program

submittal, Florida demonstrates adequate legal authority to implement

and enforce all section 112 requirements through the title V permit.

This legal authority is contained in the Florida Statutes (i.e.,

Section 403.0872), and in the Florida Administrative Code in regulatory

provisions defining ``applicable requirements'' and stating that

permits must address all applicable requirements. Moreover, Florida has

initiated rulemaking to clearly state that each permit shall

incorporate all applicable requirements for the title V source. EPA has

determined that this legal authority is sufficient to allow the State

to issue permits that assure compliance with all section 112

requirements.

EPA is interpreting the above legal authority to mean that Florida

is able to carry out all section 112 activities with respect to part 70

and non-part 70 sources. For further rationale on this interpretation,

please refer to the TSD.

b. Implementation of section 112(g) upon program approval. EPA

issued an interpretive notice on February 14, 1995 (60 FR 8333), which

outlines EPA's revised interpretation of section 112(g) applicability.

The notice postpones the effective date of section 112(g) until after

EPA has promulgated a rule addressing that provision. The notice sets

forth in detail the rationale for the revised interpretation.

The section 112(g) interpretative notice explains that EPA is

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 EPA will provide for any such additional delay in the final

section 112(g) rulemaking. Unless and until EPA provides for such an

additional postponement of section 112(g), Florida must have a

Federally enforceable mechanism for implementing section 112(g) during

the period between promulgation of the Federal section 112(g) rule and

adoption of implementing State regulations.

EPA is aware that Florida lacks a program designed specifically to

implement section 112(g). However, Florida does have a preconstruction

review program that can serve as an adequate implementation vehicle

during the transition period because it would allow the State to select

control measures that would meet the maximum achievable control

technology (MACT), as defined in section 112, and incorporate these

measures into a Federally enforceable preconstruction permit.

For this reason, EPA proposes to approve the use of Florida's

preconstruction review program found in Rule 62-212, F.A.C., under the

authority of title V and part 70, solely for the purpose of

implementing section 112(g) to the extent necessary during the

transition period between section 112(g) promulgation and adoption of a

State rule implementing EPA's section 112(g) regulations. Although

section 112(l) generally provides authority for approval of state air

programs to implement section 112(g), title V and section 112(g)

provide for this limited approval because of the direct linkage between

the 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 purpose of any other provision under the Act (e.g.,

section 110). This approval will be without effect if 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. The

duration of this approval is limited to 18 months following

promulgation by EPA of the section 112(g) rule to provide

[[Page 32297]] adequate time for the State to adopt regulations

consistent with the Federal requirements.

c. Program for delegation of section 112 standards as promulgated.

The requirements for part 70 program approval, specified in 40 CFR

70.4(b), encompass section 112(l)(5) requirements for approval of a

state program for delegation of section 112 standards promulgated by

EPA as they apply to title V 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 also proposes to grant

approval, under section 112(l)(5) and 40 CFR 63.91, of Florida's

program for receiving delegation of section 112 standards that are

unchanged from the Federal standards as promulgated. In addition, EPA

proposes delegation of all existing standards and programs under 40 CFR

parts 61 and 63 for part 70 sources and non-part 70 sources.1

\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. 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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Florida has informed EPA that it intends to accept the delegation

of future section 112 standards using the mechanisms of adoption-by-

reference and case-by-case delegation. The details of the State's use

of these delegation mechanisms are set forth in a letter dated January

11, 1995, submitted by the State as a title V program addendum.

d. Commitment to implement title IV of the Act. Florida has

committed to take action, following promulgation by EPA of regulations

implementing sections 407 and 410 of the Act, or revisions to either

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

incorporate the revised provisions by reference or submit, for EPA

approval, State regulations implementing these provisions. On January

3, 1995, Florida's acid rain rule for the permitting of Phase II

sources became state-effective. On March 10, 1995, the State submitted

proposed changes to its acid rain rule to address discrepancies between

the State's rule and the Federal requirements in part 72. The State is

expediting rule revisions to ensure that an acid rain rule that is

acceptable to EPA will be state-effective before November 15, 1995.

B. Proposed Actions

EPA proposes interim approval of the operating permit program

submitted by the State of Florida on November 16, 1993, and as

supplemented on July 8, 1994, November 28, 1994, and December 22, 1994.

If promulgated, the State must make the changes discussed below to

receive full program approval.

1. Definition of ``Major Source''

As a condition of full approval, Florida is revising the definition

of ``major source'' in Rule 62-213.200(19)(a), F.A.C. for consistency

with the Federal definition. This rulemaking, when state-effective,

will clarify that the non-aggregation in the situations described

previously in section II.A.2. applies only to HAPs.

2. Timely Application for Permit Renewal

As a condition of full approval, Florida is revising Rule 62-4.090,

F.A.C., to require submittal of permit renewal applications six months

prior to expiration of existing title V permits. This rulemaking, when

state-effective, will address the Federal requirement in 40 CFR

70.5(a)(1)(iii) for timely application for purposes of permit renewal.

3. Insignificant Activities Provisions

As a condition of full program approval, Florida must complete the

following:

(a) Provide EPA with an acceptable justification for establishing

an aggregate carbon monoxide emissions threshold of 50 tons/year rather

than five tons/year. Otherwise, the State must establish aggregate and

individual unit thresholds that trigger the reporting of carbon

monoxide emissions consistent with the emissions levels established for

particulates (PM-10), sulfur dioxide, nitrogen oxides, and volatile

organic compounds. The State must also reduce the thresholds for HAP

emissions to the lesser of 1000 lbs/year or section 112(g) de minimis

levels.

(b) Revise Rule 62-210.300(3), F.A.C. to provide that (1) no

insignificant activities or emissions units subject to applicable

requirements (as defined in Rule 62-213.200(6)) will be exempted from

title V permitting requirements; (2) insignificant activities or

emissions units exemptions will not be used to lower the potential to

emit below major source thresholds; and (3) emissions thresholds for

individual activities or units that are exempted will not exceed five

tons per year for criteria pollutants, and the lesser of 1000 pounds

per year or section 112(g) de minimis levels for HAPs. In addition, as

discussed previously in section II.A.2., several exemptions in Rule 62-

210.300(3), F.A.C. must either be removed from the rule or revised.

(c) Revise Rule 62-4.040(1)(b), F.A.C. to provide that (1) no

insignificant activities or emissions units subject to applicable

requirements (as defined in Rule 62-213.200(6), F.A.C.) will be

exempted from title V permitting requirements; (2) no insignificant

activities or emissions units exemptions will be used to lower the

potential to emit below major source thresholds; and (3) emissions

thresholds for individual activities or units that are exempted will

not exceed five tons per year for criteria pollutants, and the lesser

of 1000 pounds per year or section 112(g) de minimis levels for HAPs.

4. Permit Reopenings Provisions

As a condition of full approval, Florida must provide for permit

reopenings for cause consistent with 40 CFR 70.7(f)(1)(i), (iii), and

(iv).

This interim approval, which may not be renewed, extends for a

period of up to two years. During the interim approval period, Florida

is protected from sanctions for failure to have a program, and EPA is

not obligated to promulgate a Federal operating permit program in the

State. Permits issued under a program with interim approval are fully

effective with respect to part 70, and the one-year time period for

submittal of permit applications by subject sources begins upon interim

approval, as does the three-year time period for processing the initial

permit applications.

The scope of Florida's part 70 program that EPA proposes to

interimly approve in this notice would apply to all part 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).

As discussed previously in section II.A.4.b., EPA proposes to

approve [[Page 32298]] Florida's preconstruction review program found

in Rule 62-212, F.A.C., under the authority of title V and part 70

solely for the purpose of implementing section 112(g) to the extent

necessary during the transition period between 112(g) promulgation and

adoption of a State rule implementing EPA's section 112(g) regulations.

In addition, as discussed in section II.A.4.c., EPA proposes to

grant approval under section 112(l)(5) and 40 CFR 63.91 to Florida's

program for receiving delegation of section 112 standards that are

unchanged from Federal standards as promulgated. EPA also proposes to

delegate existing standards under 40 CFR parts 61 and 63 for both part

70 sources and non-part 70 sources.

III. Administrative Requirements

A. Request for Public Comments

EPA requests comments on all aspects of this proposed interim

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

upon for the proposed interim approval are contained in docket number

FL-95-01 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. EPA will

consider any comments received by July 21, 1995.

B. Executive Order 12866

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

C. Regulatory Flexibility Act

EPA's actions under section 502 of the Act do not create any new

requirements, but simply address operating permit 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 Reform Act of 1995

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 proposed interim approval action

promulgated today does not include a Federal mandate that may result in

estimated costs of $100 million or more to 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,

and Reporting and recordkeeping requirements.

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

Dated: June 9, 1995.

Patrick M. Tobin,

Acting Regional Administrator.

[FR Doc. 95-15174 Filed 6-20-95; 8:45 am]

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