Clean Air Act Final Interim Approval of Operating Permit Program; State of Florida

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[FL-95-01; FRL-5302-5]

Clean Air Act Final Interim Approval of Operating Permit Program;

State of Florida

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final interim approval.

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SUMMARY: EPA is promulgating interim approval of the operating permit

program submitted by the Florida Department of Environmental Protection

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 25, 1995.

ADDRESSES: Copies of Florida's submittal and the 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 4, 345 Courtland Street

NE., Atlanta, GA 30365. Interested persons wanting to examine these

documents, contained in EPA docket number FL-95-01, should make an

appointment at least 24 hours before the visiting day.

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

Title V of the 1990 Clean Air Act Amendments (sections 501-507 of

the Clean Air Act (the Act) and the 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 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 the supplements materially changed the

State's title V program submittal, EPA extended the one-year review

period.

EPA reviews state operating permit programs 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 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.

On June 21, 1995, EPA proposed interim approval of Florida's

operating permit program. See 60 FR 32292. The June 21, 1995 notice

also proposed approval of Florida's interim mechanism for implementing

section 112(g) and for delegation of section 112 standards and programs

that are unchanged from the Federal rules as promulgated. Public

comment was solicited on these proposed actions. In this notice, EPA is

responding to the comments received and taking final action to

promulgate interim approval of Florida's operating permit program.

II. Final Action and Implications

A. Analysis of State Submission and Response to Public Comments

On June 21, 1995, EPA proposed interim approval of Florida's title

V operating permit program. See 60 FR 32292. The program elements

discussed in the proposal notice are unchanged from the proposal notice

and continue to substantially meet the requirements of title V and part

70. For detailed information on EPA's analysis of Florida's program

submittal, please refer to the Technical Support Document (TSD)

contained in the docket at the address noted above.

EPA received three letters during the 30-day public comment period

held on the proposed interim approval of Florida's program. One

respondent requested a 90-day extension of the public comment period

based on the guidance memorandum entitled ``White Paper for Streamlined

Development of Part 70 Permit Applications'' issued by EPA on July 10,

1995. The respondent suggested that the White Paper memorandum provides

more flexibility for insignificant activities than allowed for in part

70 and in the proposal notice. EPA denied the extension request because

the policies set forth in the White Paper memorandum are intended

solely as guidance and do not change the current part 70 requirements.

EPA received two comment letters on the proposed interim approval

of Florida's program, one from an industry commenter and the other from

the State. In response to the comments, several of the conditions for

full program approval discussed in the proposal notice are being

revised. The changes are discussed below along with the conditions for

full approval that remain unchanged.

1. Definition of ``Major Source''

Florida's definition of ``major source'' in the original program

submittal (see Rule 62-213.200(19)(a), F.A.C.) implied 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 would not be aggregated with emissions of

criteria pollutants from other similar units. Since Florida's

definition of ``major source'' conflicted with the part 70 definition,

revision of the State's definition was identified in the proposal

notice as a condition of full program approval.

In its comment letter, the State indicated that the definition of

``major source'' in Rule 62-213.200(19)(a), F.A.C., has been amended to

clarify that

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the non-aggregation in the described situations applies only to

hazardous air pollutants (HAPs). Florida's amended rule became

effective on April 18, 1995, and was submitted to EPA as a formal

supplement to the title V operating permit program on August 4, 1995.

Therefore, Florida has satisfied this condition for full program

approval.

2. Timely Application for Permit Renewal

The State's original program, in Rule 62-4.090, F.A.C., required

renewal applications to be submitted 60 days prior to expiration of

existing operating permits. This requirement conflicted with the

requirement of 40 CFR 70.5(a)(1)(iii) and the State's timeframe did not

ensure that a permit would not expire prior to renewal. Revision of

Rule 62-4.090, F.A.C., to require submittal of permit renewal

applications six months prior to expiration of existing title V permits

was identified in the proposal notice as a condition of full program

approval.

In its comment letter, the State indicated that rulemaking has been

completed to address the requirement in 40 CFR 70.5(a)(1)(iii) for

submittal of renewal applications six months prior to the expiration of

existing operating permits. The State's amended Rule 62-4.090, F.A.C.,

became effective on April 18, 1995 and was submitted to EPA as a formal

supplement to the title V operating permit program on August 4, 1995.

Therefore, Florida has satisfied this condition for full program

approval.

3. Insignificant Activities Provisions

(a) Emissions Thresholds for Reporting

Rule 62-213.420(3)(c), F.A.C., contains reporting requirements for

the emissions of criteria pollutants at title V sources. The State has

indicated that the emissions thresholds in Rule 62-213.420(3)(c)2.,

F.A.C., which trigger the reporting requirements are based on the

presumption that the requirements need to be stringent enough to

identify applicable requirements and to suffice for inventorying

emissions to evaluate the impact on ambient air concentrations.

However, the aggregate threshold of 50 tons per year (tpy) for carbon

monoxide appears to be inconsistent with the State's objective. Since

the aggregate threshold of 50 tpy must be met prior to the reporting of

carbon monoxide in the permit application, the potential exists for

carbon monoxide to be inappropriately excluded due to miscalculations.

Therefore, as a condition of full program approval, the State must

provide EPA with an acceptable justification for establishing an

aggregate emissions threshold of 50 tpy for the triggering of the

carbon monoxide reporting requirements. Otherwise, Florida must

establish carbon monoxide emissions thresholds that are consistent with

the State's emissions thresholds for particulates (PM-10), sulfur

dioxide, nitrogen oxides, and volatile organic compounds.

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 8 tpy or

more of any single HAP, or 20 tpy or more of any combination of HAPs.

Once these thresholds have been met, emissions are identified and

reported for each emissions unit with the potential to emit 1 tpy of

any individual HAP. All fugitive emissions not associated with any

specific emissions units are also reportable when such emissions exceed

1 tpy of any individual HAP.

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, EPA requested in the

proposal notice that Florida revise the reporting thresholds for HAPs

emissions as a condition of full program approval. EPA suggested HAPs

emissions thresholds of the lesser of 1000 lbs/year or section 112(g)

de minimis levels.

Two commenters responded to EPA's request for revision of the

State's HAPs reporting thresholds. The industry commenter stated that

the emissions thresholds requested by EPA contradict the White Paper

guidance memorandum because the more stringent thresholds would require

permit applicants to develop detailed tpy estimates when reporting HAP

emissions or when classifying insignificant activities, even for

sources identified as major and for emissions units that have no

applicable requirements. The industry commenter emphasized that

requiring detailed tpy emission estimates for emissions units that have

no applicable requirements is contrary to the reporting guidelines

presented in the White Paper memorandum. The State, in its comment

letter, also expressed concern that making the HAPs reporting

thresholds more stringent is contradictory to EPA's goal of

streamlining and simplifying the permit application process.

EPA would like to point out that, as a general matter, the

flexibility explained in the White Paper memorandum is in addition to,

and does not necessarily depend upon, a State's insignificant

activities provisions. However, in the case of Florida's program, the

State has established detailed reporting criteria which complicate this

interaction and give some validity to industry's comments. On further

reflection, EPA believes that it may have been overly prescriptive in

requiring the State to revise its levels for emissions reporting, which

appear to function separately from its insignificant activities

provisions, and that an alternative pathway exists in this case for

full program approval.

Accordingly, EPA is revising the condition for full approval to

require Florida to add language to the applicability provisions in Rule

62-213.400, F.A.C., to ensure that (1) Applications do not omit

information needed to determine or impose applicable requirements (as

defined in Rule 62-213.200(6), F.A.C.); (2) insignificant activities or

emissions units will not be exempted from the determination of whether

a source is major; and (3) emissions thresholds for individual

activities or units that are exempted will not exceed 5 tpy for

regulated air pollutants, and the lesser of 1000 pounds per year or

section 112(g) de minimis levels for HAPs or different thresholds that

the State demonstrates are insignificant.

(b) Specific Exemptions

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) Applications do not omit

information needed to determine or impose applicable requirements (as

defined in Rule 62-213.200(6), F.A.C.); (2) insignificant activities or

emissions units will not be exempted from the determination of whether

a source is major; and (3) emissions thresholds for individual

activities or units that are exempted will not exceed 5 tpy for

regulated air pollutants, and the lesser of 1000 pounds per year or

section 112(g) de minimis levels for HAPs or different thresholds that

the State demonstrates are insignificant.

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

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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 8 tpy 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 part 61, subpart R. Therefore, as a condition

of full approval, this exemption must be revised to exclude

phosphogypsum stacks.

(d) Case-by-Case Exemptions

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) Applications do not omit

information needed to determine or impose applicable requirements (as

defined in Rule 62-213.200(6), F.A.C.); (2) insignificant activities or

emissions units will not be exempted from the determination of whether

a source is major; and (3) emissions thresholds for individual

activities or units that are exempted will not exceed 5 tpy for

regulated air pollutants, and the lesser of 1000 pounds per year or

section 112(g) de minimis levels for HAPs or different thresholds that

the State demonstrates are insignificant.

4. Permit Reopenings Provisions

The regulations in the State's program 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 program approval, the State must provide

in its regulations that: (1) 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.

B. Final Action

1. Title V Operating Permit Program

EPA is promulgating interim approval of the operating permit

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

supplemented on July 8, 1994, November 28, 1994, December 21, 1994,

December 22, 1994, and January 11, 1995. The State must make the

following changes to receive full program approval:

(a) Provide EPA with an acceptable justification for establishing

an aggregate emissions threshold of 50 tpy for the triggering of the

carbon monoxide reporting requirements. Otherwise, Florida must

establish carbon monoxide emissions thresholds that are consistent with

the State's emissions thresholds for particulates (PM-10), sulfur

dioxide, nitrogen oxides, and volatile organic compounds.

(b) Revise Rules 62-4.040(1)(b), 62-210.300(3), and 62-213.400,

F.A.C., to provide that (1) Applications do not omit information needed

to determine or impose applicable requirements (as defined in Rule 62-

213.200(6), F.A.C.); (2) insignificant activities or emissions units

will not be exempted from the determination of whether a source is

major; and (3) emissions thresholds for individual activities or units

that are exempted will not exceed 5 tpy for regulated air pollutants,

and the lesser of 1000 pounds per year or section 112(g) de minimis

levels for HAPs or different thresholds that the State demonstrates are

insignificant. In addition, as discussed above, several specific

exemptions in Rule 62-210.300(3), F.A.C., must either be removed from

the rule or revised.

(c) Make regulatory provisions for permit reopenings for cause

consistent with 40 CFR 70.7(f)(1)(i), (iii), and (iv).

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

this notice applies 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 (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 CAA; 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 25, 1997. During this interim approval period, the State of

Florida is protected from sanctions, and EPA is not obligated to

promulgate, administer, and enforce a Federal operating permits program

in the State. 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 final interim approval, as does the three-year

time period for processing the initial permit applications.

If the State of Florida fails to submit a complete corrective

program for full approval by April 25, 1997, 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 will be 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 has found complete, a second sanction will be

required.

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If 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 the State 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 the Florida, both sanctions under section 179(b) will

apply after the expiration of the 18-month period until the

Administrator determines that the State 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 expiration 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.

2. Preconstruction Review Program Implementing Section 112(g)

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 is approving 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 adequate time

for the State to adopt regulations consistent with the Federal

requirements.

3. 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 is also approving,

under section 112(l)(5) and 40 CFR 63.91, Florida's program for

receiving delegation of section 112 standards and programs that are

unchanged from the Federal rules as promulgated. In addition, EPA is

delegating all existing standards and programs under 40 CFR parts 61

and 63. This program for delegations applies to 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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III. Administrative Requirements

A. Docket

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

for the final interim approval, including the three comment letters

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

docket number FL-95-01 maintained at the EPA Region 4 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 interim 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

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,

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

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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.

Dated: September 15, 1995.

John H. Hankinson, Jr.,

Regional Administrator.

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 Florida in alphabetical order to read as follows:

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

Permits Programs

* * * * *

Florida

(a) Florida Department of Environmental Protection: submitted on

November 16, 1993, and supplemented on July 8, 1994, November 28,

1994, December 21, 1994, December 22, 1994, and January 11, 1995;

interim approval effective on October 25, 1995; interim approval

expires October 25, 1997.

(b) [Reserved]

* * * * *

[FR Doc. 95-23709 Filed 9-22-95; 8:45 am]

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