Clean Air Act (CAA) Final Interim Approval of Operating Permits Program and Delegation of 112(l) Authority; State of Missouri

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5454-2]

Clean Air Act (CAA) Final Interim Approval of Operating Permits

Program and Delegation of 112(l) Authority; State of Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final interim approval.

-----------------------------------------------------------------------

SUMMARY: The EPA is granting final interim approval of an operating

permit program submitted by the state of Missouri 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. The EPA is also giving interim approval, under section

112(l) of the Act, to the state program for accepting delegation of the

section 112 standards to enforce air toxics regulations.

EFFECTIVE DATE: This rule will become effective on May 13, 1996.

ADDRESSES: Copies of the state submittal and other supporting

information used in developing the final interim approval are available

for inspection during normal business hours at the following location:

U.S. Environmental Protection Agency, Region VII, Air Branch, 726

Minnesota Avenue, Kansas City, Kansas 66101.

FOR FURTHER INFORMATION CONTACT: Joshua Tapp at (913) 551-7606.

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 the EPA act to approve or disapprove each program within one year

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

to section 502 of the Act and the Part 70 regulations, which together

outline criteria for approval or disapproval. Additionally, section

502(g) of the Act and the Part 70 regulations outline criteria for

granting interim approval where a program substantially, but not fully,

meets the requirements of the Act and Part 70. The EPA may grant

interim approval to such a program for a period of up to two years.

On January 13, 1995, the state of Missouri submitted an operating

permits program to the EPA. Supplemental submissions were made by the

state on August 14, 1995; September 19, 1995; and October 16, 1995. The

state of Missouri has demonstrated that its program meets the minimum

elements required for interim approval as specified in 40 CFR 70.4(d).

The rationale for the EPA's determination that interim approval is

appropriate is contained in the December 15, 1995, Federal Register

document (60 FR 64404) which proposed interim approval of the program.

In order to receive full approval, the state must adopt and submit to

the EPA within 18 months of the effective date of this document certain

rule revisions which were identified in the proposed interim approval

and which are discussed later in this document.

B. Response to Comments

On January 16, 1996, the EPA received a request to extend the

comment period for its proposed interim approval of Missouri's program,

due to the unavailability of the docket during federal furloughs which

overlapped the comment period. The EPA granted a 30-day extension of

the comment period in a February 5, 1996, Federal Register document. On

February 13, 1996, the EPA received two comments regarding its proposed

action from one commentor. The first comment requested clarification of

the status of the permit application forms which Missouri submitted

with its operating permit program. Specifically, the commentor feels

that the state should be able to modify the forms as necessary to

collect the information required for developing operating permits. The

EPA agrees with the commentor that it is important for the state to

have the ability to modify the permit application forms in order to

collect the appropriate information. The EPA wishes to clarify that

although 40 CFR 70.4(b)(4) requires the submission of such forms with

the initial operating permit package, as a part of the program

documentation, the EPA is not taking formal action on the forms

themselves. The state can modify the forms to the extent that the

modification is appropriate and sufficient to collect the required

information.

The second comment pertains to Missouri's exemption from

application requirements for ``insignificant activities.'' The

commentor has requested that the EPA provide the state of Missouri with

the same flexibility in establishing thresholds for insignificant

activities which the EPA has extended to other states which were given

interim approval. In response, the EPA notes that the levels which

Missouri has established for insignificant activities in its January

13, 1995, submission are fully approvable by the EPA and are a specific

element, among other elements, which must be present in order for the

EPA to take an approval action. The state of Missouri may modify this

or any other element of its operating permit program to the extent that

those modifications are consistent with the Clean Air Act, 40 CFR Part

70 regulations, and applicable EPA guidance. However, the EPA supports

Missouri's choice to establish insignificant activity levels which are

fully approvable.

C. Federal Oversight and Sanctions

This interim approval will extend for 18 months following the

effective date of final interim approval and cannot be renewed. During

the interim approval period, the state of Missouri is protected from

sanctions for failure to have an approved program, and the EPA is not

obligated to promulgate, administer, and

[[Page 16064]]

enforce a federal permits program for Missouri. 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 interim approval,

as does the three-year time period for processing the initial permit

applications.

If Missouri fails to submit a complete corrective program for full

approval by the date six months before expiration of the interim

approval, an 18-month clock for mandatory sanctions will commence. If

Missouri then fails to submit a corrective program that the EPA finds

complete before the expiration of that 18-month period, the EPA will

apply sanctions as required by section 502(d)(2) of the Act, which will

remain in effect until the EPA determines that the state of Missouri

has corrected the deficiency by submitting a complete corrective

program.

If the EPA disapproves Missouri's complete corrective program, the

EPA will be required under section 502(d)(2) to apply sanctions on the

date 18 months after the effective date of the disapproval, unless

prior to that date Missouri had submitted a revised program and the EPA

had determined that it corrected the deficiencies that prompted the

disapproval.

If the EPA has not granted full approval to Missouri's program by

the expiration of this interim approval, the EPA must promulgate,

administer, and enforce a federal permits program for Missouri upon

interim approval expiration.

II. Final Interim Action and Implications

A. Missouri's Submission and EPA-Requested Modifications

The December 15, 1995, Federal Register document proposing interim

approval of the Missouri program discussed two rules which are a part

of the operating permit program that require revisions in order for the

program to qualify for full approval. These rules are 10 CSR 10-6.020,

``Definitions and Common Reference Tables'', and 10 CSR 10-6.065,

``Operating Permits.'' Specifically, Missouri must make the following

program revisions for full approval: (1) for rule 10 CSR 10-6.020: (a)

revise (2)(I)7 to update a reference to the Standard Industrial

Classification Manual, and (b) revise (3)(B), Table 2--List of Named

Installations, to make it consistent with the list in the definition of

major source in Sec. 70.2; and (2) for rule 10 CSR 10-6.065: (a) revise

(1)(D)2 to clarify the meaning of ``fugitive air pollutant'' as it

relates to Part 70 installations; (b) revise (3)(D) to clarify Part 70

applicability with respect to emissions from exempt installations and

emission units; (c) revise (6)(C)1.C.(II)(b) to clarify the retention

of records requirements in permits, consistent with Sec. 70.6(a)(3);

(d) revise (6)(C)1.G.(I) to clarify the general requirements for permit

compliance and noncompliance, consistent with Sec. 70.6(a)(6); (e)

revise (6)(C)4.A. to correct a citation error and to clarify that the

requirement for the EPA and affected state review applies to general

permits, consistent with Sec. 70.6(d)(1); (f) revise (6)(C)7.B.(IV) to

make the emergency provision notice consistent with Sec. 70.6(g)(3);

(g) revise (6)(C)8, operational flexibility provisions, to clarify the

term ``emissions allowable under the permit''; (h) revise

(6)(E)5.B.(I), minor permit modification criteria, to be consistent

with Sec. 70.7(e)(2)(i)(A)(3); (i) revise (6)(E)5.B.(I) to add a

paragraph (b) to incorporate the economic incentive provisions

consistent with Sec. 70.7(e)(2)(i)(B); (j) revise (6)(E)5.C.(I)(b) to

correct the threshold for group processing of minor permit

modifications to be consistent with Sec. 70.7(e)(2)(i)(B); and (k)

revise (6)(E)5.D.(II)(a), significant permit modification procedures,

to be consistent with Secs. 70.4(b)(2) and 70.5(c), and make minor

citation corrections to (6)(B)3.I.(IV), (6)(E)5.B.(II)(a),

(6)(E)5.C.(V), and (6)(E)6.C.

Additionally, Missouri has the authority to issue a variance from

state requirements under Sec. 643.110 of the state statutes. This

provision was not included by the state in its operating permit program

submittal, and the EPA regards this provision as wholly external to the

program submitted for approval under Part 70, and consequently is not

taking action on this provision of state law. The EPA has no authority

to approve provisions of state law, such as the variance provision

referred to, which are inconsistent with the Act. The EPA does not

recognize the ability of a permitting authority to grant relief from

the duty to obtain or 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, the 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

Sec. 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.''

The Technical Support Document describes in detail the revisions to

these rules which are required for full approval of the program. The

reader should refer to this document which is located in the public

docket for further information.

B. Final Interim Action

The EPA is granting interim approval for 18 months to the operating

permits program submitted by the state of Missouri on January 13, 1995,

with supplemental information submitted on August 14, 1995; September

19, 1995; and October 16, 1995. The state of Missouri has demonstrated

that its program meets the minimum elements required for interim

approval as specified in 40 CFR Part 70. In order to receive full

approval, the state must adopt and submit to the EPA certain rule

changes within 12 months of receiving final interim approval.

Specifically, the state must amend rules 10 CSR 10-6.020, Definitions,

and 10 CSR 10-6.065, Operating permits, for consistency with Part 70,

as described above.

1. Regulations. This interim approval of the Missouri operating

permits program includes the following regulations, solely as they

relate to the Missouri Part 70 operating permit program: 10 CSR 10-

6.065, Operating Permits; 10 CSR 10-6.110, Submission of Emission Data,

Emission Fees and Process Information; and 10 CSR 10-6.020, Definitions

and Common Reference Tables.

2. Jurisdiction. The scope of the Part 70 program approved in this

document applies to all Part 70 sources (as defined in the approved

program), within the state of Missouri, except sources of air

pollution, if any, over which an Indian Tribe has jurisdiction. See 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;

[[Page 16065]]

59 FR 43956, 43962 (August 25, 1994); 58 FR 54364 (October 21, 1993).

3. CAA section 112(l). Requirements for approval, specified in 40

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

program for delegation of section 112 standards as promulgated by the

EPA as they apply to Part 70 sources. Section 112(l)(5) requires that

the state's program contain adequate authorities, adequate resources

for implementation, and an expeditious compliance schedule, which are

also requirements under Part 70. Therefore, the EPA is also approving

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

receiving delegation of section 112 standards for both Part 70 and non-

Part 70 sources that are unchanged from federal standards as

promulgated.

4. CAA section 112(g). The EPA issued an interpretive notice on

February 14, 1995 (60 FR 8333), which outlines the EPA's revised

interpretation of 112(g) applicability. The notice postpones the

effective date of 112(g) until after the EPA has promulgated a rule

addressing that provision. The notice sets forth in detail the

rationale for the revised interpretation.

The section 112(g) interpretive notice explains that the EPA is

still considering whether the effective date of section 112(g) should

be delayed beyond the date of promulgation of the federal rule so as to

allow states time to adopt rules implementing the federal rule, and

that the EPA will provide for any such additional delay in the final

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

an additional postponement of section 112(g), Missouri 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 federal regulations.

The EPA is aware that Missouri lacks a program designed

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

program for review of new and modified hazardous air pollutant sources

that can serve as an adequate implementation vehicle during the

transition period, because it would allow Missouri to select control

measures that would meet the maximum achievable control technology, as

defined in section 112, and incorporate these measures into a federally

enforceable preconstruction permit.

The EPA is proposing to approve Missouri's preconstruction

permitting program 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 the 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 purposes of any other provision under the Act

(e.g., section 110). This approval will be without effect if the EPA

decides in the final section 112(g) rule that sources are not subject

to the requirements of the rule until state regulations are adopted.

The duration of this approval is limited to 18 months following

promulgation by the EPA of the 112(g) rule to provide adequate time for

the state to adopt regulations consistent with the federal

requirements.

III. Administrative Requirements

A. Docket

Copies of the state submittal and other information relied upon for

the final interim approval are contained in a docket maintained at the

EPA Regional Office. The docket is an organized and complete file of

all the information submitted to, or otherwise considered by, the 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 regulatory

action from Executive Order 12866 review.

C. Regulatory Flexibility Act

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

new requirements, but simply address operating permits programs

submitted to satisfy the requirements of 40 CFR Part 70. Because this

action does not impose any new requirements, it does not have a

significant impact on a substantial number of small entities.

D. Unfunded Mandates

Under sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, the EPA must undertake various actions in association with

proposed or final rules that include a federal mandate that may result

in estimated costs of $100 million or more to the private sector, or to

state, local, or tribal governments in the aggregate.

Through submission of this state operating permit program the state

has elected to adopt the program provided for under Title V of the CAA.

These rules may bind the state government to perform certain actions

and also require the private sector to perform certain duties.

To the extent that the program approved by this action will impose

new requirements, sources are already subject to these regulations

under state law. Accordingly, no additional costs to state, local, or

tribal governments, or to the private sector, result from this action.

The EPA has also determined that this proposed action does not include

a 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.

List of Subjects in 40 CFR Part 70

Environmental protection, Administrative practice and procedure,

Air pollution control, Intergovernmental relations, Operating permits,

Reporting and recordkeeping requirements.

Dated: March 27, 1996.

William Rice,

Acting 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--7671q.

2. Appendix A to Part 70 is amended by adding the entry for

Missouri in alphabetical order to read as follows:

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

Permits Programs

* * * * *

Missouri

(a) The Missouri Department of Natural Resources program

submitted on January 13, 1995; August 14, 1995; September 19, 1995;

and October 16, 1995. Interim approval effective on May 13, 1996.

(b) Reserved.

* * * * *

[FR Doc. 96-8664 Filed 4-10-96; 8:45 am]

BILLING CODE 6560-50-P