Notice of Availability of Draft Rules and Accompanying Information

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 70

[FRL-5833-4]

Operating Permits Program

Notice of Availability of Draft Rules and Accompanying

Information

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability.

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SUMMARY: The EPA has placed in the docket for public review and comment

a draft of the regulations and accompanying preamble that would revise

the operating permits regulations in part 70 of chapter I, title 40, of

the Code of Federal Regulations, and requirements for ``minor'' new

source review (NSR) permitting in part 51 of chapter I, title 40, of

the Code of Federal Regulations. Revisions to part 70 were proposed on

August 29, 1994 and August 31, 1995, and revisions to part 51 were

proposed on August 31, 1995. The draft placed in the docket reflects

EPA's consideration of comments on the 1994 and 1995 proposals and

contains additional proposed regulatory revisions and accompanying

preamble discussion on some aspects of parts 70 and 51 in response to

those comments, in particular the procedures for ``minor permit

revisions.'' The draft placed in the docket is styled as a draft

``final'' rule because EPA does not anticipate substantial additional

changes. However, EPA is accepting comments on revisions to the draft

final rule that have changed since the earlier proposals. The Agency

also has placed in the docket a memorandum of options relating to

``minor permit revisions'' that EPA is still considering for the final

rule. The EPA is also accepting comment on these options.

DATES: Comments on the draft notice must be received by July 3, 1997.

ADDRESSES: The draft notice and accompanying information is available

in EPA's Air Docket number A-93-50 as items VI-A-1, VI-A-2, and VI-A-3.

This docket is available for public inspection and copying between 8:30

a.m. and 3:30 p.m., Monday through Friday, at the address listed below.

A reasonable fee may be charged for copying. The address of the EPA air

docket is: EPA Air Docket (LE-131), Attention: Docket Number A-93-50,

Room M-1500, Waterside Mall, 401 M Street SW, Washington, DC, 20460.

The draft notice and accompanying information may also be

downloaded from the Internet at: http://134.67.104.12/html/caaa/

t5pg.htm.

Comments on the materials referenced in today's notice must be

mailed (in duplicate if possible) to: EPA Air Docket (LE-131),

Attention: Docket No. A-93-50, at the above address. Please identify

comments as pertaining to today's notice of availability of items VI-A-

1, VI-A-2, and VI-A-3.

FOR FURTHER INFORMATION CONTACT: Ray Vogel (telephone 919-541-3153) or

Roger Powell (telephone 919-541-5331), Mail Drop 12, EPA, Information

Transfer and Program Integration Division, Research Triangle Park,

North Carolina, 27711. Internet addresses are:

[email protected] and [email protected].

SUPPLEMENTARY INFORMATION: The part 70 regulations were originally

promulgated on July 21, 1992 (57 FR 32250). Revisions to part 70 were

proposed on August 29, 1994 (59 FR 44460). Revisions to parts 51 and 70

were proposed on August 31, 1995 (60 FR 45530). Due to the length of

time that has passed since the proposal notices, EPA has received

numerous inquiries about the Agency's intended final action on those

proposals. The Agency is making the draft notice available both for

informational purposes and for purposes of considering any final

comments from interested parties on the part 51 and part 70 revisions

prior to final action.

Following EPA review of any additional comments on these materials,

the Agency will prepare and publish a final rule that will constitute

final action on the proposed revisions to parts 70 and 51.

As noted above, the draft notice reflects EPA's consideration of

previously submitted comments, and includes further additional

regulatory changes that might be finally adopted, along with

accompanying preamble discussion. The EPA seeks comment only on

revisions and options in materials referenced in today's notice that

have changed since the earlier proposals, including in particular the

following issues:

(1) The provisions for minor permit revisions; review by EPA,

affected States, and the public; and eligibility criteria for de

minimis permit revisions;

(2) The definition of potential to emit, in response to the vacatur

and remand of the definition in Clean Air Implementation Project, et

al. v. EPA following petitioners' challenge to the definition's Federal

enforceability requirement;

(3) The absence of a mandate for emissions cap permits, including

plantwide applicability limits and advance new source review, as a

minimum element of State part 70 programs; and

(4) Review of EPA's interpretation of the collocation procedures

for part 70 major sources as applied to unlisted sources of fugitive

emissions.

With respect to this last issue, section 501 of the Clean Air Act

states that a major source for purposes of title V includes any source

that is a ``major stationary source'' as defined in section 302 or part

D of title I. In defining a major source in the original part 70

rulemaking, EPA accordingly looked to the definitions of major sources

in section 302 and part D of title I, with particular focus on the

approach followed by EPA in the NSR program as a result of the Alabama

Power litigation. The EPA concluded that aggregating sources by

standard industrial classification (SIC) code at the source site to

determine whether a source would be major is the approach intended by

Congress (56 FR 21712, 21724). The EPA further concluded that

aggregation by SIC code should be done in a manner consistent with

established NSR procedures, including application of the collocation

rules. The collocation rules applicable to NSR were promulgated on

August 7, 1980 (45 FR 52695) and further clarified on November 28, 1989

(54 FR 48870).

The National Mining Association (formerly the American Mining

Congress) and the American Forest and Paper Association petitioned for

review of the original part 70 rule, in part, because of the Agency's

interpretation

[[Page 30290]]

that the part 70 major source definition must encompass the established

NSR collocation provisions. In particular, the petitioners asserted

that the Agency's interpretation of its part 70 collocation provisions

would have the effect of subjecting unlisted sources of fugitive

emissions to part 70 without undertaking a section 302(j) rulemaking.

While not conceding the merits of the petitioners' arguments, EPA

sought and received from the United States Court of Appeals for the

District of Columbia Circuit a voluntary remand in early 1995 to allow

the Agency to reconsider its interpretation.1 The Agency

concluded that one aspect of that reconsideration should include review

of whether application of the NSR approach to unlisted sources of

fugitive emissions is appropriate for title V purposes.

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\1\ At the time of the remand, EPA anticipated that the relevant

issues would be addressed in a new rulemaking. However, in comments

submitted with respect to the supplemental proposal to amend the

part 70 regulations (60 FR 45530, August 31, 1995), the National

Mining Association requested that EPA clarify in the preamble to the

final regulations the terms of the voluntary remand. The EPA now has

determined that the current part 70 rulemaking is an appropriate

vehicle for addressing all collocation issues that were the subject

of the litigation.

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Prior to the voluntary remand, EPA had clarified its decision to

apply the NSR approach to major source determinations for purposes of

title V in its August 1994 notice of proposed rulemaking revising the

part 70 regulations. Specifically, EPA proposed to amend the definition

of major source to make clear that the support facility test applied in

NSR also applied in determining the scope of a source for title V.

Several industry commenters expressed opposition to including the

support facility concept in part 70 source determinations, while

several State and local governments generally supported the

clarification of the major source definition.

In responding to comments regarding the support facility test, it

became apparent to EPA that the issue of whether the NSR approach

should be applied to unlisted sources of fugitive emissions is closely

connected with the more fundamental question of whether it is

appropriate to apply the NSR approach (including the support facility

concept) in part 70 source determinations generally. The Agency

accordingly has reviewed the questions raised in the petitioners'

challenge of the original part 70 regulations of whether the support

facility test should be applied to unlisted sources of fugitive

emissions or whether such sources constitute a special case requiring a

302(j) rulemaking. The EPA has also reviewed the broader question of

whether EPA's approach to the collocation issues as applied to unlisted

sources of fugitive emissions should be consistent with the Agency's

approach in NSR. As explained in the draft part 70 preamble referenced

herein, the Agency has determined at this time that in making major

source determinations under title V, it is appropriate to apply the NSR

approach and that there is no basis for excluding unlisted sources of

fugitive emissions from this general approach.

Dated: May 22, 1997.

Mary D. Nichols,

Assistant Administrator for Air and Radiation.

[FR Doc. 97-14443 Filed 6-2-97; 8:45 am]

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