[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38707-38710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18525]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NC-062-1-6430a; NC-068-1-6632a; NC-067-1-6633a; FRL-5254-6]
Approval and Promulgation of Implementation Plans; State:
Approval of Revisions to the State of North Carolina's State
Implementation Plan (SIP)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving revisions to the North Carolina State
Implementation Plan (SIP) to allow the State and two local air
pollution control agencies to issue Federally enforceable state
operating permits (FESOP) and Federally enforceable local operating
permits (FELOP). On May 31, 1994, the State of North Carolina through
the Department of Environment, Health, and Natural Resources (DEHNR)
submitted a SIP revision fulfilling the requirements necessary to issue
FESOP. On June 1, 1994, the Forsyth County Department of Environmental
Affairs (FCDEA) through the DEHNR submitted a SIP revision fulfilling
the requirements necessary to allow Forsyth County to issue FELOP. On
September 15, 1994, the Western North Carolina Regional Air Pollution
Control Branch (WNCRAPCB) through the DEHNR submitted a SIP revision
fulfilling the requirements necessary to allow the Western Carolina to
issue FELOP. These submittals conform with the requirements necessary
for a state or local agency's minor source operating permit program to
become Federally enforceable. In order to extend the Federal
enforceability of state and local operating permits to hazardous air
pollutants (HAP), EPA is also proposing approval of the North Carolina,
Forsyth County, and Western Carolina FESOP and FELOP regulations
pursuant to section 112 of the Act.
DATES: This action will be effective by September 26, 1995 unless
notice is received by August 28, 1995 that someone wishes to submit
adverse or critical comments. If the effective date is delayed, timely
notice will be published in the Federal Register.
ADDRESSES:
Written comments should be addressed to Scott Miller at the EPA
Regional office listed below.
Copies of the material submitted by North Carolina may be examined
during normal business hours at the following locations:
Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460.
Environmental Protection Agency, Region 4 Air Programs Branch, 345
Courtland Street, NE, Atlanta, Georgia 30365.
North Carolina Department of Health, Environment, and Natural
Resources, Air Quality Section, P.O. Box 29535, Raleigh, North Carolina
27626.
Forsyth County Environmental Affairs Department, Air Quality Section,
537 North Spruce Street, Winston-Salem, North Carolina 27101.
Western North Carolina Regional Air Pollution Control Agency, Buncombe
County Courthouse, 60 Court Plaza, Asheville, North Carolina 28801.
FOR FURTHER INFORMATION CONTACT: Scott Miller, Air Programs Branch,
Air, Pesticides & Toxics Management Division, Region 4 Environmental
Protection Agency, 345 Courtland Street NE., Atlanta, Georgia 30365.The
telephone number is 404/347-3555 extension 4153. Reference file numbers
NC-068-1-6632; NC-067-1-6633; NC-062-1-6430.
SUPPLEMENTARY INFORMATION: On May 31, 1994, June 1, 1994, and September
15, 1994, the State of North Carolina, the FCDEA, and the WNCRAPCB,
respectively, through the DEHNR submitted SIP revisions designed to
allow the three agencies to issue operating permits which are Federally
enforceable pursuant to EPA requirements as specified in a Federal
Register notice, ``Requirements for the preparation, adoption, and
submittal of implementation plans; air quality, new source review;
final rules.'' (See 54 FR 22274, June 28, 1989). These voluntary SIP
revisions allow EPA and citizens to enforce terms and conditions of
state-issued and local-issued minor source operating permits. In
addition, operating permits that are issued under a state or local
agency's minor source operating permit program that is approved into
the SIP may provide Federally enforceable limits to an air pollution
source's potential to emit. Limiting of a source's potential to emit
through Federally enforceable operating permits can affect a source's
applicability to Federal regulations such as title V operating permits,
New Source Review (NSR) preconstruction permits, Prevention of
Significant Deterioration (PSD) preconstruction permits for criteria
pollutants and Federal air toxics requirements mandated under section
112 of the Clean Air Act as amended in 1990 (CAA).
In the aforementioned June 28, 1989, Federal Register document, EPA
listed five criteria necessary to allow a state or local agency's
operating permit program to become Federally enforceable and,
therefore, approvable into the SIP.
The first criteria for a state or local agency's operating permit
program to become Federally enforceable is that the FESOP or FELOP
program must be approved into the SIP. On May 31, 1994, June 1, 1994,
and September 15, 1994, the State of North Carolina, the FCDEA, and the
WNCRAPCB, respectively, through the DEHNR submitted SIP revisions
designed to meet the five criteria for Federal enforceability. This
action will approve these regulations into the North Carolina SIP,
thereby, meeting the first criteria for Federal enforceability.
The second criteria for a state's operating permit program to
become Federally enforceable is that the regulations approved into the
SIP impose a legal obligation that operating permit holders adhere to
the terms and limitations of such permits. North Carolina Regulation
15A NCAC 2Q.0306(b) addresses this requirement by outlining specific
measures that the State may take in the event of the ``failure of the
owner or operator of a source permitted pursuant to this Rule to adhere
to the terms and limitations of the permit.'' These measures include an
enforcement action, permit termination, revocation, and reissuance as
well as a denial of permit renewal application. Both the FCDEA and the
WNCRAPCB operating permit programs meet this requirement by a verbatim
incorporation of the State's Regulation 15A NCAC 2Q.0306(b) into their
regulations.
The third criteria necessary for a state or local agency's
operating permit program to be Federally enforceable is that the
operating permit program require that all emissions limitations,
controls, and other requirements imposed by such permits will be at
least
[[Page 38708]]
as stringent as any other applicable limitations and requirements
contained in the SIP or enforceable under the SIP, and that the program
may not issue permits that waive, or make less stringent, any
limitations or requirements contained in or issued pursuant to the SIP,
or that are otherwise ``Federally enforceable'' (e.g. standards
established under sections 111 and 112 of the Act). North Carolina
Regulation 15A NCAC 2Q.0306(c) requires that all emissions limitations,
controls, and other requirements imposed by a permit issued pursuant to
this Rule shall be at least as stringent as any other applicable
requirement as defined under Rule .0103 (effective date of July 1,
1994). The definition of applicable requirement found in 15A NCAC
2Q.0103 includes among other things requirements in the North Carolina
SIP. In addition, Regulation 15A NCAC 2Q.0306(c) requires that the
permit shall not waive or make less stringent any limitation or
requirement contained in applicable requirement. Both the FCDEA and the
WNCRAPCB operating permit programs meet this requirement by a verbatim
incorporation of the State's Regulation 15A NCAC 2Q.0306(b) into their
regulations. Therefore, the third criteria for Federal enforceability
is met.
The fourth criteria for a state or local agency to be able to issue
FESOP or FELOP is that limitations, controls, and requirements in the
operating permits are quantifiable, and otherwise enforceable as a
practical matter. While a determination of what is practically
enforceable will generally differ based on process type and emissions,
North Carolina Regulation 15A NCAC 2Q.0306(d) requires that ``Emissions
limitations, controls, and requirements contained in permits issued
pursuant to the Rule shall be permanent, quantifiable, and otherwise
enforceable as a practical matter.'' Both the FCDEA and the WNCRAPCB
operating permit programs meet this requirement by a verbatim
incorporation of the State's Regulation 15A NCAC 2Q.0306(b) into their
regulations. Therefore, the fourth criteria for Federal enforceability
is met.
The fifth criteria for a state or local agency to be able to issue
FESOP or FELOP is to provide EPA and the public with timely notice of
the proposal and issuance of such permits, and to provide EPA, on a
timely basis, with a copy of each proposed (or draft) and final permit
intended to be Federally enforceable. This process also must provide
for an opportunity for public comment on the permit applications prior
to issuance of the final permit. North Carolina Regulation 15A NCAC
2Q.0306(a)(5) requires that any source which wishes to limit its
potential to emit via a permit for PSD/NSR or title V purposes must go
through an opportunity for public comment as well as public hearing. In
addition, Regulation 15A NCAC 2Q.0306(a)(12) allows any owner or
operator who requests that a draft permit go to public notice with an
opportunity to request a public hearing to do so. EPA notes that any
permit which has not gone through an opportunity for public comment and
EPA review in the North Carolina, the FCDEA and the WNCRAPCB FESOP or
FELOP programs will not be Federally enforceable. North Carolina
Regulation 15A NCAC 2Q.0307(d) requires that there will be at least a
30 day public and EPA comment period prior to permit issuance. North
Carolina Regulation 15A NCAC 2Q.0307(g) provides that the Director will
send a copy of each draft permit when it sends EPA the notice of
request for public comment for that permit. Finally, Regulation 15A
NCAC 2Q.0307(g) provides that the State will send a copy of each final
permit after the permit is issued. Both the FCDEA and the WNCRAPCB
operating permit programs meet this requirement by a verbatim
incorporation of the State's Regulations 15A NCAC 2Q.0306(a)(5), 15A
NCAC 2Q.0306(a)(12), 15A NCAC 2Q.0307(d), 15A NCAC 2Q.0307(g) into
their regulations. Therefore, the fifth criteria for Federal
enforceability is met.
On June 28, 1989 (54 FR 27274), EPA published criteria for
approving and incorporating into the SIP regulatory programs for the
issuance of FESOP and FELOP. Permits issued pursuant to an operating
permit program approved into the SIP as meeting these criteria may be
considered Federally enforceable. EPA has encouraged states and local
agencies to develop such FESOP and FELOP programs in conjunction with
title V operating permits programs to enable sources to limit their
potential to emit to below the title V applicability thresholds. (See
the guidance document entitled, ``Limitation of Potential to Emit with
Respect to Title V Applicability Thresholds,'' dated September 18,
1992, from John Calcagni, Director, Air Quality Management Division,
Office of Air Quality Planning and Standards (OAQPS), Office of Air and
Radiation, U.S. EPA.) On November 3, 1993, the EPA announced in a
guidance document entitled, ``Approaches to Creating Federally
Enforceable Emissions Limits,'' signed by John S. Seitz, Director,
OAQPS, that this mechanism could be extended to create Federally
enforceable limits for emissions of HAP if the program were approved
pursuant to section 112(l) of the Act.
In addition to requesting approval into the SIP, North Carolina,
the FCDEA and the WNCRAPCB have also requested approval of their FESOP
and FELOP programs under section 112(l) of the Act for the purpose of
creating Federally enforceable limitations on the potential to emit of
HAP. Approval under section 112(l) is necessary because the proposed
SIP approval discussed above only extends to the control of criteria
pollutants. Federally enforceable limits on criteria pollutants (i.e.,
VOC's or PM-10) may have the incidental effect of limiting certain HAP
listed pursuant to section 112(b).1 However, section 112 of the
Act provides the underlying authority for controlling all HAP
emissions.
\1\ The EPA intends to issue guidance addressing the technical
aspects of how these criteria pollutant limits may be recognized for
purposes of limiting a source's potential to emit of HAP to below
section 112 major source levels.
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EPA believes that the five approval criteria for approving FESOP
programs into the SIP, as specified in the June 28, 1989, Federal
Register document, are also appropriate for evaluating and approving
the programs under section 112(l). The June 28, 1989, document does not
address HAP because it was written prior to the 1990 amendments to
section 112 not because it establishes requirements unique to criteria
pollutants. Hence, the following five criteria are applicable to FESOP
and FELOP approvals under section 112(l): (1) The program must be
submitted to and approved by the EPA; (2) the program must impose a
legal obligation on the operating permit holders to comply with the
terms and conditions of the permit, and permits that do not conform
with the June 28, 1989, criteria or the EPA's underlying regulations
shall be deemed not Federally enforceable; (3) the program must contain
terms and conditions that are at least as stringent as any requirements
contained in the SIP, enforceable under the SIP, or any section 112 or
other CAA requirement, and may not allow for the waiver of any CAA
requirement; (4) permits issued under the program must contain
conditions that are permanent, quantifiable, and enforceable as a
practical matter; and (5) permits that are intended to be Federally
enforceable must be issued subject to public participation and must be
provided to the EPA in proposed form on a timely basis.
In addition to meeting the criteria in the June 28, 1989, document,
a FESOP or FELOP program that addresses HAP must meet the statutory
criteria for
[[Page 38709]]
approval under section 112(l)(5). Section 112(l) allows EPA to approve
a program only if it: (1) Contains adequate authority to assure
compliance with any section 112 standards or requirements; (2) provides
for adequate resources; (3) provides for an expeditious schedule for
assuring compliance with section 112 requirements; and (4) is otherwise
likely to satisfy the objectives of the Act.
EPA plans to codify the approval criteria for programs limiting
potential to emit of HAP, such as FESOP programs, through amendments to
Subpart E of Part 63, the regulations promulgated to implement section
112(l) of the Act. (See 58 FR 62262, November 26, 1993.) EPA also
anticipates given that these regulatory criteria, as they apply to
FESOP programs, will mirror those set forth in the June 28, 1989,
document. EPA currently anticipates that since FESOP programs approved
pursuant to section 112(l) prior to the planned Subpart E revisions
will have been approved as meeting these criteria, further approval
actions for those programs will not be necessary.
EPA has authority under section 112(l) to approve programs to limit
potential to emit of HAP directly under section 112(l) prior to this
revision to Subpart E. Section 112(l)(5) requires EPA to disapprove
programs that are inconsistent with guidance required to be issued
under section 112(l)(2). This could be read to suggest that the
``guidance'' referred to in section 112(l)(2) was intended to be a
binding rule. Even under this interpretation, EPA does not believe that
section 112(l) requires this rulemaking to be comprehensive. That is,
it need not address every possible instance of approval under section
112(l). EPA has already issued regulations under section 112(l) that
would satisfy any section 112(l)(2) requirement for rulemaking. Given
the severe timing problems posed by impending deadlines set forth in
``maximum achievable control technology'' (MACT) emission standards
under section 112 and for submittal of title V permit applications, it
is reasonable to read section 112(l) to allow for approval of programs
to limit potential to emit prior to promulgation of a rule specifically
addressing this issue.
Therefore, EPA is approving the North Carolina, Forsyth County, and
the Western North Carolina minor source operating permit program now to
allow these agencies to begin issuing FESOP and FELOP as soon as
possible.
EPA believes that the North Carolina, Forsyth County, and the
Western North Carolina FESOP and FELOP programs meet the approval
criteria specified in the June 28, 1989, Federal Register document and
in section 112(l)(5) of the Act. As discussed previously in this
notice, the North Carolina, Forsyth County, and Western Carolina minor
source operating permit programs meet the five criteria necessary for
Federal enforceability.
Regarding the statutory criteria of section 112(l)(5) referred to
above, EPA believes that the North Carolina, Forsyth County, and
Western Carolina minor source operating permit programs contain
adequate authority to assure compliance with section 112 requirements
because the third criterion of the June 28, 1989, document is met, that
is, because the program does not allow for the waiver of any section
112 requirement. Sources that become minor through a permit issued
pursuant to this program would still be required to meet section 112
requirements applicable to non-major sources.
Regarding the requirement for adequate resources, EPA believes that
North Carolina, Forsyth County, and Western Carolina have demonstrated
that each agency can provide for adequate resources to support the
FESOP and FELOP program. EPA expects that since North Carolina, Forsyth
County, and Western Carolina have administered a minor source operating
permit program for several years resources will continue to be adequate
to administer the FESOP or FELOP program. EPA will monitor the
implementation of each Agency's FESOP or FELOP to ensure that adequate
resources are in fact available. EPA also believes that the North
Carolina, Forsyth County, and Western Carolina FESOP or FELOP provide
for an expeditious schedule for assuring compliance with section 112
requirements. This program will be used to allow a source to establish
a voluntary limit on potential to emit to avoid being subject to a CAA
requirement applicable on a particular date. Nothing in any of these
programs would allow a source to avoid or delay compliance with a CAA
requirement if it fails to obtain an appropriate Federally enforceable
limit by the relevant deadline. Finally, EPA believes it is consistent
with the intent of section 112 and the Act for states to provide a
mechanism through which sources may avoid classification as a major
source by obtaining a Federally enforceable limit on potential to emit.
With the addition of these provisions, the North Carolina, Forsyth
County, and Western Carolina minor source operating permit program
satisfies all the requirements listed in the June 28, 1989, Federal
Register document. Therefore, EPA is approving this revision to the
State of North Carolina's SIP allowing the State and local agency to
issue FESOP and FELOP.
Final Action
In this action, EPA is approving the North Carolina, Western
Carolina, and Forsyth County minor source operating permit program into
the North Carolina SIP to allow the State and local agencies to issue
FESOP and FELOP. EPA is publishing this action without prior proposal
because the EPA views this as a noncontroversial amendment and
anticipates no adverse comments. However, in a separate document in
this Federal Register publication, EPA is proposing to approve the SIP
revision should adverse or critical comments be filed. This action will
be effective September 26, 1995 unless by August 28, 1995, adverse or
critical comments are received. If EPA receives such comments, this
action will be withdrawn before the effective date by publishing a
subsequent document that will withdraw the final action. All public
comments received will then be addressed in a subsequent final rule
based on this action serving as a proposed rule. EPA will not institute
a second comment period on this action. Any parties interested in
commenting on this action should do so at this time. If no such
comments are received, the public is advised that this action will be
effective September 26, 1995.
EPA has reviewed this request for revision of the Federally-
approved SIP for conformance with the provisions of the 1990 Amendments
enacted on November 15, 1990. EPA has determined that this action
conforms with those requirements.
Under section 307(b)(1) of the CAA, 42 U.S.C. 7607 (b)(1),
petitions for judicial review of this action must be filed in the
United States Court of Appeals for the appropriate circuit by September
26, 1995. Filing a petition for reconsideration by the Administrator of
this final rule does not affect the finality of this rule for purposes
of judicial review nor does it extend the time within which a petition
for judicial review may be filed, and shall not postpone the
effectiveness of such rule or action. This action may not be challenged
later in proceedings to enforce its requirements. (See section
307(b)(2) of the CAA, 42 U.S.C. 7607 (b)(2).)
The Office of Management and Budget has exempted this action from
review under Executive Order 12866.
Nothing in this action shall be construed as permitting or allowing
or
[[Page 38710]]
establishing a precedent for any future request for a revision to any
state implementation plan. Each request for revision to the SIP shall
be considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
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 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.
Under the Regulatory Flexibility Act, 5 U.S.C. 600, EPA must
prepare a regulatory flexibility analysis assessing the impact of any
proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, Part D of the CAA
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. Section 7410(a)(2).
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 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen oxides, Ozone, Particulate matter, Sulfur oxides.
Dated: June 23, 1995.
William A. Waldrop,
Acting Regional Administrator.
Part 52 of chapter I, title 40, Code of Federal Regulations, is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401-7671q.
2. Section 52.1770 is amended by adding paragraph (c)(74) to read
as follows:
Sec. 52.1770 Identification of plan.
* * * * *
(c) * * *
(74) The minor source operating permit programs for the State of
North Carolina, Western North Carolina Regional Air Pollution Control
Board, and Forsyth County Department of Environmental Affairs submitted
by the North Carolina Department of Environment, Health, and Natural
Resources on May 31, 1994, June 1, 1994, and September 15, 1994, as
part of the North Carolina SIP.
(i) Incorporation by reference.
(A) Regulations 15A NCAC 2Q.0103, 15A NCAC 2Q.0301, 15A NCAC
2Q.0303 through 15A NCAC 2Q.0311 of the North Carolina SIP as adopted
by the North Carolina Environmental Management Commission on May 12,
1994 and which became effective on July 1, 1994.
(B) Regulations 15A NCAC 2Q.0103, 15A NCAC 2Q.0301, 15A NCAC
2Q.0303 through 15A NCAC 2Q.0311 of the North Carolina SIP as adopted
by reference by the Western North Carolina Regional Air Pollution
Control Board (WNCRAPCB) on September 12, 1994 and which were made
effective September 12, 1994.
(C) Regulations Subchapter 3Q.0103, Subchapter 3Q.0301, Subchapter
3Q.0303 through Subchapter 3Q.0311 of the Forsyth County portion of the
North Carolina SIP as adopted and made effective by the Forsyth County
Board of Commissioners on May 23, 1994.
(ii) Other material. None.
[FR Doc. 95-18525 Filed 7-27-95; 8:45 am]
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