[Federal Register Volume 60, Number 220 (Wednesday, November 15, 1995)]
[Rules and Regulations]
[Pages 57346-57352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28212]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AL-95-01; FRL-5332-4]
Clean Air Act Final Interim Approval of Operating Permits
Program; Alabama Department of Environmental Management, Jefferson
County Department of Health, and the City of Huntsville Department of
Natural Resources and Environmental Management
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval.
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SUMMARY: The EPA is promulgating source category-limited interim
approval of the Operating Permits Programs submitted by the State of
Alabama Department of Environmental Management (ADEM) and the Jefferson
County Department of Health (JCDH). The EPA is also promulgating
interim approval of the Operating Permits Program submitted by the City
of Huntsville Department of Natural Resources and Environmental
Management (City of Huntsville). These approvals are 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: December 15, 1995.
Copies of the State's submittal and other supporting information
used in developing the final interim approval are available for
inspection during normal business hours at the following location:
Environmental Protection Agency, Region 4, Air Programs Branch, 345
Courtland Street, NE, Atlanta, Georgia 30365.
FOR FURTHER INFORMATION CONTACT: Joel Huey, 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, Georgia 30365, (404) 347-3555, Ext. 4170.
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 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. 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. 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 two years after the November
15, 1993 date, or by the end of an interim program, it must establish
and implement a Federal program.
On September 13, 1995, EPA proposed source category-limited interim
approval of the operating permits programs submitted by ADEM and JCDH,
and interim approval of the program submitted by the City of
Huntsville. See 60 FR 47522. The EPA received public comments from four
organizations on the proposal and responds to those comments in the
discussion below. The EPA has also compiled a Technical Support
Document (TSD) which describes the operating permits program in greater
detail. In this document EPA is taking final action to promulgate
source category-limited interim approval of the operating permits
programs submitted by ADEM and JCDH, and interim approval of the
program submitted by the City of Huntsville.
II. Final Action and Implications
A. Analysis of State Submission
The EPA is promulgating source category-limited (SCL) interim
approval of the operating permits program submitted by ADEM on December
15, 1993, as supplemented on March 3, 1994; March 18, 1994; June 5,
1995; July 14, 1995; and August 28, 1995. The EPA is promulgating SCL
interim approval of the operating permits program submitted by JCDH on
December 14, 1993, as supplemented on July 14, 1995. The EPA is
promulgating interim approval of the operating permits program
submitted by the City of Huntsville on November 15, 1993, as
supplemented on July 20, 1995. The State and local programs
substantially, but not fully, meet the requirements of part 70 and meet
the interim approval requirements under 40 CFR 70.4.
B. Response to Comments
In this document, EPA discusses in detail all comments received
concerning the proposal notice. The EPA responds to each comment and
provides clarification where requested. Significant changes to EPA's
opinions stated in the proposal notice include the
[[Page 57347]]
retraction of three interim approval issues.
A public comment period on the proposed interim approval was held
from September 13, 1995, until October 13, 1995. During that period EPA
received comments from ADEM, the City of Huntsville, the Alabama Pulp
and Paper Council (APPCO), and Exxon Company, U.S.A. The ADEM submittal
includes eight comments regarding the interim approval issues listed in
the proposed interim approval notice. The City of Huntsville concurs
with the comments provided by ADEM and provides additional comments on
three of those issues. The APPCO submittal includes three comments
similar to those contained in ADEM's submittal. The Exxon submittal
requests clarification on three items related to the definition of
``administratively complete'' applications. Responses to each comment
follow.
1. Criminal Penalty Provisions
The ADEM agrees that a criminal penalty provision of not less than
$10,000 per day per violation should be addressed in its program before
full approval can be granted. The ADEM reaffirmed that they will
continue to pursue the necessary criminal penalty authority with their
State legislature. The City of Huntsville concurs with ADEM on this
issue.
2. Certification of Completeness
The ADEM acknowledges their agreement with EPA to require the
minimum elements of an ``administratively complete'' permit application
in all initial applications submitted to the State. These elements are
outlined in section II.D. of EPA's July 25, 1995, White Paper for
Streamlined Development of Part 70 Permit Applications. This policy is
necessary to support the two-step process discussed in the White Paper
for accepting applications that are not acted upon within the first
year of ADEM's title V program approval. Those applications will first
be determined to be administratively complete, then be updated with
supporting information as needed. The ADEM will receive fully complete
applications from 40 percent of all part 70 sources within the first
year of interim program approval. Also within the first year, the
remaining 60 percent of part 70 sources will submit initial
applications that meet the minimum requirements of an administratively
complete permit application. The two-step application process is not
being used by JCDH or the City of Huntsville.
ADEM Regulation 335-3-16-.04(9)(b) (JCDH Regulation 18.4.9(b) and
City of Huntsville Regulation 3.9.4(b)) states: ``Certification for
completeness shall not be required for initial applications that will
not be processed in the first year the regulations in this chapter are
effective.'' However, since adopting this rule, ADEM has included the
certification of completeness on all application forms. As discussed
above, all sources will submit applications containing the minimum
elements to be deemed administratively complete by the end of the first
year of program approval. Therefore, ADEM Regulation 335-3-16-.04(9)(b)
(JCDH Regulation 18.4.9(b) and City of Huntsville Regulation 3.9.4(b))
is extraneous and should be deleted.
The Exxon Company also submitted comments related to the
certification of completeness required for initial applications. They
are concerned that the requirements of an administratively complete
application committed to by ADEM will not grant the same degree of
relief envisioned in ADEM Regulation 335-3-16-.04(9)(b) discussed
above. The Exxon submittal requests clarification on three items:
(a) Defining Applicable Requirements. The Exxon Company requests
that EPA confirm that only a small amount of detail is required in
defining applicable requirements in the initial applications of a two-
step process. The EPA confirms that defining the part 70 applicable
requirements could be accomplished by listing all requirements that
apply to the facility, and that detailed rule citations and
descriptions should not be necessary. The State has discretion in
determining how much additional information they would need in order to
begin processing the permit.
(b) Requirements of Compliance Status Certification. Exxon believes
that a certification of compliance status regarding all applicable
requirements (without the option of stating that compliance status is
unknown for certain requirements) would create a burden on the
applicant equivalent to that required to prepare and submit a fully
complete title V application. Exxon requests that EPA state what is
specifically required in the certification of compliance status.
Sources should certify either that they are in compliance with all
applicable requirements, or that they are not in compliance with
specific applicable requirements. A statement from a source that it is
not in compliance with an applicable requirement would require a brief
explanation of the pertinent circumstances and an acknowledgment of the
need to submit a compliance plan in accordance with ADEM Regulation
335-3-16-.04(8)(h) (JCDH Regulation 18.4.8(h) and City of Huntsville
Regulation 3.9.3(h)).
The EPA points out that this certification does not imply any guilt
on the part of the certifying official and does not itself subject the
source to any enforcement action. The certifying official is simply
certifying that, to the best of his or her knowledge and belief, the
statements and information contained in the document are truthful,
accurate, and complete. The only necessary result of a negative
statement on compliance status would be the submission of a plan to
bring the facility into compliance.
The EPA does not agree that this certification creates a burden on
the applicant equivalent to that required to prepare and submit a fully
complete title V application. Several items are required in a fully
complete application that are not required for an administratively
complete initial application. These include the description of the
source's processes and products, detailed emissions related
information, air pollution control requirements, etc.
(c) Intent of Completeness Certification. The Exxon Company
requests that EPA state whether the intent for the applicant to certify
that applications are complete is only in regard to the limited
information that they assume ADEM is going to request. The EPA affirms
that the certification applies only to the information contained in the
document submitted. This includes certifications in initial
applications that are submitted to satisfy the requirement that
administratively complete applications be submitted by all part 70
sources within the first year of program approval. This certification
serves as an assurance from the source that the statements and
information contained in the document submitted are truthful, accurate,
and complete.
3. Insignificant Activities
The EPA received comments on three issues regarding ``insignificant
activities'' as discussed in the proposed interim approval notice:
(a) Section 112(g) De Minimis Levels for HAPs. The ADEM objects to
EPA's requirement that the definition of insignificant activities be
revised such that emissions thresholds for individual activities or
units that are exempted from permitting requirements (but are to be
listed in the permit application) will not exceed five tons per year
for criteria pollutants, and the lesser of 1,000 pounds per year or
section 112(g) de minimis levels for hazardous air
[[Page 57348]]
pollutants (HAPs). With regard to HAPs, ADEM's definition of
insignificant activities includes a potential to emit threshold of
1,000 pounds per year only. The ADEM states that if and when EPA
establishes the de minimis levels for HAPs, they have the ability to
reduce (or increase) each HAP's significance level. They also state
that the part 70 regulations do not define what an insignificant
activity is and that it is left to each agency to establish its own
definition.
The APPCO states that ADEM's current program of addressing trivial
and insignificant activities and emitting units should receive final
approval without revision, with the exception of addressing section
112(g) de minimis levels when promulgated. They do not consider the
issue of section 112(g) de minimis levels to be inconsistent with 40
CFR part 70, but point out that these levels have yet to be
established.
For other state and local programs, EPA has accepted emission
thresholds for insignificant activities of five tons per year for
criteria pollutants and the lesser of 1,000 pounds per year or section
112(g) de minimis levels for HAPs. Since publication of the Alabama
proposal notice, EPA has reconsidered the 1,000 pounds per year limit
established by the State. The EPA now agrees that this limit is
acceptable as long as the requirements discussed in (c) below are met.
Important to this finding is the fact that the level is articulated in
terms of potential emissions rather than actual emissions. Where EPA
has rejected similar HAP thresholds in other programs, it has been
because those levels were in terms of actual emissions and because
those programs did not attempt to demonstrate why such a level would be
insignificant. Even absent a demonstration, EPA believes the use of
potential rather than actual levels, in combination with the
gatekeepers discussed in (c) below, provide adequate assurance that
significant activities will not be excluded from the application.
(b) EPA and Public Review of List of Insignificant Activities. The
ADEM objects to the requirement to make their list of insignificant
activities available for EPA and public review and comment each time
that the list is revised. They state: ``Due to the number of different
industries in Alabama, changes to the insignificant list will occur
often, especially at the beginning of the program. For this reason, it
would be difficult and burdensome to require EPA and public review of
the list each time it is revised . . . ADEM has committed to EPA to
have semi-annual reviews of its list by EPA and the public. In
addition, each time a new insignificant activity not previously
reviewed by EPA and the public is put into an application, it is put
out for the public and EPA to review per the requisite title V review
requirements.''
The City of Huntsville believes that the requirement for public
comment and EPA review of additions to their list of recognized
insignificant activities is already satisfied in that any activities
which the applicant is claiming to be insignificant must be identified
in the permit application. They state that the vast majority of
insignificant activities will be initially identified in the permit
application review process which involves EPA and public participation.
They add that a duplicative requirement for public and EPA notice and
review when revising a list of insignificant activities is entirely
unnecessary.
The APPCO considers EPA's comments regarding insignificant
activities to be inconsistent with part 70, with the exception of
addressing the issue of section 112(g) de minimis levels. They provided
a review of the insignificant activities provisions contained in ADEM's
program, the Federal regulations, and other guidance promulgated by
EPA. Overall, the APPCO summary is correct. However, the distinction
between what is required for trivial activities and what is required
for insignificant activities was not addressed by APPCO. Trivial
activities, as discussed in section II.B.3. of the White Paper, are
certain activities that are clearly trivial (i.e., emissions units and
activities without specific applicable requirements and with extremely
small emissions). Trivial activities can be omitted from applications
even if they are not included on a list of insignificant activities
approved in a State's part 70 program. Attachment A of the White Paper
lists examples of activities which EPA believes should normally qualify
as trivial in this sense. Permitting authorities can allow, on a case-
by-case basis without EPA approval, exemptions similar to those
activities identified in Attachment A.
Insignificant activities are emissions units and activities
included on a list approved by EPA as part of a State program pursuant
to 40 CFR 70.5(c). As provided in the White Paper, permitting
authorities can allow sources merely to list in applications the kinds
of insignificant activities that are present at the source or check
them off a list of insignificant activities approved in the program.
The White Paper also states that ``additional exemptions, to the extent
that the activities they cover are not clearly trivial, still need to
be approved by EPA before being added to State lists of insignificant
activities'' [emphasis added].
The fact that EPA will have the opportunity to review insignificant
activities contained in title V applications does not satisfy the
requirement for EPA approval of additions to the list of insignificant
activities. Considering resource constraints, it is unlikely that EPA
will be able to review each and every permit issued. Therefore, relying
upon the permit review process for concurrence on additions to the
lists of insignificant activities would result in additions being made
without any review by EPA. Also, ADEM's commitment to a semi-annual
review of their list of insignificant activities by EPA and the public
is not sufficient for EPA to confirm that new additions to the list are
appropriate. Such a procedure gives no protection from the possibility
of issued permits having to be reopened to remove listed insignificant
activities that are disallowed by EPA.
States can develop lists of insignificant activities, however EPA
is required to review and approve these lists initially during the
program review and later during implementation as States seek to add
new exemptions to the lists. The EPA is not interfering with the State
and Locals' legitimate exercise of discretion but, to be consistent
with 40 CFR 70.5(c), is merely requiring them to include EPA review and
approval when amending their lists. To obtain full approval the State
and the Local agencies must revise their approach on insignificant
activities such that the lists are made available for EPA review each
time the lists are revised. However, EPA acknowledges that no
requirement exists for public review of a State's list of insignificant
activities.
(c) Exemptions from Permitting Requirements and Major Source
Applicability Determinations. The ADEM objects to prohibiting any
emissions units with applicable requirements from being exempted from
title V permitting requirements or major source applicability
determinations. They argue that such a prohibition would prevent any
unit subject to generic State Implementation Plan (SIP) requirements,
no matter how small, from being treated as an insignificant activity,
thus rendering the concept of insignificant activities useless.
The City of Huntsville states that their rules do not provide for
exemptions from applicable requirements and that ``squeezing'' under a
facility-wide applicability threshold by ``subtracting'' aggregated
emissions resulting from
[[Page 57349]]
insignificant activities is not being sanctioned.
The EPA disagrees with ADEM and the City of Huntsville on this
issue. Generic SIP requirements are discussed in section II.B.4. of the
White Paper. Emissions units and activities may be treated generically
in the application and permit for certain broadly applicable
requirements often found in the SIP. Examples of such requirements
include those that apply identically to all emissions units at a
facility (e.g., source-wide opacity limits), general housekeeping
requirements, and requirements that apply identical emissions limits to
small units (e.g., process weight requirements). These requirements are
sometimes referred to as ``generic'' because they apply to all subject
units or activities at a facility and they are enforced in the same
manner for all. If the applicant documents the applicability of these
requirements and describes the compliance status as required by 40 CFR
70.5(c), the individual emissions units or activities may be excluded
from the application, provided no other requirement applies that would
mandate a different result.
Additionally, although section 70.5(c) provides that insignificant
activities need not be described in permit applications, EPA maintains
that part 70 does not allow for insignificant activities to be excluded
from major source applicability determinations. Major source
determinations are made in accordance with the definitions in section
70.2, which do not allow for exclusions of emissions from insignificant
activities. EPA believes that this does not create a burdensome
inquiry. Part 70 does not require use of any specific method for
estimating the impact of these emissions for applicability purposes.
However, it does require them to be taken into account where they could
impact a major source applicability determination.
As indicated in the proposal notice, EPA finds that the ADEM, JCDH,
and City of Huntsville programs lack assurance that insignificant
activities will not be exempted from title V permitting requirements or
be excluded from major source applicability determinations. As a
condition of full approval, State and Local agencies must revise their
regulations, consistent with section 70.5(c), to ensure that (1)
applications do not omit information needed to determine or impose
applicable requirements, and (2) insignificant activities or emissions
units will not be exempted from the determination of whether a source
is major.
4. Trading of Emissions Increases and Decreases
The ADEM objects to adding provisions to their regulations that
allow for the trading of emissions under a Federally enforceable
emissions cap. They state that their regulations do not prohibit
putting these types of conditions in an operating permit, and nothing
prevents them from doing so if requested by an applicant. They also
point out that ADEM has always had the ability to put conditions in a
permit that provide for emissions trading, and have done so extensively
in their construction permit program. The City of Huntsville concurs
with ADEM on this issue.
The APPCO concurs with EPA that these operational flexibility
provisions should be added to ADEM regulations in order to be
consistent with Federal standards. However, APPCO feels that, given the
present operational flexibility within ADEM regulatory framework, such
provisions would be moot.
The EPA agrees with ADEM that nothing prevents them from issuing
permits that contain conditions that allow trading of emissions
increases and decreases under an emissions cap if requested by an
applicant. However, having this ability does not satisfy Federal
regulations which require all part 70 programs to include these
provisions. Section 70.4(b)(12)(iii) states: ``The program shall
require the permitting authority, if a permit applicant requests it, to
issue permits that contain terms and conditions . . . allowing for the
trading of emissions increases and decreases . . .'' [emphasis added].
As a prerequisite for full program approval, the ADEM, JCDH, and
City of Huntsville regulations must be amended to require the
permitting authority, if a permit applicant requests it, to issue
permits that contain terms and conditions, including all standard
permit requirements and compliance requirements, allowing for the
trading of emissions increases and decreases in the permitted facility
solely for the purpose of complying with a Federally enforceable
emissions cap established in the permit independent of otherwise
applicable requirements. As noted in the proposed interim approval of
Alabama's program, EPA recognizes that the flexibility provisions of 40
CFR part 70 are under revision due to litigation on the rule. However,
for this notice to accurately reflect current Federal regulations, this
deficiency must remain noted until the State revises its program
accordingly.
5. Director's Discretion in Approving Alternative Methods
The ADEM objects to deleting the Department Director's discretion
in approving alternatives to standard reference test methods used in
demonstrating compliance with title V permit terms. In the proposal
notice, EPA required this deletion due to a State regulation which
suggests that the Director has authority to approve alternatives to any
required standard reference test methods. ADEM Regulation 335-3-16-
.04(8)(b)(3) (JCDH Regulation 18.4.8(c)(3) and City of Huntsville
Regulation 3.9.3(c)(3)) states that the permit application shall
include ``emission rates of all pollutants in tons per year and in such
terms as are necessary to establish compliance consistent with the
applicable standard reference test method, or alternative method
approved by the Department's Director.''
The ADEM agrees that the Director does not have the discretion to
change a compliance method that has been established for any Federal
regulation that the State adopts by reference. This includes compliance
methods contained in any NESHAP, NSPS, or MACT regulation. The ADEM
points out, however, that they can change any method established to
determine compliance with a State Implementation Plan (SIP) regulation
(including Prevention of Significant Deterioration (PSD) and New Source
Review (NSR)) or other non-Federal regulation. They add that even in
Federal regulations, which only have provisions for initial compliance
determinations, ADEM can establish its own compliance methods to
determine compliance on an interim or continuous basis. The City of
Huntsville concurs with ADEM on this issue.
The APPCO concurs with EPA that test methods approved by EPA should
be utilized for compliance determinations. However, APPCO points out
that this may not always be the case for determining title V fee
amounts.
The EPA agrees with ADEM's statements on this issue and has not
called for changes in current testing protocol. However, the State
regulation in question seems to imply that the Director may approve
alternatives to standard reference test methods under any circumstance.
Based upon ADEM's comments on this issue, EPA has reevaluated its
interpretation of the regulation and now finds no need for change. The
reference to an ``alternative method approved by the Department's
Director'' is confined to those
[[Page 57350]]
circumstances in which the Director has already been granted authority
to approve such changes. This includes and is limited to methods
established to determine compliance with SIP regulations (i.e., PSD and
NSR) and methods used to determine compliance with Federal regulations
on an interim or continuous basis. However, methods used to determine
compliance with Federal regulations on an interim or continuous basis
must be established in the operating permit in order for them to be
sufficient for a demonstration of compliance.
6. Definition of Significant Modifications
The ADEM objects to modifying their definition of ``significant
modifications'' to meet part 70 requirements. Their rule defines
significant modifications as changes that result in a net emissions
increase of any of the pollutants and levels listed in ADEM Regulation
335-3-14-.04 or .05 (JCDH Regulation 2.4 or 2.5 and City of Huntsville
Regulation 3.4 or 3.5), or any modifications under NSPS or NESHAP. The
EPA pointed out in the proposal notice that 40 CFR 70.7(e)(4)(i)
requires the State's program to contain criteria for determining
whether a change is significant. These criteria must include, at a
minimum, ``every significant change in existing monitoring permit terms
or conditions and every relaxation of reporting or recordkeeping permit
terms or conditions . . .'' The ADEM states that the modification
requirements of a title V permit, including the definition of a
significant modification, will be changed in the upcoming part 70
revision. The ADEM feels that it would be premature to change their
regulations prior to this revision.
The City of Huntsville concurs with ADEM and adds that, in their
opinion, no deficiency exists in their program regarding the types of
changes mentioned in 40 CFR 70.7(e)(4)(i). They point out that these
types of changes do not fall under the definition of ``administrative
amendments'' (City of Huntsville Regulation 3.9.11(a)(1)) and are
specifically excluded from the definition of ``minor permit
modifications'' (City of Huntsville Regulation 3.9.11(c)(1)(i)(b)).
Also, City of Huntsville Regulation 3.9.11(c)(4)(iii) stipulates that
requested permit modifications not meeting the minor permit
modification criteria will be reviewed under the significant
modification procedures. Therefore, the types of changes mentioned in
40 CFR 70.7(e)(4)(i) could only be considered to be significant
modifications and would be processed as such.
The EPA agrees with the City of Huntsville's assessment on the
adequacy of their regulations regarding the types of changes mentioned
in 40 CFR 70.7(e)(4)(i), and concludes that no modifications regarding
this issue are necessary. For the same rationale, EPA also finds that
the ADEM and JCDH programs are not in need of modification regarding
this issue.
7. Director's Discretion in Allowing Administrative Permit
Modifications
The ADEM objects to revising their regulations to specifically list
the types of changes that the State proposes to be eligible for
processing as administrative amendments, thus obtaining the
Administrator's approval of such changes as part of the State's part 70
program. This requirement was made because ADEM Regulation 335-3-16-
.13(1) (JCDH Regulation 18.13.1 and City of Huntsville Regulation
3.9.11(a)) does not require the Administrator's approval of
administrative changes similar to those listed in the chapter. This is
inconsistent with 40 CFR 70.7(d)(1)(vi) which requires that, in order
for changes other than those specified in 40 CFR 70.7(d) (i) through
(v) to be made as administrative amendments, they must first be
determined by the Administrator, as part of the approved part 70
program, to be similar to those specified in 70.7(d)(1) (i) through
(iv).
The ADEM states that the definition of what can be an
administrative permit amendment is likely to be changed in the upcoming
part 70 revision. The ADEM feels that it would be unproductive to
change their regulations now when the new definition may give the
governing agency the ability to make such a change. They also assert
that ADEM should have this type of discretion in order to deal with the
day-to-day variations that will occur in running the operating permits
program.
The City of Huntsville states that no need exists to revise their
rules to be consistent with part 70 in its present form. They state
that the Director's discretion in approving administrative changes in
addition to the ones specifically mentioned in 40 CFR 70.7(d) (i)
through (v) is clearly circumscribed by City of Huntsville Regulation
3.9.11(a) (i.e., the types of changes specified in 70.7(d)(1) (i)
through (iv)). The City of Huntsville asserts that this flexibility
allowed to their Director ``merely serves as a safety valve against the
ludicrous, not as a mechanism for circumventing the requirement to
provide opportunity for EPA and public participation when such
opportunity is clearly appropriate.'' They also point out that the
Director must submit copies of all administrative amendments to the
Administrator, thus affording opportunity for EPA objection.
The EPA does not agree with the positions taken by ADEM and the
City of Huntsville on this issue. The purpose of 40 CFR 70.7(d)(1)(vi)
is to allow states to have the opportunity to make additions to the
list of items that can be considered administrative permit amendments
in their programs. Any changes that might be considered to be
inconsequential, or ludicrous, are already allowed by the regulations
in place. Section 70.7(d)(1)(i) grants the permitting authority the
ability to make amendments which correct typographical errors. Section
70.7(d)(1)(ii) grants the permitting authority the ability to make
amendments which identify changes in name, address, or phone number, or
which provide a similar minor administrative change at the source
[emphasis added].
For full approval, ADEM Regulation 335-3-16-.13(1)(a)7 (JCDH
Regulation 18.13.1(a)(7) and City of Huntsville Regulation
3.9.11(a)(1)(vii)) must be revised to specifically list the types of
changes that the State proposes to be eligible for processing as
administrative amendments, thus obtaining the Administrator's approval
of such changes as part of the State's part 70 program. Alternatively,
the State may revise 335-3-16-.13(1)(a)7 (JCDH Regulation 18.13.1(a)(5)
and City of Huntsville Regulation 3.9.11(a)(1)(vii)) to reference the
``Administrator'' rather than the ``Director.'' The EPA recognizes the
possibility of a change to this requirement in forthcoming revisions to
the part 70 regulations. However, for this notice to accurately reflect
current Federal regulations, this deficiency must remain noted until
the State revises its program accordingly.
8. EPA and Affected State Review of Administrative Permit Amendments
The ADEM commits to correcting an error in citation contained in
ADEM Regulation 335-3-16-.13(1)(a)6. This change will remove an
apparent lack of EPA and affected states review of administrative
permit amendments required by 40 CFR 70.7(d)(1)(v).
In addition to the necessary changes to the title V programs noted
above, it has come to EPA's attention that two questions of
interpretation exist with respect to ADEM Regulations 335-3-16-.11(1)
and 335-3-16-.11(2)(c) (JCDH Regulations 18.11.1 and 18.11.2(c), and
City of Huntsville Regulations 3.3.8(a),
[[Page 57351]]
3.3.8(b) and 3.3.8(b)(3)). The questions of interpretation concern the
Director's ability to exempt emissions exceedances on a case-by-case
basis and the ability of EPA and citizens to participate in the
emergency determination process. The EPA and the State agree to develop
a program revision that resolves these issues in a manner consistent
with part 70.
C. Final Action
1. Title V Operating Permits Program
The EPA is promulgating final source category-limited interim
approval of the operating permits programs submitted by ADEM and JCDH
on December 15, 1993, and December 14, 1993, respectively. The EPA is
also promulgating final interim approval of the program submitted by
the City of Huntsville on November 15, 1993. The State and Local
agencies must make the following changes to receive full approval:
(a) The State statutes must be revised to provide adequate criminal
authority as required by 40 CFR 70.11(a)(3) (ii)-(iii), including
criminal fines recoverable in a maximum amount of not less than $10,000
per day per violation.
(b) The ADEM, JCDH, and City of Huntsville must revise their
regulations regarding insignificant activities such that (1) their list
of insignificant activities is made available for EPA review each time
the list is revised and (2) emissions units with applicable
requirements will not be exempted from title V permitting requirements
or major source applicability determinations, even if listed on an
approved list of insignificant activities.
(c) The ADEM, JCDH, and City of Huntsville programs must be revised
to provide for operational flexibility in accordance with 40 CFR
70.4(b)(12)(iii), 70.5(c)(7), and 70.6(a)(10). These rules allow the
agencies, if requested by permit applicants, to issue permits that
contain terms and conditions allowing for the trading of emissions
increases and decreases in permitted facilities.
(d) ADEM Regulation 335-3-16-.13(1)(a)7 (JCDH Regulation
18.13.1(a)(7) and City of Huntsville Regulation 3.9.11(a)(1)(vii)) must
be revised to specifically list the types of changes that the State
proposes to be eligible for processing as administrative amendments,
thus obtaining the Administrator's approval of such changes as part of
the State's part 70 program. Alternatively, the State may revise 335-3-
16-.13(1)(a)7 (JCDH Regulation 18.13.1(a)(5) and City of Huntsville
Regulation 3.9.11(a)(1)(vii)) to reference the ``Administrator'' rather
than the ``Director.'' Also, ADEM Regulation 335-3-16-.13(1)(a)6 must
be revised to include the EPA and affected states review provisions
required by 40 CFR 70.7(d)(1)(v).
The ADEM and JCDH are being granted source category-limited (SCL)
interim approval of their part 70 operating permits programs. For a
discussion on the basis for SCL interim approval, refer to the proposal
notice of September 13, 1995. See 60 FR 47522.
The scope of the ADEM, JCDH, and City of Huntsville part 70
programs approved in this notice applies to all part 70 sources (as
defined in the approved programs) 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).
This interim approval, which may not be renewed, extends until
December 15, 1997. During this interim approval period, ADEM, JCDH, and
the City of Huntsville are protected from sanctions, and EPA is not
obligated to promulgate, administer and enforce a Federal operating
permits program in the jurisdictions of ADEM, JCDH, and the City of
Huntsville. Permits issued under a program with interim approval have
full standing with respect to part 70, and the 1-year time period for
submittal of permit applications by subject sources begins upon the
effective date of this interim approval, as does the 3-year time period
for processing the initial permit applications.
If ADEM, JCDH, or the City of Huntsville fail to submit a complete
corrective program for full approval by June 16, 1997, EPA will start
an 18-month clock for mandatory sanctions. If ADEM, JCDH, or the City
of Huntsville then fail 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 ADEM, JCDH, or
the City of Huntsville has corrected the deficiency by submitting a
complete corrective program. Moreover, if the Administrator finds a
lack of good faith on the part of ADEM, JCDH, or the City of
Huntsville, both sanctions under section 179(b) will apply after the
expiration of the 18-month period until the Administrator determines
that ADEM, JCDH, or the City of Huntsville has come into compliance. In
any case, if, six months after application of the first sanction, ADEM,
JCDH, or the City of Huntsville still have not submitted a corrective
program that EPA has found complete, a second sanction will be
required.
If EPA disapproves the ADEM, JCDH, or City of Huntsville's complete
corrective programs, 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 ADEM, JCDH, or the City of
Huntsville 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 ADEM,
JCDH, or the City of Huntsville, both sanctions under section 179(b)
shall apply after the expiration of the 18-month period until the
Administrator determines that ADEM, JCDH, or the City of Huntsville has
come into compliance. In all cases, if, six months after EPA applies
the first sanction, ADEM, JCDH, or the City of Huntsville has not
submitted a revised program that EPA has determined corrects the
deficiencies, a second sanction is required.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if ADEM,
JCDH, or the City of Huntsville 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 ADEM, JCDH,
or the City of Huntsville program by the expiration of this interim
approval and that expiration occurs after November 15, 1995, EPA must
promulgate, administer and enforce a Federal permits program for ADEM,
JCDH, or the City of Huntsville upon interim approval expiration.
2. Preconstruction Review Program Implementing Section 112(g)
The EPA is approving the use of Alabama's preconstruction review
program found in Chapter 335-3-14 of the ADEM Regulations (Chapter 2 of
the JCDH Regulations and Chapter 3.5 of the City of Huntsville
Regulations) as a mechanism to implement section 112(g) during the
transition period between promulgation of EPA's section 112(g) rule and
Alabama's adoption of rules
[[Page 57352]]
specifically designed to implement section 112(g). This approval is
limited to the implementation of the 112(g) rule and is effective only
during any transition time between the effective date of the 112(g)
rule and the adoption of specific rules by Alabama to implement section
112(g). To provide the State and Locals adequate time to adopt
regulations consistent with federal requirements, this approval is
granted with a duration of 18 months following promulgation by EPA of
section 112(g) regulations.
3. Program for Delegation of Section 112 Standards as Promulgated
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 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, EPA is approving under section 112(l)(5) and 40 CFR
63.91, the State's program for receiving delegation of section 112
standards and programs that are unchanged from Federal rules as
promulgated. In addition, EPA is delegating all existing standards and
programs under 40 CFR Parts 61 and 63. This program for delegation
applies to part 70 and non-part 70 sources.\1\
\1\ The radionuclide National Emission Standards for Hazardous
Air Pollutants (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. The EPA will work with ADEM, JCDH, and the City of
Huntsville in the development of their 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 17 public comments received
and reviewed by EPA on the proposal, are contained in docket number AL-
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 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
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 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
of the rule and is consistent with statutory requirements. Section 203
of the Unfunded Mandates Act requires EPA to establish a plan for
informing and advising any small governments that may be significantly
or uniquely impacted by the rule.
The 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 either 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,
Reporting and recordkeeping requirements.
Dated: November 8, 1995.
Patrick M. Tobin,
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, et seq.
2. Appendix A to part 70 is amended by adding the entry for Alabama
in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Alabama
(a) Alabama Department of Environmental Management: submitted on
December 15, 1993, and supplemented on March 3, 1994; March 18, 1994;
June 5, 1995; July 14, 1995; and August 28, 1995; interim approval
effective on December 15, 1995; interim approval expires December 15,
1997.
(b) City of Huntsville Department of Natural Resources and
Environmental Management: submitted on November 15, 1993, and
supplemented on July 20, 1995; interim approval effective on December
15, 1995; interim approval expires December 15, 1997.
(c) Jefferson County Department of Health: submitted on December
14, 1993, and supplemented on July 14, 1995; interim approval effective
on December 15, 1995; interim approval expires December 15, 1997.
* * * * *
[FR Doc. 95-28212 Filed 11-14-95; 8:45 am]
BILLING CODE 6560-50-P