[Federal Register Volume 60, Number 84 (Tuesday, May 2, 1995)]
[Rules and Regulations]
[Pages 21442-21445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10700]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[MS-20-1-6562a; FRL-5173-9]


Approval and Promulgation of Implementation Plans; Mississippi: 
Approval of Revisions to Construction and Operation Permit Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the Mississippi State 
Implementation Plan (SIP) to allow the State of Mississippi to issue 
Federally enforceable state operating permits (FESOP). On January 26, 
1994, the State of Mississippi through the Mississippi Department of 
Environmental Quality (MDEQ) submitted a SIP revision fulfilling the 
requirements necessary for a state FESOP program to become Federally 
enforceable. In order to extend the Federal enforceability of 
Mississippi's FESOP program to hazardous air pollutants (HAP), EPA is 
also approving Mississippi's FESOP program pursuant to section 112 of 
the Clean Air Act as amended in 1990 (CAA) so that the State may issue 
FESOP for HAP.

DATES: This final rule will be effective July 3, 1995 unless adverse or 
critical comments are received by June 1, 1995. 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 documents relative to 
this action are available for public inspection during normal business 
hours at the following locations. The interested persons wanting to 
examine these documents should make an appointment with the appropriate 
office at least 24 hours before the visiting day.

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
Mississippi Department of Environmental Quality, Bureau of Air Quality 
Control, Air Quality Division, Post Office Box 10385, Jackson, 
Mississippi 39285

FOR FURTHER INFORMATION CONTACT: Carla Pierce, Title V, Regional 
Program Manager, Air Programs Branch, Air, Pesticides & Toxics 
Management Division, Region 4, Environmental Protection Agency, 345 
Courtland Street, NE., Atlanta, Georgia 30365. The telephone number is 
404/347-2864.

SUPPLEMENTARY INFORMATION: On January 26, 1994, the State of 
Mississippi through the MDEQ submitted a SIP revision designed to make 
certain permits issued under Mississippi's existing minor source 
operating permit program 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). The State will continue to issue permits which are not 
Federally enforceable under its existing minor source operating permit 
rules as it has done in the past. The SIP revision which is the subject 
of today's rulemaking adds additional requirements to the State's 
current minor source operating permit program which allows the State to 
issue FESOP. This voluntary SIP revision allows EPA and citizens under 
the CAA to enforce terms and conditions of Mississippi's FESOP program. 
Operating permits that are issued under the State's FESOP program that 
is approved into the State SIP and under section 112(l) will 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 CAA.
    In the aforementioned June 28, 1989, Federal Register notice, EPA 
listed five criteria necessary to make a State's minor source operating 
permit program Federally enforceable and, therefore, approvable into 
the SIP. This revision satisfies the five criteria for Federal 
enforceability of the State's FESOP program.
    The first criteria for a state's operating permit program to become 
Federally enforceable is that the permit program that the state wishes 
to be Federally enforceable must be approved into the SIP. On January 
26, 1994, the State of Mississippi submitted through MDEQ a SIP 
revision designed to meet the five criteria for Federal enforceability. 
Today's action will approve these regulations into the Mississippi 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. Mississippi's regulations 
meet this criteria in Regulation APC-S-2, Section II of the State 
regulations by requiring the following:

    In addition to the requirements contained herein, no permit 
shall be issued unless the applicant has complied with applicable 
requirements including * * * and additional relevant Rules and 
Regulations promulgated by the Commission and/or Permit Board.

Hence, the second criteria for Federal enforceability is met.
    The third criteria necessary for a state's operating permit program 
to be Federally enforceable is that the state operating permit program 
require that all emissions limitations, controls, and other 
requirements imposed by such permits will be at least 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). Mississippi satisfies this criteria 
in two regulations included in the State's SIP submittal. APC-S-2, 
Section II.B.5 requires that all permits to construct or operate shall 
specify in their application the air emission rate for each air 
pollutant subject to regulation under the Federal Clean Air Act that 
can be reasonably expected to be emitted from a facility. In addition, 
Regulation APC-S-2, Section VI.E.4 provides that the granting of a 
permit shall not relieve an air pollution source of the responsibility 
to comply with other applicable requirements of the permitting 
regulation or other applicable regulations or law. Taken together, 
these two regulations satisfy the third criteria for Federal 
enforceability.
    The fourth criteria for a state's operating permit program to 
become Federally enforceable 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, the State has included several regulations designed to 
ensure that permit limitations are enforceable as a practical matter. 
APC-S-2, Section VII.B.2 requires that when performing stack tests to 
determine compliance with an applicable regulation that the results be 
expressed in units consistent with the emission standard of the 
applicable regulation for which the source is attempting to show 
compliance. In addition, this regulation requires that the stack test 
demonstration be reported in ``units of mass per time'' of the 
applicable regulation. Regulation APC-S-2, Section XI, provides that 
MDEQ may require in any permit the installation of 
[[Page 21444]] sampling ports with access and the installation, 
maintenance and use of monitoring equipment as well as be required to 
maintain records to show compliance with applicable emission standards. 
Therefore, the Mississippi FESOP program satisfies the fourth criteria 
for Federal enforceability.
    The fifth criteria for a state's operating permit program to become 
Federally enforceable 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. Regulation APC-S-2, 
Section V provides a 30 day opportunity for public comment period as 
well as the opportunity for a public hearing on any application where 
MDEQ believes there is sufficient interest. Regulation APC-S-2, Section 
V.C provides that ``the Permit Board may provide notice to the public 
and provide opportunity for public comment on any application for a 
Construction Permit or Operating Permit.'' EPA notes that any permit 
which has not gone through an opportunity for public comment and EPA 
review in the Mississippi FESOP program will not be Federally 
enforceable.
    In addition to requesting approval into the SIP, Mississippi has 
also requested approval of its FESOP program under section 112(l) of 
the Act for the purpose of creating Federally enforceable limitations 
on the potential to emit of HAP through the issuance of FESOP. 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).<SUP>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 notice, are also appropriate for evaluating and approving the 
programs under section 112(l). The June 28, 1989, notice 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.
    In addition to meeting the criteria in the June 28, 1989, notice, a 
FESOP program that addresses HAP must meet the statutory criteria for 
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 CAA.
    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 CAA. (See 58 FR 62262, November 26, 1993.) EPA currently 
anticipates that these regulatory criteria, as they apply to FESOP 
programs, will mirror those set forth in the June 28, 1989, notice. The 
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 believes it 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 
the EPA to disapprove programs that are inconsistent with guidance 
required to be issued under section 112(l)(2). This might 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, EPA believes 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. EPA 
is therefore approving Mississippi's FESOP program so that Mississippi 
may begin to issue FESOP as soon as possible.
    EPA believes that Mississippi's FESOP program meets the approval 
criteria specified in the June 28, 1989 Federal Register notice and in 
section 112(l)(5) of the CAA. As discussed previously in this notice, 
Mississippi's FESOP program meets the five criteria necessary for 
Federal enforceability.
    Regarding the statutory criteria of section 112(l)(5) referred to 
above, EPA believes Mississippi's FESOP program contains adequate 
authority to assure compliance with section 112 requirements because 
the third criterion of the June 28, 1989, notice 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 
Mississippi has demonstrated that it can provide for adequate resources 
to support the FESOP program. EPA expects that resources will continue 
to be adequate to administer that portion of the State's minor source 
operating permit program under which FESOP will be issued since 
Mississippi has administered a minor source operating permit program 
for several years. EPA will monitor Mississippi's implementation of its 
FESOP to ensure that adequate resources are in fact available. EPA also 
believes that Mississippi's FESOP program provides 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 Mississippi's FESOP program 
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 CAA 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, Mississippi's FESOP program 
satisfies all the requirements listed in the June 28, 1989, Federal 
Register notice. EPA is approving this revision to the State of 
Mississippi's SIP thus making the State's FESOP program Federally 
enforceable.
[[Page 21445]]

Final Action

    In this action, EPA is approving the Mississippi FESOP program. EPA 
is publishing this action without prior proposal because the Agency 
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 
July 3, 1995 unless, within 30 days of its publication, 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 July 3, 1995.
    The Agency 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 July 3, 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 establishing a precedent for any future request for a revision to 
any SIP. 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 the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., 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. 7410(a)(2).

List of Subjects in 40 CFR Part 52

    Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation 
by reference, Lead, Nitrogen dioxide, Intergovernmental relations, 
Particulate matter, Ozone and Sulfur oxides.

    Dated: March 1, 1995.
Patrick M. Tobin,
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.

Subpart Z--Mississippi

    2. Section 52.1270 is amended by adding paragraph (c)(25) to read 
as follows:


Sec. 52.1270  Identification of plan.

* * * * *
    (c) * * *
    (25) Revisions to minor source operating permit rules submitted by 
the Mississippi Department of Environmental Quality on January 26, 
1994.
    (i) Incorporation by reference.
    (A) Regulation APC-S-2, effective January 9, 1994.
    (ii) Other material. None.

[FR Doc. 95-10700 Filed 5-1-95; 8:45 am]
BILLING CODE 6560-50-P