[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38712-38715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18518]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TN-146-1-7039a; FRL-5226-1]
Approval and Promulgation of Implementation Plans; Tennessee:
Approval of Revisions to the Nashville-Davidson County Construction and
Operation Permit Regulations for Minor Sources
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving revisions to the Nashville-Davidson County
portion of the Tennessee State Implementation Plan (SIP) to allow
Nashville-Davidson County to issue Federally enforceable local
operating permits (FELOP). On November 16, 1994, Nashville-Davidson
County through the Tennessee Department of Environment and Conservation
(TDEC) submitted a SIP revision fulfilling the requirements necessary
for a FELOP program to become Federally enforceable. In order to extend
the Federal enforceability of the Nashville-Davidson County FELOP
program to hazardous air pollutants (HAP), EPA is also approving the
County's FELOP program pursuant to section 112 of the Clean Air Act as
amended in 1990 (CAA) so that the County may issue FELOP for HAP.
DATES: This final rule will be effective September 26, 1995 unless
adverse or critical comments are received by August 28, 1995. If the
effective date is delayed, timely notice will be published in the
Federal Register.
ADDRESSES: Written comments should be addressed to Gracy R. Danois, 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),
[[Page 38713]]
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.
Tennessee Department of Environment and Conservation, Tennessee Air
Pollution Control Board, L & C Annex, 9th Floor, 401 Church Street,
Nashville, Tennessee 37243-1531.
Metropolitan Government of Nashville and Davidson County, Metropolitan
Health Department, Bureau of Environmental Health Services, 311 23rd
Avenue North, Nashville, Tennessee 37203.
FOR FURTHER INFORMATION CONTACT: Gracy R. Danois, 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 4150. Reference file
TN-146-1-7039.
SUPPLEMENTARY INFORMATION: On November 16, 1994, Nashville-Davidson
County through the TDEC submitted a SIP revision designed to make
certain permits issued under the County'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). Nashville-Davidson County 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 this document, adds requirements to the
County's current minor source operating permit program, which allows
the County to issue FELOP. This voluntary SIP revision allows EPA and
citizens under the CAA to enforce terms and conditions of the
Nashville-Davidson County FELOP program. Operating permits that are
issued under the County's FELOP program that is approved into the
Nashville-Davidson County portion of the Tennessee SIP and under
section 112(l) will provide Federally enforceable limits to an air
pollution source's potential to emit. Limiting a source's potential to
emit through Federally enforceable operating permits can affect the
applicability of 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, to a source.
In the aforementioned June 28, 1989, Federal Register document, EPA
listed five criteria necessary to make a State's 1 minor source
operating permit program Federally enforceable and, therefore,
approvable into the SIP. This revision satisfies the five criteria for
Federal enforceability of the Nashville-Davidson County FELOP program.
\1\ Various local air pollution programs operate air quality
programs under their own regulations which are approved into the
SIP. The reader should note that ``State'' operating permits
programs encompass those local programs with jurisdiction over only
part of a State as well as in Statewide programs.
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The first criteria that must be met if a state's operating permit
program is to become Federally enforceable is that the permit program
must be approved into the SIP. On November 16, 1994, Nashville-Davidson
County submitted, through TDEC, a SIP revision designed to meet the
criteria for Federal enforceability. This action will approve these
regulations into the Nashville-Davidson County portion of the Tennessee
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. The regulations of
Nashville-Davidson County meet this criteria. The Metropolitan Code of
Law (M.C.L.) Section 10.56.040.F, Paragraph 1 requires the following:
The source must agree in writing to be bound by a permit which
specifies the more restrictive limit and to be subject to detailed
monitoring, reporting and recordkeeping requirements that prove the
source is in compliance with the applicable permit.
Hence, the second criteria for Federal enforceability is met.
The third criteria necessary for a state's operating permit program
to become 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). Nashville-Davidson County satisfies
this criteria with the inclusion of two regulations: M.C.L. Section
10.56.040.F, Paragraph 2, which requires that ``the permit limitations,
controls, and other requirements imposed by permits will be as
stringent as any other applicable limitations and requirements
contained in the SIP enforceable under the SIP'', and M.C.L. Section
10.56.040.D, which gives Nashville-Davidson County the authority to
specify other permit requirements in addition to those contained in
M.C.L. Section 10.56.040. Therefore, the County's 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 County has incorporated the requirements of the fourth
criteria described above under M.C.L. Section 10.56.040.F, Paragraph 3.
Therefore, the Nashville-Davidson County FELOP program satisfies the
fourth criteria for Federal enforceability.
The fifth criteria for a state's operating permit program to become
Federally enforceable requires that the permitting agency provide EPA
and the public with timely notice of the proposal and issuance of such
permits, and provide EPA, on a timely basis, with a copy of each 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. Nashville-Davidson
County satisfies this criteria by including M.C.L. Section 10.56.040.F,
Paragraphs 4 and 5, which require the County to provide a 30 day public
comment period and to provide a copy of each draft and final permit to
the Administrator. EPA notes that any permit which has not gone through
an opportunity for public comment and EPA review in the Nashville-
Davidson County FELOP program will not be Federally enforceable.
In addition to requesting approval into the SIP, Nashville-Davidson
County has also requested approval of its FELOP program under Section
112(l) of the CAA for the purpose of creating Federally enforceable
limitations on the potential to emit of HAP through the issuance of
FELOP. Approval under section 112(l) is necessary because the proposed
SIP approval discussed above
[[Page 38714]]
only extends to the control of criteria pollutants. Federally
enforceable limits on criteria pollutants (e.g., VOC's or PM-10) may
have the incidental effect of limiting certain HAP listed pursuant to
section 112(b).2 However, section 112 of the Act provides the
underlying authority for controlling all HAP emissions.
\2\ 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
112 major source levels.
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EPA believes that the five approval criteria for approving FELOP
programs into the SIP, as specified in the June 28, 1989, Federal
Register document, are also appropriate for evaluating and approving
the program 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.
In addition to meeting the criteria in the June 28, 1989, document,
a state 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 FELOP 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 FELOP
programs, will mirror those set forth in the June 28, 1989, document.
The EPA currently anticipates that since FELOP 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 the 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 the Nashville-Davidson County FELOP program so
that the County may begin to issue FELOP as soon as possible.
EPA believes that the Nashville-Davidson County FELOP program meets
the approval criteria specified in the June 28, 1989 Federal Register
document and in section 112(l)(5) of the CAA. As discussed previously
in this document, the Nashville-Davidson County FELOP program meets the
five criteria necessary for Federal enforceability.
EPA believes that the Nashville-Davidson County FELOP program
contains adequate authority to assure compliance with section 112(l)(5)
requirements. The program meets the third criterion of the June 28,
1989, document because the program does not permit any section 112
requirement to be waived. Sources that become minor through a permit
issued pursuant to this program would still be required to meet the
section 112 requirements applicable to nonmajor sources.
EPA believes that Nashville-Davidson County has demonstrated that
it can provide adequate resources to support the FELOP program. EPA
expects that resources will continue to be adequate to administer the
portion of the County's minor source operating permit program under
which FELOP will be issued, since Nashville-Davidson County has
administered a minor source operating permit program for several years.
EPA will monitor the County's implementation of its FELOP to ensure
that adequate resources are in fact available. EPA also believes that
the Nashville-Davidson County FELOP 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 the Nashville-Davidson
County FELOP 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, the Nashville-Davidson
County FELOP program satisfies all the requirements listed in the June
28, 1989, Federal Register document. EPA is approving this revision to
the Nashville-Davidson County portion of the Tennessee SIP thus making
the County's FELOP program Federally enforceable.
Final Action
In this action, EPA is approving the Nashville-Davidson County
FELOP 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 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.
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 September 26, 1995.
Filing a petition for reconsideration by the Administrator of
[[Page 38715]]
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. section 7410(a)(2).
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
Through submission of this state implementation plan revision, the
State and any affected local or tribal governments have elected to
adopt the program provided for under Section 112(l) of the Clean Air
Act. These rules may bind State, local and tribal governments to
perform certain actions and also require the private sector to perform
certain duties. To the extent that the rules being approved by this
action would impose no new requirements; such sources are already
subject to these regulations under State law. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector, result from this action. EPA has also determined that
this final action does not include a mandate that may result in
estimated costs of $100 million or more to State, local, or tribal
governments in the aggregate or to the private sector.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Lead, Nitrogen dioxide,
Intergovernmental relations, Particulate matter, Ozone, Sulfur oxides.
Dated: June 23, 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 RR--Tennessee
2. Section 52.2220 is amended by adding paragraph (c)(130) to read
as follows:
Sec. 52.2220 Identification of plan.
* * * * *
(c) * * *
(130) Revisions to minor source operating permit rules for
Nashville-Davidson County submitted by the Tennessee Department of
Environment and Conservation on November 16, 1994.
(i) Incorporation by reference.
(A) Metropolitan Code of Law (M.C.L.) Chapter 10.56, Section 040,
Paragraph F, effective October 4, 1994.
(ii) Other material. None.
[FR Doc. 95-18518 Filed 7-27-95; 8:45 am]
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