[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56285-56289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27698]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[TN-CHAT-95-01; FRL-5328-1]
Clean Air Act Proposed Approval or, in the Alternative, Proposed
Interim Approval of Operating Permits Program; Hamilton County,
Tennessee
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed approval.
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SUMMARY: EPA proposes full approval of the operating permit program
submitted by the State of Tennessee on behalf of the Chattanooga-
Hamilton County Air Pollution Control Bureau (``CHCAPCB'' or ``the
County'') if certain changes are made prior to final EPA action on this
program. Alternatively, EPA proposes to grant interim approval if the
necessary changes are not made. CHCAPCB's operating permit program was
submitted for the purpose of complying with Federal requirements which
mandate that states develop, and submit to EPA, programs for issuing
operating permits to all major stationary sources, and to certain other
sources in the state.
DATES: Comments on this proposed action must be received in writing by
December 8, 1995.
ADDRESSES: Written comments on this action should be addressed to Carla
E. Pierce, Chief, Air Toxics Unit/Title V Program Development Team, Air
Programs Branch, at the EPA Region 4 office listed below. Copies of
CHCAPCB's submittal and other supporting information used in developing
the proposed full/interim approval are available for inspection during
normal business hours at the following location: U.S. Environmental
Protection Agency, Region 4, third floor, 345 Courtland Street NE,
Atlanta, GA 30365.
FOR FURTHER INFORMATION CONTACT: Kelly Fortin, 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, GA 30365, (404) 347-3555, Ext. 4223.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
As required under title V of the Clean Air Act (``the Act'') as
amended by the 1990 Clean Air Act Amendments, EPA promulgated rules on
July 21, 1992 (57 FR 32250) that define the minimum elements of an
approvable state operating permit program and the corresponding
standards and procedures by which EPA will approve, oversee, and
withdraw approval of state and local operating permit programs. These
rules are codified at 40 Code of Federal Regulations (CFR) part 70.
Title V and part 70 require that states develop, and submit to EPA,
programs for issuing operating permits to all major stationary sources
and to certain other sources.
The Act requires states to develop and submit these programs to EPA
by November 15, 1993, and EPA to approve to disapprove each program
within one year after receiving the submittal. If the state's
submission is materially changed
[[Page 56286]]
during the one-year review period, 40 CFR 70.4(e)(2) allows EPA to
extend the review period for no more than one year following receipt of
the additional materials.
EPA reviews state operating permit programs pursuant to section 502
of the Act and 40 CFR part 70, 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 November 15, 1995, or by the end of an interim program, it
must establish and implement a Federal operating permit program.
II. Proposed Action and Implications
A. Analysis of State Submission
EPA has concluded that the operating permit program submitted by
the State of Tennessee on behalf of the Chattanooga-Hamilton County Air
Pollution Control Board substantially meets the requirements of title V
and part 70, and proposes to grant interim approval to the program or,
in the alternative, to grant full approval to the program if specified
changes are made, as will be discussed below. For detailed information
on the analysis of the State's submission, please refer to the
Technical Support Document (TSD) contained in the docket at the address
noted above.
1. Support Materials
Pursuant to section 502(d) of the Act, each state must develop and
submit to the Administrator an operating permit program under state or
local law or under an interstate compact meeting the requirements of
title V of the Act. On November 22, 1993, EPA received the title V
operating permit program submitted by the State of Tennessee on behalf
of the Chattanooga-Hamilton County Air Pollution Control Board. The
State of Tennessee Department of Environment and Conservation
requested, under signature of the Tennessee Governor's designee,
approval of the CHCAPCB's operating permit program. The State
supplemented the program submittal, on behalf of the County, on January
23, 1995, February 24, 1995, and October 13, 1995.
The program submittal includes a legal opinion from independent
legal council for the Chattanooga-Hamilton County Air Pollution Control
Board demonstrating adequate legal authority for the implementation and
enforcement of the local part 70 program. The program submittal
contains a description of how the CHCAPCB intends to implement the
program consistent with the requirements of the Clean Air Act
Amendments of 1990 (42 U.S.C. 7401-7671q) and 40 CFR part 70. The
program submittal also includes supporting documentation, such as
evidence of the procedurally correct adoption of the permitting rules,
permit application forms, and a detailed enforcement agreement with
EPA. The submittal was determined to be administratively complete on
January 24, 1995.
2. Regulations and Program Implementation
The Chattanooga-Hamilton County Air Pollution Control Board,
operating under a certificate of exemption pursuant to Tennessee Code
Annotated, Section 68-201-115, has authority to administer the
operating permits program in all areas of Hamilton County, Tennessee,
with the exception of Indian reservations and tribal lands. The CHCAPCB
operating permits program is implemented and enforced through: (1) the
Chattanooga Air Pollution Control Ordinance (within the incorporated
municipality of the City of Chattanooga, Tennessee); (2) the Hamilton
County Air Pollution Control regulation (in the unincorporated areas of
Hamilton County, Tennessee); and (3) air pollution control ordinances
prepared for and enacted in the incorporated municipalities of East
Ridge, Red Bank, Soddy-Daisy, Signal Mountain, Lakesite, Walden,
Collegedale, Lookout Mountain, and Ridgeside.
EPA has determined that the above regulations, constituting the
Chattanooga-Hamilton County operating permits program, substantially
meet the requirements of 40 CFR 70.2 and 70.3 for applicability; 40 CFR
70.4, 70.5, and 70.6 for permit content (including operational
flexibility); 40 CFR 70.7 and 70.8 for permit processing requirements
(including public participation and permit modifications); and 40 CFR
70.11 for requirements for enforcement authority. The CHCAPCB's
operating permit program closely follows the federal part 70
regulations. The TSD contains a detailed analysis of CHCAPCB's program
and references the sections of the applicable local regulations that
meet the required elements of an approvable program under 40 CFR part
70.
Under part 70, a state must request approval of, and EPA may
approve as part of that state or local program, any activities or
emission levels that the state wishes to consider insignificant. Part
70, however, does not establish emissions thresholds for insignificant
activities. EPA has accepted emissions thresholds of five tons per year
for criteria pollutants, and the lesser of 1000 pounds per year or
section 112(g) de minimis levels for hazardous air pollutants, as
reasonable.
Section 70.4(b)(2) requires states to include in their part 70
programs any criteria used to determine insignificant activities or
emission levels for the purposes of determining complete applications.
Section 70.5(c) states that an application for a part 70 permit may not
omit information needed to determine the applicability of, or to
impose, any applicable requirement, or to evaluate appropriate fee
amounts.
Section 7(c)(11) of the Hamilton County Regulation (section 4-56.11
of the Chattanooga Code) lists certain units or activities that, due to
de minimis emission levels, need not be included in a part 70 permit
application. CHCAPCB believes that these activities generally have a
potential to emit below 5 tons per year of criteria or regulated
hazardous air pollutants without size or production rate limitations.
Section 7(c)(12) of the Hamilton County Regulation (section 4-56.12 of
the Chattanooga Code) lists activities that are deemed to be
insignificant due to size and production rate and that must be listed
in a part 70 permit application but need not have emissions related
information reported. CHCAPCB believes these activities have a
potential to emit of less that 5 tons per year of any criteria or
regulated hazardous air pollutant. CHCAPCB's regulations specify that
an application may not omit information needed to determine the
applicability of, or to impose, any applicable requirement, or to
evaluate the fee amount required.
CHCAPCB specified that the listed insignificant activities are
expected to have emissions below five tons per year of criteria and
regulated hazardous air pollutants. As stated above, EPA has accepted
emissions thresholds of the lesser of 1000 pounds per year or section
112(g) de minimis levels for hazardous air pollutants. In addition,
while CHCAPCB specified the 5 ton per year threshold as the criteria
used to develop the insignificant activities list, no emission
thresholds were specified in the regulations. The submittal also did
not include any information on the estimated level of emissions from
activities, nor a demonstration that these activities are not likely to
be subject to an applicable requirement.
EPA has reviewed CHCAPCB's significant activities lists and is
concerned that several of the activities
[[Page 56287]]
may conflict with applicable requirements and may not have emissions
levels that are sufficiently below the applicability thresholds to
assure that no unit potentially subject to an applicable requirement is
left off a title V application, especially with respect to emissions of
hazardous air pollutants. EPA has identified these activities of
concern in the technical support document available in the docket for
this rulemaking.
As a condition of full approval, CHCAPCB must remove, clarify, or
limit the activities in question and/or document that they are not
potentially subject to an applicable requirement. In revising the
insignificant activities lists, CHCAPCB must consider emissions of all
regulated air pollutants, not just criteria and hazardous air
pollutants. In addition, CHCAPCB must establish emission threshold
criteria that will not conflict with section 112(g) de minimis levels
for hazardous air pollutants. As stated above, EPA has accepted
emissions thresholds of the lesser of 1000 pounds per year or section
112(g) de minimis levels, as reasonable.
Part 70 requires prompt reporting of deviations from the permit
requirements. Section 70.6(a)(3)(iii)(B) requires the permitting
authority to define ``prompt'' in relation to the applicable
requirements and type of deviation likely to occur. Although the permit
program regulations should define ``prompt'' for purposes of
administrative efficiency and clarity, an acceptable alternative is to
define ``prompt'' in each individual permit. EPA believes that
``prompt'' should generally be defined as requiring reporting within
two to ten days of the deviation. Two to ten days is sufficient time in
most cases to protect public health and safety as well as to provide a
forewarning of potential problems. For sources with a low level of
excess emissions, a longer time period may be acceptable. However,
prompt reporting must be more frequent than the semiannual reporting
requirement, given this is a distinct reporting obligation under
section 70.6(a)(3)(iii)(A). Where ``prompt'' is defined in the
individual permit but not in the program regulations, EPA may veto
permits that do not contain sufficiently prompt reporting of
deviations. CHCAPCB has not defined ``prompt'' in its program, but
rather intends to require the prompt reporting of deviations in the
individual permits.
The Chattanooga-Hamilton County Air Pollution Control Board has the
authority to issue variances from requirements imposed by local law.
Section 4-21 of the Chattanooga ordinance, and the corresponding
chapters of the Hamilton County and local municipalities' regulations,
allow CHCAPCB discretion to grant relief from compliance with local
requirements for up to one year. EPA regards this provision as wholly
external to the program submitted for approval under part 70, and
consequently proposes to take no action on this provision of the local
program.
EPA has no authority to approve provisions of local law, such as
the variance provision referred to, that are inconsistent with title V.
EPA does not recognize the ability of a permitting authority to grant
relief from the duty to comply with a Federally enforceable part 70
permit, except where such relief is granted through the procedures
allowed by part 70. A part 70 permit may be issued or revised
(consistent with part 70 permitting procedures) to incorporate those
terms of a variance that are consistent with applicable requirements. A
part 70 permit may also incorporate, via part 70 permit issuance or
modification procedures, the schedule of compliance set forth in a
variance. However, EPA reserves the right to pursue enforcement of
applicable requirements notwithstanding the existence of a compliance
schedule in a permit to operate. This is consistent with 40 CFR
70.5(c)(8)(iii)(C), which states that a schedule of compliance ``shall
be supplemental to, and shall not sanction noncompliance with, the
applicable requirements on which it is based.''
3. Permit Fee Demonstration
Section 502(b)(3) of the Act requires each permitting authority to
collect fees sufficient to cover all reasonable direct and indirect
costs necessary for the development and administration of its title V
operating permit program. Each title V program submittal must contain
either a detailed demonstration of fee adequacy or a demonstration that
aggregate fees collected from title V sources meet or exceed $25 per
ton of emissions per year (adjusted from 1989 by the Consumer Price
Index (CPI)). The $25 per ton is presumed, for program approval, to be
sufficient to cover all reasonable program costs and is thus referred
to as the ``presumptive minimum.''
The Chattanooga-Hamilton County Air Pollution Control Board has
elected to adopt a presumptive minimum fee of $29.32 per ton for each
annual accounting period (adjusted by the CPI as required). The fee
demonstration showed that the fees collected will adequately cover the
anticipated costs of the operating permit program. The program
activities that will constitute CHCAPCB's title V operating permit
program are consistent with the activities described in 40 CFR
70.9(b)(1). Section 4-60 of the Chattanooga Code provides that an
annual accounting of the operating permit program will be performed to
ascertain whether the annual fees collected are sufficient to support
the direct and indirect costs of the title V program.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority for Section 112 Implementation. In its program
submittal, Chattanooga-Hamilton County demonstrates adequate legal
authority to implement and enforce all section 112 requirements through
the title V permit. This legal authority is contained in regulatory
provisions defining ``applicable requirements'' and requiring each
permit to incorporate conditions that assure compliance with all
applicable requirements. In addition, this definition includes language
that clarifies that in the period after federal adoption, and before
local adoption, the part 70 permit will specify that the source is
subject to the cited federal standard. EPA is interpreting the above
legal authority to mean that Chattanooga-Hamilton County is able to
carry out all section 112 activities with respect to part 70. For
further discussion, please refer to TSD accompanying this action and
the April 13, 1993 guidance memorandum entitled, ``Title V Program
Approval Criteria for Section 112 Activities,'' signed by John Seitz.
b. Implementation of Section 112(g) Upon Program Approval. EPA
issued an interpretive notice on February 14, 1995 (60 FR 8333), which
outlines EPA's revised interpretation of section 112(g) applicability.
The notice postpones the effective date of section 112(g) until after
EPA has promulgated a rule addressing that provision. The notice sets
forth in detail the rationale for the revised interpretation.
The section 112(g) interpretative notice explains that EPA is
considering whether the effective date of section 112(g) should be
delayed beyond the date of promulgation of the Federal rule so as to
allow states time to adopt rules implementing the Federal rule, and
that EPA will provide for any such additional delay in the final
section 112(g) rulemaking. Unless and until EPA provides for such an
additional postponement of section 112(g), Chattanooga-Hamilton County
must have a Federally enforceable mechanism for implementing section
112(g) during the period between promulgation of the
[[Page 56288]]
Federal section 112(g) rule and adoption of implementing local
regulations.
EPA is aware that Chattanooga-Hamilton County lacks a program
designed specifically to implement section 112(g). However,
Chattanooga-Hamilton County does have a preconstruction review program
that can serve as an adequate implementation vehicle during the
transition period because it would allow the County to select control
measures that would meet the maximum achievable control technology
(MACT), as defined in section 112, and incorporate these measures into
a Federally enforceable preconstruction permit.
For this reason, EPA proposes to approve the use of Chattanooga-
Hamilton County's preconstruction review programs found in Section 4-8
of the Chattanooga Code, and the corresponding sections of the Hamilton
County and local municipalities' regulations, under the authority of
title V and part 70, solely for the purpose of implementing section
112(g) to the extent necessary during the transition period between
section 112(g) promulgation and adoption of a local rule implementing
EPA's section 112(g) regulations. Although section 112(l) generally
provides authority for approval of state and local air programs to
implement section 112(g), title V and section 112(g) provide for this
limited approval because of the direct linkage between the
implementation of section 112(g) and title V. The scope of this
approval is narrowly limited to section 112(g) and does not confer or
imply approval for purpose of any other provision under the Act (e.g.,
section 110). This approval will be without effect if EPA decides in
the final section 112(g) rule that sources are not subject to the
requirements of the rule until local regulations are adopted. The
duration of this approval is limited to 18 months following
promulgation by EPA of the section 112(g) rule to provide adequate time
for Chattanooga, Hamilton County, and the affected municipalities to
adopt regulations consistent with the Federal requirements.
c. Program for Delegation of Section 112 Standards as Promulgated.
The requirements for part 70 program approval, specified in 40 CFR
70.4(b), encompass section 112(1)(5) requirements for approval of a
state program for delegation of section 112 standards promulgated by
EPA as they apply to title V sources. Section 112(1)(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 also proposes to grant
approval, under section 112(1)(5) and 40 CFR 63.91, of Chattanooga-
Hamilton County's program for receiving delegation of section 112
standards that are unchanged from the Federal standards as promulgated
and to delegate existing standards and programs under 40 CFR parts 61
and 63 for part 70 sources and non-part 70 sources. This program for
delegation applies to both existing and future standards, and to part
70 and non-part 70 sources. CHCAPCB has informed EPA that it intends to
accept delegation of section 112 standards through incorporation by
reference. The details of the CHCAPCB's delegation mechanism is set
forth in a letter to EPA, dated October 19, 1995, and is contained in
the docket for this action
d. Commitment to Implement Title IV of the Act. On March 29, 1995,
EPA published a Federal Register Notice (60 FR 16127) notifying
affected sources that the CHCAPCB's acid rain program had been
established and that CHCAPCB's regulations are acceptable for the
purposes of administering an acid rain program. Chattanooga-Hamilton
County has committed to incorporate by reference, following
promulgation by EPA, any new or revised provision of 40 CFR part 72 or
provisions implementing sections 407 and 410 of the Act.
B. Proposed Actions
1. Full Approval
The EPA proposes to fully approve the operating permits program
submitted to the EPA by the State of Tennessee of behalf of the
Chattanooga-Hamilton County Air Pollution Control Board on November 22,
1995, if certain changes are made to the program and submitted to EPA
prior to EPA's final action on this proposal. As a condition of full
approval, CHCAPCB must remove, clarify, or limit certain insignificant
activities and/or document that they are not potentially subject to an
applicable requirement. EPA has determined that the program is
otherwise adequate to meet the minimum elements of a local operating
permits program as specified in 40 CFR part 70.
2. Interim Approval
EPA is proposing to grant interim approval to the operating permits
program under 40 CFR 70.4(d) if the changes required for full approval,
as described above, are not made prior to final promulgation of this
rulemaking. EPA can grant interim approval because CHCAPCB's permit
program substantially meets the approval process and requirements of
part 70, as discussed in section II(A) of this notice. The problems
noted above will not prevent CHCAPCB for issuing permits that are
consistent with part 70 on an interim basis.
If EPA grants interim approval to CHCAPCB, the interim approval
would extend for two years following the effective date of final
interim approval, and could not be renewed. During the interim approval
period, Hamilton County would not be subject to sanctions, and EPA
would not be obligated to promulgate, administer, and enforce a Federal
operating permit program for the County. Permits issued under a program
with interim approval are fully effective with respect to part 70 and
the three-year time period for processing the initial permit
applications will begin upon the effective date of final interim
approval.
Following the granting of final interim approval, if the
Chattanooga-Hamilton County Air Pollution Control Board fails to submit
a complete corrective program for full approval by the date six months
before expiration of the interim approval, EPA will start an 18-month
clock for mandatory sanctions. If the Chattanooga-Hamilton County Air
Pollution Control Board then fails to submit a corrective program that
EPA finds complete before the expiration of that 18-month period, EPA
is required to apply one of the sanctions in section 179(b) of the Act,
which will remain in effect until EPA determines that the Chattanooga-
Hamilton County Air Pollution Control Board has corrected the
deficiency by submitting a complete corrective program.
3. Program for Straight Delegation of Section 112 Standards
As discussed previously in section II.A.4.b., EPA proposes to
approve Chattanooga-Hamilton County's preconstruction review program,
under the authority of title V and part 70 solely for the purpose of
implementing section 112(g) to the extent necessary during the
transition period between 112(g) promulgation and adoption of a local
rule implementing EPA's section 112(g) regulations.
In addition, as discussed in section II.A.4.c., EPA proposes to
grant approval under section 112(1)(5) and 40 CFR 63.91 to CHCAPCB for
receiving delegation of section 112 standards that are unchanged from
Federal standards as promulgated. EPA also proposes to delegate all
existing standards under 40
[[Page 56289]]
CFR part 61 and 63 both part 70 and non-part 70 sources.
4. Other Implications
The scope of Chattanooga-Hamilton County's part 70 program that EPA
proposes to approve, or interimly approve in the alternative, in this
notice would apply to all part 70 sources (as defined in the approved
program) within Hamilton County, 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. 24,
1994); 58 FR 54364 (Oct. 21, 1993).
III. Administrative Requirements
A. Request for Public Comments
EPA requests comments on all aspects of this proposed full/interim
approval. Copies of CHCAPCB's submittal and other information relied
upon for the proposed alternatives of full approval and interim
approval are contained in docket number TN-CHAT-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 proposed full/interim approval. The principal
purposes of the docket are:
(1) to allow interested parties a means to identify and locate
documents so that they can effectively participate in the approval
process; and
(2) to serve as the record in case of judicial review. EPA will
consider any comments received by December 8, 1995.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
EPA's actions under section 502 of the Act do not create any new
requirements, but simply address operating permit 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 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 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 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
and Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: October 31, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
[FR Doc. 95-27698 Filed 11-7-95; 8:45 am]
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