[Federal Register Volume 62, Number 30 (Thursday, February 13, 1997)]
[Rules and Regulations]
[Pages 6724-6728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3577]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TN-155-1-7178; TN-MEM-149-3-9701; FRL-5669-3]
Approval and Promulgation of Implementation Plans; State of
Tennessee and Memphis-Shelby County, Tennessee
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving revisions to the Tennessee State
Implementation Plan (SIP) to allow the State to issue Federally
enforceable state operating permits (FESOP). EPA is also approving
revisions to the Memphis-Shelby County portion of the Tennessee SIP to
allow the County to issue Federally enforceable local operating permits
(FELOP). EPA is also approving the State's FESOP program and the
County's FELOP program pursuant to section 112 of the Clean Air Act as
amended in 1990 (CAA or ``the Act'') so that both permitting agencies
may issue Federally enforceable state operating permits containing
limits for hazardous air pollutants (HAP).
DATES: This final rule is effective April 14, 1997 unless adverse or
critical comments are received by March 17, 1997. 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 used in
developing this action are available for public inspection during
normal business hours at the locations listed below. Interested persons
wanting to examine these documents, contained in files TN155 and TN149-
3, 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.
U.S. Environmental Protection Agency, Region 4, Air and Radiation
Technology Branch, Atlanta Federal
[[Page 6725]]
Center, 100 Alabama Street, SW, Atlanta, Georgia 30303.
Tennessee Department of Environment and Conservation, L & C Annex, 401
Church Street, Nashville, Tennessee, 37243-1531.
Memphis-Shelby County Health Department, 814 Jefferson Avenue, Room
437-E, Memphis, Tennessee, 38105.
FOR FURTHER INFORMATION CONTACT: Gracy R. Danois, Air and Radiation
Technology Branch, Air, Pesticides & Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, Atlanta Federal Center, 100
Alabama Street, SW, Atlanta, Georgia 30303, 404/562-9119. Reference
files TN155 and TN149-3.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
On January 10, 1995, and May 3, 1995, Memphis-Shelby County and the
State of Tennessee, respectively, through the Tennessee Department of
Environment and Conservation (TDEC), submitted SIP revisions to make
certain permits issued under the County's and the State's existing
minor source operating permit program Federally enforceable pursuant to
the EPA requirements specified in the Federal Register notice entitled
``Requirements for the Preparation, Adoption, and Submittal of
Implementation Plans; Approval and Promulgation of Implementation
Plans'' (see 54 FR 27274, June 28, 1989). Additional materials
concerning HAPs and the implementation of the FESOP and FELOP programs
were provided by the State and the County to EPA on March 8, 1996, and
June 12, 1996, and March 13, 1996, and September 4, 1996, respectively.
EPA has always had and continues to have the authority to enforce
state permits which are issued under permit programs approved into the
SIP. However, EPA has not always recognized, as valid, certain state
permits which purport to limit a source's potential to emit. The
principle purpose for adopting the regulations that are the subject of
this notice is to give the State of Tennessee and Memphis-Shelby County
a Federally recognized means of expeditiously restricting potential
emissions such that sources can avoid major source permitting
requirements. A key mechanism for such limitations is the use of
Federally enforceable state or local operating permits. The term
``Federally enforceable,'' when used in the context of permits which
limit potential to emit, means ``Federally recognized.''
The voluntary revision that is the subject of this action approves
Division Rule 1200-3-9-.02(11)(a) into both the State and the County
portions of the Tennessee SIP. This rule and the additional materials
provided by the State and the County satisfy the five criteria outlined
in the June 28, 1989, Federal Register notice. Please refer to section
II of this notice for the analysis of each of the criteria.
II. Analysis of State and County Submittals
Memphis-Shelby County has adopted the majority of the State of
Tennessee's Division Rules in the Memphis City Code. The County
maintains the numbering system used by the State of Tennessee within
its regulations. Therefore, all references to the State of Tennessee's
Division Rules are also applicable to Memphis-Shelby County, unless
otherwise noted.
Criterion 1. The state's operating permit program (i.e. the
regulations or other administrative framework describing how such
permits are issued) must be submitted to and approved by EPA as a SIP
revision. On January 10, 1995, and May 3, 1995, respectively, Tennessee
and Memphis-Shelby County submitted SIP revision requests to EPA
consisting of Division Rule 1200-3-9-.02(11)(a), amending the
stationary source general requirements. Additional materials concerning
hazardous air pollutants and the operating permit program were
submitted to EPA by Memphis-Shelby County and Tennessee on March 8,
1996, and June 12, 1996, and on March 13, 1996, and September 4, 1996,
respectively. These submittals are the subject of this rulemaking
action.
Criterion 2. The SIP revision must impose a legal obligation that
operating permit holders adhere to the terms and limitations of such
permits (or subsequent revisions of the permit made in accordance with
the approved operating permit program) and provide that permits which
do not conform to the operating permit program requirements and the
requirements of EPA's underlying regulations may be deemed not
``Federally enforceable'' by EPA. Division Rule 1200-3-9-.02(6)
requires each air contaminant source to obtain a permit to operate and
to operate in accordance with ``the provisions and stipulations set
forth in the operating permit, all provisions of these regulations, and
all provisions of the Tennessee Air Quality Act.'' In addition,
Tennessee has committed to include the following statement in all
operating permits issued pursuant to Division Rule 1200-3-9-.02(11):
``The permittee is placed on notice that Condition(s) ________ of this
operating permit contain(s) limitations that allow the permittee to
opt-out of the major source operating permit program requirements
specified in Division Rule 1200-3-9-.02(11). Failure to abide by these
limits will not only subject the permittee to enforcement action by the
State of Tennessee, but it may also result in the imposition of Federal
enforcement action by the United States Environmental Protection Agency
and the loss of being Federally recognized as a conditional major
source.'' Memphis-Shelby County has committed to incorporate similar
language in the operating permits it issues pursuant to the same
Division Rule.
Criterion 3. The state operating permit program must require that
all emission limitations, controls, and other requirements imposed by
such permits will be at least as stringent as any 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 Clean Air
Act). Division Rule 1200-3-9-.02(6) contains regulatory provisions
which state that operating permits issued by Tennessee and Memphis-
Shelby County will be at least as stringent as any applicable
requirement. Applicable requirement is defined in Division Rule 1200-3-
9-.02(11)(b)(5) to include all SIP requirements.
Criterion 4. The limitations, controls and requirements of the
state's operating permits must be permanent, quantifiable, and
otherwise enforceable as a practical matter. Division Rules 1200-3-
9-.02(6) and 1200-3-9-.02(11)(a) contain regulatory provisions which
satisfy this criterion. Permits must contain a statement of basis
comparing the source's potential to emit with the more restrictive
limit and the procedures to be followed that will insure that the more
restrictive limit is not exceeded. Concerning permanence, Division Rule
1200-3-9-.02(11)(a), establishes that in order to obtain a synthetic
non-title V permit, the facility must agree to be bound by a permit
that establishes more restrictive limitations. Also, the State relies
on the requirements of Division Rule 1200-3-13-.01 as their authority
to seek enforcement action against a source that violates the
conditions of an operating permit. Memphis-Shelby County relies
[[Page 6726]]
on the requirements of sections 16-56, 16-59, and 16-77 of the Memphis
City Code to meet this criterion. Section 16-56, gives the County the
authority to seek enforcement action against sources that violate any
of the requirements of the local air pollution code, which includes a
failure to meet all permit conditions as required by Section 16-77.
Criterion 5. The state operating permits must be issued subject to
public participation. This means that the State and the County agree,
as part of their programs, 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
must also provide for an opportunity for public comment on the permit
applications prior to issuance of the final permits. Division Rules
1200-3-9-.02(11)(a), 1200-3-9-.02(11)(f)8. and 1200-3-9-.02(11)(g)
contain provisions establishing that the State and the County will
either deny the request for a permit or give EPA and the public notice
of an intention to issue the permit and provide for a 30 day public
comment period.
A. Applicability to Hazardous Air Pollutants
Tennessee and Memphis-Shelby County have also requested approval of
their FESOP and FELOP programs under section 112(l) of the Clean Air
Act for the purpose of creating Federally recognized limitations on the
potential to emit for HAPs. Approval under section 112(l) is necessary
because the SIP revisions discussed above only extend to criteria
pollutants for which EPA has established national ambient air quality
standards under section 109 of the Act. Federally enforceable limits on
criteria pollutants or their precursors (i.e. VOCs or PM-10) may have
the incidental effect of limiting certain HAPs listed pursuant to
section 112(b).1 As a legal matter, no additional program approval
by the EPA is required beyond SIP approval under section 110 in order
for these criteria pollutant limits to be recognized as Federally
enforceable. However, section 112 of the Act provides the underlying
authority for controlling all HAP emissions, regardless of their
relationship to criteria pollutant controls.
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\1\ 1 EPA issued guidance on January 25, 1995, addressing the
technical aspects of how these criteria pollutant limits may be
recognized for purposes of limiting a source's potential to emit of
HAPs to below section 112 major source thresholds.
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EPA has determined that the five criteria, published in the June
28, 1989, Federal Register notice, used to determine the validity of a
permit which limits potential to emit for criteria pollutants pursuant
to section 110 are also appropriate for evaluating the validity of
permits which limit the potential to emit for HAPs pursuant to section
112(l). The June 28, 1989, Federal Register notice does not address
HAPs because it was written prior to the 1990 amendments to the Clean
Air Act; however, the basic principles established in the June 28,
1989, Federal Register notice are not unique to criteria pollutants.
Therefore, these criteria have been extended to evaluations of permits
limiting the potential to emit of HAPs.
To be recognized by EPA as a valid permit which limits potential to
emit, the permit must not only meet the criteria in the June 28, 1989,
Federal Register notice, but it must meet the statutory criteria for
approval under section 112(l)(5). Section 112(l) provides that EPA will
recognize a permit limiting the potential to emit for HAPs only if the
state program: (1) Contains adequate authority to assure compliance
with any section 112 standard or requirement; (2) provides for adequate
resources; (3) provides for an expeditious schedule for assuring
compliance with section 112 requirements; and (4) is otherwise likely
to satisfy the objectives of the Act.
EPA plans to codify in Subpart E of Part 63 the approval criteria
for programs limiting potential to emit HAPs. EPA anticipates that
these criteria will mirror those set forth in the June 28, 1989,
Federal Register notice. Permit programs which limit potential to emit
for HAPs and are approved pursuant to section 112(l) of the Act prior
to the planned regulatory revisions under 40 CFR part 63, subpart E,
will be recognized by EPA as meeting the criteria in the June 28, 1989,
Federal Register notice. Therefore, further approval actions for those
programs will not be necessary.
EPA believes it has authority under section 112(l) to recognize
FESOP and FELOP programs that limit a source's potential to emit HAPs
directly under section 112(l) prior to this revision to Subpart E. EPA
is therefore approving the Tennessee and Memphis-Shelby County FESOP
and FELOP programs so that Tennessee and Memphis-Shelby County may
issue permits that EPA will recognize as validly limiting potential to
emit for HAPs.
Regarding the statutory criteria of section 112(l)(5) referred to
above, EPA believes the FESOP and FELOP programs submitted by Tennessee
and Memphis-Shelby County contain adequate authority to assure
compliance with section 112 requirements since the third criterion of
the June 28, 1989, notice is met; that is, Division Rule 1200-3-
9-.02(11)(b)(5) states that all requirements in the permits issued
under the authority of the operating permit programs must be at least
as stringent as all other applicable Federally enforceable
requirements. In connection with EPA's review of the Tennessee and
Memphis-Shelby County title V operating permit programs, EPA has also
conducted an extensive analysis of Tennessee and Memphis-Shelby
County's underlying authority to enforce HAP limits. It should be noted
that a source that receives a Federally recognized operating permit may
still need a Title V operating permit under Division Rule 1200-3-9-.02
if EPA promulgates a MACT standard which requires non-major sources to
obtain Title V permits.
Regarding the requirement for adequate resources, Tennessee and
Memphis-Shelby County have committed to provide for adequate resources
to support their respective FESOP and FELOP programs. EPA expects that
resources will continue to be sufficient to administer those portions
of the minor source operating permit programs under which the subject
permits will be issued, because both the State of Tennessee and
Memphis-Shelby County have administered minor source operating permit
programs for a number of years. However, EPA will monitor the
implementation of the FESOP and FELOP programs to ensure that adequate
resources are in fact available.
EPA also believes that the Tennessee and Memphis-Shelby County
programs provide for an expeditious schedule which assures compliance
with section 112 requirements. These programs 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 Tennessee or Memphis-Shelby County programs would allow
a source to avoid or delay compliance with a CAA requirement applicable
on a particular date. In addition, nothing in the Tennessee or Memphis-
Shelby County program would allow a source to avoid or delay compliance
with a CAA requirement if it fails to obtain an appropriate Federally
recognized limit by the relevant deadline. Finally, EPA believes it is
consistent with the intent of section 112 of the Act for States to
provide a mechanism through which a source may
[[Page 6727]]
avoid classification as a major source by obtaining a Federally
recognized limit on its potential to emit HAPs. EPA has long recognized
as valid, permit programs which limit potential to emit for criteria
pollutants as a means for avoiding major source requirements under the
Act. The portion of this approval which extends Federal recognition to
permits containing limits on potential to emit for HAPs merely applies
the same principles to another set of pollutants and regulatory
requirements under the Act.
EPA has reviewed this SIP revision and determined that the criteria
for approval as provided in the June 28, 1989, Federal Register notice
(54 FR 27282) and in section 112(l)(5) of the Act have been satisfied.
B. Eligibility for Previously Issued Permits
Eligibility for Federally enforceable permits extends not only to
permits issued after the effective date of this rule, but also to
permits issued under the State's and the County's existing rules prior
to the effective date of today's rulemaking. If the State and County
followed their own regulations, then each agency issued a permit that
established a Federally recognized permit condition that was subject to
public and EPA review. Therefore, EPA will consider all such operating
permits Federally enforceable upon the effective date of this action
provided that any permits that the State wishes to make Federally
enforceable are made available to EPA and are supported by
documentation that the procedures approved today have been followed.
EPA may review any such permits to ensure their conformity with the
program requirements.
III. Final Action
In this action, EPA is approving Tennessee's FESOP program and
Memphis-Shelby County's 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 revisions should adverse or
critical comments be filed. This action will be effective April 14,
1997 unless, by March 17, 1997, 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 April 14, 1997.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989, (54 FR 2214-2225), as revised by
the July 10, 1995, memorandum from Mary Nichols, Assistant
Administrator for Air and Radiation. Nothing in this action shall be
construed as permitting or allowing or establishing a precedent for any
future request for a revision of any SIP. Each request for revision of
the SIP shall be considered separately in light of specific technical,
economic, and environmental factors, and in relation to relevant
statutory and regulatory requirements.
IV. Administrative Requirements
A. Clean Air Act as Amended in 1990
EPA has reviewed the requests for revision of the Federally-
approved Tennessee SIP described in this notice to ensure conformance
with the provisions of the Clean Air Act as amended in 1990. EPA has
determined that this action conforms with those requirements.
B. Petition for Review
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 April 14,
1997. 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).)
C. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866 review.
D. Regulatory Flexibility Act
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 approval of
Federal SIP 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) and 7410(R).
E. Unfunded Mandates Reform Act of 1995
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 or plan
revision, the State has elected to adopt the program provided for under
section 112(l) of the Clean Air Act. These rules may bind the State
government 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 the State government, 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 the State government in the aggregate or to the
private sector.
[[Page 6728]]
F. Small Business Regulatory Enforcement Fairness Act of 1996
Under 5 U.S.C. 801(a)(1)(A) added by the Small Business Regulatory
Enforcement Fairness Act of 1996, EPA submitted a report containing
this rule and other required information to the U.S. Senate, the U.S.
House of Representatives and the Comptroller General of the General
Accounting Office prior to publication of the rule in today's Federal
Register. This rule is not a major rule as defined by 5 U.S.C. 804(2).
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: December 16, 1996.
A. Stanley Meiburg,
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)(145) to read
as follows:
Sec. 52.2220 Identification of plan.
* * * * *
(c) * * *
(145) Revisions to Division Rule 1200--Stationary Sources--General
Requirements, submitted by the Tennessee Department of Environmental
Protection on May 3, 1995.
(i) Incorporation by reference.
(A) Division of Air Pollution Control Rule 1200-3-9-.02(11)(a),
effective September 21, 1994.
(B) Memphis City Code Section 16-77, reference 1200-3-9-.02(11)(a),
effective October 28, 1994.
(ii) Other materials. None.
[FR Doc. 97-3577 Filed 2-12-97; 8:45 am]
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