01-21707. Clean Air Act Proposed Full Approval of Operating Permit Programs; Alabama, City of Huntsville, and Jefferson County

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed full approval.

SUMMARY:

EPA proposes to fully approve the operating permit programs of the Alabama Department of Environmental Management, the City of Huntsville's Division of Natural Resources, and the Jefferson County Department of Health. These programs were submitted in response to the directive in the 1990 Clean Air Act (CAA) Amendments that permitting authorities develop, and submit to EPA, programs for issuing operating permits to all major stationary sources and to certain other sources within the permitting authorities' jurisdiction. On November 15, 1995, EPA granted interim approval to the Alabama, Huntsville, and Jefferson County title V operating permit programs (60 FR 57346). These agencies have revised their programs to satisfy the conditions of the interim approval and this action proposes approval of those revisions and other program changes made since the interim approval was granted.

DATES:

Comments on the program revisions discussed in this proposed action must be received in writing by EPA on or before September 27, 2001.

ADDRESSES:

Written comments on the program revisions discussed in this action should be addressed to Ms. Kim Pierce, Regional Title V Program Manager, Air & Radiation Technology Branch, EPA, 61 Forsyth Street, SW, Atlanta, Georgia 30303-8960. Copies of the Alabama, Huntsville, and Jefferson County submittals and other supporting documentation used in developing the proposed full approval are available for inspection during normal business hours at EPA, Air & Radiation Technology Branch, 61 Forsyth Street, SW, Atlanta, Georgia 30303-8960.

FOR FURTHER INFORMATION CONTACT:

Kim Pierce, EPA Region 4, at [phone] or [e-mail]/.

SUPPLEMENTARY INFORMATION:

This section provides additional information by addressing the following questions:

What is the operating permit program?

What is being addressed in this document?

What are the program changes that EPA proposes to approve?

What is involved in this proposed action?

What Is the Operating Permit Program?

Title V of the CAA Amendments of 1990 required all state and local permitting authorities to develop operating permit programs that met certain federal criteria. In implementing the title V operating permit programs, the permitting authorities require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. The focus of the operating permit program is to improve enforcement by issuing each source a permit that consolidates all of the applicable CAA requirements into a federally enforceable document. By consolidating all of the applicable requirements for a facility, the source, the public, and the permitting authorities can more easily determine what CAA requirements apply and how compliance with those requirements is determined.

Sources required to obtain an operating permit under the title V program include: “major” sources of air pollution and certain other sources specified in the CAA or in EPA's implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain operating permits. Examples of major sources include those that have the potential to emit 100 tons per year or more of volatile organic compounds (VOCs), carbon monoxide, lead, sulfur dioxide, nitrogen oxides ( NO_X), or particulate matter (PM₁₀); those that emit 10 tons per year of any single hazardous air pollutant (specifically listed under the CAA); or those that emit 25 tons per year or more of a combination of hazardous air pollutants (HAPs). In areas that are not meeting the National Ambient Air Quality Standards for ozone, carbon monoxide, or particulate matter, major sources are defined by the gravity of the nonattainment classification. For example, in ozone nonattainment areas classified as “serious,” major sources include those with the potential of emitting 50 tons per year or more of VOCs or NO_X.

What Is Being Addressed in This Document?

Where a title V operating permit program substantially, but not fully, met the criteria outlined in the implementing regulations codified at 40 Code of Federal Regulations (CFR) part 70, EPA granted interim approval contingent on the state revising its program to correct the deficiencies. Because the Alabama, Huntsville, and Jefferson County programs substantially, but not fully, met the requirements of part 70, EPA granted interim approval in a rulemaking (60 FR 57346) published on November 15, 1995. The interim approval notice described the conditions that had to be met in order for the Alabama, Huntsville, and Jefferson County programs to receive full approval. Alabama submitted five revisions to its interimly approved operating permit program; these revisions were dated July 19, 1996, April 9, 1997, August 4, 1999, January 10, 2000, and May 11, 2001. Huntsville, which adopts the State's rules, submitted five revisions to its interimly approved program; these revisions were dated March 21, 1997, July 21, 1999, December 4, 2000, February 22, 2001, and April 9, 2001. Jefferson County, which also adopts the State's rules, submitted five revisions to its interimly approved program; these revisions were dated February 5, 1998, September 20, 1999, August 8, 2000, March 30, 2001, and May 18, 2001. This document describes changes that have been made to the Alabama, Huntsville, and Jefferson County operating permit programs since interim approval was granted.

What Are the Program Changes That EPA Proposes To Approve?

As stipulated in the interim approval notice, full approval of the Alabama, Huntsville, and Jefferson County title V operating permit programs was made contingent upon the following rule changes:

(1) Amend Alabama's statute to provide for adequate criminal fines consistent with 40 CFR 70.11(a)(3)(ii) and (iii). The State amended Section 22-28-22, Code of Alabama 1975, to prescribe adequate criminal fines and the amendment was signed into law on May 17, 1996. The amendment was submitted to EPA on July 19, 1996, and Alabama submitted a supplemental Attorney General's Statement certifying that State law provides enforcement authority consistent with 40 CFR 70.11 to EPA on May 11, 2001. Huntsville incorporated the criminal penalties specified by Alabama Act 96-516 into local law and submitted the amendment to EPA on March 21, 1997. On April 9, 2001, Huntsville submitted a legal opinion by the City Attorney certifying that its criminal penalty authority was consistent with 40 CFR 70.11. On May 18, 2001, Jefferson County submitted a Local Counsel's Amended Opinion certifying that State law allows the County to assess criminal penalties consistent with 40 CFR 70.11. EPA has determined that the Alabama, Huntsville, and Jefferson County submittals adequately address the enforcement authority deficiency.

(2) Eliminate Alabama's Rule 335-3-16-.04(9)(b) (and the corresponding local rules) which exempted certain permit applications from the completeness certification requirement in 40 CFR 70.5(a)(2). Alabama deleted the regulation and submitted the state-effective rule change to EPA on May 11, 2001. Huntsville deleted its corresponding rule, Paragraph 3.9.4(b), and submitted the local-effective rule change to EPA on April 9, 2001. Jefferson County deleted its corresponding rule, Paragraph 18.4.9(b), and submitted the local-effective rule change to EPA on May 18, 2001.

(3) Revise Rule 335-3-16-.01(o) (and the corresponding local rules) to require EPA review and approval of any revisions to the State's insignificant activity list. Alabama revised the regulation accordingly and submitted the state-effective rule change to EPA on May 11, 2001. Huntsville made identical revisions to its corresponding rule, Paragraph 3.1.1(q), and submitted the local-effective rule change to EPA on April 9, 2001. Jefferson County revised its corresponding rule, Paragraph 18.1.1(o), accordingly and submitted the local-effective rule change to EPA on May 18, 2001.

(4) Revise the Alabama rules (and the corresponding local rules) to ensure that insignificant emissions units with applicable requirements are not exempted from permitting or major source applicability determinations even if listed on the approved list of insignificant activities. Alabama responded by revising the definition of “Insignificant Activity” in Rule 335-3-16-.01(o) to ensure that activities subject to applicable requirements are not classified as insignificant. The State also revised Rule 335-3-16-.04(8)(c)9.(i) to remove the exemption from permitting requirements for insignificant activities. The state-effective rule changes were submitted to EPA on May 11, 2001. Huntsville made identical revisions to its corresponding rules, Paragraph 3.1.1(q) and Subparagraph 3.9.3(c)(9)(i), and submitted the local-effective rule changes to EPA on April 9, 2001. Jefferson County also revised its corresponding rules, Paragraph 18.1.1(o) and Subparagraph 18.4.8(c)(9)(i), accordingly and submitted the local-effective rule changes to EPA on May 18, 2001.

(5) Revise the Alabama rules (and the corresponding local rules) to provide for permit terms and conditions that allow the trading of emissions increases and decreases in accordance with 40 CFR 70.4(b)(12)(iii), 70.5(c)(7), and 70.6(a)(10). The State responded by adding Rule 335-3-16-.05(m), which provides for permit terms and conditions authorizing the trading of emissions increases and decreases in a permitted facility, and submitted the state-effective rule change to EPA on May 11, 2001. Huntsville incorporated the State's rule by adding Paragraph 3.9.5(u) and submitted the local-effective rule change to EPA on April 9, 2001. Jefferson County incorporated the State's rule in its new Section 18.5.14 and submitted the local-effective rule change to EPA on May 18, 2001.

(6) Revise Rule 335-3-16-.13(1)(a)7. (and the corresponding local rules) to specifically list the types of changes that are eligible for processing as administrative permit amendments or remove the provision allowing for Director's discretion when determining the types of changes that are eligible for processing as administrative permit amendments. Alabama responded by revising Rule 335-3-16-.13(1)(a)7. to require EPA approval of the types of permit changes that are eligible for processing as administrative amendments, and the state-effective rule change was submitted to EPA on May 11, 2001. Huntsville incorporated the State's rule change in its corresponding rule, Subparagraph 3.9.11(a)(1)(vii), and submitted the local-effective rule change to EPA on April 9, 2001. Jefferson County incorporated the State's rule change in its corresponding rule, Subparagraph 18.13.1(a)(7), and submitted the local-effective rule change to EPA on May 18, 2001.

(7) Correct the citation in Rule 335-3-16-.13(1)(a)6. (and the corresponding local rules) in order to provide for EPA and affected states review of administrative permit amendments, as specified in 40 CFR 70.7(d)(1)(v). Alabama responded by correcting the citation to reference Rule 335-3-16-.15 “Permit Review by EPA, Affected States and the Public” and submitted the state-effective rule change to EPA on January 10, 2000. Huntsville corrected the citation in its corresponding rule, Section 3.9.11, to reference Section 3.9.13 “Permit Review by EPA, Affected States and the Public” and submitted the local-effective rule change to EPA on April 9, 2001. Jefferson County corrected the citation in its corresponding rule, Subparagraph 18.13.1(a)(6), to reference Part 18.15 “Permit Review by EPA, Affected States and Public” and submitted the local-effective rule change to EPA on May 18, 2001.

(8) Revise Rule 335-3-16-.11(1) (and the corresponding local rules) to address EPA's concerns regarding the Director's ability to exempt emissions exceedances on a case-by-case basis. Alabama responded by adding the following language to Rule 335-3-16-.11(1): “For emission limits established by federal rules (e.g., NSPS, NESHAP, and MACT), exemptions may be granted only where provisions for such exemptions are contained in the applicable rule or its general provisions.” The state-effective rule change was submitted to EPA on January 10, 2000. Huntsville incorporated the State's language in its corresponding rule, Paragraph 3.3.8(a), and submitted the local-effective rule change to EPA on April 9, 2001. Jefferson County incorporated the State's language in its corresponding rule, Paragraph 18.11.1, and submitted the local-effective rule change to EPA on August 8, 2000.

(9) Revise Rule 335-3-16-.11(2)(c) (and the corresponding local rules) to allow for EPA and citizen participation in the emergency determination process. In response, Alabama removed language in Rule 335-3-16-.11(2)(c) that allowed only the Director to be the determiner of when an emergency has occurred and submitted the state-effective rule change to EPA on January 10, 2000. Huntsville incorporated the State's rule change in its corresponding rule, Subparagraph 3.3.8(b)(3), and submitted the local-effective rule change to EPA on April 9, 2001. Jefferson County incorporated the State's rule change in its corresponding rule, Subparagraph 18.11.2(c), and submitted the local-effective rule change to EPA on May 18, 2001.

(10) Revise Rule 335-3-16-.11 (and the corresponding local rules) to clarify that an emergency constitutes an affirmative defense in accordance with 40 CFR 70.6(g)(2). Alabama responded by adding Rule 335-3-16-.11(2)(e), which states that an emergency constitutes an affirmative defense, and submitted the state-effective rule change to EPA on May 11, 2001. Huntsville incorporated the State's rule by adding Subparagraph 3.3.8(b)(5) and submitted the local-effective rule change to EPA on April 9, 2001. Jefferson County incorporated the State's rule by adding Paragraph 18.11.2(e) and submitted the local-effective rule change to EPA on August 8, 2000.

The other programmatic changes made by Alabama, Huntsville, and Jefferson County since interim approval was granted involve the mechanisms for determining annual title V fee amounts. The State's title V operating permit program received interim approval based on use of the “presumptive minimum” fee amount described in 40 CFR 70.9(b)(2)(i). However, Alabama's use of this fee amount resulted in the collection of more revenue than was needed to fund the program. On April 9, 1997, Alabama notified EPA of a revision to Rule 335-1-7-.04 that reduced the fee amounts assessed in 1995 through 1999 to offset the excess fees collected in 1991 through 1993. The State has continued to adjust its fees annually so that total revenue balances projected costs. Alabama submitted a fee program update on August 4, 1999, demonstrating that its title V program was being adequately funded.

Huntsville's title V program received interim approval based on use of the part 70 “presumptive minimum” fee amount and the assessment of permit application fees. However, the Alabama Legislature passed legislation during its 2000 session prohibiting the local agencies from charging higher emission fees or permit application fees than those charged by the State. On December 4, 2000, Huntsville submitted local-effective rule changes to Part 3.6 “Permit Application Fees” and Part 3.7 “Major Source Operating Permit Annual Emissions Fees” that gave precedence to the fee structure established under State law. Huntsville submitted a fee program update on July 21, 1999, demonstrating that its title V program was being adequately funded. As a result of the fee restriction imposed in 2000, Huntsville submitted another fee program update on February 22, 2001, demonstrating that its title V program continues to be adequately funded.

Jefferson County's title V program also received interim approval based on use of the part 70 “presumptive minimum” fee amount, but collection of this amount resulted in revenue surpluses in FY96 and FY97. On February 5, 1998, the County submitted a financial report showing the surpluses and informed EPA that it had reduced its fees. Jefferson County submitted a formal fee program update on September 20, 1999, demonstrating that its title V program was being adequately funded. And, in response to EPA's concerns about the potential impact of the statutory fee cap imposed on local agencies by the Alabama Legislature, Jefferson County submitted another fee program update on March 30, 2001, indicating that its title V program was still adequately funded.

What is Involved in This Proposed Action?

Since Alabama, Huntsville, and Jefferson County have fulfilled the conditions of the interim approval granted on November 15, 1995, EPA proposes full approval of their title V operating permit programs and the fee program changes described above. The regulations in Alabama's federally approved title V program include Chapter 335-1-7 “Air Division Operating Permit Fees” and Chapter 335-1-7 “Major Source Operating Permits.” The regulations in Huntsville's federally approved title V program include Parts 3.1 “General Provisions,” 3.6 “Permit Application Fees,” 3.7 “Major Source Operating Permit Annual Emissions Fees,” and 3.9 “Major Source Operating Permits.” The regulations in Jefferson County's federally approved title V program include Chapter 16 “Operating Permit Fees” and Chapter 18 “Operating Permit Regulations for Major Sources.”

Administrative Requirements

A. Request for Public Comments

EPA requests comments on the program revisions discussed in this proposed action. Copies of the Alabama, Huntsville, and Jefferson County submittals and other supporting documentation used in developing the proposed full approval are contained in the EPA docket file numbered AL-2001-01 that is maintained at the EPA Region 4 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 approval. The primary 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. The docket files are available for public inspection at the location listed under the ADDRESSES section of this document. EPA will consider any comments received in writing by September 27, 2001.

B. Executive Order 12866

The Office of Management and Budget has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it is not an economically significant regulatory action as defined in Executive Order 12866, and it does not involve decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13132

This rule does not have Federalism implications because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999). This rule merely approves existing requirements under state law, and does not alter the relationship or the distribution of power and responsibilities between the state and the federal government established in the CAA.

E. Executive Order 13175

This rule does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified by Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000).

F. Executive Order 13211

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significantly regulatory action under Executive Order 12866.

G. Regulatory Flexibility Act

The Regulatory Flexibility Act generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because operating permit program approvals under section 502 of the CAA do not create any new requirements but simply approve requirements that the state is already imposing. Therefore, because this approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

H. Unfunded Mandates Reform Act

Under sections 202 of the Unfunded Mandates Reform Act of 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 approval action proposed does not include a federal mandate that may result in estimated costs of $100 million or more to either state, local, or tribal governments in the aggregate, or to the private sector. This federal action approves pre-existing requirements under state or local law, and imposes no new requirements. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, result from this action.

I. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

In reviewing operating permit programs, EPA's role is to approve state choices, provided that they meet the criteria of the CAA and EPA's regulations codified at 40 CFR part 70. In this context, in the absence of a prior existing requirement for the state to use VCS, EPA has no authority to disapprove an operating permit program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program, to use VCS in place of an operating permit program that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of NTTAA do not apply.

J. Paperwork Reduction Act

This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

List of Subjects in 40 CFR Part 70

• Environmental protection
• Administrative practice and procedure
• Air pollution control
• Intergovernmental relations
• Operating permits
• Reporting and recordkeeping requirements

Authority: 42 U.S.C. 7401-7671q.

Dated: August 17, 2001.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.