01-6863. Clean Air Act Full Approval of Operating Permit Program; Tennessee and Memphis-Shelby County

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking final action to fully approve the operating permit programs of the Tennessee Department of Environment and Conservation and the Memphis-Shelby County Health Department. The Tennessee and Memphis-Shelby County operating permit 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. EPA granted interim approval to the Tennessee and Memphis-Shelby County operating permit programs on July 29, 1996. Tennessee and Memphis-Shelby County revised their programs to satisfy the conditions of the interim approval and this action approves those revisions. Other program changes made by Tennessee since the interim approval was granted are also being addressed in this action.

DATES:

This direct final rule is effective on May 21, 2001 without further notice unless EPA receives adverse comments in writing by April 19, 2001. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect. The public comments will be addressed in a subsequent final rule based on the proposed rule published in this Federal Register.

ADDRESSES:

Written comments on this action should be addressed to Kim Pierce, Regional Title V Program Manager, Air & Radiation Technology Branch, EPA Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8909. Copies of the Tennessee and Memphis-Shelby County submittals, and other supporting documentation relevant to this action, are available for inspection during normal business hours at EPA Region 4, Air & Radiation Technology Branch, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8909.

FOR FURTHER INFORMATION CONTACT:

Kim Pierce, EPA, 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 is approving?

What is involved in this final action?

What Is the Operating Permit Program?

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 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 this 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 permits. Examples of major sources include those that have the potential to emit 100 tons per year or more of volatile organic compounds, 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 volatile organic compounds or nitrogen oxides.

What Is Being Addressed in This Document?

Where an 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 Tennessee and Memphis-Shelby County operating permit programs substantially, but not fully, met the requirements of part 70, EPA granted interim approval to each program in a rulemaking published on July 29, 1996 (61 FR 39335). The interim approval notice described the conditions that had to be met in order for the Tennessee and Memphis-Shelby County programs to receive full approval. Since that time, Tennessee has submitted ten revisions to its interimly approved operating permit program; these revisions are dated July 15, 1997, June 16, 1998, February 5, 1999, February 24, 1999, March 5, 1999, June 16, 1999, July 2, 1999, November 30, 1999, December 30, 1999, and August 21, 2000. Memphis-Shelby County has submitted two revisions, dated October 11, 1999 and May 2, 2000, to its interimly approved program. This Federal Register notice describes the changes that have been made to the Tennessee and Memphis-Shelby County operating permit programs since interim approval was granted.

What Are the Program Changes That EPA Is Approving?

As stipulated in the July 29, 1996 rulemaking, full approval of the Tennessee and Memphis-Shelby County operating permit programs was made contingent upon satisfaction of the following conditions:

(1) Provide a justification for not addressing the requirement in 40 CFR 70.3(b)(3) allowing for a source not subject to the program to apply for and receive an operating permit. Tennessee responded by adding Subparagraph 1200-3-9-.02(11)(a)5. to its rules allowing a source to opt into the operating permit program. The state-effective rule change was submitted to EPA on March 5, 1999. Memphis-Shelby County, which adopts the State's regulations by reference, subsequently adopted the revised rule and submitted documentation of the adoption to EPA on May 2, 2000.

(2) Remove the exemption from permitting requirements for insignificant activities contained in Subparagraph 1200-3-9-.04(5)(f). Tennessee removed the exemption language and submitted the revised rule to EPA on December 30, 1999. Memphis-Shelby County subsequently adopted the revised rule and submitted documentation of the adoption to EPA on May 2, 2000.

(3) Revise Subparagraph 1200-3-9-.04(5) to specify, consistent with 40 CFR 70.5(c), that permit applications may not omit information needed to determine the fee amount. This condition was based on EPA's concern that some facilities may overlook emissions from insignificant emission units, and thereby not be assessed the correct fee amount. However, EPA later determined that this was a nonissue because both Tennessee and Memphis-Shelby County require facilities to pay fees based on actual or allowable emissions of regulated air pollutants; emissions from insignificant activities are not included in the fee schedules that have been approved pursuant to 40 CFR 70.9(b).

(4) Revise Subparagraph 1200-3-9-.04(5)(c)(3) to eliminate the exemption from compliance certification requirements for insignificant activities and to require monitoring, recordkeeping, and reporting for insignificant activities, as determined to be necessary. Tennessee revised Subparagraphs 1200-3-9-.04(5)(c)(2) and (3) to eliminate the exemption and to require monitoring, recordkeeping, and reporting for insignificant activities, as necessary. The state-effective rule change was submitted to EPA on December 30, 1999. Memphis-Shelby County subsequently adopted the revised rule and submitted documentation of the adoption to EPA on May 2, 2000.

(5) Revise certain insignificant activities listed in Subparagraph 1200-3-9-.04(5) to eliminate potential conflicts with federal applicable requirements. The State responded by eliminating some of the activities and adding specific applicable requirements gatekeeper language to other activities with potential conflicts. The revised rule was submitted to EPA on December 30, 1999 and was determined to be adequate. Memphis-Shelby County subsequently adopted the revised rule and submitted documentation of the adoption to EPA on May 2, 2000.

(6) Provide a sufficient description of the insignificant activities and emission units listed in Subparagraphs 1200-3-9-.04(5)(f) and (g) to demonstrate that exclusion of these activities and units from permit applications would not interfere with identifying and imposing applicable requirements. In the alternative, Tennessee and Memphis-Shelby County were given the option of revising their rules to limit emissions from the listed activities and emission units to levels that truly are insignificant in comparison to the levels required to be permitted. For other operating program approvals, EPA has accepted emission thresholds of no more than 5 tons per year of regulated air pollutants and 1000 pounds per year of HAPs as insignificant. EPA believes that these thresholds are sufficiently below applicability thresholds for many applicable requirements to ensure, in combination with appropriate gatekeeper language, that units potentially subject to applicable requirements are included in permit applications. Tennessee responded by adding language to Subparagraph 1200-3-9-.04(5) that limits potential emissions from the listed activities to 5 tons per year of each regulated air pollutant and 1000 pounds per year of each HAP. Tennessee also replaced the activities listed in Subparagraph 1200-3-9-.04(5)(g) with the list of “trivial” activities and emission units that EPA included in the “White Paper for Streamlined Development of Part 70 Permit Applications” guidance memorandum dated July 10, 1995. EPA has determined that the emission units and activities on the trivial list do not have specific applicable requirements and have extremely small emissions. Tennessee submitted the regulatory revisions to EPA on December 30, 1999. Memphis-Shelby County subsequently adopted the revisions and submitted documentation of the adoption to EPA on May 2, 2000.

(7) Revise Subparagraph 1200-3-9-.04(5)(h) to eliminate language exempting certain emissions increases from permit amendment and modification procedures. The State repealed Subparagraph 1200-3-9-.04(5)(h) in its entirety and submitted the state-effective rule change to EPA on December 30, 1999. The County subsequently adopted the revised rule and submitted documentation of the adoption to EPA on May 2, 2000.

(8) Revise Subparagraph 1200-3-9-.02(11)(b) to remove the language limiting the domain of federal applicable requirements to only those in effect on December 15, 1993. The State removed the limiting language and submitted the state-effective rule change to EPA on March 5, 1999. The County subsequently adopted the State's regulatory change and submitted documentation of the adoption to EPA on May 2, 2000.

(9) Revise Subparagraph 1200-3-9-.02(11)(e)4.(i) to provide that if a facility is granted a general permit and is later determined to not qualify to operate under the general permit, the facility will be subject to an enforcement action for operation without an operating permit. The State revised Subparagraph 1200-3-9-.02(11)(e)4.(i) accordingly and submitted the state-effective rule change to EPA on February 5, 1999. The County subsequently adopted the revised rule and submitted documentation of the adoption to EPA on May 2, 2000.

(10) Revise Paragraph 1200-3-20-.06(5) of the Tennessee SIP to clarify that exceedances of emission limits contained in certain SIP requirements that become operating permit terms or conditions (i.e., New Source Performance Standards (NSPSs) and National Emission Standards for Hazardous Air Pollutants (NESHAPs)) will be considered by the State as violations. Furthermore, the State must submit the revised rule to EPA for approval into the SIP. In response, the State removed all NSPS and NESHAP provisions from its SIP and now implements these standards through its approved operating permit program by including all applicable requirements in its operating permits. In addition, the State developed a general condition that is included in all of its operating permits stating that the provisions of Chapter 1200-3-20 apply exclusively to rules in the Tennessee SIP.

(11) Revise Subparagraph 1200-3-31-.04(1)(a) for consistency with the permit reopening requirements in 40 CFR 70.7(f)(1)(i), which requires the completion of permit openings not later than 18 months after promulgation of a new applicable requirement in cases of permits with remaining permit terms of three or more years. The State amended Subparagraph 1200-3-31-.04(1)(a) to include the 18-month reopening requirement and submitted the state-effective rule change to EPA on February 24, 1999. The County subsequently adopted the revised rule and submitted documentation of the adoption to EPA on May 2, 2000.

(12) Finish adopting regulations which, at a minimum, satisfy the conflict of interest provisions of sections 128 and 129(e) of the CAA, and submit the state-effective regulations to EPA for approval in the Tennessee SIP. The State submitted a new Chapter 1200-3-17 entitled “Conflict of Interest” to EPA on February 21, 1997. The State also submitted a supplemental Attorney General's Legal Opinion to EPA on June 16, 1999, certifying that the new Chapter 1200-3-17 satisfies the conflict of interest requirements of sections 128 and 129(e) of the CAA. This condition did not apply to Memphis-Shelby County.

The County was, however, required to address the following two additional conditions for full approval of its operating permit program:

(1) Clarify in a supplemental legal opinion that the County's program requires a source submitting an application for a permit to certify its compliance status with regards to all applicable requirements. On May 2, 2000, the County submitted a supplemental legal opinion supporting its application-based approach as a method resulting in a binding, legally enforceable compliance certification.

(2) Revise its regulations to ensure that sufficient operating permit fees are collected to fund the operating permit program and that these fees are used solely for operating permit program costs. The County responded by amending Section 14.5-37 of the Shelby County Air Pollution Code to provide that operating permit fees “shall be used exclusively for and be sufficient to pay the direct and indirect costs of the major stationary source operating permit program * * *” The amended code was submitted to EPA on May 2, 2000.

In addition to the operating permit program submittals that addressed the interim approval conditions, Tennessee submitted revisions to its operating permit fee rule on July 15, 1997, June 16, 1998, July 2, 1999, and August 21, 2000. As discussed in the Federal Register notice proposing interim approval of the Tennessee and Memphis-Shelby County operating permit programs (61 FR 9661, March 11, 1996), both the State and the County elected to assess operating permit fees below the federal presumptive minimum amount. To determine the fee amount each year, the State prepares a workload analysis and then conducts rulemaking if the fee rule needs to be changed. As a result of these workload analyses, the State has been able to reduce its fee amount each year. Copies of the workload analyses for the fiscal years 1996 through 2001 were submitted to EPA to justify the State's annual fee amounts. The State also submitted a fee program update on November 30, 1999, pursuant to 40 CFR 70.9(c), demonstrating the adequacy of its operating permit program. Memphis-Shelby County has not changed its annual fee amount since the operating permit program received interim approval in 1996. The County submitted a fee program update on October 11, 1999, pursuant to 40 CFR 70.9(c), demonstrating that its operating permit program is also being adequately funded.

What Is Involved in This Final Action?

The Tennessee Department of Environment and Conservation and the Memphis-Shelby County Health Department have fulfilled the conditions of the interim approval granted on July 29, 1996, and EPA is taking final action by this notice to fully approve the Tennessee and Memphis-Shelby County operating permit programs. EPA is also taking action to approve other program changes made by Tennessee since the interim approval was granted.

EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to grant final full approval should adverse comments be filed. This action will be effective May 21, 2001 unless the Agency receives adverse comments by April 19, 2001.

If EPA receives such comments, then EPA will withdraw the final rule and inform the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on May 21, 2001 and no further action will be taken on the proposed rule.

Administrative Requirements

A. Executive Order 12866

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

B. Executive Order 12988

As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 13084

Under Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

E. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or EPA consults with state and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts state law unless the Agency consults with state and local officials early in the process of developing the proposed regulation.

This final rule 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, because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

F. 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 part 70 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.

Moreover, due to the nature of the federal-state relationship under the CAA, preparation of a 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. (See Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).)

G. Unfunded Mandates

Under sections 202 of the Unfunded Mandates Reform Act of 1995, 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 approval action promulgated 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.

H. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit 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 United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. section 804(2).

I. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 21, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the 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).

J. 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. 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.

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

Dated: March 12, 2001.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

For reasons set out in the preamble, Appendix A of part 70 of title 40, chapter I, of the Code of Federal Regulations is amended as follows:

PART 70—[AMENDED]

1. The authority citation for part 70 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

2. Appendix A to part 70 is amended by adding paragraphs (f) and (j) in the entry for Tennessee to read as follows:

Appendix A to Part 70—Approval Status of State and Local Operating Permits Programs

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Tennessee

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(f) The Tennessee Department of Environment and Conservation submitted program revisions on July 15, 1997, June 16, 1998, February 5, 1999, February 24, 1999, March 5, 1999, June 16, 1999, July 2, 1999, November 30, 1999, December 30, 1999, and August 21, 2000. The rule revisions contained in the February 5, 1999, February 24, 1999, March 5, 1999, June 16, 1999, and December 30, 1999, submittals adequately addressed the conditions of the interim approval effective on August 28, 1996, and which would expire on December 1, 2001. The State's operating permit program is hereby granted final full approval effective on May 21, 2001.

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(j) The Memphis-Shelby County Health Department submitted program revisions on October 11, 1999 and May 2, 2000. The rule revisions contained in the May 2, 2000, submittal adequately addressed the conditions of the interim approval effective on August 28, 1996, and which would expire on December 1, 2001. The County's operating permit program is hereby granted final full approval effective on May 21, 2001.

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