[Federal Register Volume 62, Number 32 (Tuesday, February 18, 1997)]
[Rules and Regulations]
[Pages 7160-7163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3867]
[[Page 7160]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TN-178-1-9707a; FRL-5682-9]
Approval and Promulgation of Implementation Plans; Hamilton
County, TN
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving revisions to the Chattanooga-Hamilton County
portion of the Tennessee State Implementation Plan (SIP) to allow the
Chattanooga Hamilton County Air Pollution Control Bureau (CHCAPCB) to
issue Federally enforceable state operating permits (FESOP). EPA is
also approving the CHCAPCB's FESOP program pursuant to section 112 of
the Clean Air Act as amended in 1990 (CAA or ``the Act'') so that the
CHCAPCB may issue Federally enforceable state operating permits
containing limits for hazardous air pollutants (HAP).
DATES: This final rule will be effective April 21, 1997 unless adverse
or critical comments are received by March 20, 1997. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Written comments should be addressed to Kelly Fortin 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 docket number TN178-1,
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 & Radiation
Technology Branch, Atlanta Federal Center, 100 Alabama Street SW.,
Atlanta, Georgia 30303.
Tennessee Department of the Environment and Conservation, L&C Annex,
401 Church Street, Nashville, Tennessee, 37243-1531.
Chattanooga-Hamilton County Air Pollution Control Bureau, 3511
Rossville Boulevard, Chattanooga, Tennessee 37407-2495.
FOR FURTHER INFORMATION CONTACT: Kelly Fortin, Air & 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, 404-562-9117. Reference
file TN178-1.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
On December 15, 1995, the CHCAPCB, through the Tennessee Department
of Environment and Conservation, submitted a SIP revision to make
certain permits issued under the CHCAPCB'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 were
provided by the CHCAPCB to EPA on August 12, 1996. The CHCAPCB
requested approval of their synthetic minor source SIP provisions for
the purpose of limiting emission of HAPs on December 12, 1994.
EPA has always had and continues to have the authority to enforce
state and local permits which are issued under permit programs approved
into the SIP. However, EPA has not always recognized as valid certain
state and local 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 CHCAPCB 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 SIP revision that is the subject of this action approves
Sections 4-2, 4-3, 4-4, 4-8, 4-12, 4-16, 4-17, 4-18, and 4-19 of the
Chattanooga Air Pollution Control Ordinance (and identical language in
corresponding sections of the Hamilton County Air Pollution Control
Regulation and ordinances of the nine incorporated municipalities) into
the Hamilton County portion of the Tennessee SIP. In this action, EPA
is only approving that portion of the State's December 15, 1995 SIP
submittal for Chattanooga-Hamilton County that includes or is necessary
for the implementation of the CHCAPCB's FESOP program. The remaining
portion of the SIP submittal will be addressed in a separate action.
EPA has determined that the above referenced portion of the
submittal and the additional materials provided by the CHCAPCB satisfy
the five criteria outlined in the June 28, 1989, Federal Register
notice. Please refer to section II of this notice for the criteria upon
which this decision was based.
II. Analysis of the CHCAPCB Submittal
Criterion 1. The county'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.
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 a state
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. Chattanooga, Hamilton
County, and the nine municipalities have identical regulations for air
pollution control, except for codification, which are implemented by
the CHCAPCB. For convenience, in this document the Chattanooga
codification will be used.
On December 15, 1995 the CHCAPCB, through the Tennessee Department
of Environment and Conservation, submitted a SIP revision request to
EPA consisting of revisions to Section 4 of the Chattanooga Air
Pollution Control Ordinance (and corresponding sections of the Hamilton
County Air Pollution Control Regulation and ordinances of the nine
incorporated municipalities), amending the CHCAPCB's existing
stationary source requirements to include provisions to issue FESOPs.
This submittal is 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
[[Page 7161]]
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. Sections 4-3, 4-4 and
4-8 of the Chattanooga regulations meet this criterion.
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). Sections 4-2 and 4-8(c)(11)(c) of the Chattanooga regulations
meet this criterion.
Criterion 4. The limitations, controls, and requirements of the
state's operating permits must be permanent, quantifiable, and
otherwise enforceable as a practical matter. Section 4-8(c)(11)(d) of
the Chattanooga regulations meets this criterion.
Criterion 5. The state operating permits must be issued subject to
public participation. This means that the CHCAPCB agrees, as part of
their program, 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. Section 4-
8(c)(11)(g) of Chattanooga regulations meets this criterion.
A. Applicability to Hazardous Air Pollutants
CHCAPCB has also requested approval of their FESOP program 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 revision
discussed above only extends 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\ 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 that limits potential to emit for criteria pollutants pursuant
to section 110 are also appropriate for evaluating the validity of
permits that 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 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 CHCAPCB FESOP program so that the CHCAPCB 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 program submitted by the CHCAPCB contains
adequate authority to assure compliance with section 112 requirements
since the third criterion of the June 28, 1989, notice is met; that is
the CHCAPCB rules require that all requirements in the permits issued
under the authority of the operating permit program must be at least as
stringent as all other applicable Federally enforceable requirements.
Regarding the requirement for adequate resources, the CHCAPCB has
committed to provide for adequate resources to support their FESOP
program. EPA expects that resources will continue to be sufficient to
administer those portions of the minor source operating permit program
under which the subject permits will be issued, because the CHCAPCB has
administered a minor source operating permit program for a number of
years. However, EPA will monitor the implementation of the FESOP
program to ensure that adequate resources are in fact available.
EPA also believes that the CHCAPCB program provides for an
expeditious schedule which assures compliance with section 112
requirements. The program will be used to allow a source to establish a
voluntary limit on potential to emit to avoid being subject to a CAA
requirement applicable on a particular date. Nothing in the CHCAPCB
program would allow a source to avoid or delay compliance with a CAA
requirement applicable on a particular date. In addition, the CHCAPCB's
program would not 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 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
[[Page 7162]]
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. It should be
noted that a source that receives a Federally recognized operating
permit may still need a Title V operating permit if EPA promulgates a
MACT standard which requires non-major sources to obtain Title V
permits.
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 CHCAPCB's existing rules prior to the
effective date of today's rulemaking. If the CHCAPCB followed their own
regulations, then the 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 CHCAPCB 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 the CHCAPCB FESOP program. EPA is
publishing this action without prior proposal because the Agency views
this as a noncontroversial amendment and anticipates no adverse
comments. However, in a separate document in this Federal Register
publication, EPA is proposing to approve the SIP revision should
adverse or critical comments be filed. This action will be effective
April 21, 1997 unless, by March 20, 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 21, 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 21, 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
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 a
July 10 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. 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. section 7410(a)(2) and 7410(R)(3).
E. 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 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
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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.
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: January 23, 1997.
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)(148) to read
as follows:
Sec. 52.2220 Identification of plan.
* * * * *
(c) * * *
(148) Revisions to the Hamilton County portion of the Tennessee SIP
that approve the regulations for Hamilton County, the City of
Chattanooga, and the municipalities of East Ridge, Red Bank, Soddy-
Daisy, Signal Mountain, Lakesite, Walden, Collegedale, Lookout
Mountain, and Ridgeside--submitted by the Tennessee Department of
Environmental Protection on December 15, 1995.
(i) Incorporation by reference.
(A) Amendments to Sections 2, 3, 4, 6, 8, 12, and 16-19 of the
regulation known as the ``Hamilton County Air Pollution Control
Regulation,'' the ``Signal Mountain Air Pollution Control Ordinance,''
the ``Lakesite Municipal Code,'' the ``Walden Air Pollution Control
Ordinance,'' the ``Lookout Mountain Air Pollution Control Ordinance,''
and the ``Ridgeside Air Pollution Control Ordinance,'' submitted on
December 15, 1995 and adopted by Hamilton County on September 6, 1995
and by the following municipalities: Signal Mountain, adopted on
December 11, 1995; Lakesite, adopted on November 16, 1995; Walden,
adopted on December 12, 1995; Lookout Mountain, adopted on November 14,
1995; and Ridgeside, adopted on April 16, 1996.
(B) Amendments to Sections 4-2, 4-3, 4-4, 4-6, 4-8, 4-12, 4-16, 4-
17, 4-18, and 4-19 of the ``Chattanooga Air Pollution Control
Ordinance,'' as submitted on December 15, 1995 and adopted on August
16, 1995.
(C) Amendments to Sections 8-702, 8-703, 8-704, 8-706, 8-708, 8-
712, 8-716, 8-717, 8-718, and 8-719 of the ``East Ridge City Code,'' as
submitted on December 15, 1995 and adopted on September 28, 1995.
(D) Amendments to Sections 8-302, 8-303, 8-304, 8-306, 8-308, 8-
312, 8-316, 8-317, 8-318, and 8-319 of the ``Red Bank Municipal Code,''
as submitted on December 15, 1995 and adopted on November 7, 1995.
(E) Amendments to Sections 8-102, 8-103, 8-104, 8-106, 8-108, 8-
112, 8-116, 8-117, 8-818, and 8-119 of the ``Soddy-Daisy Municipal
Code,'' as submitted on December 15, 1995 and adopted on October 5,
1995.
(F) Amendments to Sections 8-502, 8-503, 8-504, 8-506, 8-508, 5-
512, 8-516, 8-517, 8-518, and 8-519 of the ``Collegedale Municipal
Code,'' as submitted on December 15, 1995 and adopted on October 2,
1995.
(ii) Other materials. None.
[FR Doc. 97-3867 Filed 2-14-97; 8:45 am]
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