Approval of Existing Federally Enforceable State and Local Operating Permit Programs To Limit Potential To Emit for Hazardous Air Pollutants; State of Alabama; Knox County, Tennessee

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-5260-3]

Approval of Existing Federally Enforceable State and Local

Operating Permit Programs To Limit Potential To Emit for Hazardous Air

Pollutants; State of Alabama; Knox County, Tennessee

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On January 25, 1995, the State of Alabama through the Alabama

Department of Environmental Management (ADEM) submitted a letter

requesting approval of the State's existing Federally enforceable state

operating permits (FESOP) program under section 112(l) of the Clean Air

Act as amended in 1990 (CAA). On February 6, 1995, Knox County,

Tennessee through the Knox County Department of Air Pollution Control

(KCDAPC) submitted a letter requesting approval of the County's

exisiting Federally enforceable local operating permits (FELOP) program

under section 112(l) of the CAA. The two agencies submitted these

requests to provide each Agency the ability to issue Federally

enforceable operating permits to hazardous air pollutant (HAP) sources

regulated under section 112 of the CAA. EPA is approving both of these

requests under section 112(l) of the CAA for purposes of limiting PTE

for HAP sources.

DATES: This action will be effective by September 22, 1995 unless

notice is received by August 23, 1995 that someone wishes to submit

adverse or critical comments. If the effective date is delayed, timely

notice will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to Scott Miller at the

EPA Regional office listed below.

Copies of the material submitted by both agencies may be examined

during normal business hours at the following locations:

Air and Radiation Docket and Information Center (Air Docket 6102), U.S.

Environmental Protection Agency, 401 M Street SW., Washington, DC

20460.

Environmental Protection Agency, Region 4, Air Programs Branch, 345

Courtland Street NE., Atlanta, Georgia 30365.

Alabama Department of Environmental Management, Air Division, 1751

Congressman W.L. Dickinson Drive, Montgomery, Alabama 36109.

Knox County Department of Air Pollution Control, City/County Building,

Suite 339, 400 West Main Street, Knoxville, Tennessee 37902.

FOR FURTHER INFORMATION CONTACT: Scott Miller, Air Programs Branch,

Air, Pesticides & Toxics Management Division, Region 4 Environmental

Protection Agency, 345 Courtland Street NE., Atlanta, Georgia 30365.

The telephone number is 404/347-2864.

SUPPLEMENTARY INFORMATION: On June 28, 1989 (54 FR 27274), EPA

published criteria for approving and incorporating into the SIP

regulatory programs for the issuance of FESOP and FELOP. Permits issued

pursuant to an operating permit program approved into the SIP as

meeting these criteria may be considered Federally enforceable. EPA has

encouraged states and local agencies to develop such FESOP and FELOP

[[Page 37826]]

programs in conjunction with title V operating permits programs to

enable sources to limit their PTE to below the title V applicability

thresholds. (See the guidance document entitled, ``Limitation of

Potential to Emit with Respect to Title V Applicability Thresholds,''

dated September 18, 1992, from John Calcagni, Director, Air Quality

Management Division, Office of Air Quality Planning and Standards

(OAQPS), Office of Air and Radiation, U.S. EPA.) On November 3, 1993,

the EPA announced in a guidance document entitled, ``Approaches to

Creating Federally Enforceable Emissions Limits,'' signed by John S.

Seitz, Director, OAQPS, that this mechanism could be extended to create

Federally enforceable limits for emissions of HAP if the program were

approved pursuant to section 112(l) of the CAA.

EPA believes that the five approval criteria for approving FESOP

and FELOP programs into the SIP, as specified in the June 28, 1989,

Federal Register document, are also appropriate for evaluating and

approving the programs under section 112(l) of the CAA. The June 28,

1989, document does not address HAP because it was written prior to the

1990 amendments to section 112, not because it establishes requirements

unique to criteria pollutants. Hence, the following five criteria are

applicable to FESOP and FELOP approvals under section 112(l): (1) The

program must be submitted to and approved by the EPA; (2) The program

must impose a legal obligation on the operating permit holders to

comply with the terms and conditions of the permit, and permits that do

not conform with the June 28, 1989, criteria or the EPA's underlying

regulations shall be deemed not Federally enforceable; (3) The program

must contain terms and conditions that are at least as stringent as any

requirements contained in the SIP, enforceable under the SIP, or any

section 112 or other CAA requirement, and may not allow for the waiver

of any CAA requirement; (4) Permits issued under the program must

contain conditions that are permanent, quantifiable, and enforceable as

a practical matter; and (5) Permits that are intended to be Federally

enforceable must be issued subject to public participation and must be

provided to EPA in proposed form on a timely basis.

In addition to meeting the criteria in the June 28, 1989, document,

a FESOP or FELOP program that addresses HAP must meet the statutory

criteria for approval under section 112(l)(5). Section 112(l) allows

EPA to approve a program only if it: (1) contains adequate authority to

assure compliance with any section 112 standards or requirements; (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 CAA.

EPA plans to codify the approval criteria for programs limiting

potential to emit of HAP, such as FESOP and FELOP programs, through

amendments to Subpart E of Part 63, the regulations promulgated to

implement section 112(l) of the CAA. (See 58 FR 62262, November 26,

1993.) EPA further anticipates that these regulatory criteria, as they

apply to FESOP and FELOP programs, will mirror those set forth in the

June 28, 1989, document. EPA further anticipates that since FESOP and

FELOP programs approved pursuant to section 112(l) prior to the planned

Subpart E revisions will have been approved as meeting these criteria,

further approval actions for those programs will not be necessary.

EPA believes it has authority under section 112(l) to approve

programs to limit PTE of HAP directly under section 112(l) prior to

this revision to Subpart E. Section 112(l)(5) requires EPA to

disapprove programs that are inconsistent with guidance required to be

issued under section 112(l)(2). This might be read to suggest that the

``guidance'' referred to in section 112(l)(2) was intended to be a

binding rule. Even under this interpretation, EPA does not believe that

section 112(l) requires this rulemaking to be comprehensive. That is,

it need not address every possible instance of approval under section

112(l). EPA has already issued regulations under section 112(l) that

would satisfy any section 112(l)(2) requirement for rulemaking. Given

the severe timing problems posed by impending deadlines set forth in

``maximum achievable control technology'' (MACT) emission standards

under section 112 and for submittal of title V permit applications, EPA

believes it is reasonable to read section 112(l) to allow for approval

of programs to limit PTE prior to promulgation of a rule specifically

addressing this issue. EPA is therefore approving the Alabama FESOP

program and the Knox County FELOP program under section 112(l) of the

CAA now so that these agencies may begin to issue permits limiting the

PTE of HAP as soon as possible.

The Alabama FESOP program and the Knox County FELOP program meet

the approval criteria specified in the June 28, 1989, Federal Register

document and in section 112(l)(5) of the Act. Specific discussion of

how Alabama's FESOP program meets the requirements for Federal

enforceability may be found in the Federal Register document approving

Alabama's FESOP program for criteria pollutant purposes. See 59 FR

52947. Specific discussion of how Knox County's FELOP program meets the

requirements for Federal enforceability may be found in the Federal

Register notice approving Knox County's FELOP program for criteria

pollutant purposes. See 59 FR 54523.

Regarding the statutory criteria of section 112(l)(5) referred to

above, EPA believes that the Alabama FESOP program and the Knox County

FELOP program contain adequate authority to assure compliance with

section 112 requirements because the third criterion of the June 28,

1989, document is met, that is, because the programs do not allow for

the waiver of any section 112 requirement. Sources that become minor

through a permit issued pursuant to this program would still be

required to meet section 112 requirements applicable to non-major

sources.

Regarding the requirement for adequate resources, EPA believes that

Alabama and Knox County have demonstrated that ADEM and KCDAPC can

provide for adequate resources to support the administration of both

programs. EPA expects that resources will continue to be adequate to

administer the Alabama FESOP program and the Knox County FELOP program

since ADEM and KCDAPC have been administering operating permit programs

for a number of years. EPA will monitor the implementation of both

programs to ensure that adequate resources are in fact available. EPA

also believes that the two programs provide for an expeditious schedule

for assuring compliance with section 112 requirements. This program

will be used to allow a source to establish a voluntary limit on PTE to

avoid being subject to a CAA requirement applicable on a particular

date. Nothing in either of these programs would allow a source to avoid

or delay compliance with a CAA requirement if it fails to obtain an

appropriate Federally enforceable limit by the relevant deadline.

Finally, EPA believes it is consistent with the intent of section 112

and the CAA for states to provide a mechanism through which sources may

avoid classification as a major source by obtaining a Federally

enforceable limit on PTE.

Final Action

In this action, EPA is approving the use of Alabama's FESOP program

for the issuance of FESOP for HAP regulated under section 112 of the

CAA. EPA is also approving the use of Knox County's

[[Page 37827]]

FELOP program for the issuance of FELOP for HAP regulated under section

112 of the CAA. EPA is publishing this action without prior proposal

because the EPA 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 September 22, 1995 unless within 30 days of its

publication, adverse or crtitcal 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 September 22, 1995.

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 September

22, 1995. 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).)

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 today does

not include a Federal mandate that may result in estimated costs of

$100 million or more to State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

Federal requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

The Office of Management and Budget has exempted this action from

review under Executive Order 12866.

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.

Dated: June 23, 1995.

Patrick M. Tobin,

Acting Regional Administrator.

[FR Doc. 95-17615 Filed 7-21-95; 8:45 am]

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