Approval and Promulgation of Implementation Plans; Tennessee: Approval of Revisions to the Nashville-Davidson County Construction and Operation Permit Regulations for Minor Sources

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TN-146-1-7039a; FRL-5226-1]

Approval and Promulgation of Implementation Plans; Tennessee:

Approval of Revisions to the Nashville-Davidson County Construction and

Operation Permit Regulations for Minor Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving revisions to the Nashville-Davidson County

portion of the Tennessee State Implementation Plan (SIP) to allow

Nashville-Davidson County to issue Federally enforceable local

operating permits (FELOP). On November 16, 1994, Nashville-Davidson

County through the Tennessee Department of Environment and Conservation

(TDEC) submitted a SIP revision fulfilling the requirements necessary

for a FELOP program to become Federally enforceable. In order to extend

the Federal enforceability of the Nashville-Davidson County FELOP

program to hazardous air pollutants (HAP), EPA is also approving the

County's FELOP program pursuant to section 112 of the Clean Air Act as

amended in 1990 (CAA) so that the County may issue FELOP for HAP.

DATES: This final rule will be effective September 26, 1995 unless

adverse or critical comments are received by August 28, 1995. If the

effective date is delayed, timely notice will be published in the

Federal Register.

ADDRESSES: Written comments should be addressed to Gracy R. Danois, at

the EPA Regional Office listed below. Copies of the documents relative

to this action are available for public inspection during normal

business hours at the following locations. The interested persons

wanting to examine these documents 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),

[[Page 38713]]

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.

Tennessee Department of Environment and Conservation, Tennessee Air

Pollution Control Board, L & C Annex, 9th Floor, 401 Church Street,

Nashville, Tennessee 37243-1531.

Metropolitan Government of Nashville and Davidson County, Metropolitan

Health Department, Bureau of Environmental Health Services, 311 23rd

Avenue North, Nashville, Tennessee 37203.

FOR FURTHER INFORMATION CONTACT: Gracy R. Danois, Air Programs Branch,

Air, Pesticides & Toxics Management Division, Region 4 Environmental

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

The telephone number is 404/347-3555, extension 4150. Reference file

TN-146-1-7039.

SUPPLEMENTARY INFORMATION: On November 16, 1994, Nashville-Davidson

County through the TDEC submitted a SIP revision designed to make

certain permits issued under the County's existing minor source

operating permit program Federally enforceable pursuant to EPA

requirements as specified in a Federal Register notice, ``Requirements

for the preparation, adoption, and submittal of implementation plans;

air quality, new source review; final rules.'' (see 54 FR 22274, June

28, 1989). Nashville-Davidson County will continue to issue permits

which are not Federally enforceable under its existing minor source

operating permit rules as it has done in the past. The SIP revision,

which is the subject of this document, adds requirements to the

County's current minor source operating permit program, which allows

the County to issue FELOP. This voluntary SIP revision allows EPA and

citizens under the CAA to enforce terms and conditions of the

Nashville-Davidson County FELOP program. Operating permits that are

issued under the County's FELOP program that is approved into the

Nashville-Davidson County portion of the Tennessee SIP and under

section 112(l) will provide Federally enforceable limits to an air

pollution source's potential to emit. Limiting a source's potential to

emit through Federally enforceable operating permits can affect the

applicability of Federal regulations, such as title V operating

permits, New Source Review (NSR) preconstruction permits, Prevention of

Significant Deterioration (PSD) preconstruction permits for criteria

pollutants and federal air toxics requirements mandated under section

112 of the CAA, to a source.

In the aforementioned June 28, 1989, Federal Register document, EPA

listed five criteria necessary to make a State's 1 minor source

operating permit program Federally enforceable and, therefore,

approvable into the SIP. This revision satisfies the five criteria for

Federal enforceability of the Nashville-Davidson County FELOP program.

\1\ Various local air pollution programs operate air quality

programs under their own regulations which are approved into the

SIP. The reader should note that ``State'' operating permits

programs encompass those local programs with jurisdiction over only

part of a State as well as in Statewide programs.

---------------------------------------------------------------------------

The first criteria that must be met if a state's operating permit

program is to become Federally enforceable is that the permit program

must be approved into the SIP. On November 16, 1994, Nashville-Davidson

County submitted, through TDEC, a SIP revision designed to meet the

criteria for Federal enforceability. This action will approve these

regulations into the Nashville-Davidson County portion of the Tennessee

SIP, thereby, meeting the first criteria for Federal enforceability.

The second criteria for a state's operating permit program to

become Federally enforceable is that the regulations approved into the

SIP impose a legal obligation that operating permit holders adhere to

the terms and limitations of such permits. The regulations of

Nashville-Davidson County meet this criteria. The Metropolitan Code of

Law (M.C.L.) Section 10.56.040.F, Paragraph 1 requires the following:

The source must agree in writing to be bound by a permit which

specifies the more restrictive limit and to be subject to detailed

monitoring, reporting and recordkeeping requirements that prove the

source is in compliance with the applicable permit.

Hence, the second criteria for Federal enforceability is met.

The third criteria necessary for a state's operating permit program

to become Federally enforceable is that the state operating permit

program require that all emissions limitations, controls, and other

requirements imposed by such permits will be at least as stringent as

any other 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 Act). Nashville-Davidson County satisfies

this criteria with the inclusion of two regulations: M.C.L. Section

10.56.040.F, Paragraph 2, which requires that ``the permit limitations,

controls, and other requirements imposed by permits will be as

stringent as any other applicable limitations and requirements

contained in the SIP enforceable under the SIP'', and M.C.L. Section

10.56.040.D, which gives Nashville-Davidson County the authority to

specify other permit requirements in addition to those contained in

M.C.L. Section 10.56.040. Therefore, the County's regulations satisfy

the third criteria for Federal enforceability.

The fourth criteria for a state's operating permit program to

become Federally enforceable is that limitations, controls, and

requirements in the operating permits are quantifiable, and otherwise

enforceable as a practical matter. While a determination of what is

practically enforceable will generally differ based on process type and

emissions, the County has incorporated the requirements of the fourth

criteria described above under M.C.L. Section 10.56.040.F, Paragraph 3.

Therefore, the Nashville-Davidson County FELOP program satisfies the

fourth criteria for Federal enforceability.

The fifth criteria for a state's operating permit program to become

Federally enforceable requires that the permitting agency provide EPA

and the public with timely notice of the proposal and issuance of such

permits, and provide EPA, on a timely basis, with a copy of each draft

and final permit intended to be federally enforceable. This process

also must provide for an opportunity for public comment on the permit

applications prior to issuance of the final permit. Nashville-Davidson

County satisfies this criteria by including M.C.L. Section 10.56.040.F,

Paragraphs 4 and 5, which require the County to provide a 30 day public

comment period and to provide a copy of each draft and final permit to

the Administrator. EPA notes that any permit which has not gone through

an opportunity for public comment and EPA review in the Nashville-

Davidson County FELOP program will not be Federally enforceable.

In addition to requesting approval into the SIP, Nashville-Davidson

County has also requested approval of its FELOP program under Section

112(l) of the CAA for the purpose of creating Federally enforceable

limitations on the potential to emit of HAP through the issuance of

FELOP. Approval under section 112(l) is necessary because the proposed

SIP approval discussed above

[[Page 38714]]

only extends to the control of criteria pollutants. Federally

enforceable limits on criteria pollutants (e.g., VOC's or PM-10) may

have the incidental effect of limiting certain HAP listed pursuant to

section 112(b).2 However, section 112 of the Act provides the

underlying authority for controlling all HAP emissions.

\2\ The EPA intends to issue guidance addressing the technical

aspects of how these criteria pollutant limits may be recognized for

purposes of limiting a source's potential to emit of HAP to below

112 major source levels.

---------------------------------------------------------------------------

EPA believes that the five approval criteria for approving FELOP

programs into the SIP, as specified in the June 28, 1989, Federal

Register document, are also appropriate for evaluating and approving

the program under section 112(l). 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.

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

a state 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 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 currently

anticipates that these regulatory criteria, as they apply to FELOP

programs, will mirror those set forth in the June 28, 1989, document.

The EPA currently anticipates that since 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 the potential to emit of HAP directly under section

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

the 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 potential to emit

prior to promulgation of a rule specifically addressing this issue. EPA

is therefore approving the Nashville-Davidson County FELOP program so

that the County may begin to issue FELOP as soon as possible.

EPA believes that the Nashville-Davidson County FELOP program meets

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

document and in section 112(l)(5) of the CAA. As discussed previously

in this document, the Nashville-Davidson County FELOP program meets the

five criteria necessary for Federal enforceability.

EPA believes that the Nashville-Davidson County FELOP program

contains adequate authority to assure compliance with section 112(l)(5)

requirements. The program meets the third criterion of the June 28,

1989, document because the program does not permit any section 112

requirement to be waived. Sources that become minor through a permit

issued pursuant to this program would still be required to meet the

section 112 requirements applicable to nonmajor sources.

EPA believes that Nashville-Davidson County has demonstrated that

it can provide adequate resources to support the FELOP program. EPA

expects that resources will continue to be adequate to administer the

portion of the County's minor source operating permit program under

which FELOP will be issued, since Nashville-Davidson County has

administered a minor source operating permit program for several years.

EPA will monitor the County's implementation of its FELOP to ensure

that adequate resources are in fact available. EPA also believes that

the Nashville-Davidson County FELOP program provides 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 potential to emit to avoid being subject to a CAA requirement

applicable on a particular date. Nothing in the Nashville-Davidson

County FELOP program 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 potential to

emit.

With the addition of these provisions, the Nashville-Davidson

County FELOP program satisfies all the requirements listed in the June

28, 1989, Federal Register document. EPA is approving this revision to

the Nashville-Davidson County portion of the Tennessee SIP thus making

the County's FELOP program Federally enforceable.

Final Action

In this action, EPA is approving the Nashville-Davidson County

FELOP program. EPA is publishing this action without prior proposal

because the Agency views this as a noncontroversial amendment and

anticipates no adverse comments. However, in a separate document in

this Federal Register publication, EPA is proposing to approve the SIP

revision should adverse or critical comments be filed. This action will

be effective September 26, 1995 unless, by August 28, 1995, 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 September 26, 1995.

The Agency has reviewed this request for revision of the federally-

approved SIP for conformance with the provisions of the 1990 Amendments

enacted on November 15, 1990. EPA has determined that this action

conforms with those requirements.

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 26, 1995.

Filing a petition for reconsideration by the Administrator of

[[Page 38715]]

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).)

The Office of Management and Budget has exempted this action from

review under Executive Order 12866.

Nothing in this action shall be construed as permitting or allowing

or establishing a precedent for any future request for a revision to

any SIP. Each request for revision to the SIP shall be considered

separately in light of specific technical, economic, and environmental

factors and in relation to relevant statutory and regulatory

requirements.

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 the federal SIP-

approval 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).

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector, or to

State, local, or tribal governments in the aggregate.

Through submission of this state implementation plan revision, the

State and any affected local or tribal governments have elected to

adopt the program provided for under Section 112(l) of the Clean Air

Act. These rules may bind State, local and tribal governments to

perform certain actions and also require the private sector to perform

certain duties. To the extent that the rules being approved by this

action would impose no new requirements; such sources are already

subject to these regulations under State law. Accordingly, no

additional costs to State, local, or tribal governments, or to the

private sector, result from this action. EPA has also determined that

this final action does not include a mandate that may result in

estimated costs of $100 million or more to State, local, or tribal

governments in the aggregate or to the private sector.

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: June 23, 1995.

Patrick M. Tobin,

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)(130) to read

as follows:

Sec. 52.2220 Identification of plan.

* * * * *

(c) * * *

(130) Revisions to minor source operating permit rules for

Nashville-Davidson County submitted by the Tennessee Department of

Environment and Conservation on November 16, 1994.

(i) Incorporation by reference.

(A) Metropolitan Code of Law (M.C.L.) Chapter 10.56, Section 040,

Paragraph F, effective October 4, 1994.

(ii) Other material. None.

[FR Doc. 95-18518 Filed 7-27-95; 8:45 am]

BILLING CODE 6560-50-P