Clean Air Act Proposed Full Approval, or in the Alternative, Proposed Interim Approval of Operating Permits Program; Metropolitan Health Department, Metropolitan Government of Nashville and Davidson County, TN

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[TN-NASH-95-01; FRL-5313-6]

Clean Air Act Proposed Full Approval, or in the Alternative,

Proposed Interim Approval of Operating Permits Program; Metropolitan

Health Department, Metropolitan Government of Nashville and Davidson

County, TN

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed full approval, or proposed interim approval in the

alternative.

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SUMMARY: The EPA proposes full approval of the operating permits

program submitted by the State of Tennessee on behalf of the

Metropolitan Health Department (``Nashville-Davidson County'' or ``the

County''), located in the geographic area of Nashville-Davidson County.

Alternatively, EPA proposes to grant interim approval if specified

changes are not adopted prior to final promulgation of this rulemaking.

Nashville-Davidson County's program was submitted for the purpose of

complying with Federal requirements which mandate that states or local

authorities develop, and submit to EPA, programs for issuing operating

permits to all major stationary sources, and to certain other sources.

[[Page 52891]]

DATES: Comments on this proposed action must be received in writing by

November 13, 1995.

ADDRESSES: Written comments on this action should be addressed to Carla

E. Pierce, Chief, Air Toxics Unit/Title V Program Development Team, Air

Programs Branch, at the EPA Region 4 office listed below. Copies of the

Nashville-Davidson County submittal and other supporting information

used in developing the proposed full/interim approval are available for

inspection during normal business hours at the following location: U.S.

Environmental Protection Agency, Region 4, 345 Courtland Street, NE,

Atlanta, GA 30365.

FOR FURTHER INFORMATION CONTACT: Gracy R. Danois, Title V Program

Development Team, Air Programs Branch, Air Pesticides & Toxics

Management Division, U.S. Environmental Protection Agency, Region 4,

345 Courtland Street, NE, Atlanta, GA 30365, (404) 347-3555, extension

4150.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

As required under title V of the Clean Air Act (``the Act'') as

amended by the 1990 Clean Air Act Amendments, EPA promulgated rules on

July 21, 1992 (57 FR 32250) that define the minimum elements of an

approvable state or local operating permits program and the

corresponding standards and procedures by which the EPA will approve,

oversee, and withdraw approval of state or local agency operating

permits programs. These rules are codified at 40 Code of Federal

Regulations (CFR) part 70. Title V and part 70 require states or

authorized local agencies to develop, and submit to EPA, programs for

issuing operating permits to all major stationary sources and to

certain other sources.

The Act requires that states or authorized local agencies develop

and submit these programs to EPA by November 15, 1993, and that EPA act

to approve or disapprove each program within one year after receiving

the submittal. If the state or authorized local agency submission is

materially changed during the one year review period, 40 CFR 70.4(e)(2)

allows EPA to extend the review period for no more than one year

following receipt of the additional material. EPA received the

Nashville-Davidson County title V operating permit program submittal on

November 13, 1993. Nashville-Davidson County provided EPA with

additional material in supplemental submittals dated April 19, 1994,

September 27, 1994, and December 28, 1994. Because these supplements

materially changed the County's title V program submittal, EPA extended

the one-year review period.

EPA's program review occurs pursuant to Section 502 of the Act and

the part 70 regulations, which together outline criteria for approval

or disapproval. Where a program substantially, but not fully, meets the

requirements of part 70, EPA may grant the program interim approval for

a period of up to two years. If EPA has not fully approved a program by

November 15, 1995, or by the end of an interim program, it must

establish and implement a Federal operating permits program for that

State or local agency.

II. Proposed Action and Implications

A. Analysis of the Nashville-Davidson County Submission

The Metropolitan Health Department has requested full approval of

its title V operating permits program, which covers the geographic area

of Nashville-Davidson County within the State of Tennessee. EPA has

concluded that the operating permit program submitted by the County

meets the requirements of title V and part 70, and proposes to grant

full/interim approval to the program. For detailed information on the

analysis of the Nashville-Davidson County submission, please refer to

the Technical Support Document (TSD) contained in the docket at the

address noted above.

1. Program Support Materials

Pursuant to section 502(d) of the Act, each state or local

authority must develop and submit to the Administrator an operating

permits program under state or local law or under an interstate compact

meeting the requirements of title V of the Act. On November 13, 1993,

the Tennessee Department of Environment and Conservation (TDEC)

requested, under the signature of the Tennessee Governor's designee,

approval of the Nashville-Davidson County operating permit program with

full authority to administer the program in all areas of the County.

The County has been delegated authority to implement part 70 under

Tennessee law (Tennessee Code Annotated (TCA), section 68-25-115). The

TDEC supplemented the County's program submittal on April 19, 1994,

September 27, 1994, and December 28, 1994.

The Nashville-Davidson County submittal addresses, in Section 70.4

entitled ``State Program Submittal and Transition,'' the requirements

of 40 CFR 70.4(b)(1) by describing how the County intends to carry out

its responsibilities under the part 70 regulations. EPA has deemed the

program description to be sufficient for meeting the requirements of 40

CFR 70.4(b)(1).

Pursuant to 40 CFR 70.4(b)(3), each state or local authority is

required to submit a legal opinion from the Attorney General (or the

attorney for the state or local air pollution control agency that has

independent legal counsel) demonstrating adequate authority to carry

out all aspects of the title V operating permits program. The

Metropolitan Government of Nashville and Davidson County submitted a

Legal Opinion demonstrating adequate legal authority as required by

Federal law and regulation.

Section 70.4(b)(4) requires the submission of relevant permitting

program documentation not contained in the regulations, such as permit

application forms, permit forms, and relevant guidance to assist in the

County's implementation of its permit program. Appendix 5 of the

Nashville-Davidson County submittal includes the permit application

forms, permit forms, and other relevant guidance that the County

intends to use for the implementation of its permit program. EPA has

determined that the application forms meet the requirements of 40 CFR

70.5(c).

2. Regulations and Program Implementation

Nashville-Davidson County developed Regulation No. 13 for the

implementation of the substantive requirements of 40 CFR part 70. The

County also made changes to Chapter 10.56 of the Metropolitan Code of

Law (M.C.L.) to implement other part 70 requirements. These provisions,

and several other rules and statutes providing for the County's

permitting and administrative actions, were submitted by Nashville-

Davidson County with sufficient evidence of procedurally correct

adoption as required by 40 CFR 70.4(b)(2).

The Nashville-Davidson County program, in sections 13.2, 13.3 of

Regulation No. 13, and M.C.L. section 10.56.10, meets the requirements

of 40 CFR 70.2 and 70.3 with regard to applicability. Sections 13.3,

13.4 and 13.5 of Regulation No. 13, meet the requirements of 40 CFR

70.4, 70.5, and 70.6 for permit content (including operational

flexibility) and complete permit application forms. The County's

program does not provide for off-permit changes as described in 40 CFR

70.4(b)(14).

[[Page 52892]]

Section 70.4(b)(2) requires states or local agencies to include any

criteria used to determine insignificant activities or emission levels

for the purpose of determining complete applications. Section 70.5(c)

states that an application for a part 70 permit may not omit

information needed to determine the applicability of, or to impose, any

applicable requirement, or to evaluate appropriate fee amounts. Section

70.5(c) also states that EPA may approve, as part of a state or local

program, a list of insignificant activities and emissions levels which

need not be included in permit applications. Under part 70, a state or

local agency must request and EPA may approve as part of a state or

local program any activities or emission levels that they wish to

consider insignificant. Part 70, however, does not establish emissions

thresholds for insignificant activities. EPA has accepted emissions

thresholds of five tons per year for criteria pollutants, and the

lesser of 1000 pounds per year or section 112(g) de minimis levels for

HAP, as reasonable.

The provisions addressing the insignificant activities list of

Nashville-Davidson County can be found in M.C.L. section 10.56.050.

This section provides for the exemption of certain emissions units or

pollutant-emitting activities from the title V permitting process. As

required by 40 CFR 70.5(c), the County proposed revisions to M.C.L.

section 10.56.050 on July 29, 1995, to ensure that information needed

to determine the applicability of, or to impose, any applicable

requirement, or to collect any permit fees is not excluded from the

application. Specifically the new provision, M.C.L. section

10.56.050(F), will read as follows: ``Notwithstanding any exemptions in

this Section, any application submitted in accordance with Section

10.56.020 and Section 10.50.040 of this Chapter shall include all

emission sources and quantify emissions if needed to determine major

source status, to determine compliance with an applicable requirement

and/or the applicability of any applicable requirement such as a NSPS,

NESHAPS, or MACT standard, etc., or in [the] calculation [of] permit

fees in accordance with Section 10.56.080.''

EPA has determined that the proposed provision is acceptable and,

as a condition of full approval, the County plans to expeditiously

adopt the proposed changes prior to EPA's final action on the County's

program.

Part 70 requires prompt reporting of deviations from the permit

requirements. The contents of 40 CFR 70.6(a)(3)(iii)(B) require the

permitting authority to define ``prompt'' in relation to the degree and

type of deviation likely to occur and the applicable requirements.

Although the permit program regulations should define ``prompt'' for

purposes of administrative efficiency and clarity, an acceptable

alternative is to define ``prompt'' in each individual permit. EPA

believes that ``prompt'' should generally be defined as requiring

reporting within two to ten days of the deviation. Two to ten days is

sufficient time in most cases to protect public health and safety as

well as to provide a forewarning of potential problems. For sources

with a low level of excess emissions, a longer time period may be

acceptable. However, prompt reporting must be more frequent than the

semiannual reporting requirement, given this is a distinct reporting

obligation under 40 CFR 70.6(a)(3)(iii)(A). Where ``prompt'' is defined

in the individual permit but not in the program regulations, EPA may

veto permits that do not require sufficiently prompt reporting of

deviations. Nashville-Davidson County has proposed to define ``prompt''

in section 13.4 of Regulation No. 13.

Nashville-Davidson County has the authority to issue variances from

requirements imposed by local law under M.C.L. section 10.56.130. EPA

regards this provision as wholly external to the program submitted for

approval under part 70, and consequently proposes to take no action on

this provision of local law. EPA has no authority to approve provisions

of local law, such as the variance provision referred to, that are

inconsistent with title V. EPA does not recognize the ability of a

permitting authority to grant relief from the duty to comply with a

Federally enforceable part 70 permit, except where such relief is

granted through the procedures allowed by part 70. A part 70 permit may

be issued or revised (consistent with part 70 permitting procedures) to

incorporate those terms of a variance that are consistent with

applicable requirements. A part 70 permit may also incorporate, via

part 70 permit issuance or modification procedures, the schedule of

compliance set forth in a variance. However, EPA reserves the right to

pursue enforcement of applicable requirements notwithstanding the

existence of a compliance schedule in a permit to operate. This is

consistent with 40 CFR 70.5(c)(8)(iii)(C), which states that a schedule

of compliance ``shall be supplemental to, and shall not sanction

noncompliance with, the applicable requirements on which it is based.''

Sections 13.5 and 13.6 of Regulation No. 13 in the Nashville-

Davidson County program meet the permit processing requirements

(including public participation and minor permit modifications) of 40

CFR 70.7 and 70.8. Sections 90 and 150 of M.C.L. Chapter 10.56 and

T.C.A. 68-210-112 address the enforcement authority requirements of 40

CFR 70.11.

The aforementioned TSD contains the detailed analysis of the

Nashville-Davidson County program and describes the manner in which the

County's program meets all of the operating permit program requirements

of 40 CFR part 70.

3. Permit Fee Demonstration

Section 502(b)(3) of the Act requires each permitting authority to

collect fees sufficient to cover all reasonable direct and indirect

costs necessary for the development and administration of its title V

operating permit program. Each title V program submittal must contain

either a detailed demonstration of fee adequacy or a demonstration that

aggregate fees collected from title V sources meet or exceed $25 per

ton of emissions per year (adjusted from 1989 by the Consumer Price

Index (CPI)). The $25 per ton is presumed, for program approval, to be

sufficient to cover all reasonable program costs and is thus referred

to as the ``presumptive minimum.''

Nashville-Davidson County has elected to adopt the ``presumptive

minimum'' of $25/ton (annually adjusted by the CPI) for each regulated

pollutant. The fee demonstration included in the program submittal

indicates that the fees collected will adequately cover the anticipated

costs of the operating permit program.

4. Provisions Implementing the Requirements of Other Titles of the Act

a. Authority for Section 112 Implementation. In its program

submittal, Nashville-Davidson County demonstrates adequate legal

authority to implement and enforce all Section 112 requirements through

the title V permit. This legal authority is contained in M.C.L. section

10.56.210, and in section 13.1 of Regulation No. 13 where the term

``applicable requirements'' is defined. EPA has determined that this

legal authority is sufficient to allow the local agency to issue

permits that assure compliance with all section 112 requirements.

EPA is interpreting the above legal authority to mean that

Nashville-Davidson County is able to carry out all section 112

activities with respect to part 70 and non-part 70 sources. For

[[Page 52893]]

further rationale on this interpretation, please refer to the TSD.

b. Implementation of Section 112(g) Upon Program Approval. EPA

issued an interpretive notice on February 14, 1995 (60 FR 8333), which

outlines EPA's revised interpretation of section 112(g) applicability.

The notice postpones the effective date of section 112(g) until after

EPA has promulgated a rule addressing that provision. The notice sets

forth in detail the rationale for the revised interpretation.

The section 112(g) interpretative notice explains that EPA is

considering whether the effective date of section 112(g) should be

delayed beyond the date of promulgation of the Federal rule so as to

allow states time to adopt rules implementing the Federal rule, and

that EPA will provide for any such additional delay in the final

section 112(g) rulemaking. Unless and until EPA provides for such an

additional postponement of section 112(g), Nashville-Davidson County

must have a Federally enforceable mechanism for implementing section

112(g) during the period between promulgation of the Federal section

112(g) rule and adoption of implementing local regulations.

EPA is aware that Nashville-Davidson County lacks a program

designed specifically to implement section 112(g). However, the County

does have a preconstruction review program that can serve as an

adequate implementation vehicle during the transition period because it

would allow the County to select control measures that would meet the

maximum achievable control technology (MACT), as defined in section

112, and incorporate these measures into a Federally enforceable

preconstruction permit. For this reason, EPA proposes to approve the

use of Nashville-Davidson County's preconstruction review program found

in M.C.L. section 10.56.020, under the authority of title V and part

70, solely for the purpose of implementing section 112(g) to the extent

necessary during the transition period between section 112(g)

promulgation and adoption of a local rule implementing EPA's section

112(g) regulations. Although section 112(l) generally provides

authority for approval of local air programs to implement section

112(g), title V and section 112(g) provide for this limited approval

because of the direct linkage between the implementation of section

112(g) and title V. The scope of this approval is narrowly limited to

section 112(g) and does not confer or imply approval for purpose of any

other provision under the Act (e.g., section 110). This approval will

be without effect if EPA decides in the final section 112(g) rule that

sources are not subject to the requirements of the rule until local

regulations are adopted. The duration of this approval is limited to 18

months following promulgation by EPA of the section 112(g) rule to

provide adequate time for the County to adopt regulations consistent

with the Federal requirements.

c. Program for Delegation of Section 112 Standards as Promulgated.

The requirements for part 70 program approval, specified in 40 CFR

70.4(b), encompass section 112(l)(5) requirements for approval of a

state or local program for delegation of section 112 standards

promulgated by EPA as they apply to title V sources. Section 112(l)(5)

requires that the County's program contain adequate authorities,

adequate resources for implementation, and an expeditious compliance

schedule, which are also requirements under part 70. Therefore, EPA

also proposes to grant approval, under section 112(l)(5) and 40 CFR

63.91, of Nashville-Davidson County's program for receiving delegation

of future section 112 standards and programs that are unchanged from

the Federal rules as promulgated. In addition, EPA proposes delegation

of all existing standards and programs under 40 CFR parts 61 and 63 for

part 70 sources and non-part 70 sources.1

\1\The radionuclide National Emission Standards for Hazardous

Air Pollutant (NESHAP) is a section 112 regulation and therefore,

also an applicable requirement under the State operating permits

program for part 70 sources. There is not yet a Federal definition

of ``major'' for radionuclide sources. Therefore, until a major

source definition for radionuclide is promulgated, no source would

be a major section 112 source solely due to its radionuclide

emissions. However, a radionuclide source may, in the interim, be a

major source under part 70 for another reason, thus requiring a part

70 permit. EPA will work with the State in the development of its

radionuclide program to ensure that permits are issued in a timely

manner.

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Nashville-Davidson County has informed EPA that it intends to

accept the delegation of future section 112 standards using the

mechanism of adoption-by-reference. The details of the County's use of

its delegation mechanism are set forth in a letter dated December 28,

1994, submitted by the County as a title V program addendum.

d. Commitment to Implement Title IV of the Act. Nashville-Davidson

County adopted and incorporated by reference the provisions of 40 CFR

part 72. On March 29, 1995, EPA published a Federal Register notice (60

FR 16127) notifying affected sources that the County's acid rain

regulation was acceptable for purposes of administering an acid rain

program and that the Nashville-Davidson County acid rain portion of the

County's title V program has been established. Nashville-Davidson

County has committed to incorporate by reference any new or revised

provisions following promulgation by EPA.

B. Proposed Actions

1. Full Approval

The EPA is proposing full approval of the operating permits program

submitted by Nashville-Davidson County on November 12, 1993, and as

supplemented on April 19, 1994, September 27, 1994, and December 28,

1994, if appropriate revisions consistent with 40 CFR 70.5(c) are

incorporated in M.C.L. section 10.56.050, and adopted prior to final

promulgation of this rulemaking. EPA has determined that the Nashville-

Davidson County program is otherwise adequate to meet the minimum

elements of an approvable operating permits program as specified in 40

CFR part 70.

2. Interim Approval

Alternatively, EPA is proposing to grant interim approval under 40

CFR 70.4(d) to the Nashville-Davidson County operating permits program

if the change required for full approval, as described above, is not

made prior to final promulgation of this rulemaking. EPA can grant

interim approval because Nashville-Davidson County's program

substantially meets the requirements of part 70 as discussed in section

II(A) of this notice. The interim approval issue noted above will not

prevent the County from issuing permits that are consistent with the

part 70 program.

If EPA grants interim approval to the Nashville-Davidson County

program, the interim approval would extend for two years following the

effective date of final interim approval, and could not be renewed.

During the interim approval period, Nashville-Davidson County would be

protected from sanctions, and EPA would not be obligated to promulgate,

administer and enforce a Federal permits program for Nashville-Davidson

County. Permits issued under a program with interim approval are fully

effective with respect to part 70. The 12-month time period for

submittal of permit applications by sources subject to part 70

requirements and the three-year time period for processing the initial

permit applications begin upon the effective date of final interim

approval.

Following the granting of final interim approval, if Nashville-

Davidson County fails to submit a complete corrective program for full

approval by the date six months before expiration of the interim

[[Page 52894]]

approval, EPA would start an 18-month clock for mandatory sanctions. If

Nashville-Davidson County then fails to submit a corrective program

that EPA finds complete before the expiration of that 18-month period,

EPA is required to apply one of the sanctions in section 179(b) of the

Act, which will remain in effect until EPA determines that Nashville-

Davidson County has corrected the deficiency by submitting a complete

corrective program.

3. Other Actions

As discussed previously in section II.A.4.b., EPA proposes to

approve Nashville-Davidson County's preconstruction review program

found in M.C.L. section 10.56.020, under the authority of title V and

part 70 solely for the purpose of implementing section 112(g) to the

extent necessary during the transition period between 112(g)

promulgation and adoption of a local rule implementing EPA's section

112(g) regulations.

In addition, as discussed in section II.A.4.c., EPA proposes to

grant approval under section 112(l)(5) and 40 CFR 63.91 to the County's

program for receiving delegation of section 112 standards and programs

that are unchanged from Federal rules as promulgated. EPA also proposes

to delegate all existing standards under 40 CFR parts 61 and 63. This

program for delegation applies to both part 70 and non-part 70 sources.

III. Administrative Requirements

A. Request for Public Comments

The EPA is requesting comments on all aspects of this proposed

full/interim approval. Copies of the Nashville-Davidson County

submittal and other information relied upon for the proposed approval

are contained in docket number TN-NASH-95-01 maintained at the EPA

Regional 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/interim approval. The principal

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 EPA will

consider any comments received by November 13, 1995.

B. Executive Order 12866

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

C. Regulatory Flexibility Act

The EPA's actions under section 502 of the Act do not create any

new requirements, but simply address operating permits programs

submitted to satisfy the requirements of 40 CFR part 70. Because this

action does not impose any new requirements, it does not have a

significant impact on a substantial number of small entities.

D. 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 proposed 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.

List of Subjects in 40 CFR Part 70

Environmental protection, Administrative practice and procedure,

Air pollution control, Intergovernmental relations, Operating permits,

and Reporting and recordkeeping requirements.

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

Dated: September 22, 1995.

Patrick M. Tobin,

Acting Regional Administrator.

[FR Doc. 95-25069 Filed 10-10-95; 8:45 am]

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