# 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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A95-25069

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** October 11, 1995
- **Citation:** 60 FR 52890

## Text

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]
BILLING CODE 6560-50-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A95-25069. Public record. Not legal advice.