Approval and Promulgation of Implementation Plans State: Approval of Revisions to the Knox County Portion of the State of Tennessee's State Implementation Plan (SIP)

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TN-158-1-9632a; FRL-5619-6]

Approval and Promulgation of Implementation Plans State: Approval

of Revisions to the Knox County Portion of the State of Tennessee's

State Implementation Plan (SIP)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the Knox County portion of the

Tennessee State Implementation Plan (SIP) to allow the Knox County

Department of Air Pollution Control (Knox County) to utilize permits-

by-rule for the purpose of limiting potential to emit (PTE) criteria

pollutants for certain source categories to less than the title V

permitting major source thresholds. EPA is also approving under section

112(l) of the Clean Air Act several source categories of the submitted

regulations for limiting PTE of hazardous air pollutants (HAP) to less

than title V permitting major source thresholds. These permits-by-rule

provide a way for sources to accept limitations on their operations

without the added burden of obtaining source-specific permits for the

following source categories: fuel-burning equipment burning natural

gas/liquified petroleum gas (LPG) and/or distillate oil, fuel burning

equipment burning natural gas/LPG and/or residual oil, on-site power

generation, concrete mixing plants, coating operations, printing

operations, and fiberglass molding and forming operations. On May 23,

1995, Knox County through the Tennessee Department of Environment and

Conservation submitted a SIP revision fulfilling the requirements

necessary to utilize exclusionary rules to limit PTE of air pollutants

in a federally enforceable manner.

DATES: This final rule is effective December 16, 1996 unless adverse or

critical comments are received by November 14, 1996. If the effective

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

Register.

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

Miller at the Environmental Protection Agency, Region 4 Air Planning

Branch, 100 Alabama Street, SW, Atlanta, Georgia 30303. Copies of

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.

Reference file TN158-1-9632. The Region 4 office may have additional

background documents not available at the other 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 Planning Branch,

100 Alabama Street, SW, Atlanta, Georgia 30303. Scott Miller, 404/562-

9120.

Tennessee Department of Environment and Conservation, Division of

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

Nashville, Tennessee 37243-1531.

Knox County Department of Air Pollution Control, Suite 339, City-

County Building, 400 West Main Street, Knoxville, Tennessee 37902.

FOR FURTHER INFORMATION CONTACT: Scott Miller at 404/562-9120.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

On May 23, 1995, the Knox County Department of Air Pollution

Control through the Tennessee Department of Environment and

Conservation submitted SIP revisions designed to allow Knox County to

utilize permits-by-rule for the purpose of limiting PTE for fuel-

burning equipment burning natural LPG and/or distillate oil, fuel

burning equipment burning natural gas/LPG and/or residual oil, on-site

power generation, concrete mixing plants, coating operations, printing

operations, and fiberglass molding and forming operations. Permits-by-

rule are designed to create federally enforceable limits on a

facility's PTE in a manner that does not require a facility-specific

evaluation of emissions and limiting conditions. As such, permits-by-

rule are appropriate for the purpose of limiting PTE when a facility

has one type of emission source. EPA is approving all source category

permits-by-rule submitted for purposes of limiting PTE for criteria

pollutants. EPA is approving under section 112(l) of the CAA, Knox

County Air Pollution Control (KCAPC) regulations Section 25.10.7,

Section 25.10.8, and Section 25.10.10 for purposes of limiting PTE of

HAP from coating operations, printing operations, and fiberglass

molding and forming operations. For a description of this and other

ways to limit PTE for a facility see the EPA guidance document entitled

``Options for Limiting the Potential to Emit (PTE) of a Stationary

Source Under Section 112 and Title V of the Clean Air Act (Act)'' dated

January 25, 1995, from John Seitz to the EPA Regional Air Division

Directors.

These permits-by-rule were designed to meet criteria listed in the

EPA guidance memorandum entitled ``Guidance for State Rules for

Optional Federally Enforceable Emissions Limits Based on Volatile

Organic Compound Use'' dated October 15, 1993, from D. Kent Barry to

the EPA Regional Air Division Directors, an EPA guidance document

entitled ``Approaches to Creating federally-Enforceable Emissions

Limits'' dated November 3, 1993, and the January 25, 1995, guidance

memorandum referenced above. These guidance documents set out specific

guidelines for permit-by-rule development regarding applicability,

compliance determination and certification, monitoring, reporting,

record keeping, public involvement, practical enforceability, and the

requirement that a facility cannot rely on emission limits or caps

contained in

[[Page 53634]]

a permit-by-rule to justify violation of any rate-based emission limits

or other applicable requirements.

A permit-by-rule applies to facilities which agree to limit their

annual emissions to less than major source thresholds for criteria and/

or hazardous air pollutant (HAP) emissions. A permit-by-rule must also

provide that a facility owner or operator specifically apply for

coverage under the permit-by-rule. KCAPC regulation Section 25.10.C.5

requires that a facility operating under a permit-by-rule must submit a

written statement verifying this status to the Department. The source

categories covered by the permit-by-rule regulations are fuel-burning

equipment burning natural LPG and/or distillate oil, fuel burning

equipment burning natural gas/LPG and/or residual oil, on-site power

generation, concrete mixing plants, coating operations, printing

operations, and fiberglass molding and forming operations. As such,

these regulations meet the guidelines specified in the October 15,

1993, and the January 25, 1995, guidance documents that require a

permit-by-rule to clearly identify the category of sources that qualify

for the rule's coverage.

The October 15, 1993, and the January 25, 1995, guidance documents

suggest that facilities be required to show compliance with the permit-

by-rule on a yearly basis by requiring monthly record keeping of the

relevant variable causing emissions and showing compliance using the

monthly record of the relevant variable affecting emissions. The

January 25, 1995, guidance document stipulates that where monitoring

cannot be used to determine emissions directly, limits on appropriate

operating parameters must be established for the units or source, and

monitoring must verify compliance with those limits. In the case of the

Knox County regulations, a facility is required to keep records of the

use of or processing of a product or substance that produces the

emissions. For instance, KCAPC Regulation Section 25.10.B.8 requires

printing operations to keep monthly records of materials including but

not limited to inks, thinners, and solvents if they contain any VOC or

HAP. The printing facility must then show compliance with the 20,000

pounds per year limitation during any twelve consecutive month period.

EPA believes that the permit-by-rule submitted by Knox County meets

guidelines outlined in the October 15, 1993, and January 25, 1995,

guidance documents for purposes of detailing specific compliance

monitoring to show compliance with the relevant limit resulting from a

permit-by-rule.

The October 15, 1993, guidance document recommends that all

submittals that result from permit-by-rule be certified for truth,

accuracy, and completeness. KCAPAC regulation Section 25.10.C.3

requires that each facility which chooses to be covered by a permit-by-

rule must submit annual reports and compliance certifications

addressing the applicable requirements, and terms and conditions of

each standard. Therefore, EPA believes that the permit-by-rule

regulations submitted by Knox County meet requirements outlined in the

October 15, 1993, guidance document for purposes of certification with

respect to truth, completeness, and accuracy.

The October 15, 1993, guidance document recommends that reporting

requirements should vary based on how close the facility emissions are

to the relevant major source threshold. For facilities that are close

to the major source threshold, the guidance recommends that a state or

local air pollution control agency require more frequent reporting of

the variable affecting emissions (e.g. gasoline throughput). KCAPC

Regulation Section 25.10.C.3 requires all facilities to report

emissions information or the variable directly affecting emissions on

an annual basis. While under ideal circumstances, Knox County would

require more frequent reporting as the relevant variable affecting

emissions approached major source levels for title V, EPA believes that

coupled with the requirement found in KCAPC Regulation Section

25.10.C.4, which requires that any exceedance of any applicable

limitation be reported by one week after occurrence, Knox County's

permit-by-rule regulations meet requirements outlined in the October

15, 1993, guidance document for purposes of reporting the relevant

variable affecting emissions from the process. The October 15, 1993,

guidance document also requires that a facility report any exceedance

of an exclusionary rule within one week after its occurrence. The Knox

County regulations satisfy this requirement by a verbatim incorporation

of this requirement in KCAPC Regulation Section 25.10.C.4. Therefore,

EPA believes that the Knox County regulations meet the requirements set

out in the above-listed guidance documents for reporting.

The October 15, 1993, and the January 25, 1995, guidance documents

specify that record keeping is required by a facility to show that the

facility is eligible for the permit-by-rule and that the facility is in

compliance with the relevant permit-by-rule. The October 15, 1993,

guidance document requires that record keeping be maintained on site

and available to the permitting authority upon demand. The October 15,

1993, guidance document also requires that a facility be required to

retain records for a period sufficient to support enforcement efforts.

The Knox County regulations require that copies of all records required

to be kept for permit-by-rule purposes be kept on site. The permit-by-

rule regulations submitted by Knox County require that records be kept

for a period of five years from the date of last entry. EPA believes

that a five year time period is an adequate time period for a facility

subject to a permit-by-rule to maintain records in order to support

enforcement efforts.

The November 3, 1993, and the January 25, 1995, guidance documents

set out requirements for public involvement in the development and

application of permit-by-rule regulations. The November 3, 1993,

guidance document states that if permit-by-rule regulations are

sufficiently reliable and replicable, EPA and the public need not be

involved with their application to individual sources, as long as the

protocols themselves have been subject to notice and opportunity to

comment and have been approved by EPA into the SIP. The January 25,

1995, guidance document provides that source category standards

approved into the SIP or under section 112(l) of the Clean Air Act, if

enforceable as a practical matter, can be used as federally enforceable

limits on PTE. Once a specific source qualifies under the applicability

requirements of the source-category rule, additional public

participation is not required to make the limits federally enforceable

as a matter of legal sufficiency since the rule itself underwent public

participation and EPA review. The Knox County permit-by-rule underwent

public participation at the local level when these rules were made

locally-effective. EPA has had an opportunity to review these

regulations and is publishing this notice to take comment on these

regulations at the national level. Later in this Federal Register

document, practical enforceability of Knox County's permit-by-rule

regulations will be addressed. EPA believes that with this Federal

Register document and other public process received at the local level

that the Knox County permit-by-rule regulations satisfy requirements

for public participation outlined in the November 3, 1993, and the

January 25, 1995, guidance documents.

[[Page 53635]]

The January 25, 1995, guidance document sets out requirements for a

permit-by-rule to be practically enforceable. These requirements stem

from past precedence in what the EPA has required for a permit to be

considered enforceable as a practical matter. See 54 FR 27274 (June 28,

1989) and a June 13, 1989, EPA policy memorandum entitled ``Limiting

Potential to Emit in New Source Permitting.'' The criteria include

clear statements as to the applicability, specificity as to the

standard that must be met, explicit statements of the compliance time

frames (e.g. hourly, daily, monthly, or 12-month averages, etc.), that

the time frame and method of compliance employed must be sufficient to

protect the standard involved, record keeping requirements must be

specified, and equivalency provisions must meet specific requirements.

In general, practical enforceability means that the provision must

specify; (1) a technically accurate limitation and the portions of the

source subject to the limitation; (2) the time period for the

limitation; and (3) the method to determine compliance including

appropriate monitoring, record keeping, and reporting. All of these

elements have been discussed prior to this paragraph in this Federal

Register with the exception of (2) above. The Knox County regulations

require facilities subject to the permit-by-rule to keep records on a

monthly basis and to determine compliance with a yearly limit on a

calendar monthly rolling average basis. This method for determining

compliance with the permit-by-rule was addressed specifically as one

practically enforceable way to show compliance with a permit limit in

the June 13, 1989, guidance document entitled ``Limiting Potential to

Emit in New Source Permitting.'' As such, EPA believes the Knox County

permit-by-rule regulations meet the requirements necessary for a

permit-by-rule to be enforceable as a practical matter.

Finally, the October 15, 1993, guidance document stipulates that a

facility cannot rely on emission limits or caps contained in a permit-

by-rule to justify violation of any rate-based emission limits or other

applicable requirements. This requirement for title V permitting is

fulfilled by inclusion of KCAPC Regulation Section 25.10.C.5 which

stipulates that non-compliance with provisions of the permit-by-rule

regulations will be subject to an enforcement action unless the

facility has first obtained a formal release through a part 70 permit

or some other federally enforceable permit from Knox County.

Eligibility for federally enforceable permit-by-rule limitations

extends not only to certifications made after the effective date of

this rule, but also to certifications issued under the current Knox

County rule prior to the effective date of this rulemaking. If Knox

County followed its own permit-by-rule regulation, it received

certifications that established a limiting condition on a facility's

PTE. EPA will consider all such permit-by-rule certifications which

were submitted in a manner consistent with the Knox County regulations

as federally enforceable upon the effective date of this action.

II. Final Action

In this action, EPA is approving the Knox County permit-by-rule

regulations found at KCAPC Regulations: Section 25.10 into the Knox

County portion of the Tennessee SIP. EPA is approving KCAPC Regulations

Section 25.10.A, 25.10.B.7, 25.10.B.8, 25.10.B.10, 25.10.C for purposes

of limiting PTE of HAP under section 112(l) of the CAA. The EPA is

publishing this document 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

December 16, 1996 unless, by November 14, 1996, adverse or critical

comments are received. If the 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

December 16, 1996.

EPA 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.

Nothing in this action shall be construed as permitting or allowing

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

any state implementation plan. 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.

III. Administrative Requirements

A. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989, (54 FR 2214-2225), as revised by

a July 10, 1995, memorandum from Mary Nichols, Assistant Administrator

for Air and Radiation. The Office of Management and Budget has exempted

this action from review under Executive Order 12866.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600, 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. 7410(a)(2).

C. 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

[[Page 53636]]

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 final 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.

D. Submission to Congress and the General Accounting Office

Under U.S.C. 801(a)(1)(A) as added by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA submitted a report containing

this rule and other required information to the U.S. Senate, the U.S.

House of Representatives and the Comptroller General of the General

Accounting Office prior to publication of the rule in today's Federal

Register. This rule is not a ``major rule'' as defined by 5 U.S.C.

804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by December 16, 1996. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the 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).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Lead, Nitrogen oxides, Ozone, Particulate matter, Sulfur oxides.

Dated: August 29, 1996.

Robert F. McGhee,

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, (c) is amended by adding paragraph (c)(140) to

read as follows:

Sec. 52.2220 Identification of plan.

* * * * *

(c) * * *

(140) Permit-by-rule regulations for Knox County Department of Air

Pollution Control submitted by the Knox County Department of Air

Pollution Control through the Tennessee Department of Environment and

Conservation on May 23, 1995 as part of Knox County's portion of the

Tennessee SIP.

(i) Incorporation by reference.

(A) Regulation Section 25.10 of the Knox County portion of the

Tennessee SIP as adopted by the Knox County Air Pollution Control Board

on April 12, 1995.

(ii) Other material. None.

[FR Doc. 96-26199 Filed 10-11-96; 8:45 am]

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