Approval and Promulgation of Implementation Plans; Hamilton County, TN

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TN-178-1-9707a; FRL-5682-9]

Approval and Promulgation of Implementation Plans; Hamilton

County, TN

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the Chattanooga-Hamilton County

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

Chattanooga Hamilton County Air Pollution Control Bureau (CHCAPCB) to

issue Federally enforceable state operating permits (FESOP). EPA is

also approving the CHCAPCB's FESOP program pursuant to section 112 of

the Clean Air Act as amended in 1990 (CAA or ``the Act'') so that the

CHCAPCB may issue Federally enforceable state operating permits

containing limits for hazardous air pollutants (HAP).

DATES: This final rule will be effective April 21, 1997 unless adverse

or critical comments are received by March 20, 1997. If the effective

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

Register.

ADDRESSES: Written comments should be addressed to Kelly Fortin at the

EPA regional office listed below. Copies of the documents used in

developing this action are available for public inspection during

normal business hours at the locations listed below. Interested persons

wanting to examine these documents, contained in docket number TN178-1,

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), U.S.

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

20460.

U.S. Environmental Protection Agency, Region 4, Air & Radiation

Technology Branch, Atlanta Federal Center, 100 Alabama Street SW.,

Atlanta, Georgia 30303.

Tennessee Department of the Environment and Conservation, L&C Annex,

401 Church Street, Nashville, Tennessee, 37243-1531.

Chattanooga-Hamilton County Air Pollution Control Bureau, 3511

Rossville Boulevard, Chattanooga, Tennessee 37407-2495.

FOR FURTHER INFORMATION CONTACT: Kelly Fortin, Air & Radiation

Technology Branch, Air, Pesticides & Toxics Management Division, U.S.

Environmental Protection Agency, Region 4, Atlanta Federal Center, 100

Alabama Street SW., Atlanta, Georgia 30303, 404-562-9117. Reference

file TN178-1.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

On December 15, 1995, the CHCAPCB, through the Tennessee Department

of Environment and Conservation, submitted a SIP revision to make

certain permits issued under the CHCAPCB's existing minor source

operating permit program Federally enforceable pursuant to the EPA

requirements specified in the Federal Register notice entitled

``Requirements for the Preparation, Adoption, and Submittal of

Implementation Plans; Approval and Promulgation of Implementation

Plans'' (see 54 FR 27274, June 28, 1989). Additional materials were

provided by the CHCAPCB to EPA on August 12, 1996. The CHCAPCB

requested approval of their synthetic minor source SIP provisions for

the purpose of limiting emission of HAPs on December 12, 1994.

EPA has always had and continues to have the authority to enforce

state and local permits which are issued under permit programs approved

into the SIP. However, EPA has not always recognized as valid certain

state and local permits which purport to limit a source's potential to

emit. The principle purpose for adopting the regulations that are the

subject of this notice is to give the CHCAPCB a Federally recognized

means of expeditiously restricting potential emissions such that

sources can avoid major source permitting requirements. A key mechanism

for such limitations is the use of Federally enforceable state or local

operating permits. The term ``Federally enforceable,'' when used in the

context of permits which limit potential to emit, means ``Federally

recognized.''

The SIP revision that is the subject of this action approves

Sections 4-2, 4-3, 4-4, 4-8, 4-12, 4-16, 4-17, 4-18, and 4-19 of the

Chattanooga Air Pollution Control Ordinance (and identical language in

corresponding sections of the Hamilton County Air Pollution Control

Regulation and ordinances of the nine incorporated municipalities) into

the Hamilton County portion of the Tennessee SIP. In this action, EPA

is only approving that portion of the State's December 15, 1995 SIP

submittal for Chattanooga-Hamilton County that includes or is necessary

for the implementation of the CHCAPCB's FESOP program. The remaining

portion of the SIP submittal will be addressed in a separate action.

EPA has determined that the above referenced portion of the

submittal and the additional materials provided by the CHCAPCB satisfy

the five criteria outlined in the June 28, 1989, Federal Register

notice. Please refer to section II of this notice for the criteria upon

which this decision was based.

II. Analysis of the CHCAPCB Submittal

Criterion 1. The county's operating permit program (i.e. the

regulations or other administrative framework describing how such

permits are issued) must be submitted to and approved by EPA as a SIP

revision.

The Chattanooga-Hamilton County Air Pollution Control Board,

operating under a certificate of exemption pursuant to Tennessee Code

Annotated, Section 68-201-115, has authority to administer a state

operating permits program in all areas of Hamilton County Tennessee,

with the exception of Indian reservations and tribal lands. The CHCAPCB

operating permits program is implemented and enforced through: (1) the

Chattanooga Air Pollution Control Ordinance (within the incorporated

municipality of the City of Chattanooga, Tennessee); (2) the Hamilton

County Air Pollution Control regulation (in the unincorporated areas of

Hamilton County, Tennessee); and (3) air pollution control ordinances

prepared for and enacted in the incorporated municipalities of East

Ridge, Red Bank, Soddy-Daisy, Signal Mountain, Lakesite, Walden,

Collegedale, Lookout Mountain, and Ridgeside. Chattanooga, Hamilton

County, and the nine municipalities have identical regulations for air

pollution control, except for codification, which are implemented by

the CHCAPCB. For convenience, in this document the Chattanooga

codification will be used.

On December 15, 1995 the CHCAPCB, through the Tennessee Department

of Environment and Conservation, submitted a SIP revision request to

EPA consisting of revisions to Section 4 of the Chattanooga Air

Pollution Control Ordinance (and corresponding sections of the Hamilton

County Air Pollution Control Regulation and ordinances of the nine

incorporated municipalities), amending the CHCAPCB's existing

stationary source requirements to include provisions to issue FESOPs.

This submittal is the subject of this rulemaking action.

Criterion 2. The SIP revision must impose a legal obligation that

operating permit holders adhere to the terms and limitations of such

permits (or subsequent revisions of the permit made

[[Page 7161]]

in accordance with the approved operating permit program) and provide

that permits which do not conform to the operating permit program

requirements and the requirements of EPA's underlying regulations may

be deemed not ``Federally enforceable'' by EPA. Sections 4-3, 4-4 and

4-8 of the Chattanooga regulations meet this criterion.

Criterion 3. The state operating permit program must require that

all emission limitations, controls, and other requirements imposed by

such permits will be at least as stringent as any 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 Clean Air

Act). Sections 4-2 and 4-8(c)(11)(c) of the Chattanooga regulations

meet this criterion.

Criterion 4. The limitations, controls, and requirements of the

state's operating permits must be permanent, quantifiable, and

otherwise enforceable as a practical matter. Section 4-8(c)(11)(d) of

the Chattanooga regulations meets this criterion.

Criterion 5. The state operating permits must be issued subject to

public participation. This means that the CHCAPCB agrees, as part of

their program, to provide EPA and the public with timely notice of the

proposal and issuance of such permits, and to provide EPA, on a timely

basis, with a copy of each proposed (or draft) and final permit

intended to be ``Federally enforceable.'' This process must also

provide for an opportunity for public comment on the permit

applications prior to issuance of the final permits. Section 4-

8(c)(11)(g) of Chattanooga regulations meets this criterion.

A. Applicability to Hazardous Air Pollutants

CHCAPCB has also requested approval of their FESOP program under

section 112(l) of the Clean Air Act for the purpose of creating

Federally recognized limitations on the potential to emit for HAPs.

Approval under section 112(l) is necessary because the SIP revision

discussed above only extends to criteria pollutants for which EPA has

established national ambient air quality standards under section 109 of

the Act. Federally enforceable limits on criteria pollutants or their

precursors (i.e. VOCs or PM-10) may have the incidental effect of

limiting certain HAPs listed pursuant to section 112(b).1 As a

legal matter, no additional program approval by the EPA is required

beyond SIP approval under section 110 in order for these criteria

pollutant limits to be recognized as Federally enforceable. However,

section 112 of the Act provides the underlying authority for

controlling all HAP emissions, regardless of their relationship to

criteria pollutant controls.

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\1\ EPA issued guidance on January 25, 1995, addressing the

technical aspects of how these criteria pollutant limits may be

recognized for purposes of limiting a source's potential to emit of

HAPs to below section 112 major source thresholds.

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EPA has determined that the five criteria, published in the June

28, 1989, Federal Register notice, used to determine the validity of a

permit that limits potential to emit for criteria pollutants pursuant

to section 110 are also appropriate for evaluating the validity of

permits that limit the potential to emit for HAPs pursuant to section

112(l). The June 28, 1989, Federal Register notice does not address

HAPs because it was written prior to the 1990 amendments to the Clean

Air Act; however, the basic principles established in the June 28,

1989, Federal Register notice are not unique to criteria pollutants.

Therefore, these criteria have been extended to evaluations of permits

limiting the potential to emit of HAPs.

To be recognized by EPA as a valid permit which limits potential to

emit, the permit must not only meet the criteria in the June 28, 1989,

Federal Register notice, but it must meet the statutory criteria for

approval under section 112(l)(5). Section 112(l) provides that EPA will

recognize a permit limiting the potential to emit for HAPs only if the

state program: (1) contains adequate authority to assure compliance

with any section 112 standard or requirement; (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 Act.

EPA plans to codify in Subpart E of Part 63 the approval criteria

for programs limiting potential to emit HAPs. EPA anticipates that

these criteria will mirror those set forth in the June 28, 1989,

Federal Register notice. Permit programs which limit potential to emit

for HAPs and are approved pursuant to section 112(l) of the Act prior

to the planned regulatory revisions under 40 CFR Part 63, Subpart E,

will be recognized by EPA as meeting the criteria in the June 28, 1989,

Federal Register notice. Therefore, further approval actions for those

programs will not be necessary.

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

FESOP programs that limit a source's potential to emit HAPs directly

under section 112(l) prior to this revision to Subpart E. EPA is

therefore approving the CHCAPCB FESOP program so that the CHCAPCB may

issue permits that EPA will recognize as validly limiting potential to

emit for HAPs.

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

above, EPA believes the FESOP program submitted by the CHCAPCB contains

adequate authority to assure compliance with section 112 requirements

since the third criterion of the June 28, 1989, notice is met; that is

the CHCAPCB rules require that all requirements in the permits issued

under the authority of the operating permit program must be at least as

stringent as all other applicable Federally enforceable requirements.

Regarding the requirement for adequate resources, the CHCAPCB has

committed to provide for adequate resources to support their FESOP

program. EPA expects that resources will continue to be sufficient to

administer those portions of the minor source operating permit program

under which the subject permits will be issued, because the CHCAPCB has

administered a minor source operating permit program for a number of

years. However, EPA will monitor the implementation of the FESOP

program to ensure that adequate resources are in fact available.

EPA also believes that the CHCAPCB program provides for an

expeditious schedule which assures compliance with section 112

requirements. The 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 CHCAPCB

program would allow a source to avoid or delay compliance with a CAA

requirement applicable on a particular date. In addition, the CHCAPCB's

program would not allow a source to avoid or delay compliance with a

CAA requirement if it fails to obtain an appropriate Federally

recognized limit by the relevant deadline.

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

112 of the Act for States to provide a mechanism through which a source

may avoid classification as a major source by obtaining a Federally

recognized limit on its potential to emit HAPs. EPA has long recognized

as valid, permit programs which limit potential to emit

[[Page 7162]]

for criteria pollutants as a means for avoiding major source

requirements under the Act. The portion of this approval which extends

Federal recognition to permits containing limits on potential to emit

for HAPs merely applies the same principles to another set of

pollutants and regulatory requirements under the Act. It should be

noted that a source that receives a Federally recognized operating

permit may still need a Title V operating permit if EPA promulgates a

MACT standard which requires non-major sources to obtain Title V

permits.

EPA has reviewed this SIP revision and determined that the criteria

for approval as provided in the June 28, 1989, Federal Register notice

(54 FR 27282) and in section 112(l)(5) of the Act have been satisfied.

B. Eligibility for Previously Issued Permits

Eligibility for Federally enforceable permits extends not only to

permits issued after the effective date of this rule, but also to

permits issued under the CHCAPCB's existing rules prior to the

effective date of today's rulemaking. If the CHCAPCB followed their own

regulations, then the agency issued a permit that established a

Federally recognized permit condition that was subject to public and

EPA review. Therefore, EPA will consider all such operating permits

Federally enforceable upon the effective date of this action provided

that any permits that the CHCAPCB wishes to make Federally enforceable

are made available to EPA and are supported by documentation that the

procedures approved today have been followed. EPA may review any such

permits to ensure their conformity with the program requirements.

III. Final Action

In this action, EPA is approving the CHCAPCB FESOP 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

April 21, 1997 unless, by March 20, 1997, 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 April 21, 1997.

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

the July 10, 1995, memorandum from Mary Nichols, Assistant

Administrator for Air and Radiation. Nothing in this action shall be

construed as permitting or allowing or establishing a precedent for any

future request for a revision of any SIP. Each request for revision of

the SIP shall be considered separately in light of specific technical,

economic, and environmental factors, and in relation to relevant

statutory and regulatory requirements.

IV. Administrative Requirements

A. Clean Air Act as Amended in 1990

EPA has reviewed the requests for revision of the Federally-

approved Tennessee SIP described in this notice to ensure conformance

with the provisions of the Clean Air Act as amended in 1990. EPA has

determined that this action conforms with those requirements.

B. Petition for Review

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 April 21, 1997. Filing

a petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2) of the CAA, 42

U.S.C. 7607 (b)(2).)

C. 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 (OMB) has

exempted this regulatory action from Executive Order 12866 review.

D. Regulatory Flexibility Act

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 approval of

Federal SIP 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) and 7410(R)(3).

E. 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 approval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

million or more to either state, local or tribal governments in the

aggregate, or to the private sector. This Federal action

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approves pre-existing requirements under State or local law, and

imposes no new requirements. Accordingly, no additional costs to State,

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

action.

F. Small Business Regulatory Enforcement Fairness Act of 1996

Under 5 U.S.C. 801(a)(1)(A) 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).

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: January 23, 1997.

A. Stanley Meiburg,

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)(148) to read

as follows:

Sec. 52.2220 Identification of plan.

* * * * *

(c) * * *

(148) Revisions to the Hamilton County portion of the Tennessee SIP

that approve the regulations for Hamilton County, the City of

Chattanooga, and the municipalities of East Ridge, Red Bank, Soddy-

Daisy, Signal Mountain, Lakesite, Walden, Collegedale, Lookout

Mountain, and Ridgeside--submitted by the Tennessee Department of

Environmental Protection on December 15, 1995.

(i) Incorporation by reference.

(A) Amendments to Sections 2, 3, 4, 6, 8, 12, and 16-19 of the

regulation known as the ``Hamilton County Air Pollution Control

Regulation,'' the ``Signal Mountain Air Pollution Control Ordinance,''

the ``Lakesite Municipal Code,'' the ``Walden Air Pollution Control

Ordinance,'' the ``Lookout Mountain Air Pollution Control Ordinance,''

and the ``Ridgeside Air Pollution Control Ordinance,'' submitted on

December 15, 1995 and adopted by Hamilton County on September 6, 1995

and by the following municipalities: Signal Mountain, adopted on

December 11, 1995; Lakesite, adopted on November 16, 1995; Walden,

adopted on December 12, 1995; Lookout Mountain, adopted on November 14,

1995; and Ridgeside, adopted on April 16, 1996.

(B) Amendments to Sections 4-2, 4-3, 4-4, 4-6, 4-8, 4-12, 4-16, 4-

17, 4-18, and 4-19 of the ``Chattanooga Air Pollution Control

Ordinance,'' as submitted on December 15, 1995 and adopted on August

16, 1995.

(C) Amendments to Sections 8-702, 8-703, 8-704, 8-706, 8-708, 8-

712, 8-716, 8-717, 8-718, and 8-719 of the ``East Ridge City Code,'' as

submitted on December 15, 1995 and adopted on September 28, 1995.

(D) Amendments to Sections 8-302, 8-303, 8-304, 8-306, 8-308, 8-

312, 8-316, 8-317, 8-318, and 8-319 of the ``Red Bank Municipal Code,''

as submitted on December 15, 1995 and adopted on November 7, 1995.

(E) Amendments to Sections 8-102, 8-103, 8-104, 8-106, 8-108, 8-

112, 8-116, 8-117, 8-818, and 8-119 of the ``Soddy-Daisy Municipal

Code,'' as submitted on December 15, 1995 and adopted on October 5,

1995.

(F) Amendments to Sections 8-502, 8-503, 8-504, 8-506, 8-508, 5-

512, 8-516, 8-517, 8-518, and 8-519 of the ``Collegedale Municipal

Code,'' as submitted on December 15, 1995 and adopted on October 2,

1995.

(ii) Other materials. None.

[FR Doc. 97-3867 Filed 2-14-97; 8:45 am]

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