[Federal Register Volume 60, Number 141 (Monday, July 24, 1995)]
[Rules and Regulations]
[Pages 37825-37827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17615]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-5260-3]


Approval of Existing Federally Enforceable State and Local 
Operating Permit Programs To Limit Potential To Emit for Hazardous Air 
Pollutants; State of Alabama; Knox County, Tennessee

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On January 25, 1995, the State of Alabama through the Alabama 
Department of Environmental Management (ADEM) submitted a letter 
requesting approval of the State's existing Federally enforceable state 
operating permits (FESOP) program under section 112(l) of the Clean Air 
Act as amended in 1990 (CAA). On February 6, 1995, Knox County, 
Tennessee through the Knox County Department of Air Pollution Control 
(KCDAPC) submitted a letter requesting approval of the County's 
exisiting Federally enforceable local operating permits (FELOP) program 
under section 112(l) of the CAA. The two agencies submitted these 
requests to provide each Agency the ability to issue Federally 
enforceable operating permits to hazardous air pollutant (HAP) sources 
regulated under section 112 of the CAA. EPA is approving both of these 
requests under section 112(l) of the CAA for purposes of limiting PTE 
for HAP sources.

DATES: This action will be effective by September 22, 1995 unless 
notice is received by August 23, 1995 that someone wishes to submit 
adverse or critical comments. If the effective date is delayed, timely 
notice will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to Scott Miller at the 
EPA Regional office listed below.
    Copies of the material submitted by both agencies may be examined 
during normal business hours at the following 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 Programs Branch, 345 
Courtland Street NE., Atlanta, Georgia 30365.
Alabama Department of Environmental Management, Air Division, 1751 
Congressman W.L. Dickinson Drive, Montgomery, Alabama 36109.
Knox County Department of Air Pollution Control, City/County Building, 
Suite 339, 400 West Main Street, Knoxville, Tennessee 37902.

FOR FURTHER INFORMATION CONTACT: Scott Miller, Air Programs Branch, 
Air, Pesticides & Toxics Management Division, Region 4 Environmental 
Protection Agency, 345 Courtland Street NE., Atlanta, Georgia 30365. 
The telephone number is 404/347-2864.

SUPPLEMENTARY INFORMATION: On June 28, 1989 (54 FR 27274), EPA 
published criteria for approving and incorporating into the SIP 
regulatory programs for the issuance of FESOP and FELOP. Permits issued 
pursuant to an operating permit program approved into the SIP as 
meeting these criteria may be considered Federally enforceable. EPA has 
encouraged states and local agencies to develop such FESOP and FELOP 

[[Page 37826]]
programs in conjunction with title V operating permits programs to 
enable sources to limit their PTE to below the title V applicability 
thresholds. (See the guidance document entitled, ``Limitation of 
Potential to Emit with Respect to Title V Applicability Thresholds,'' 
dated September 18, 1992, from John Calcagni, Director, Air Quality 
Management Division, Office of Air Quality Planning and Standards 
(OAQPS), Office of Air and Radiation, U.S. EPA.) On November 3, 1993, 
the EPA announced in a guidance document entitled, ``Approaches to 
Creating Federally Enforceable Emissions Limits,'' signed by John S. 
Seitz, Director, OAQPS, that this mechanism could be extended to create 
Federally enforceable limits for emissions of HAP if the program were 
approved pursuant to section 112(l) of the CAA.
    EPA believes that the five approval criteria for approving FESOP 
and FELOP programs into the SIP, as specified in the June 28, 1989, 
Federal Register document, are also appropriate for evaluating and 
approving the programs under section 112(l) of the CAA. The June 28, 
1989, document does not address HAP because it was written prior to the 
1990 amendments to section 112, not because it establishes requirements 
unique to criteria pollutants. Hence, the following five criteria are 
applicable to FESOP and FELOP approvals under section 112(l): (1) The 
program must be submitted to and approved by the EPA; (2) The program 
must impose a legal obligation on the operating permit holders to 
comply with the terms and conditions of the permit, and permits that do 
not conform with the June 28, 1989, criteria or the EPA's underlying 
regulations shall be deemed not Federally enforceable; (3) The program 
must contain terms and conditions that are at least as stringent as any 
requirements contained in the SIP, enforceable under the SIP, or any 
section 112 or other CAA requirement, and may not allow for the waiver 
of any CAA requirement; (4) Permits issued under the program must 
contain conditions that are permanent, quantifiable, and enforceable as 
a practical matter; and (5) Permits that are intended to be Federally 
enforceable must be issued subject to public participation and must be 
provided to EPA in proposed form on a timely basis.
    In addition to meeting the criteria in the June 28, 1989, document, 
a FESOP or FELOP program that addresses HAP must meet the statutory 
criteria for approval under section 112(l)(5). Section 112(l) allows 
EPA to approve a program only if it: (1) contains adequate authority to 
assure compliance with any section 112 standards or requirements; (2) 
provides for adequate resources; (3) provides for an expeditious 
schedule for assuring compliance with section 112 requirements; and (4) 
is otherwise likely to satisfy the objectives of the CAA.
    EPA plans to codify the approval criteria for programs limiting 
potential to emit of HAP, such as FESOP and FELOP programs, through 
amendments to Subpart E of Part 63, the regulations promulgated to 
implement section 112(l) of the CAA. (See 58 FR 62262, November 26, 
1993.) EPA further anticipates that these regulatory criteria, as they 
apply to FESOP and FELOP programs, will mirror those set forth in the 
June 28, 1989, document. EPA further anticipates that since FESOP and 
FELOP programs approved pursuant to section 112(l) prior to the planned 
Subpart E revisions will have been approved as meeting these criteria, 
further approval actions for those programs will not be necessary.
    EPA believes it has authority under section 112(l) to approve 
programs to limit PTE of HAP directly under section 112(l) prior to 
this revision to Subpart E. Section 112(l)(5) requires EPA to 
disapprove programs that are inconsistent with guidance required to be 
issued under section 112(l)(2). This might be read to suggest that the 
``guidance'' referred to in section 112(l)(2) was intended to be a 
binding rule. Even under this interpretation, EPA does not believe that 
section 112(l) requires this rulemaking to be comprehensive. That is, 
it need not address every possible instance of approval under section 
112(l). EPA has already issued regulations under section 112(l) that 
would satisfy any section 112(l)(2) requirement for rulemaking. Given 
the severe timing problems posed by impending deadlines set forth in 
``maximum achievable control technology'' (MACT) emission standards 
under section 112 and for submittal of title V permit applications, EPA 
believes it is reasonable to read section 112(l) to allow for approval 
of programs to limit PTE prior to promulgation of a rule specifically 
addressing this issue. EPA is therefore approving the Alabama FESOP 
program and the Knox County FELOP program under section 112(l) of the 
CAA now so that these agencies may begin to issue permits limiting the 
PTE of HAP as soon as possible.
    The Alabama FESOP program and the Knox County FELOP program meet 
the approval criteria specified in the June 28, 1989, Federal Register 
document and in section 112(l)(5) of the Act. Specific discussion of 
how Alabama's FESOP program meets the requirements for Federal 
enforceability may be found in the Federal Register document approving 
Alabama's FESOP program for criteria pollutant purposes. See 59 FR 
52947. Specific discussion of how Knox County's FELOP program meets the 
requirements for Federal enforceability may be found in the Federal 
Register notice approving Knox County's FELOP program for criteria 
pollutant purposes. See 59 FR 54523.
    Regarding the statutory criteria of section 112(l)(5) referred to 
above, EPA believes that the Alabama FESOP program and the Knox County 
FELOP program contain adequate authority to assure compliance with 
section 112 requirements because the third criterion of the June 28, 
1989, document is met, that is, because the programs do not allow for 
the waiver of any section 112 requirement. Sources that become minor 
through a permit issued pursuant to this program would still be 
required to meet section 112 requirements applicable to non-major 
sources.
    Regarding the requirement for adequate resources, EPA believes that 
Alabama and Knox County have demonstrated that ADEM and KCDAPC can 
provide for adequate resources to support the administration of both 
programs. EPA expects that resources will continue to be adequate to 
administer the Alabama FESOP program and the Knox County FELOP program 
since ADEM and KCDAPC have been administering operating permit programs 
for a number of years. EPA will monitor the implementation of both 
programs to ensure that adequate resources are in fact available. EPA 
also believes that the two programs provide for an expeditious schedule 
for assuring compliance with section 112 requirements. This program 
will be used to allow a source to establish a voluntary limit on PTE to 
avoid being subject to a CAA requirement applicable on a particular 
date. Nothing in either of these programs would allow a source to avoid 
or delay compliance with a CAA requirement if it fails to obtain an 
appropriate Federally enforceable limit by the relevant deadline. 
Finally, EPA believes it is consistent with the intent of section 112 
and the CAA for states to provide a mechanism through which sources may 
avoid classification as a major source by obtaining a Federally 
enforceable limit on PTE.

Final Action

    In this action, EPA is approving the use of Alabama's FESOP program 
for the issuance of FESOP for HAP regulated under section 112 of the 
CAA. EPA is also approving the use of Knox County's 

[[Page 37827]]
FELOP program for the issuance of FELOP for HAP regulated under section 
112 of the CAA. EPA is publishing this action 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 September 22, 1995 unless within 30 days of its 
publication, adverse or crtitcal comments are received. If EPA receives 
such comments, this action will be withdrawn before the effective date 
by publishing a subsequent document that will withdraw the final 
action. All public comments received will then be addressed in a 
subsequent final rule based on this action serving as a proposed rule. 
EPA will not institute a second comment period on this action. Any 
parties interested in commenting on this action should do so at this 
time. If no such comments are received, the public is advised that this 
action will be effective September 22, 1995.
    Under section 307(b)(1) of the CAA, 42 U.S.C. 7607 (b)(1), 
petitions for judicial review of this action must be filed in the 
United States Court of Appeals for the appropriate circuit by September 
22, 1995. 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).)
    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 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.
    The Office of Management and Budget has exempted this action from 
review under Executive Order 12866.
    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.

    Dated: June 23, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
[FR Doc. 95-17615 Filed 7-21-95; 8:45 am]
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