[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38712-38715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18518]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[TN-146-1-7039a; FRL-5226-1]


Approval and Promulgation of Implementation Plans; Tennessee: 
Approval of Revisions to the Nashville-Davidson County Construction and 
Operation Permit Regulations for Minor Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the Nashville-Davidson County 
portion of the Tennessee State Implementation Plan (SIP) to allow 
Nashville-Davidson County to issue Federally enforceable local 
operating permits (FELOP). On November 16, 1994, Nashville-Davidson 
County through the Tennessee Department of Environment and Conservation 
(TDEC) submitted a SIP revision fulfilling the requirements necessary 
for a FELOP program to become Federally enforceable. In order to extend 
the Federal enforceability of the Nashville-Davidson County FELOP 
program to hazardous air pollutants (HAP), EPA is also approving the 
County's FELOP program pursuant to section 112 of the Clean Air Act as 
amended in 1990 (CAA) so that the County may issue FELOP for HAP.

DATES: This final rule will be effective September 26, 1995 unless 
adverse or critical comments are received by August 28, 1995. If the 
effective date is delayed, timely notice will be published in the 
Federal Register.

ADDRESSES: Written comments should be addressed to Gracy R. Danois, at 
the EPA Regional Office listed below. Copies of the 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.

Air and Radiation Docket and Information Center (Air Docket 6102), 

[[Page 38713]]
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.
Tennessee Department of Environment and Conservation, Tennessee Air 
Pollution Control Board, L & C Annex, 9th Floor, 401 Church Street, 
Nashville, Tennessee 37243-1531.
Metropolitan Government of Nashville and Davidson County, Metropolitan 
Health Department, Bureau of Environmental Health Services, 311 23rd 
Avenue North, Nashville, Tennessee 37203.

FOR FURTHER INFORMATION CONTACT: Gracy R. Danois, Air Programs Branch, 
Air, Pesticides & Toxics Management Division, Region 4 Environmental 
Protection Agency, 345 Courtland Street NE., Atlanta, Georgia 30365. 
The telephone number is 404/347-3555, extension 4150. Reference file 
TN-146-1-7039.

SUPPLEMENTARY INFORMATION: On November 16, 1994, Nashville-Davidson 
County through the TDEC submitted a SIP revision designed to make 
certain permits issued under the County's existing minor source 
operating permit program Federally enforceable pursuant to EPA 
requirements as specified in a Federal Register notice, ``Requirements 
for the preparation, adoption, and submittal of implementation plans; 
air quality, new source review; final rules.'' (see 54 FR 22274, June 
28, 1989). Nashville-Davidson County will continue to issue permits 
which are not Federally enforceable under its existing minor source 
operating permit rules as it has done in the past. The SIP revision, 
which is the subject of this document, adds requirements to the 
County's current minor source operating permit program, which allows 
the County to issue FELOP. This voluntary SIP revision allows EPA and 
citizens under the CAA to enforce terms and conditions of the 
Nashville-Davidson County FELOP program. Operating permits that are 
issued under the County's FELOP program that is approved into the 
Nashville-Davidson County portion of the Tennessee SIP and under 
section 112(l) will provide Federally enforceable limits to an air 
pollution source's potential to emit. Limiting a source's potential to 
emit through Federally enforceable operating permits can affect the 
applicability of Federal regulations, such as title V operating 
permits, New Source Review (NSR) preconstruction permits, Prevention of 
Significant Deterioration (PSD) preconstruction permits for criteria 
pollutants and federal air toxics requirements mandated under section 
112 of the CAA, to a source.
    In the aforementioned June 28, 1989, Federal Register document, EPA 
listed five criteria necessary to make a State's 1 minor source 
operating permit program Federally enforceable and, therefore, 
approvable into the SIP. This revision satisfies the five criteria for 
Federal enforceability of the Nashville-Davidson County FELOP program.

    \1\ Various local air pollution programs operate air quality 
programs under their own regulations which are approved into the 
SIP. The reader should note that ``State'' operating permits 
programs encompass those local programs with jurisdiction over only 
part of a State as well as in Statewide programs.
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    The first criteria that must be met if a state's operating permit 
program is to become Federally enforceable is that the permit program 
must be approved into the SIP. On November 16, 1994, Nashville-Davidson 
County submitted, through TDEC, a SIP revision designed to meet the 
criteria for Federal enforceability. This action will approve these 
regulations into the Nashville-Davidson County portion of the Tennessee 
SIP, thereby, meeting the first criteria for Federal enforceability.
    The second criteria for a state's operating permit program to 
become Federally enforceable is that the regulations approved into the 
SIP impose a legal obligation that operating permit holders adhere to 
the terms and limitations of such permits. The regulations of 
Nashville-Davidson County meet this criteria. The Metropolitan Code of 
Law (M.C.L.) Section 10.56.040.F, Paragraph 1 requires the following:

    The source must agree in writing to be bound by a permit which 
specifies the more restrictive limit and to be subject to detailed 
monitoring, reporting and recordkeeping requirements that prove the 
source is in compliance with the applicable permit.

Hence, the second criteria for Federal enforceability is met.
    The third criteria necessary for a state's operating permit program 
to become Federally enforceable is that the state operating permit 
program require that all emissions limitations, controls, and other 
requirements imposed by such permits will be at least as stringent as 
any other 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 Act). Nashville-Davidson County satisfies 
this criteria with the inclusion of two regulations: M.C.L. Section 
10.56.040.F, Paragraph 2, which requires that ``the permit limitations, 
controls, and other requirements imposed by permits will be as 
stringent as any other applicable limitations and requirements 
contained in the SIP enforceable under the SIP'', and M.C.L. Section 
10.56.040.D, which gives Nashville-Davidson County the authority to 
specify other permit requirements in addition to those contained in 
M.C.L. Section 10.56.040. Therefore, the County's regulations satisfy 
the third criteria for Federal enforceability.
    The fourth criteria for a state's operating permit program to 
become Federally enforceable is that limitations, controls, and 
requirements in the operating permits are quantifiable, and otherwise 
enforceable as a practical matter. While a determination of what is 
practically enforceable will generally differ based on process type and 
emissions, the County has incorporated the requirements of the fourth 
criteria described above under M.C.L. Section 10.56.040.F, Paragraph 3. 
Therefore, the Nashville-Davidson County FELOP program satisfies the 
fourth criteria for Federal enforceability.
    The fifth criteria for a state's operating permit program to become 
Federally enforceable requires that the permitting agency provide EPA 
and the public with timely notice of the proposal and issuance of such 
permits, and provide EPA, on a timely basis, with a copy of each draft 
and final permit intended to be federally enforceable. This process 
also must provide for an opportunity for public comment on the permit 
applications prior to issuance of the final permit. Nashville-Davidson 
County satisfies this criteria by including M.C.L. Section 10.56.040.F, 
Paragraphs 4 and 5, which require the County to provide a 30 day public 
comment period and to provide a copy of each draft and final permit to 
the Administrator. EPA notes that any permit which has not gone through 
an opportunity for public comment and EPA review in the Nashville-
Davidson County FELOP program will not be Federally enforceable.
    In addition to requesting approval into the SIP, Nashville-Davidson 
County has also requested approval of its FELOP program under Section 
112(l) of the CAA for the purpose of creating Federally enforceable 
limitations on the potential to emit of HAP through the issuance of 
FELOP. Approval under section 112(l) is necessary because the proposed 
SIP approval discussed above 

[[Page 38714]]
only extends to the control of criteria pollutants. Federally 
enforceable limits on criteria pollutants (e.g., VOC's or PM-10) may 
have the incidental effect of limiting certain HAP listed pursuant to 
section 112(b).2 However, section 112 of the Act provides the 
underlying authority for controlling all HAP emissions.

    \2\  The EPA intends to issue guidance addressing the technical 
aspects of how these criteria pollutant limits may be recognized for 
purposes of limiting a source's potential to emit of HAP to below 
112 major source levels.
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    EPA believes that the five approval criteria for approving FELOP 
programs into the SIP, as specified in the June 28, 1989, Federal 
Register document, are also appropriate for evaluating and approving 
the program under section 112(l). 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.
    In addition to meeting the criteria in the June 28, 1989, document, 
a state 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 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 currently 
anticipates that these regulatory criteria, as they apply to FELOP 
programs, will mirror those set forth in the June 28, 1989, document. 
The EPA currently anticipates that since 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 the potential to emit of HAP directly under section 
112(l) prior to this revision to Subpart E. Section 112(l)(5) requires 
the 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 potential to emit 
prior to promulgation of a rule specifically addressing this issue. EPA 
is therefore approving the Nashville-Davidson County FELOP program so 
that the County may begin to issue FELOP as soon as possible.
    EPA believes that the Nashville-Davidson County FELOP program meets 
the approval criteria specified in the June 28, 1989 Federal Register 
document and in section 112(l)(5) of the CAA. As discussed previously 
in this document, the Nashville-Davidson County FELOP program meets the 
five criteria necessary for Federal enforceability.
    EPA believes that the Nashville-Davidson County FELOP program 
contains adequate authority to assure compliance with section 112(l)(5) 
requirements. The program meets the third criterion of the June 28, 
1989, document because the program does not permit any section 112 
requirement to be waived. Sources that become minor through a permit 
issued pursuant to this program would still be required to meet the 
section 112 requirements applicable to nonmajor sources.
    EPA believes that Nashville-Davidson County has demonstrated that 
it can provide adequate resources to support the FELOP program. EPA 
expects that resources will continue to be adequate to administer the 
portion of the County's minor source operating permit program under 
which FELOP will be issued, since Nashville-Davidson County has 
administered a minor source operating permit program for several years. 
EPA will monitor the County's implementation of its FELOP to ensure 
that adequate resources are in fact available. EPA also believes that 
the Nashville-Davidson County FELOP program provides 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 potential to emit to avoid being subject to a CAA requirement 
applicable on a particular date. Nothing in the Nashville-Davidson 
County FELOP program 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 potential to 
emit.
    With the addition of these provisions, the Nashville-Davidson 
County FELOP program satisfies all the requirements listed in the June 
28, 1989, Federal Register document. EPA is approving this revision to 
the Nashville-Davidson County portion of the Tennessee SIP thus making 
the County's FELOP program Federally enforceable.
Final Action

    In this action, EPA is approving the Nashville-Davidson County 
FELOP 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 September 26, 1995 unless, by August 28, 1995, 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 September 26, 1995.
    The Agency 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.
    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 26, 1995. 
Filing a petition for reconsideration by the Administrator of 

[[Page 38715]]
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).)
    The Office of Management and Budget has exempted this action from 
review under Executive Order 12866.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a revision to 
any SIP. 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.
    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 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. section 7410(a)(2).
    Under Sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector, or to 
State, local, or tribal governments in the aggregate.
    Through submission of this state implementation plan revision, the 
State and any affected local or tribal governments have elected to 
adopt the program provided for under Section 112(l) of the Clean Air 
Act. These rules may bind State, local and tribal governments to 
perform certain actions and also require the private sector to perform 
certain duties. To the extent that the rules being approved by this 
action would impose no new requirements; such sources are already 
subject to these regulations under State law. Accordingly, no 
additional costs to State, local, or tribal governments, or to the 
private sector, result from this action. EPA has also determined that 
this final action does not include a 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.

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: June 23, 1995.
Patrick M. Tobin,
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)(130) to read 
as follows:


Sec. 52.2220  Identification of plan.

* * * * *
    (c) * * *
    (130) Revisions to minor source operating permit rules for 
Nashville-Davidson County submitted by the Tennessee Department of 
Environment and Conservation on November 16, 1994.
    (i) Incorporation by reference.
    (A) Metropolitan Code of Law (M.C.L.) Chapter 10.56, Section 040, 
Paragraph F, effective October 4, 1994.
    (ii) Other material. None.

[FR Doc. 95-18518 Filed 7-27-95; 8:45 am]
BILLING CODE 6560-50-P