[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Pages 9661-9670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5720]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[TN-96-01; TN-MEMP-96-01; FRL-5439-2]


Clean Air Act Proposed Interim Approval of Title V Operating 
Permit Programs; State of Tennessee and Memphis-Shelby County, 
Tennessee

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed interim approval.

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SUMMARY: EPA proposes interim approval of the operating permit programs 
submitted by the Tennessee Department of Environment and Conservation 
and by the Memphis-Shelby County Health Department for the purpose of 
complying with Federal requirements which mandate that authorized 
permitting authorities develop, and submit to EPA, programs for issuing 
operating permits to all major stationary sources and to certain other 
sources.

DATES: Comments on this proposed action must be received in writing by 
April 10, 1996.


[[Page 9662]]

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 
State of Tennessee and Memphis-Shelby County submittals, and other 
supporting information used in developing this proposed 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. Interested persons wanting 
to examine these documents, contained in the EPA dockets numbered TN-
96-01 and TN-MEMP-96-01, should make an appointment at least 24 hours 
before the visiting day.

FOR FURTHER INFORMATION CONTACT: Kim Gates, 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, Ext. 4146.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    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 operating permit program and the corresponding standards and 
procedures by which EPA will approve, oversee, and withdraw approval of 
state and local operating permit programs. These rules are codified at 
40 Code of Federal Regulations (CFR) part 70. Title V and part 70 
require that authorized permitting authorities develop, and submit to 
EPA, programs for issuing operating permits to all major stationary 
sources and to certain other sources.
    The Act requires permitting authorities to develop and submit these 
programs to EPA by November 15, 1993, and EPA to approve or disapprove 
each program within one year after receiving the submittal. If the 
program 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 materials. EPA 
received the State of Tennessee's title V operating permit program 
submittal on November 10, 1994. The State supplemented the original 
program submittal with additional materials on December 5, 1994, August 
8, 1995, January 17, 1996, January 30, 1996, and February 13, 1996. 
Because the August 8, 1995 supplement materially changed the State's 
title V program submittal, EPA extended the one-year review period. EPA 
received Memphis-Shelby County's title V program submittal on June 26, 
1995. Supplemental materials dated August 22, 1995, August 23, 1995, 
August 24, 1995, January 29, 1996, February 7, 1996, and February 14, 
1996 were submitted by the County to complete the title V program 
submittal.
    EPA reviews title V operating permit programs pursuant to section 
502 of the Act and 40 CFR part 70, which together outline the criteria 
for approval and 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 the interim 
program approval period, it must establish and implement a Federal 
operating permit program for that state or local agency.

B. Federal Oversight and Sanctions

    If EPA grants interim approval to the State of Tennessee and 
Memphis-Shelby County programs, the interim approvals will extend for 
two years following the effective date of the final interim approvals, 
and cannot be renewed. During the interim approval period, the State 
and the County will not be subject to sanctions and EPA will not be 
obligated to promulgate, administer, and enforce a Federal operating 
permit program for the State or the 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 the State of 
Tennessee or Memphis-Shelby County fail to submit a complete corrective 
program for full approval by the date six months before expiration of 
the interim approval, EPA will start an 18-month clock for mandatory 
sanctions. If the State or the County then fail 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 the 
State or the County has corrected the deficiency by submitting a 
complete corrective program. Moreover, if the Administrator finds a 
lack of good faith on the part of the State of Tennessee or Memphis-
Shelby County, both sanctions under section 179(b) will apply after the 
expiration of the 18-month period until the Administrator determines 
that the State or the County has come into compliance. In any case, if, 
six months after application of the first sanction, the State or the 
County still has not submitted a corrective program that EPA determines 
to be complete, a second sanction will be required.
    If, following final interim approval, EPA disapproves the State of 
Tennessee's or Memphis-Shelby County's complete corrective program, EPA 
will be required to apply one of the section 179(b) sanctions on the 
date 18 months after the effective date of the disapproval, unless 
prior to that date the State or the County has submitted a revised 
program and EPA has determined that it corrected the deficiencies that 
prompted the disapproval. Moreover, if the Administrator finds a lack 
of good faith on the part of the State or the County, both sanctions 
under section 179(b) will apply after the expiration of the 18-month 
period until the Administrator determines that the State or the County 
has come into compliance. In all cases, if six months after EPA applies 
the first sanction, the State of Tennessee or Memphis-Shelby County has 
not submitted a revised program that EPA determines to have corrected 
the deficiencies that prompted disapproval, a second sanction will be 
required.
    In addition, discretionary sanctions may be applied where warranted 
any time after the end of an interim approval period if a state or 
local agency has not timely submitted a complete corrective program or 
EPA has disapproved a submitted corrective program. Moreover, if EPA 
has not granted full approval to a state or local program by the 
expiration of an interim approval and that expiration occurs after 
November 15, 1995, EPA must promulgate, administer, and enforce a 
Federal operating permit program for that state or local agency upon 
interim approval expiration.

II. Proposed Action and Implications

A. Analysis of State and County Submittals

    EPA has concluded that the operating permit programs submitted by 
the State of Tennessee and Memphis-Shelby County substantially meet the 
requirements of title V and part 70, and proposes to interimly approve 
the programs. For detailed information on the analyses of the State and 
County submittals, please refer to the Technical 

[[Page 9663]]
Support Documents (TSDs) contained in the dockets at the address noted 
above. The TSDs describe the manner in which the programs satisfy the 
operating permit program requirements of part 70.
1. Support Materials
    Pursuant to section 502(d) of the Act, each permitting authority 
must develop and submit to the Administrator an operating permit 
program under state or local law or under an interstate compact that 
meets the requirements of title V of the Act. On November 10, 1994, EPA 
received the title V operating permit program submitted by the 
Tennessee Department of Environment and Conservation. The State 
requested, under the signature of the Tennessee Governor's designee, 
approval of its operating permit program with full authority to 
administer the program in ninety-one of the State's ninety-five 
counties. Four of the State's counties (Shelby, Davidson, Hamilton, and 
Knox) are regulated by local air pollution control agencies operating 
under certificates of exemption issued pursuant to Tennessee Code 
Annotated (T.C.A.) Section 68-201-115. The State's jurisdiction also 
does not extend to sources of air pollution over which an Indian Tribe 
has jurisdiction. The State of Tennessee supplemented its initial title 
V program submittal on December 5, 1994, August 8, 1995, January 17, 
1996, January 30, 1996, and February 13, 1996.
    On June 26, 1995, EPA received the Memphis-Shelby County title V 
operating permit program submittal. The State requested, under the 
signature of the Tennessee Governor's designee, approval of the 
County's program on behalf of the Memphis-Shelby County Health 
Department. The Memphis-Shelby County Health Department has authority 
to administer the operating permit program in all areas of Shelby 
County, Tennessee, including the incorporated municipalities of 
Arlington, Bartlett, Collierville, Germantown, Lakeland, Memphis, and 
Millington. The County's jurisdiction does not extend to sources of air 
pollution over which an Indian Tribe has jurisdiction. The County 
supplemented its initial program on August 22, 1995, August 23, 1995, 
August 24, 1995, January 29, 1996, February 7, 1996, and February 14, 
1996.
    The State of Tennessee and Memphis-Shelby County submittals 
address, in the Workload Analyses contained therein, the requirement of 
40 CFR 70.4(b)(1) by describing how the State and County intend to 
carry out their responsibilities under part 70. EPA has deemed the 
program descriptions to be sufficient for meeting the requirement of 40 
CFR 70.4(b)(1).
    Pursuant to 40 CFR 70.4(b)(3), each permitting authority is 
required to submit a legal opinion from the Attorney General (or the 
attorney for the air pollution control agency that has independent 
legal counsel) demonstrating adequate authority to carry out all 
aspects of the title V operating permit program. The State of Tennessee 
submitted an Attorney General's Opinion demonstrating adequate legal 
authority as required by Federal law and regulation. The Memphis-Shelby 
County submittal contains an Opinion Letter by the County Attorney. 
This letter, with the supplements dated August 24, 1995 and January 29, 
1995, adequately demonstrate the required legal authority.
    The program submittals also contain supporting documentation, such 
as evidence of the procedurally correct adoption of the permitting 
rules, permit application forms, and copies of the enforcement 
agreements with EPA. The State's submittal was determined by EPA to be 
administratively complete on January 24, 1995. The County's submittal 
was determined to be administratively complete on September 5, 1995.
2. Program Implementation
    The State of Tennessee developed Paragraph 1200-3-9-.02(11), 
entitled ``Major Stationary Source Operating Permits'', of the 
Tennessee Air Pollution Control Regulations to implement the 
substantive requirements of part 70. The State also developed Rule 
1200-3-10-.04 entitled ``Enhanced and Periodic Monitoring for Title V 
Sources'' and Chapter 1200-3-30 entitled ``Control of Acidic 
Precipitation'' to implement other title V requirements. These rules, 
and several other rules and statutes providing for administrative 
actions and the assessment of fees, were submitted by the State with 
sufficient evidence of procedurally correct adoption as required by 40 
CFR 70.4(b)(2).
    The County's operating permit program is implemented and enforced 
through the Shelby County Air Pollution Control Code, which was amended 
on April 24, 1995 to incorporate by reference in entirety the State's 
Paragraph 1200-3-9-.02(11) entitled ``Major Stationary Source Operating 
Permits'', Rule 1200-3-10-.04 entitled ``Enhanced and Periodic 
Monitoring for Title V Sources'', and Chapter 1200-3-30 entitled 
``Control of Acidic Precipitation''.1 These regulations, and 
several other rules and statutes providing for administrative actions 
and the assessment of fees, were submitted by Memphis-Shelby County 
with sufficient evidence of procedurally correct adoption as required 
by 40 CFR 70.4(b)(2).

    \1\ The current Memphis-Shelby County codifications make 
reference to the entire Tennessee Chapter 1200-3-9, which was 
adopted and incorporated by reference into Section 16-77 of the 
City's code and into Section 3-5 of the County's code. In addition, 
Tennessee Chapter 1200-3-10 was adopted into Sections 16-85 and 3-7, 
and Tennessee Chapter 1200-3-30 was adopted into Sections 16-91.2 
and 3-36. Since the City and the County have not yet codified 
subsections, all references in this notice will be to applicable 
parts of Tennessee regulations.
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3. Regulations
    a. Applicability. The State of Tennessee and Memphis-Shelby County 
title V program submittals, in Subparagraphs 1200-3-9-.02(11) (b) and 
(c), substantially meet the requirements of 40 CFR 70.2 and 70.3 with 
regards to applicability.
    The State of Tennessee and Memphis-Shelby County title V programs 
provide for the treatment of research and development (R&D) facilities 
as sources that are separate from other stationary sources that are 
located on contiguous and adjacent properties and that are under common 
control. Neither program, however, requires a ``support facility test'' 
(see 60 FR 45556, August 31, 1995) before R&D is treated as a separate 
source when it is co-located with an industrial activity. EPA does not 
consider the lack of the support facility test as an issue for program 
approval because the definition of ``Research and Development 
Facility'' found in Subparagraph 1200-3-9-.02(11)(b)24. requires that 
the facility not be ``engaged in the manufacture of products for 
commercial sale in commerce, except in a de minimis manner''. 
Therefore, it is EPA's understanding that if co-located R&D facilities 
contribute to industrial activities in material rather than de minimis 
capacities, the State and the County will consider them as support 
facilities and thus not separable. This interpretation is consistent 
with the support facility test, which treats co-located and commonly 
owned sources as one source (with aggregated emissions) if the output 
of one source is more than 50 percent devoted to the support of the 
other source.
    The State of Tennessee and Memphis-Shelby County programs, in 
Subparagraph 1200-3-9-.02(11)(b)14.(iv), provide that ``* * * all 
activities claimed by an applicant to be 

[[Page 9664]]
research and development at the contiguous or adjacent property shall 
have their emissions aggregated as a single source for the purposes of 
determining whether or not the research and development activities 
constitute a major source.'' It is EPA's understanding that the term 
``activities'' in this provision is intended to address the R&D 
activities at the R&D facility, as referenced in the preceding sentence 
of Subparagraph 1200-3-9-.02(11)(b)14.(iv) and defined in Subparagraph 
1200-3-9-.02(11)(b)24., and is not intended to apply to any activities 
occurring within a stationary source that is not considered to be a R&D 
facility. Given this understanding, EPA does not consider this 
provision to be a title V program approval issue for the State or the 
County.
    Neither the State or the County addressed 40 CFR 70.3(b)(3), which 
allows exempted sources to apply for a permit, in their program 
submittals. Justification of this omission of a part 70 provision is 
requested from the State and the County as a condition of full program 
approval.
    b. Permit Applications. The State of Tennessee and Memphis-Shelby 
County title V programs, in Subparagraph 1200-3-9-.02(11)(d) and in the 
permit application forms, substantially meet the requirements of 40 CFR 
70.5 for complete permit application forms. However, the regulatory 
provisions in both programs do not specifically require the permit 
applications to contain the information described in 40 CFR 70.5(c), 
including the compliance certification requirements of 40 CFR 
70.5(c)(9).
    The State's and County's application forms, which were submitted 
for approval as part of both title V programs, do require all the 
information referred to in 40 CFR 70.5(c), including a certification of 
compliance status with respect to all applicable requirements. EPA is 
concerned in particular that the compliance certification be a binding, 
regulatory requirement upon the source. The State asserts that, because 
its regulations require sources to provide the information specified in 
the application form, and because the application form submitted for 
approval as part of the State's title V program requires a compliance 
certification, the compliance certification is a regulatory requirement 
that is binding upon the source. EPA finds this explanation plausible, 
but seeks confirmation in the form of a legal opinion from the State.
    Therefore, as a condition of full approval for both programs, EPA 
is requesting that the State and the County clarify in supplemental 
legal opinions that their permitting regulations require a source 
submitting an application for a title V permit to certify its 
compliance status with regards to all applicable requirements. 
Alternatively, the State and the County could revise their regulations 
to directly incorporate this requirement.
    In addition, because neither the State nor the County have 
regulatory provisions for permit applications to contain the 
information described in 40 CFR 70.5(c), EPA is reminding the State and 
the County that any revisions to their forms must be submitted as title 
V program revisions for EPA review and approval pursuant to 40 CFR 
70.4(i).
    c. Insignificant Activities. Pursuant to part 70, a permitting 
authority must request and EPA may approve as part of that program, a 
list of insignificant activities and emission levels which need not be 
included in the permit applications. Although part 70 does not define 
appropriate emission levels for insignificant activities, 40 CFR 
70.4(b)(2) requires permitting authorities to include in their title V 
program submittals any criteria used to determine insignificant 
activities or emission levels. Based on the information provided in the 
submittal, EPA determines whether the insignificant emission levels for 
the particular program under review are approvable.
    For other title V program submittals, EPA has accepted ``generic'' 
(that is, not keyed to a specific type of activity) emission thresholds 
of no more than five tons per year for regulated air pollutants and 
1000 pounds per year for hazardous air pollutants (HAPs) as 
insignificant. EPA believes that these levels are sufficiently below 
applicability thresholds for many applicable requirements to ensure, in 
combination with appropriate ``gatekeepers'', that units potentially 
subject to applicable requirements are included in permit applications. 
In addition to insignificant activity lists or threshold levels with 
appropriate emissions limitations, a State's program must provide, as 
required in 40 CFR 70.5(c), that an application may not omit 
information needed to determine the applicability of and to impose 
applicable requirements, and to collect fees. If a state or local 
agency's permitting regulations include this ``gatekeeper'' language, 
and the insignificant activities list and generic threshold levels are 
reasonable (that is, if they are not on their face likely to interfere 
with the determination and imposition of applicable requirements), then 
EPA will approve the insignificant activities provisions.
    The initial State of Tennessee and Memphis-Shelby County title V 
program submittals contained the version of Rule 1200-3-9-.04 entitled 
``Exemptions'' that became state-effective on November 21, 1993. Rule 
1200-3-9-.04 identifies over 50 different insignificant activities and 
emission units that are exempt from permitting requirements. Because 
Rule 1200-3-9-.04 purports to exempt the listed activities from 
``permitting'', rather than from description in the permit application, 
it is broader than the exemption contemplated by 40 CFR 70.5(c).
    Activities and emission units deemed ``insignificant'' for purposes 
of title V permitting are not exemptions from the obligation to 
consider all emissions from the source in determining whether the 
source is major, nor are they exemptions from the requirement to comply 
with the permit content provisions of 40 CFR 70.6 for all applicable 
requirements. Rather, provisions for insignificant activities and 
emission units allow sources subject to title V to avoid description of 
EPA-approved insignificant activities in the application, or to include 
only limited information in the application (as in the case of 
activities deemed insignificant based on size or production rate). 
Therefore, the exemption from ``permitting'' requirements contained in 
Rule 1200-3-9-.04 must be removed as a condition of full approval for 
both programs.
    Moreover, neither the State nor the County submitted information 
regarding the estimated levels of emissions from the activities and 
units listed in Rule 1200-3-9-.04, nor has a demonstration been made 
that these activities are not likely to be subject to applicable 
requirements or to have emissions that affect major source status. EPA 
has examined the list of excluded activities and believes that 
exclusion of these items would unduly hamper a reviewer's ability to 
verify whether the source has correctly identified all applicable 
requirements in its application.
    Therefore, as a condition of full approval for both programs, the 
State and the County must provide a demonstration that adequately 
quantifies the potential emissions (based on maximum capacity or on 
specified size/operational limitations) from each of the activities and 
emission units listed in Paragraphs 1200-3-9-.04 (1) and (4) sufficient 
to allow EPA to determine that exclusion of the activities and units 
from permit applications will not interfere with the determination and 
imposition of applicable requirements. In the 

[[Page 9665]]
alternative, the State and the County could specifically limit the 
emissions from each listed activity and emissions unit to the 
recommended 5 tpy for regulated air pollutants and 1000 pounds per year 
for HAPs. In addition, Rule 1200-3-9-.04 must be revised to include 
``gatekeeper'' language consistent with that in 40 CFR 70.5(c), as 
discussed above, and to remove any language implying that insignificant 
activities may be excluded from major source applicability 
determinations.
    On August 8, 1995, the State of Tennessee supplemented Rule 1200-3-
9-.04 in its title V program with Paragraph 1200-3-9-.04(5) entitled 
``Major Source Operating Permits Insignificant Emission Units'', which 
became state-effective on August 26, 1995. Memphis-Shelby County has 
not yet formally supplemented its title V program with Paragraph 1200-
3-9-.04(5), but the County is in the process of amending its code to 
include this paragraph. The County has informed EPA that it will 
supplement its title V program with Paragraph 1200-3-9-.04(5) when the 
amended code is local-effective.
    Paragraph 1200-3-9-.04(5) contains two lists of insignificant 
emission units and activities. The list in Subparagraph 1200-3-9-
.04(5)(f) includes more than 120 emission units and activities that are 
categorically exempt from permitting requirements and allowed to be 
omitted from the permit application. The list in Subparagraph 1200-3-9-
.04(5)(g) contains more than 23 emission units and activities that are 
defined as insignificant based on size or production rate. The units 
and activities in the second list are required to be included in the 
permit application.
    Based on EPA's review of Paragraph 1200-3-9-.04(5), a number of the 
activities and emission units contained in the two lists either 
directly or potentially conflict with applicable requirements as 
defined in part 70, or are so vaguely or broadly articulated that EPA 
cannot determine whether a conflict or potential conflict exists. 
Obvious conflicts that were noted by EPA are discussed in the 
aforementioned TSDs. However, EPA could not adequately evaluate the two 
lists because neither the State or the County submitted information 
quantifying the potential emissions from the listed activities and 
units, or the criteria that were used to determine the insignificant 
activities and emission units. And, because the rule purports to 
exclude activities and emission units listed in Subparagraph 1200-3-9-
.04(5)(f) from permitting requirements, EPA has the same concerns as 
discussed above with regards to the initially submitted Rule 1200-3-9-
.04, namely that the rule would authorize excluding insignificant 
activities from major source applicability determinations or from other 
requirements of part 70 for units that are listed as insignificant but 
that are in fact subject to applicable requirements.
    Therefore, as conditions of full approval for both programs, the 
State and the County must complete the following:
    (1) Provide a demonstration that adequately quantifies the 
potential emissions (based on maximum capacity or on specified size/
operational limitations) from each of the activities and emission units 
listed in Subparagraphs 1200-3-9-.04(5) (f) and (g) sufficient to allow 
EPA to determine that exclusion of the activities and units from permit 
applications will not interfere with the determination and imposition 
of applicable requirements. In the alternative, the State and County 
could specifically limit the emissions from each listed activity and 
emissions unit to the recommended 5 tpy for regulated air pollutants 
and 1000 pounds per year for HAPs.
    (2) Address the conflicts with applicable requirements that are 
discussed in the TSDs.
    (3) Remove the exemption from permitting requirements contained in 
Subparagraph 1200-3-9-.04(5)(f) to ensure that the insignificant 
activities provisions are not broader than that allowed under 40 CFR 
70.5(c), and include ``gatekeeper'' language consistent with that in 40 
CFR 70.5(c).
    In addition to the exemption from permitting in Subparagraph 1200-
3-9-.04(5)(f), the provisions of Subparagraph 1200-3-9-.04(5)(c)3. 
exempt sources subject to generally applicable SIP requirements from 
the monitoring, recordkeeping, reporting, and certification 
requirements of 40 CFR 70.6 (a)(3) and (c). However, part 70 does not 
exempt insignificant activities and emission units subject to 
applicable requirements from the permit content requirements of 40 CFR 
70.6. That is to say, although insignificant activities may be omitted 
from description in the permit application, nothing in part 70 allows 
the permitting authority to issue permits that exempt the source from 
compliance certification or (as appropriate) monitoring, recordkeeping, 
and reporting required under 40 CFR 70.6 for all emissions units 
subject to applicable requirements. Part 70 does, however, allow 
permitting authorities the flexibility to tailor the amount and quality 
of information required in the permit application, and the rigor of 
compliance requirements contained in the permit, to the type of 
emission unit and applicable requirement in question.
    EPA has discussed this issue previously in the interim approval 
notices on the State of Washington's title V program (see 60 FR 50166 
(September 28, 1995) and 60 FR 62992 (December 8, 1995)). This issue is 
also addressed in the July 10, 1995 guidance memorandum entitled 
``White Paper for Streamlined Development of Part 70 Permit 
Applications'' from Lydia Wegman, Deputy Director of EPA's Office of 
Air Quality Planning and Standards, to the EPA Regional Air Directors. 
EPA is committed to issuing additional guidance to aid state and local 
permitting authorities in drafting permits which comply with the permit 
content requirements of 40 CFR 70.6 for insignificant activities, and 
intends to issue such guidance in the very near future.
    Therefore, as a condition of full approval for both programs, 
Subparagraph 1200-3-9-.04(5)(c)3. must be revised to eliminate the 
exemption from the monitoring, recordkeeping, reporting, and 
certification requirements of 40 CFR 70.6 (a)(3) and (c) for sources 
subject to generally applicable SIP requirements.
    In addition, Subparagraph 1200-3-9-.04(5)(h) exempts increases in 
regulated air pollutant emissions from permit amendment and 
modification procedures. Because this provision conflicts with the 
requirements of 40 CFR 70.7, it must be revised to be consistent with 
the part 70 criteria for administrative permit amendments and permit 
modifications as a condition of full approval for both programs.
    d. Permit Content. The State of Tennessee and Memphis-Shelby County 
title V programs, in Subparagraphs 1200-3-9-.02(11) (a) and (e), 
substantially meet the requirements of 40 CFR 70.4 and 70.6 for permit 
content, including operational flexibility and off-permit changes. 
However, Subparagraph 1200-3-9-.02(11)(b) entitled ``Definitions'' 
contains the following restriction:

    ``All references in this paragraph to the Federal Act or to 
federal regulations or requirements shall be to (i) that Act and 
those regulations and requirements as in effect on December 15, 
1993, and (ii) any other federal regulations or requirements to the 
extent that they are adopted and are effective as Rules of the State 
of Tennessee.

    This restriction applies to all Federal requirements referenced in 
Paragraph 1200-3-9-.02(11), including the definition of ``Applicable 
requirement'' in Subparagraph 1200-3-9-.02(11)(b). The State's and 
County's definition of 

[[Page 9666]]
``Applicable requirement'' is, therefore, not equivalent to the part 70 
definition because it restricts the domain of applicable requirements 
to those in effect before a certain date. As a result, neither program 
ensures that issued permits will address all applicable requirements in 
accordance with 40 CFR 70.6(a). Subparagraph 1200-3-9-.02(11)(b) must 
be revised for consistency with part 70 as a condition of full approval 
for both programs.
    The State and County program submittals, in Subparagraph 1200-3-9-
.02(11)(e)4., provide for the issuance of general permits. However, 
this provision allows a source to operate without an appropriate title 
V permit and not be subject to enforcement action. Subparagraph 1200-3-
9-.02(11)(e)4. initially indicates that a source shall be subject to 
enforcement action if it operates under a general permit but is later 
found not to qualify for a general permit. However, the next sentence 
states that if the source is required to have an individual permit, the 
permit shield will apply until the individual permit becomes effective, 
which relieves the source from liability. Because this provision 
conflicts with 40 CFR 70.6(d)(1), it must be changed as a condition of 
full approval of the State and County programs.
    Part 70 requires prompt reporting of deviations from the permit 
requirements. Section 70.6(a)(3)(iii)(B) requires 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 
section 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 contain sufficiently prompt reporting of 
deviations.
    The State of Tennessee and Memphis-Shelby County have not defined 
``prompt'' in their title V programs with respect to the reporting of 
deviations. Instead, Subparagraph 1200-3-9-.02(11)(e)1.(iii)(III)II. 
references the provisions of Rule 1200-3-20-.03 to define ``prompt 
reporting''. Rule 1200-3-20-.03 specifies that in the event of a 
malfunction, a source shall notify the State and the County by 
telephone within 24 hours of the malfunction. The notification must 
contain a statement giving all pertinent facts, including the estimated 
duration of the malfunction. Chapter 1200-3-20, which contains Rule 
1200-3-20-.03, was included in the State's title V program submittal, 
but not in the County's submittal. The County clarified, in a letter 
dated February 7, 1996, that the prompt reporting provision of Rule 
1200-3-20-.03 is effective in all of the County's jurisdictions.
    Subparagraph 1200-3-9-.02(11)(e)1.(iii)(III)II. also references 
Chapter 1200-3-20 to define deviations from permit conditions, such as 
upset, malfunction, or emergency conditions. However, Paragraph 1200-3-
20-.06(5) identifies a number of different exceedances that will not be 
considered by the State as violations. This provision conflicts with 
part 70, which requires that any emissions not permitted at a source be 
in violation of permit terms and conditions. Specifically, 40 CFR 
70.6(g) classifies excess emissions due to emergency situations as a 
violation of an existing permit, and allows the State to provide an 
affirmative defense in certain circumstances.
    If a regulation such as Chapter 1200-3-20 is approved into the SIP, 
it becomes a part of an applicable requirement and therefore may 
function with respect to that requirement or requirements of which it 
is a part. This would be true even after the applicable requirement is 
incorporated into the permit. However, the version of Chapter 1200-3-20 
contained in the State's title V program submittal is not approved into 
the Tennessee SIP. More importantly, from the standpoint of part 70, 
Chapter 1200-3-20 is on its face limited to SIP requirements. It would, 
therefore, affect the definition of violations for any applicable 
requirement incorporated into the permit, including those that the 
State has no authority to change, such as Federal standards. To remedy 
this inconsistency with part 70, and as a condition of full program 
approval, the State must revise Chapter 1200-3-20 to clarify that it 
applies only with respect to requirements in the SIP. Furthermore, the 
revised rule must be submitted to EPA for approval into the Tennessee 
SIP.
    The State of Tennessee and Memphis-Shelby County have the authority 
to issue variances from the requirements imposed by State and County 
law. The State has discretion, pursuant to T.C.A. Section 68-201-118, 
to grant relief from compliance with State statutes and rules. The 
County has discretion, pursuant to Section 3-10 of the Shelby County 
Code, to grant relief from compliance with County statutes and rules. 
EPA regards these provisions as wholly external to the programs 
submitted for approval under part 70, and consequently proposes to take 
no action on these provisions of State and County law.
    EPA has no authority to approve provisions of state and local law, 
such as the variance provisions referred to above, 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 title V operating permit, except where such 
relief is granted through the procedures allowed by part 70. A title V 
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 title V 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 interpretation 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.''
    The State of Tennessee and Memphis-Shelby County title V program 
submittals contain provisions for the issuance of Federally enforceable 
state and local minor source operating permits to limit an air 
pollution source's potential to emit. Limiting a source's potential to 
emit through Federally enforceable minor source operating permits can 
affect the applicability of Federal regulations to a source, including 
the regulations governing 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.
    EPA promulgated the criteria for Federal enforceability of minor 
source 

[[Page 9667]]
operating permits in the Federal Register on June 28, 1989 (see 54 FR 
22274). One of the criteria is EPA's approval of the minor source 
operating permit program into the State Implementation Plan (SIP). Both 
the State of Tennessee and Memphis-Shelby County have submitted the 
provisions for issuing Federal enforceable minor source operating 
permits as SIP revisions. Therefore, EPA is not taking action in this 
notice on the ``opt out'' provisions contained in Paragraph 1200-3-9-
.02(11)(1) as part of either the State or the County title V program.
    Both program submittals contain Paragraph 1200-3-9-.02(4) entitled 
``Permits for Non-Complying Sources'', which is an approved SIP rule 
that does not address any part 70 requirements. Moreover, the version 
of the rule included in the submittals contains revisions that have not 
yet been submitted for incorporation in either the State of Tennessee's 
or Memphis-Shelby County's SIP. EPA has provided comments to the State 
on the revised version of the rule, but the comments have not yet been 
addressed by the State. EPA is, therefore, not taking action on 
Paragraph 1200-3-9-.02(4) as part of either the State or the County 
title V program.
    e. Permit Processing and Review. The State of Tennessee and 
Memphis-Shelby County title V programs, in Subparagraph 1200-3-9-
.02(11)(f) and (g), substantially meet the permit processing and review 
requirements of 40 CFR 70.7 (including minor permit modifications and 
public participation) and 70.8. However, the State's and County's 
permit reopenings provisions for HAP sources are not consistent with 
part 70 requirements.
    According to Subparagraph 1200-3-31-.04(1)(a), the State and the 
County will call applications for permit revisions when EPA promulgates 
new maximum achievable control technology (MACT) standards. Sources 
will have 360 days to submit applications, and the permitting authority 
shall issue the permit revision within 18 months of the date the 
application is deemed complete. This provision conflicts with 40 CFR 
70.7(f)(1)(i), which requires completion of permit reopenings not later 
than 18 months after promulgation of a new applicable requirement in 
cases of permits with remaining terms of three or more years. As a 
result, Subparagraph 1200-3-31-.04(1)(a) must be revised for 
consistency with part 70 requirements as a condition of full approval 
for both programs.
    f. Enforcement Authority. The State of Tennessee and Memphis-Shelby 
County title V programs, in T.C.A. Sections 68-201-101 et seq., address 
the requirements of 40 CFR 70.11 with respect to enforcement authority.
4. 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''.
    Both the State of Tennessee and Memphis-Shelby County have elected 
to assess title V operating permit fees below the Federal presumptive 
minimum fee amount, and both program submittals contained Workload 
Analyses satisfying the 40 CFR 70.9(b)(5) requirement for detailed fee 
demonstrations. The fee demonstrations showed that the fees collected 
will adequately cover the anticipated costs of the State and the County 
operating permit programs for the years 1995 through 1999.
    The specified activities that constitute the State's program are 
consistent with 40 CFR 70.9(b)(1), but the County's fee provisions 
allow use of the operating permit fees for any purpose rather than 
solely for the funding of title V program activities in accordance with 
40 CFR 70.9(a). Moreover, the County's program does not specify that 
the fees used to cover the direct and indirect costs of the operating 
permit program will be collected only from part 70 sources, as required 
by 40 CFR 70.9(a). Memphis-Shelby County, therefore, must revise its 
fee provisions to be consistent with the part 70 requirements as a 
condition of full program approval.
5. Provisions Implementing Requirements of Other Titles of the Act
    a. Authority for Section 112 Implementation. In the title V program 
submittals, the State of Tennessee and Memphis-Shelby County 
demonstrate adequate legal authority to implement and enforce all 
section 112 requirements through title V permits. This legal authority 
is contained in T.C.A. Sections 68-201-101 et seq., and in 
Subparagraphs 1200-3-9-.02(11)(b)5. and 1200-3-9-.02(11)(c)(iii) of the 
Tennessee Air Pollution Control Regulations. EPA has determined that 
this legal authority is sufficient to allow the State and the County to 
issue permits that assure compliance with all section 112 requirements.
    EPA is interpreting the above legal authority to mean that the 
State of Tennessee and Memphis-Shelby County are able to carry out all 
section 112 activities with respect to part 70 and non-part 70 sources. 
For further rationale on this interpretation, please refer to the 
aforementioned TSDs.
    Both program submittals contain Chapter 1200-3-32 entitled 
``Prevention of Accidental Releases'', which was promulgated by the 
State and adopted by the County to implement the provisions of section 
112(r) of the Act. However, EPA has not yet promulgated a Federal rule 
to implement the provisions of section 112(r), so the State and County 
rules may not be equivalent to the final Federal rule. Therefore, EPA 
is not taking action in this notice on Chapter 1200-3-32 as part of 
either the State or the County title V program.
    b. Implementation of Section 112(g) During Transition Period EPA 
issued an interpretive notice on February 14, 1995 (60 FR 8333), which 
outlines the Agency'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 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 permitting authorities 
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. A detailed discussion of the rationale for the revised 
interpretation is included in the February 14, 1995 notice.
    Unless and until EPA provides for an additional postponement of the 
section 112(g) effective date, the State of Tennessee and Memphis-
Shelby County must have Federally enforceable mechanisms for 
implementing section 112(g) during the period between promulgation of 
the Federal section 112(g) rule and adoption of implementing State and 
County regulations. Both program submittals contain Chapter 1200-3-31 
entitled ``Case by Case Determinations of Hazardous Air Pollutant 
Control Requirements'', which will serve as an adequate implementation 
vehicle during the transition period. Chapter 1200-3-31 became state-
effective on September 18, 1994, and the County adopted and 

[[Page 9668]]
incorporated it by reference on April 24, 1995.
    However, Chapter 1200-3-31 contains several discrepancies with 
respect to the provisions of section 112(g) of the Act. As a condition 
of full program approval, the State and the County must correct the 
following discrepancies in order to use this chapter to implement 
section 112(g) during the transition period between promulgation of the 
Federal section 112(g) rule and the adoption of equivalent State and 
County regulations:
    (1) The definition of ``modification'' in Paragraph 1200-3-31-
.02(10) conflicts with the section 112(g) definition regarding offsets. 
The State/County definition indicates that increased emissions of one 
HAP may be offset by an equal or greater decrease of another HAP that 
is deemed by the permitting authority to be equal to or more hazardous. 
However, according to section 112(g)(1)(A), the offset must be by a HAP 
which is deemed to be more hazardous, and the determination must be 
based on guidance issued by the Administrator under section 
112(g)(1)(B).
    (2) According to Subparagraph 1200-3-31-.05(1), the State and the 
County shall only make case-by-case determinations for new sources in a 
source category scheduled for action under sections 112(e)(1) and (3). 
However, section 112(g) applies to all major sources of HAPs, 
regardless of whether or not they have been included in a scheduled 
source category.
    c. Program for Delegation of Section 112 Standards as Promulgated. 
The requirements for title V program approval, specified in 40 CFR 
70.4(b), encompass section 112(l)(5) requirements for approval of an 
operating permit program for delegation of section 112 standards 
promulgated by EPA as they apply to title V sources. Section 112(l)(5) 
requires that operating permit programs contain adequate authorities, 
adequate resources for implementation, and expeditious compliance 
schedules, which are also requirements under part 70. Therefore, EPA 
also proposes to approve, under section 112(l)(5) and 40 CFR 63.91, the 
State of Tennessee and Memphis-Shelby County programs for receiving 
delegation of section 112 standards and programs that are unchanged 
from the Federal rules as promulgated. In addition, EPA proposes to 
delegate to the State and the County all existing standards and 
programs under 40 CFR parts 61 and 63 for part 70 sources and non-part 
70 sources.2

    \2\ 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.
---------------------------------------------------------------------------

    The State of Tennessee has informed EPA that it intends to accept 
the delegation of section 112 standards under part 61 on a case-by-case 
basis and the delegation of section 112 standards under part 63 on an 
automatic basis. The details of the State's use of these delegation 
mechanisms are set forth in letters dated November 4, 1994, January 30, 
1996, and February 13, 1996.
    Memphis-Shelby County has informed EPA that it too intends to 
accept delegation of section 112 standards under part 61 on a case-by-
case basis and the delegation of section 112 standards under part 63 on 
an automatic basis. The details of the County's use of these delegation 
mechanisms are set forth in letters dated June 14, 1995, February 7, 
1996, and February 14, 1996.
    d. Title IV Acid Rain Program Requirements. The State of Tennessee 
promulgated Chapter 1200-3-30 to implement the Phase II acid rain 
permitting requirements of 40 CFR part 72. This chapter became state-
effective on September 13, 1994, and has been determined by EPA to be 
acceptable for the purposes of administering an acid rain program. 
Memphis-Shelby County adopted and incorporated the State's Chapter 
1200-3-30 by reference on April 24, 1995. The County's acid rain 
program has also been determined by EPA to be acceptable for the 
purposes of administering an acid rain program.

B. Proposed Actions

    EPA proposes interim approval of the title V operating permit 
program submitted by the Tennessee Department of Environment and 
Conservation on November 10, 1994, and as supplemented on December 5, 
1994, August 8, 1995, January 17, 1996, January 30, 1996, and February 
13, 1996. EPA also proposes interim approval of the title V program 
submitted by the Memphis-Shelby County Health Department on June 26, 
1995, and as supplemented on August 22, 1995, August 23, 1995, August 
24, 1995, January 29, 1996, February 7, 1996, and February 14, 1996. If 
this interim approval is finalized, the changes identified below must 
be made for full approval of the State and County programs.
1. Opt-in Provision for Exempted Sources
    Neither the State or the County program addressed 40 CFR 
70.3(b)(3), which allows exempted sources to apply for a permit. 
Justification of the omission of this part 70 provision is requested 
from the State and the County.
2. Certification of Compliance With Applicable Requirements
    Neither the State or the County program contains regulatory 
provisions that require sources to certify compliance with all 
applicable requirements. EPA is, therefore, requesting the State and 
the County to clarify in supplemental legal opinions that their 
permitting regulations require a source submitting an application for a 
title V permit to certify its compliance status with regards to all 
applicable requirements. In the alternative, the State and the County 
could revise their regulations to directly incorporate this 
requirement.
3. Insignificant Activities
    As discussed above in section II.A.3.c., the State and the County 
must complete the following:
    a. Remove the exemptions from permitting requirements contained in 
Paragraphs 1200-3-9-.04(1) and (4), and in Subparagraph 1200-3-9-
.04(5)(f), and include ``gatekeeper'' language consistent with that in 
40 CFR 70.5(c).
    b. Revise Subparagraph 1200-3-9-.04(5)(c)3. to eliminate the 
exemption from the monitoring, recordkeeping, reporting, and 
certification requirements of 40 CFR 70.6(a)(3) and (c) for sources 
subject to generally applicable SIP requirements.
    c. Provide a demonstration that adequately quantifies the potential 
emissions (based on maximum capacity or on specified size/operational 
limitations) from each of the activities and emission units listed in 
Paragraphs 1200-3-9-.04(1) and (4), and Subparagraphs 1200-3-9-
.04(5)(f) and (g), sufficient to allow EPA to determine that exclusion 
of the activities and units from permit applications will not interfere 
with the determination and imposition of applicable requirements. In 
the alternative, the State and the County could specifically limit the 
emissions from each listed activity and 

[[Page 9669]]
emissions unit to the recommended 5 tpy for regulated air pollutants 
and 1000 pounds per year for HAPs.
    d. Address EPA's concerns, as discussed in the TSDs, about 
potential conflicts of certain activities and emission units listed in 
Paragraph 1200-3-9-.04(5) with applicable requirements.
    e. Revise Subparagraph 1200-3-9-.04(5)(h) to be consistent with the 
criteria in 40 CFR 70.7 for administrative permit amendments and permit 
modifications.
4. Applicable Federal Requirements
    Subparagraph 1200-3-9-.02(11)(b) in the State and County programs 
restricts the domain of Federal requirements referenced in Paragraph 
1200-3-9-.02(11) to those in effect on December 15, 1993. As a result, 
neither program ensures that issued permits will address all applicable 
requirements in accordance with 40 CFR 70.6(a). Subparagraph 1200-3-9-
.02(11)(b) must therefore be revised for consistency with part 70.
5. General Permits
    Subparagraph 1200-3-9-.02(11)(e)4. in both programs provides for 
the issuance of general permits. However, this provision allows a 
source to operate without an appropriate title V permit and not be 
subject to enforcement action. This provision must be revised for 
consistency with the requirements of 40 CFR 70.6(d)(1).
6. Excess Emissions Due to Malfunction, Startup, and Shutdown
    The State must revise Chapter 1200-3-20 to make clear that it 
applies only with respect to the requirements in the Tennessee SIP, and 
the revised rule must be submitted to EPA for approval in the SIP.
7. Permit Reopenings
    Subparagraph 1200-3-31-.04(1)(a) must be revised in both programs 
for consistency with the permit reopening requirements in 40 CFR 
70.7(f)(1)(i), which requires completion of permit reopenings not later 
than 18 months after promulgation of a new applicable requirement in 
cases of permits with remaining permit terms of three or more years.
8. Use of Title V Fees
    Memphis-Shelby County's fee provisions allow for use of operating 
permit fees for any purpose rather than solely for the funding of title 
V program activities, as required by 40 CFR 70.9(a). Moreover, the 
County's program does not specify that the fees used to cover the 
direct and indirect costs of the operating permit program will be 
collected only from part 70 sources, as required by 40 CFR 70.9(a). 
Memphis-Shelby County, therefore, must revise its fee provisions to be 
consistent with the part 70 requirements.
9. Implementation of Section 112(g) During Transition Period
    Both the State and the County title V program submittals contain 
Chapter 1200-3-31 entitled ``Case by Case Determinations of Hazardous 
Air Pollutant Control Requirements''. As discussed above in section 
II.A.4.b., the discrepancies between Chapter 1200-3-31 and Federal 
requirements must be addressed for EPA to approve this mechanism of 
implementing section 112(g) during the transition period between 
Federal 112(g) rule promulgation and adoption of appropriate State and 
County rules.
    In addition, as discussed above in section II.A.4.c., EPA proposes 
approval under section 112(l)(5) and 40 CFR 63.91 to the State of 
Tennessee and Memphis-Shelby County programs for receiving delegation 
of section 112 standards and programs that are unchanged from Federal 
rules as promulgated. EPA also proposes to delegate existing standards 
and programs under 40 CFR parts 61 and 63 for both part 70 sources and 
non-part 70 sources.
    This interim approval, which may not be renewed, extends for a 
period of up to two years. During the interim approval period, the 
State of Tennessee and Memphis-Shelby County are protected from 
sanctions for failure to have programs, and EPA is not obligated to 
promulgate Federal operating permit programs in the State or the 
County. Permits issued under a program with interim approval are fully 
effective with respect to part 70, and the one-year time period for 
submittal of permit applications by subject sources begins upon the 
effective date of interim approval, as does the three-year time period 
for processing the initial permit applications.
    The scope of the State of Tennessee and Memphis-Shelby County title 
V programs that EPA proposes to interimly approve in this notice 
applies to all part 70 sources (as defined in the approved program) 
within the ninety-one counties under the State's jurisdiction and in 
Shelby County, except any sources of air pollution over which an Indian 
Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-18 (November 9, 
1994). The term ``Indian Tribe'' is defined under the Act as ``any 
Indian tribe, band, nation, or other organized group or community, 
including any Alaska Native village, which is Federally recognized as 
eligible for the special programs and services provided by the United 
States to Indians because of their status as Indians.'' See section 
302(r) of the CAA; see also 59 FR 43956, 43962 (August 25, 1994); 58 FR 
54364 (October 21, 1993).

III. Administrative Requirements

A. Request for Public Comments

    EPA requests comments on all aspects of this proposed interim 
approval. Copies of the State of Tennessee and Memphis-Shelby County 
title V program submittals, and other information relied upon for the 
proposed interim approval, are contained in the dockets numbered TN-96-
01 and TN-MEMP-96-01, which are maintained at the EPA Region 4 office. 
These dockets are organized and complete files of all the information 
submitted to, or otherwise considered by, EPA in the development of 
this notice. 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. EPA will 
consider any comments received by April 10, 1996.

B. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.

C. Regulatory Flexibility Act

    EPA's actions under section 502 of the Act do not create any new 
requirements, but simply address operating permit 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 

[[Page 9670]]
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 interim 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, Environmental protection, Intergovernmental 
relations, Operating permits, and Reporting and recordkeeping 
requirements.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: February 26, 1996.
Phyllis P. Harris,
Acting Regional Administrator.
[FR Doc. 96-5720 Filed 3-8-96; 8:45 am]
BILLING CODE 6560-50-P