[Federal Register Volume 62, Number 32 (Tuesday, February 18, 1997)]
[Rules and Regulations]
[Pages 7160-7163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3867]



[[Page 7160]]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

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


Approval and Promulgation of Implementation Plans; Hamilton 
County, TN

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the Chattanooga-Hamilton County 
portion of the Tennessee State Implementation Plan (SIP) to allow the 
Chattanooga Hamilton County Air Pollution Control Bureau (CHCAPCB) to 
issue Federally enforceable state operating permits (FESOP). EPA is 
also approving the CHCAPCB's FESOP program pursuant to section 112 of 
the Clean Air Act as amended in 1990 (CAA or ``the Act'') so that the 
CHCAPCB may issue Federally enforceable state operating permits 
containing limits for hazardous air pollutants (HAP).

DATES: This final rule will be effective April 21, 1997 unless adverse 
or critical comments are received by March 20, 1997. If the effective 
date is delayed, timely notice will be published in the Federal 
Register.

ADDRESSES: Written comments should be addressed to Kelly Fortin at the 
EPA regional office listed below. Copies of the documents used in 
developing this action are available for public inspection during 
normal business hours at the locations listed below. Interested persons 
wanting to examine these documents, contained in docket number TN178-1, 
should make an appointment with the appropriate office at least 24 
hours before the visiting day:

Air and Radiation Docket and Information Center (Air Docket 6102), U.S. 
Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460.
U.S. Environmental Protection Agency, Region 4, Air & Radiation 
Technology Branch, Atlanta Federal Center, 100 Alabama Street SW., 
Atlanta, Georgia 30303.
Tennessee Department of the Environment and Conservation, L&C Annex, 
401 Church Street, Nashville, Tennessee, 37243-1531.
Chattanooga-Hamilton County Air Pollution Control Bureau, 3511 
Rossville Boulevard, Chattanooga, Tennessee 37407-2495.

FOR FURTHER INFORMATION CONTACT: Kelly Fortin, Air & Radiation 
Technology Branch, Air, Pesticides & Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, Atlanta Federal Center, 100 
Alabama Street SW., Atlanta, Georgia 30303, 404-562-9117. Reference 
file TN178-1.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

    On December 15, 1995, the CHCAPCB, through the Tennessee Department 
of Environment and Conservation, submitted a SIP revision to make 
certain permits issued under the CHCAPCB's existing minor source 
operating permit program Federally enforceable pursuant to the EPA 
requirements specified in the Federal Register notice entitled 
``Requirements for the Preparation, Adoption, and Submittal of 
Implementation Plans; Approval and Promulgation of Implementation 
Plans'' (see 54 FR 27274, June 28, 1989). Additional materials were 
provided by the CHCAPCB to EPA on August 12, 1996. The CHCAPCB 
requested approval of their synthetic minor source SIP provisions for 
the purpose of limiting emission of HAPs on December 12, 1994.
    EPA has always had and continues to have the authority to enforce 
state and local permits which are issued under permit programs approved 
into the SIP. However, EPA has not always recognized as valid certain 
state and local permits which purport to limit a source's potential to 
emit. The principle purpose for adopting the regulations that are the 
subject of this notice is to give the CHCAPCB a Federally recognized 
means of expeditiously restricting potential emissions such that 
sources can avoid major source permitting requirements. A key mechanism 
for such limitations is the use of Federally enforceable state or local 
operating permits. The term ``Federally enforceable,'' when used in the 
context of permits which limit potential to emit, means ``Federally 
recognized.''
    The SIP revision that is the subject of this action approves 
Sections 4-2, 4-3, 4-4, 4-8, 4-12, 4-16, 4-17, 4-18, and 4-19 of the 
Chattanooga Air Pollution Control Ordinance (and identical language in 
corresponding sections of the Hamilton County Air Pollution Control 
Regulation and ordinances of the nine incorporated municipalities) into 
the Hamilton County portion of the Tennessee SIP. In this action, EPA 
is only approving that portion of the State's December 15, 1995 SIP 
submittal for Chattanooga-Hamilton County that includes or is necessary 
for the implementation of the CHCAPCB's FESOP program. The remaining 
portion of the SIP submittal will be addressed in a separate action.
    EPA has determined that the above referenced portion of the 
submittal and the additional materials provided by the CHCAPCB satisfy 
the five criteria outlined in the June 28, 1989, Federal Register 
notice. Please refer to section II of this notice for the criteria upon 
which this decision was based.

II. Analysis of the CHCAPCB Submittal

    Criterion 1. The county's operating permit program (i.e. the 
regulations or other administrative framework describing how such 
permits are issued) must be submitted to and approved by EPA as a SIP 
revision.
    The Chattanooga-Hamilton County Air Pollution Control Board, 
operating under a certificate of exemption pursuant to Tennessee Code 
Annotated, Section 68-201-115, has authority to administer a state 
operating permits program in all areas of Hamilton County Tennessee, 
with the exception of Indian reservations and tribal lands. The CHCAPCB 
operating permits program is implemented and enforced through: (1) the 
Chattanooga Air Pollution Control Ordinance (within the incorporated 
municipality of the City of Chattanooga, Tennessee); (2) the Hamilton 
County Air Pollution Control regulation (in the unincorporated areas of 
Hamilton County, Tennessee); and (3) air pollution control ordinances 
prepared for and enacted in the incorporated municipalities of East 
Ridge, Red Bank, Soddy-Daisy, Signal Mountain, Lakesite, Walden, 
Collegedale, Lookout Mountain, and Ridgeside. Chattanooga, Hamilton 
County, and the nine municipalities have identical regulations for air 
pollution control, except for codification, which are implemented by 
the CHCAPCB. For convenience, in this document the Chattanooga 
codification will be used.
    On December 15, 1995 the CHCAPCB, through the Tennessee Department 
of Environment and Conservation, submitted a SIP revision request to 
EPA consisting of revisions to Section 4 of the Chattanooga Air 
Pollution Control Ordinance (and corresponding sections of the Hamilton 
County Air Pollution Control Regulation and ordinances of the nine 
incorporated municipalities), amending the CHCAPCB's existing 
stationary source requirements to include provisions to issue FESOPs. 
This submittal is the subject of this rulemaking action.
    Criterion 2. The SIP revision must impose a legal obligation that 
operating permit holders adhere to the terms and limitations of such 
permits (or subsequent revisions of the permit made

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in accordance with the approved operating permit program) and provide 
that permits which do not conform to the operating permit program 
requirements and the requirements of EPA's underlying regulations may 
be deemed not ``Federally enforceable'' by EPA. Sections 4-3, 4-4 and 
4-8 of the Chattanooga regulations meet this criterion.
    Criterion 3. The state operating permit program must require that 
all emission limitations, controls, and other requirements imposed by 
such permits will be at least as stringent as any applicable 
limitations and requirements contained in the SIP, or enforceable under 
the SIP, and that the program may not issue permits that waive, or make 
less stringent, any limitations or requirements contained in or issued 
pursuant to the SIP, or that are otherwise ``Federally enforceable'' 
(e.g. standards established under sections 111 and 112 of the Clean Air 
Act). Sections 4-2 and 4-8(c)(11)(c) of the Chattanooga regulations 
meet this criterion.
    Criterion 4. The limitations, controls, and requirements of the 
state's operating permits must be permanent, quantifiable, and 
otherwise enforceable as a practical matter. Section 4-8(c)(11)(d) of 
the Chattanooga regulations meets this criterion.
    Criterion 5. The state operating permits must be issued subject to 
public participation. This means that the CHCAPCB agrees, as part of 
their program, to provide EPA and the public with timely notice of the 
proposal and issuance of such permits, and to provide EPA, on a timely 
basis, with a copy of each proposed (or draft) and final permit 
intended to be ``Federally enforceable.'' This process must also 
provide for an opportunity for public comment on the permit 
applications prior to issuance of the final permits. Section 4-
8(c)(11)(g) of Chattanooga regulations meets this criterion.

A. Applicability to Hazardous Air Pollutants

    CHCAPCB has also requested approval of their FESOP program under 
section 112(l) of the Clean Air Act for the purpose of creating 
Federally recognized limitations on the potential to emit for HAPs. 
Approval under section 112(l) is necessary because the SIP revision 
discussed above only extends to criteria pollutants for which EPA has 
established national ambient air quality standards under section 109 of 
the Act. Federally enforceable limits on criteria pollutants or their 
precursors (i.e. VOCs or PM-10) may have the incidental effect of 
limiting certain HAPs listed pursuant to section 112(b).1 As a 
legal matter, no additional program approval by the EPA is required 
beyond SIP approval under section 110 in order for these criteria 
pollutant limits to be recognized as Federally enforceable. However, 
section 112 of the Act provides the underlying authority for 
controlling all HAP emissions, regardless of their relationship to 
criteria pollutant controls.
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    \1\ EPA issued guidance on January 25, 1995, addressing the 
technical aspects of how these criteria pollutant limits may be 
recognized for purposes of limiting a source's potential to emit of 
HAPs to below section 112 major source thresholds.
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    EPA has determined that the five criteria, published in the June 
28, 1989, Federal Register notice, used to determine the validity of a 
permit that limits potential to emit for criteria pollutants pursuant 
to section 110 are also appropriate for evaluating the validity of 
permits that limit the potential to emit for HAPs pursuant to section 
112(l). The June 28, 1989, Federal Register notice does not address 
HAPs because it was written prior to the 1990 amendments to the Clean 
Air Act; however, the basic principles established in the June 28, 
1989, Federal Register notice are not unique to criteria pollutants. 
Therefore, these criteria have been extended to evaluations of permits 
limiting the potential to emit of HAPs.
    To be recognized by EPA as a valid permit which limits potential to 
emit, the permit must not only meet the criteria in the June 28, 1989, 
Federal Register notice, but it must meet the statutory criteria for 
approval under section 112(l)(5). Section 112(l) provides that EPA will 
recognize a permit limiting the potential to emit for HAPs only if the 
state program: (1) contains adequate authority to assure compliance 
with any section 112 standard or requirement; (2) provides for adequate 
resources; (3) provides for an expeditious schedule for assuring 
compliance with section 112 requirements; and (4) is otherwise likely 
to satisfy the objectives of the Act.
    EPA plans to codify in Subpart E of Part 63 the approval criteria 
for programs limiting potential to emit HAPs. EPA anticipates that 
these criteria will mirror those set forth in the June 28, 1989, 
Federal Register notice. Permit programs which limit potential to emit 
for HAPs and are approved pursuant to section 112(l) of the Act prior 
to the planned regulatory revisions under 40 CFR Part 63, Subpart E, 
will be recognized by EPA as meeting the criteria in the June 28, 1989, 
Federal Register notice. Therefore, further approval actions for those 
programs will not be necessary.
    EPA believes it has authority under section 112(l) to recognize 
FESOP programs that limit a source's potential to emit HAPs directly 
under section 112(l) prior to this revision to Subpart E. EPA is 
therefore approving the CHCAPCB FESOP program so that the CHCAPCB may 
issue permits that EPA will recognize as validly limiting potential to 
emit for HAPs.
    Regarding the statutory criteria of section 112(l)(5) referred to 
above, EPA believes the FESOP program submitted by the CHCAPCB contains 
adequate authority to assure compliance with section 112 requirements 
since the third criterion of the June 28, 1989, notice is met; that is 
the CHCAPCB rules require that all requirements in the permits issued 
under the authority of the operating permit program must be at least as 
stringent as all other applicable Federally enforceable requirements.
    Regarding the requirement for adequate resources, the CHCAPCB has 
committed to provide for adequate resources to support their FESOP 
program. EPA expects that resources will continue to be sufficient to 
administer those portions of the minor source operating permit program 
under which the subject permits will be issued, because the CHCAPCB has 
administered a minor source operating permit program for a number of 
years. However, EPA will monitor the implementation of the FESOP 
program to ensure that adequate resources are in fact available.
    EPA also believes that the CHCAPCB program provides for an 
expeditious schedule which assures compliance with section 112 
requirements. The program will be used to allow a source to establish a 
voluntary limit on potential to emit to avoid being subject to a CAA 
requirement applicable on a particular date. Nothing in the CHCAPCB 
program would allow a source to avoid or delay compliance with a CAA 
requirement applicable on a particular date. In addition, the CHCAPCB's 
program would not allow a source to avoid or delay compliance with a 
CAA requirement if it fails to obtain an appropriate Federally 
recognized limit by the relevant deadline.
    Finally, EPA believes it is consistent with the intent of section 
112 of the Act for States to provide a mechanism through which a source 
may avoid classification as a major source by obtaining a Federally 
recognized limit on its potential to emit HAPs. EPA has long recognized 
as valid, permit programs which limit potential to emit

[[Page 7162]]

for criteria pollutants as a means for avoiding major source 
requirements under the Act. The portion of this approval which extends 
Federal recognition to permits containing limits on potential to emit 
for HAPs merely applies the same principles to another set of 
pollutants and regulatory requirements under the Act. It should be 
noted that a source that receives a Federally recognized operating 
permit may still need a Title V operating permit if EPA promulgates a 
MACT standard which requires non-major sources to obtain Title V 
permits.
    EPA has reviewed this SIP revision and determined that the criteria 
for approval as provided in the June 28, 1989, Federal Register notice 
(54 FR 27282) and in section 112(l)(5) of the Act have been satisfied.

B. Eligibility for Previously Issued Permits

    Eligibility for Federally enforceable permits extends not only to 
permits issued after the effective date of this rule, but also to 
permits issued under the CHCAPCB's existing rules prior to the 
effective date of today's rulemaking. If the CHCAPCB followed their own 
regulations, then the agency issued a permit that established a 
Federally recognized permit condition that was subject to public and 
EPA review. Therefore, EPA will consider all such operating permits 
Federally enforceable upon the effective date of this action provided 
that any permits that the CHCAPCB wishes to make Federally enforceable 
are made available to EPA and are supported by documentation that the 
procedures approved today have been followed. EPA may review any such 
permits to ensure their conformity with the program requirements.

III. Final Action

    In this action, EPA is approving the CHCAPCB FESOP program. EPA is 
publishing this action without prior proposal because the Agency views 
this as a noncontroversial amendment and anticipates no adverse 
comments. However, in a separate document in this Federal Register 
publication, EPA is proposing to approve the SIP revision should 
adverse or critical comments be filed. This action will be effective 
April 21, 1997 unless, by March 20, 1997, adverse or critical comments 
are received. If EPA receives such comments, this action will be 
withdrawn before the effective date by publishing a subsequent document 
that will withdraw the final action. All public comments received will 
then be addressed in a subsequent final rule based on this action 
serving as a proposed rule.
    EPA will not institute a second comment period on this action. Any 
parties interested in commenting on this action should do so at this 
time. If no such comments are received, the public is advised that this 
action will be effective April 21, 1997.
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989, (54 FR 2214-2225), as revised by 
the July 10, 1995, memorandum from Mary Nichols, Assistant 
Administrator for Air and Radiation. Nothing in this action shall be 
construed as permitting or allowing or establishing a precedent for any 
future request for a revision of any SIP. Each request for revision of 
the SIP shall be considered separately in light of specific technical, 
economic, and environmental factors, and in relation to relevant 
statutory and regulatory requirements.

IV. Administrative Requirements

A. Clean Air Act as Amended in 1990

    EPA has reviewed the requests for revision of the Federally-
approved Tennessee SIP described in this notice to ensure conformance 
with the provisions of the Clean Air Act as amended in 1990. EPA has 
determined that this action conforms with those requirements.

B. Petition for Review

    Under section 307(b)(1) of the CAA, 42 U.S.C. 7607(b)(1), petitions 
for judicial review of this action must be filed in the United States 
Court of Appeals for the appropriate circuit by April 21, 1997. Filing 
a petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2) of the CAA, 42 
U.S.C. 7607 (b)(2).)

C. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from Executive Order 12866 review.

D. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, Part D of the CAA 
do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, because approval of 
Federal SIP does not impose any new requirements, I certify that it 
does not have a significant impact on any small entities affected. 
Moreover, due to the nature of the Federal-state relationship under the 
CAA, preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
CAA forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 
42 U.S.C. section 7410(a)(2) and 7410(R)(3).

E. Unfunded Mandates Reform Act of 1995

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either state, local or tribal governments in the 
aggregate, or to the private sector. This Federal action

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approves pre-existing requirements under State or local law, and 
imposes no new requirements. Accordingly, no additional costs to State, 
local or tribal governments, or to the private sector, result from this 
action.

F. Small Business Regulatory Enforcement Fairness Act of 1996

    Under 5 U.S.C. 801(a)(1)(A) added by the Small Business Regulatory 
Enforcement Fairness Act of 1996, EPA submitted a report containing 
this rule and other required information to the U.S. Senate, the U.S. 
House of Representatives and the Comptroller General of the General 
Accounting Office prior to publication of the rule in today's Federal 
Register. This rule is not a major rule as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Lead, Nitrogen dioxide, 
Intergovernmental relations, Particulate matter, Ozone Sulfur oxides.

    Dated: January 23, 1997.
A. Stanley Meiburg,
Acting Regional Administrator.

    Part 52 of chapter I, title 40, Code of Federal Regulations, is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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

Subpart RR--Tennessee

    2. Section 52.2220 is amended by adding paragraph (c)(148) to read 
as follows:


Sec. 52.2220  Identification of plan.

* * * * *
    (c) * * *
    (148) Revisions to the Hamilton County portion of the Tennessee SIP 
that approve the regulations for Hamilton County, the City of 
Chattanooga, and the municipalities of East Ridge, Red Bank, Soddy-
Daisy, Signal Mountain, Lakesite, Walden, Collegedale, Lookout 
Mountain, and Ridgeside--submitted by the Tennessee Department of 
Environmental Protection on December 15, 1995.
    (i) Incorporation by reference.
    (A) Amendments to Sections 2, 3, 4, 6, 8, 12, and 16-19 of the 
regulation known as the ``Hamilton County Air Pollution Control 
Regulation,'' the ``Signal Mountain Air Pollution Control Ordinance,'' 
the ``Lakesite Municipal Code,'' the ``Walden Air Pollution Control 
Ordinance,'' the ``Lookout Mountain Air Pollution Control Ordinance,'' 
and the ``Ridgeside Air Pollution Control Ordinance,'' submitted on 
December 15, 1995 and adopted by Hamilton County on September 6, 1995 
and by the following municipalities: Signal Mountain, adopted on 
December 11, 1995; Lakesite, adopted on November 16, 1995; Walden, 
adopted on December 12, 1995; Lookout Mountain, adopted on November 14, 
1995; and Ridgeside, adopted on April 16, 1996.
    (B) Amendments to Sections 4-2, 4-3, 4-4, 4-6, 4-8, 4-12, 4-16, 4-
17, 4-18, and 4-19 of the ``Chattanooga Air Pollution Control 
Ordinance,'' as submitted on December 15, 1995 and adopted on August 
16, 1995.
    (C) Amendments to Sections 8-702, 8-703, 8-704, 8-706, 8-708, 8-
712, 8-716, 8-717, 8-718, and 8-719 of the ``East Ridge City Code,'' as 
submitted on December 15, 1995 and adopted on September 28, 1995.
    (D) Amendments to Sections 8-302, 8-303, 8-304, 8-306, 8-308, 8-
312, 8-316, 8-317, 8-318, and 8-319 of the ``Red Bank Municipal Code,'' 
as submitted on December 15, 1995 and adopted on November 7, 1995.
    (E) Amendments to Sections 8-102, 8-103, 8-104, 8-106, 8-108, 8-
112, 8-116, 8-117, 8-818, and 8-119 of the ``Soddy-Daisy Municipal 
Code,'' as submitted on December 15, 1995 and adopted on October 5, 
1995.
    (F) Amendments to Sections 8-502, 8-503, 8-504, 8-506, 8-508, 5-
512, 8-516, 8-517, 8-518, and 8-519 of the ``Collegedale Municipal 
Code,'' as submitted on December 15, 1995 and adopted on October 2, 
1995.
    (ii) Other materials. None.

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