[Federal Register Volume 65, Number 111 (Thursday, June 8, 2000)]
[Rules and Regulations]
[Pages 36362-36364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14169]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[TN-NASH-T5-2000-01a; FRL-6710-9]


Clean Air Act Final Approval of Operating Permit Program 
Revisions; Metropolitan Government of Nashville-Davidson County, TN

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking final action to approve revisions to the 
operating permit program of the Metropolitan Government of Nashville-
Davidson County (TN). The County's operating permit program was 
submitted in response to the directive in the 1990 Clean Air Act (CAA) 
Amendments that states develop, and submit to EPA, programs for issuing 
operating permits to all major stationary sources and to certain other 
sources within the states' jurisdiction. EPA granted full approval to 
the County's operating permit program on February 14, 1996. The County 
has revised its program since it received full approval and this action 
approves those revisions.

DATES: This direct final rule is effective on August 7, 2000 without 
further notice unless EPA receives adverse comments in writing by July 
10, 2000. If adverse comment is received, EPA will publish a timely 
withdrawal of this direct final rule in the Federal Register and inform 
the public that the rule will not take effect. The public comments will 
be addressed in a subsequent final rule based on the proposed rule 
published in this Federal Register.

ADDRESSES: Written comments on this action should be addressed to Kim 
Pierce, Regional Title V Program Manager, Operating Source Section, Air 
& Radiation Technology Branch, EPA, 61 Forsyth Street, SW, Atlanta, 
Georgia 30303. Copies of the County's submittals and other supporting 
documentation relevant to this action are available for inspection 
during normal business hours at EPA, Air & Radiation Technology Branch, 
61 Forsyth Street, SW, Atlanta, Georgia 30303.

FOR FURTHER INFORMATION CONTACT: Kim Pierce, EPA, Region 4, at (404) 
562-9124.

SUPPLEMENTARY INFORMATION: This section provides additional information 
by addressing the following questions:

What is the operating permit program?
What is being addressed in this document?
What are the program changes that EPA is approving?
What is involved in this final action?

What Is the Operating Permit Program?

    The CAA Amendments of 1990 required all states to develop operating 
permit programs that met certain Federal criteria. In implementing the 
operating permit programs, the states require certain sources of air 
pollution to obtain permits that contain all applicable requirements 
under the CAA. The focus of the operating permit program is to improve 
enforcement by issuing each source a permit that consolidates all of 
the applicable CAA requirements into a Federally enforceable document. 
By consolidating all of the applicable requirements for a facility, the 
source, the public, and the permitting authorities can more easily 
determine what CAA requirements apply and how compliance with those 
requirements is determined.
    Sources required to obtain an operating permit under this program 
include ``major'' sources of air pollution and certain other sources 
specified in the CAA or in EPA's implementing regulations. For example, 
all sources regulated under the acid rain program, regardless of size, 
must obtain operating permits. Examples of major sources include those 
that have the potential to emit 100 tons per year or more of volatile 
organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen 
oxides, or particulate matter (PM10); those that emit 10 
tons per year of any single hazardous air pollutant (specifically 
listed under the CAA); or those that emit 25 tons per year or more of a 
combination of hazardous air pollutants (HAPs). In areas that are not 
meeting the National Ambient Air Quality Standards for ozone, carbon 
monoxide, or particulate matter, major sources are defined by the 
gravity of the nonattainment classification. For example, in ozone 
nonattainment areas classified as serious, major sources include those 
with the potential of emitting 50 tons per year or more of volatile 
organic compounds or nitrogen oxides.

What Is Being Addressed in This Document?

    Nashville-Davidson County made two changes to its approved title V 
program since EPA granted full approval on February 14, 1996 (see 61 FR 
5705). This document describes the changes.

What Are the Program Changes That EPA Is Approving?

    Nashville-Davidson County revised its title V permit application 
form to address the Title VI requirements for protection of the 
stratospheric ozone layer. The County's application form now contains 
Form APC V.34 for information regarding air conditioning units that use 
chlorofluorocarbons, hydrochlorofluorocarbons, or other ozone depleting 
substances. The new form was submitted to EPA on December 10, 1996 and 
is available for review on the Internet at http://healthweb.nashville.org/pollution_downloads.html.
    The other programmatic change made by Nashville-Davidson County 
involves the mechanism for determining the annual title V fee amount. 
The County's operating permit program received full approval based on 
use of the ``presumptive minimum'' described in 40 CFR 70.9(b)(2)(i). 
But, since the

[[Page 36363]]

spring of 1997, the County has been using a mechanism based on 40 CFR 
70.9(b)(1) which involves establishing a fee schedule that results in 
the collection and retention of revenues sufficient to cover the costs 
of the operating permit program. To accomplish this each year, the 
County prepares a projection of the title V expenses for the coming 
year based on the actual title V expenses during the previous year. The 
anticipated expenses are then compared with the revenue that would be 
generated based on section 10.56.080, ``Permit and Annual Emission 
Fees,'' of Chapter 10.56, ``Air Pollution Control,'' of the 
Metropolitan Code of Laws. If the fee schedule contained in section 
10.56.080 would result in a surplus, then the County adopts a lesser 
fee schedule utilizing the variance procedures in section 10.56.130. 
The County described this policy in a letter to EPA dated December 6, 
1999. The County also submitted a fee program update on August 27, 1999 
demonstrating that its part 70 program is adequately funded by 
operating permit fee revenue.

What Is Involved in This Final Action?

    The Metropolitan Government of Nashville-Davidson County made two 
changes to its approved title V program after it received full approval 
on February 14, 1996 and EPA is taking action by this notice to approve 
the changes. EPA is publishing this action without prior proposal 
because the Agency views this as a noncontroversial amendment and 
anticipates no adverse comments. However, in the proposed rules section 
of this Federal Register publication, EPA is publishing a separate 
document that will serve as the proposal to grant final full approval 
should adverse comments be filed. This action will be effective August 
7, 2000 unless the Agency receives adverse comments by July 10, 2000.
    If EPA receives such comments, then EPA will withdraw the final 
rule and inform the public that the rule will not take effect. All 
public comments received will then be addressed in a subsequent final 
rule based on the proposed rule. EPA will not institute a second 
comment period. Parties interested in commenting should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on August 7, 2000 and no further action will be 
taken on the proposed rule.

Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866, entitled ``Regulatory Planning and 
Review.''

B. Executive Order 12988

    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this rule, EPA has taken the necessary 
steps to eliminate drafting errors and ambiguity, minimize potential 
litigation, and provide a clear legal standard for affected conduct. 
EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 
1988) by examining the takings implications of the rule in accordance 
with the ``Attorney General's Supplemental Guidelines for the 
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the Executive Order. This rule does not impose an information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.).

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it is not 
an economically significant regulatory action as defined in Executive 
Order 12866, and it does not involve decisions intended to mitigate 
environmental health or safety risks.

D. Executive Order 13084

    Under Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

E. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.

[[Page 36364]]

    This final rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132, 
because it merely approves a state rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act generally requires an agency to 
conduct a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small not-for-profit enterprises, and small governmental jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because part 70 approvals under section 502 of 
the Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because 
this approval does not create any new requirements, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of a flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of state 
action. The Clean Air Act forbids EPA to base its actions concerning 
SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 
255-66 (1976); 42 U.S.C. 7410(a)(2).

G. Unfunded Mandates

    Under sections 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 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.

H. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit 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 United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

I. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 7, 2000. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the 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).)

J. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    In reviewing operating permit programs, EPA's role is to approve 
state choices, provided that they meet the criteria of the Clean Air 
Act. In this context, in the absence of a prior existing requirement 
for the State to use VCS, EPA has no authority to disapprove an 
operating permit program for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews an operating 
permit program, to use VCS in place of an operating permit program that 
otherwise satisfies the provisions of the Clean Air Act. Thus, the 
requirements of section 12(d) of NTTAA do not apply.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Dated: May 19, 2000.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    For reasons set out in the preamble, Appendix A of part 70 of title 
40, chapter I, of the Code of Federal Regulations is amended as 
follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

    2. Appendix A to part 70 is amended by adding paragraph (i) and 
adding and reserving paragraphs (f), (g), (h) and (j) to the entry for 
Tennessee to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

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Tennessee

    (f) [Reserved]
    (g) [Reserved]
    (h) [Reserved]
    (i) The Metropolitan Government of Nashville-Davidson County 
submitted program revisions on December 10, 1996, August 27, 1999, 
and December 6, 1999. The County is hereby granted revised approval 
effective on August 7, 2000.
    (j) [Reserved]
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[FR Doc. 00-14169 Filed 6-7-00; 8:45 am]
BILLING CODE 6710-09-U