[Federal Register Volume 60, Number 141 (Monday, July 24, 1995)]
[Rules and Regulations]
[Pages 37825-37827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17615]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-5260-3]
Approval of Existing Federally Enforceable State and Local
Operating Permit Programs To Limit Potential To Emit for Hazardous Air
Pollutants; State of Alabama; Knox County, Tennessee
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: On January 25, 1995, the State of Alabama through the Alabama
Department of Environmental Management (ADEM) submitted a letter
requesting approval of the State's existing Federally enforceable state
operating permits (FESOP) program under section 112(l) of the Clean Air
Act as amended in 1990 (CAA). On February 6, 1995, Knox County,
Tennessee through the Knox County Department of Air Pollution Control
(KCDAPC) submitted a letter requesting approval of the County's
exisiting Federally enforceable local operating permits (FELOP) program
under section 112(l) of the CAA. The two agencies submitted these
requests to provide each Agency the ability to issue Federally
enforceable operating permits to hazardous air pollutant (HAP) sources
regulated under section 112 of the CAA. EPA is approving both of these
requests under section 112(l) of the CAA for purposes of limiting PTE
for HAP sources.
DATES: This action will be effective by September 22, 1995 unless
notice is received by August 23, 1995 that someone wishes to submit
adverse or critical comments. If the effective date is delayed, timely
notice will be published in the Federal Register.
ADDRESSES: Written comments should be addressed to Scott Miller at the
EPA Regional office listed below.
Copies of the material submitted by both agencies may be examined
during normal business hours at the following locations:
Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street SW., Washington, DC
20460.
Environmental Protection Agency, Region 4, Air Programs Branch, 345
Courtland Street NE., Atlanta, Georgia 30365.
Alabama Department of Environmental Management, Air Division, 1751
Congressman W.L. Dickinson Drive, Montgomery, Alabama 36109.
Knox County Department of Air Pollution Control, City/County Building,
Suite 339, 400 West Main Street, Knoxville, Tennessee 37902.
FOR FURTHER INFORMATION CONTACT: Scott Miller, Air Programs Branch,
Air, Pesticides & Toxics Management Division, Region 4 Environmental
Protection Agency, 345 Courtland Street NE., Atlanta, Georgia 30365.
The telephone number is 404/347-2864.
SUPPLEMENTARY INFORMATION: On June 28, 1989 (54 FR 27274), EPA
published criteria for approving and incorporating into the SIP
regulatory programs for the issuance of FESOP and FELOP. Permits issued
pursuant to an operating permit program approved into the SIP as
meeting these criteria may be considered Federally enforceable. EPA has
encouraged states and local agencies to develop such FESOP and FELOP
[[Page 37826]]
programs in conjunction with title V operating permits programs to
enable sources to limit their PTE to below the title V applicability
thresholds. (See the guidance document entitled, ``Limitation of
Potential to Emit with Respect to Title V Applicability Thresholds,''
dated September 18, 1992, from John Calcagni, Director, Air Quality
Management Division, Office of Air Quality Planning and Standards
(OAQPS), Office of Air and Radiation, U.S. EPA.) On November 3, 1993,
the EPA announced in a guidance document entitled, ``Approaches to
Creating Federally Enforceable Emissions Limits,'' signed by John S.
Seitz, Director, OAQPS, that this mechanism could be extended to create
Federally enforceable limits for emissions of HAP if the program were
approved pursuant to section 112(l) of the CAA.
EPA believes that the five approval criteria for approving FESOP
and FELOP programs into the SIP, as specified in the June 28, 1989,
Federal Register document, are also appropriate for evaluating and
approving the programs under section 112(l) of the CAA. The June 28,
1989, document does not address HAP because it was written prior to the
1990 amendments to section 112, not because it establishes requirements
unique to criteria pollutants. Hence, the following five criteria are
applicable to FESOP and FELOP approvals under section 112(l): (1) The
program must be submitted to and approved by the EPA; (2) The program
must impose a legal obligation on the operating permit holders to
comply with the terms and conditions of the permit, and permits that do
not conform with the June 28, 1989, criteria or the EPA's underlying
regulations shall be deemed not Federally enforceable; (3) The program
must contain terms and conditions that are at least as stringent as any
requirements contained in the SIP, enforceable under the SIP, or any
section 112 or other CAA requirement, and may not allow for the waiver
of any CAA requirement; (4) Permits issued under the program must
contain conditions that are permanent, quantifiable, and enforceable as
a practical matter; and (5) Permits that are intended to be Federally
enforceable must be issued subject to public participation and must be
provided to EPA in proposed form on a timely basis.
In addition to meeting the criteria in the June 28, 1989, document,
a FESOP or FELOP program that addresses HAP must meet the statutory
criteria for approval under section 112(l)(5). Section 112(l) allows
EPA to approve a program only if it: (1) contains adequate authority to
assure compliance with any section 112 standards or requirements; (2)
provides for adequate resources; (3) provides for an expeditious
schedule for assuring compliance with section 112 requirements; and (4)
is otherwise likely to satisfy the objectives of the CAA.
EPA plans to codify the approval criteria for programs limiting
potential to emit of HAP, such as FESOP and FELOP programs, through
amendments to Subpart E of Part 63, the regulations promulgated to
implement section 112(l) of the CAA. (See 58 FR 62262, November 26,
1993.) EPA further anticipates that these regulatory criteria, as they
apply to FESOP and FELOP programs, will mirror those set forth in the
June 28, 1989, document. EPA further anticipates that since FESOP and
FELOP programs approved pursuant to section 112(l) prior to the planned
Subpart E revisions will have been approved as meeting these criteria,
further approval actions for those programs will not be necessary.
EPA believes it has authority under section 112(l) to approve
programs to limit PTE of HAP directly under section 112(l) prior to
this revision to Subpart E. Section 112(l)(5) requires EPA to
disapprove programs that are inconsistent with guidance required to be
issued under section 112(l)(2). This might be read to suggest that the
``guidance'' referred to in section 112(l)(2) was intended to be a
binding rule. Even under this interpretation, EPA does not believe that
section 112(l) requires this rulemaking to be comprehensive. That is,
it need not address every possible instance of approval under section
112(l). EPA has already issued regulations under section 112(l) that
would satisfy any section 112(l)(2) requirement for rulemaking. Given
the severe timing problems posed by impending deadlines set forth in
``maximum achievable control technology'' (MACT) emission standards
under section 112 and for submittal of title V permit applications, EPA
believes it is reasonable to read section 112(l) to allow for approval
of programs to limit PTE prior to promulgation of a rule specifically
addressing this issue. EPA is therefore approving the Alabama FESOP
program and the Knox County FELOP program under section 112(l) of the
CAA now so that these agencies may begin to issue permits limiting the
PTE of HAP as soon as possible.
The Alabama FESOP program and the Knox County FELOP program meet
the approval criteria specified in the June 28, 1989, Federal Register
document and in section 112(l)(5) of the Act. Specific discussion of
how Alabama's FESOP program meets the requirements for Federal
enforceability may be found in the Federal Register document approving
Alabama's FESOP program for criteria pollutant purposes. See 59 FR
52947. Specific discussion of how Knox County's FELOP program meets the
requirements for Federal enforceability may be found in the Federal
Register notice approving Knox County's FELOP program for criteria
pollutant purposes. See 59 FR 54523.
Regarding the statutory criteria of section 112(l)(5) referred to
above, EPA believes that the Alabama FESOP program and the Knox County
FELOP program contain adequate authority to assure compliance with
section 112 requirements because the third criterion of the June 28,
1989, document is met, that is, because the programs do not allow for
the waiver of any section 112 requirement. Sources that become minor
through a permit issued pursuant to this program would still be
required to meet section 112 requirements applicable to non-major
sources.
Regarding the requirement for adequate resources, EPA believes that
Alabama and Knox County have demonstrated that ADEM and KCDAPC can
provide for adequate resources to support the administration of both
programs. EPA expects that resources will continue to be adequate to
administer the Alabama FESOP program and the Knox County FELOP program
since ADEM and KCDAPC have been administering operating permit programs
for a number of years. EPA will monitor the implementation of both
programs to ensure that adequate resources are in fact available. EPA
also believes that the two programs provide for an expeditious schedule
for assuring compliance with section 112 requirements. This program
will be used to allow a source to establish a voluntary limit on PTE to
avoid being subject to a CAA requirement applicable on a particular
date. Nothing in either of these programs would allow a source to avoid
or delay compliance with a CAA requirement if it fails to obtain an
appropriate Federally enforceable limit by the relevant deadline.
Finally, EPA believes it is consistent with the intent of section 112
and the CAA for states to provide a mechanism through which sources may
avoid classification as a major source by obtaining a Federally
enforceable limit on PTE.
Final Action
In this action, EPA is approving the use of Alabama's FESOP program
for the issuance of FESOP for HAP regulated under section 112 of the
CAA. EPA is also approving the use of Knox County's
[[Page 37827]]
FELOP program for the issuance of FELOP for HAP regulated under section
112 of the CAA. EPA is publishing this action without prior proposal
because the EPA views this as a noncontroversial amendment and
anticipates no adverse comments. However, in a separate document in
this Federal Register publication, EPA is proposing to approve the SIP
revision should adverse or critical comments be filed. This action will
be effective September 22, 1995 unless within 30 days of its
publication, adverse or crtitcal comments are received. If EPA receives
such comments, this action will be withdrawn before the effective date
by publishing a subsequent document that will withdraw the final
action. All public comments received will then be addressed in a
subsequent final rule based on this action serving as a proposed rule.
EPA will not institute a second comment period on this action. Any
parties interested in commenting on this action should do so at this
time. If no such comments are received, the public is advised that this
action will be effective September 22, 1995.
Under section 307(b)(1) of the CAA, 42 U.S.C. 7607 (b)(1),
petitions for judicial review of this action must be filed in the
United States Court of Appeals for the appropriate circuit by September
22, 1995. Filing a petition for reconsideration by the Administrator of
this final rule does not affect the finality of this rule for purposes
of judicial review nor does it extend the time within which a petition
for judicial review may be filed, and shall not postpone the
effectiveness of such rule or action. This action may not be challenged
later in proceedings to enforce its requirements. (See section
307(b)(2) of the CAA, 42 U.S.C. 7607 (b)(2).)
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate, or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated today does
not include a Federal mandate that may result in estimated costs of
$100 million or more to State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
The Office of Management and Budget has exempted this action from
review under Executive Order 12866.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
Dated: June 23, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
[FR Doc. 95-17615 Filed 7-21-95; 8:45 am]
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