[Federal Register Volume 61, Number 200 (Tuesday, October 15, 1996)]
[Rules and Regulations]
[Pages 53633-53636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26199]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TN-158-1-9632a; FRL-5619-6]
Approval and Promulgation of Implementation Plans State: Approval
of Revisions to the Knox County Portion of the State of Tennessee's
State Implementation Plan (SIP)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving revisions to the Knox County portion of the
Tennessee State Implementation Plan (SIP) to allow the Knox County
Department of Air Pollution Control (Knox County) to utilize permits-
by-rule for the purpose of limiting potential to emit (PTE) criteria
pollutants for certain source categories to less than the title V
permitting major source thresholds. EPA is also approving under section
112(l) of the Clean Air Act several source categories of the submitted
regulations for limiting PTE of hazardous air pollutants (HAP) to less
than title V permitting major source thresholds. These permits-by-rule
provide a way for sources to accept limitations on their operations
without the added burden of obtaining source-specific permits for the
following source categories: fuel-burning equipment burning natural
gas/liquified petroleum gas (LPG) and/or distillate oil, fuel burning
equipment burning natural gas/LPG and/or residual oil, on-site power
generation, concrete mixing plants, coating operations, printing
operations, and fiberglass molding and forming operations. On May 23,
1995, Knox County through the Tennessee Department of Environment and
Conservation submitted a SIP revision fulfilling the requirements
necessary to utilize exclusionary rules to limit PTE of air pollutants
in a federally enforceable manner.
DATES: This final rule is effective December 16, 1996 unless adverse or
critical comments are received by November 14, 1996. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Written comments on this action should be addressed to Scott
Miller at the Environmental Protection Agency, Region 4 Air Planning
Branch, 100 Alabama Street, SW, Atlanta, Georgia 30303. Copies of
documents relative to this action are available for public inspection
during normal business hours at the following locations. The interested
persons wanting to examine these documents should make an appointment
with the appropriate office at least 24 hours before the visiting day.
Reference file TN158-1-9632. The Region 4 office may have additional
background documents not available at the other 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 Planning Branch,
100 Alabama Street, SW, Atlanta, Georgia 30303. Scott Miller, 404/562-
9120.
Tennessee Department of Environment and Conservation, Division of
Air Pollution Control, 9th Floor, L & C Annex, 401 Church Street,
Nashville, Tennessee 37243-1531.
Knox County Department of Air Pollution Control, Suite 339, City-
County Building, 400 West Main Street, Knoxville, Tennessee 37902.
FOR FURTHER INFORMATION CONTACT: Scott Miller at 404/562-9120.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
On May 23, 1995, the Knox County Department of Air Pollution
Control through the Tennessee Department of Environment and
Conservation submitted SIP revisions designed to allow Knox County to
utilize permits-by-rule for the purpose of limiting PTE for fuel-
burning equipment burning natural LPG and/or distillate oil, fuel
burning equipment burning natural gas/LPG and/or residual oil, on-site
power generation, concrete mixing plants, coating operations, printing
operations, and fiberglass molding and forming operations. Permits-by-
rule are designed to create federally enforceable limits on a
facility's PTE in a manner that does not require a facility-specific
evaluation of emissions and limiting conditions. As such, permits-by-
rule are appropriate for the purpose of limiting PTE when a facility
has one type of emission source. EPA is approving all source category
permits-by-rule submitted for purposes of limiting PTE for criteria
pollutants. EPA is approving under section 112(l) of the CAA, Knox
County Air Pollution Control (KCAPC) regulations Section 25.10.7,
Section 25.10.8, and Section 25.10.10 for purposes of limiting PTE of
HAP from coating operations, printing operations, and fiberglass
molding and forming operations. For a description of this and other
ways to limit PTE for a facility see the EPA guidance document entitled
``Options for Limiting the Potential to Emit (PTE) of a Stationary
Source Under Section 112 and Title V of the Clean Air Act (Act)'' dated
January 25, 1995, from John Seitz to the EPA Regional Air Division
Directors.
These permits-by-rule were designed to meet criteria listed in the
EPA guidance memorandum entitled ``Guidance for State Rules for
Optional Federally Enforceable Emissions Limits Based on Volatile
Organic Compound Use'' dated October 15, 1993, from D. Kent Barry to
the EPA Regional Air Division Directors, an EPA guidance document
entitled ``Approaches to Creating federally-Enforceable Emissions
Limits'' dated November 3, 1993, and the January 25, 1995, guidance
memorandum referenced above. These guidance documents set out specific
guidelines for permit-by-rule development regarding applicability,
compliance determination and certification, monitoring, reporting,
record keeping, public involvement, practical enforceability, and the
requirement that a facility cannot rely on emission limits or caps
contained in
[[Page 53634]]
a permit-by-rule to justify violation of any rate-based emission limits
or other applicable requirements.
A permit-by-rule applies to facilities which agree to limit their
annual emissions to less than major source thresholds for criteria and/
or hazardous air pollutant (HAP) emissions. A permit-by-rule must also
provide that a facility owner or operator specifically apply for
coverage under the permit-by-rule. KCAPC regulation Section 25.10.C.5
requires that a facility operating under a permit-by-rule must submit a
written statement verifying this status to the Department. The source
categories covered by the permit-by-rule regulations are fuel-burning
equipment burning natural LPG and/or distillate oil, fuel burning
equipment burning natural gas/LPG and/or residual oil, on-site power
generation, concrete mixing plants, coating operations, printing
operations, and fiberglass molding and forming operations. As such,
these regulations meet the guidelines specified in the October 15,
1993, and the January 25, 1995, guidance documents that require a
permit-by-rule to clearly identify the category of sources that qualify
for the rule's coverage.
The October 15, 1993, and the January 25, 1995, guidance documents
suggest that facilities be required to show compliance with the permit-
by-rule on a yearly basis by requiring monthly record keeping of the
relevant variable causing emissions and showing compliance using the
monthly record of the relevant variable affecting emissions. The
January 25, 1995, guidance document stipulates that where monitoring
cannot be used to determine emissions directly, limits on appropriate
operating parameters must be established for the units or source, and
monitoring must verify compliance with those limits. In the case of the
Knox County regulations, a facility is required to keep records of the
use of or processing of a product or substance that produces the
emissions. For instance, KCAPC Regulation Section 25.10.B.8 requires
printing operations to keep monthly records of materials including but
not limited to inks, thinners, and solvents if they contain any VOC or
HAP. The printing facility must then show compliance with the 20,000
pounds per year limitation during any twelve consecutive month period.
EPA believes that the permit-by-rule submitted by Knox County meets
guidelines outlined in the October 15, 1993, and January 25, 1995,
guidance documents for purposes of detailing specific compliance
monitoring to show compliance with the relevant limit resulting from a
permit-by-rule.
The October 15, 1993, guidance document recommends that all
submittals that result from permit-by-rule be certified for truth,
accuracy, and completeness. KCAPAC regulation Section 25.10.C.3
requires that each facility which chooses to be covered by a permit-by-
rule must submit annual reports and compliance certifications
addressing the applicable requirements, and terms and conditions of
each standard. Therefore, EPA believes that the permit-by-rule
regulations submitted by Knox County meet requirements outlined in the
October 15, 1993, guidance document for purposes of certification with
respect to truth, completeness, and accuracy.
The October 15, 1993, guidance document recommends that reporting
requirements should vary based on how close the facility emissions are
to the relevant major source threshold. For facilities that are close
to the major source threshold, the guidance recommends that a state or
local air pollution control agency require more frequent reporting of
the variable affecting emissions (e.g. gasoline throughput). KCAPC
Regulation Section 25.10.C.3 requires all facilities to report
emissions information or the variable directly affecting emissions on
an annual basis. While under ideal circumstances, Knox County would
require more frequent reporting as the relevant variable affecting
emissions approached major source levels for title V, EPA believes that
coupled with the requirement found in KCAPC Regulation Section
25.10.C.4, which requires that any exceedance of any applicable
limitation be reported by one week after occurrence, Knox County's
permit-by-rule regulations meet requirements outlined in the October
15, 1993, guidance document for purposes of reporting the relevant
variable affecting emissions from the process. The October 15, 1993,
guidance document also requires that a facility report any exceedance
of an exclusionary rule within one week after its occurrence. The Knox
County regulations satisfy this requirement by a verbatim incorporation
of this requirement in KCAPC Regulation Section 25.10.C.4. Therefore,
EPA believes that the Knox County regulations meet the requirements set
out in the above-listed guidance documents for reporting.
The October 15, 1993, and the January 25, 1995, guidance documents
specify that record keeping is required by a facility to show that the
facility is eligible for the permit-by-rule and that the facility is in
compliance with the relevant permit-by-rule. The October 15, 1993,
guidance document requires that record keeping be maintained on site
and available to the permitting authority upon demand. The October 15,
1993, guidance document also requires that a facility be required to
retain records for a period sufficient to support enforcement efforts.
The Knox County regulations require that copies of all records required
to be kept for permit-by-rule purposes be kept on site. The permit-by-
rule regulations submitted by Knox County require that records be kept
for a period of five years from the date of last entry. EPA believes
that a five year time period is an adequate time period for a facility
subject to a permit-by-rule to maintain records in order to support
enforcement efforts.
The November 3, 1993, and the January 25, 1995, guidance documents
set out requirements for public involvement in the development and
application of permit-by-rule regulations. The November 3, 1993,
guidance document states that if permit-by-rule regulations are
sufficiently reliable and replicable, EPA and the public need not be
involved with their application to individual sources, as long as the
protocols themselves have been subject to notice and opportunity to
comment and have been approved by EPA into the SIP. The January 25,
1995, guidance document provides that source category standards
approved into the SIP or under section 112(l) of the Clean Air Act, if
enforceable as a practical matter, can be used as federally enforceable
limits on PTE. Once a specific source qualifies under the applicability
requirements of the source-category rule, additional public
participation is not required to make the limits federally enforceable
as a matter of legal sufficiency since the rule itself underwent public
participation and EPA review. The Knox County permit-by-rule underwent
public participation at the local level when these rules were made
locally-effective. EPA has had an opportunity to review these
regulations and is publishing this notice to take comment on these
regulations at the national level. Later in this Federal Register
document, practical enforceability of Knox County's permit-by-rule
regulations will be addressed. EPA believes that with this Federal
Register document and other public process received at the local level
that the Knox County permit-by-rule regulations satisfy requirements
for public participation outlined in the November 3, 1993, and the
January 25, 1995, guidance documents.
[[Page 53635]]
The January 25, 1995, guidance document sets out requirements for a
permit-by-rule to be practically enforceable. These requirements stem
from past precedence in what the EPA has required for a permit to be
considered enforceable as a practical matter. See 54 FR 27274 (June 28,
1989) and a June 13, 1989, EPA policy memorandum entitled ``Limiting
Potential to Emit in New Source Permitting.'' The criteria include
clear statements as to the applicability, specificity as to the
standard that must be met, explicit statements of the compliance time
frames (e.g. hourly, daily, monthly, or 12-month averages, etc.), that
the time frame and method of compliance employed must be sufficient to
protect the standard involved, record keeping requirements must be
specified, and equivalency provisions must meet specific requirements.
In general, practical enforceability means that the provision must
specify; (1) a technically accurate limitation and the portions of the
source subject to the limitation; (2) the time period for the
limitation; and (3) the method to determine compliance including
appropriate monitoring, record keeping, and reporting. All of these
elements have been discussed prior to this paragraph in this Federal
Register with the exception of (2) above. The Knox County regulations
require facilities subject to the permit-by-rule to keep records on a
monthly basis and to determine compliance with a yearly limit on a
calendar monthly rolling average basis. This method for determining
compliance with the permit-by-rule was addressed specifically as one
practically enforceable way to show compliance with a permit limit in
the June 13, 1989, guidance document entitled ``Limiting Potential to
Emit in New Source Permitting.'' As such, EPA believes the Knox County
permit-by-rule regulations meet the requirements necessary for a
permit-by-rule to be enforceable as a practical matter.
Finally, the October 15, 1993, guidance document stipulates that a
facility cannot rely on emission limits or caps contained in a permit-
by-rule to justify violation of any rate-based emission limits or other
applicable requirements. This requirement for title V permitting is
fulfilled by inclusion of KCAPC Regulation Section 25.10.C.5 which
stipulates that non-compliance with provisions of the permit-by-rule
regulations will be subject to an enforcement action unless the
facility has first obtained a formal release through a part 70 permit
or some other federally enforceable permit from Knox County.
Eligibility for federally enforceable permit-by-rule limitations
extends not only to certifications made after the effective date of
this rule, but also to certifications issued under the current Knox
County rule prior to the effective date of this rulemaking. If Knox
County followed its own permit-by-rule regulation, it received
certifications that established a limiting condition on a facility's
PTE. EPA will consider all such permit-by-rule certifications which
were submitted in a manner consistent with the Knox County regulations
as federally enforceable upon the effective date of this action.
II. Final Action
In this action, EPA is approving the Knox County permit-by-rule
regulations found at KCAPC Regulations: Section 25.10 into the Knox
County portion of the Tennessee SIP. EPA is approving KCAPC Regulations
Section 25.10.A, 25.10.B.7, 25.10.B.8, 25.10.B.10, 25.10.C for purposes
of limiting PTE of HAP under section 112(l) of the CAA. The EPA is
publishing this document 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
December 16, 1996 unless, by November 14, 1996, adverse or critical
comments are received. If the 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
December 16, 1996.
EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Amendments
enacted on November 15, 1990. EPA has determined that this action
conforms with those requirements.
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any state implementation plan. Each request for revision to the SIP
shall be considered separately in light of specific technical,
economic, and environmental factors and in relation to relevant
statutory and regulatory requirements.
III. Administrative Requirements
A. 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 has exempted
this action from review under Executive Order 12866.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600, EPA must
prepare a regulatory flexibility analysis assessing the impact of any
proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, Part D of the CAA
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. 7410(a)(2).
C. 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
[[Page 53636]]
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 final 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.
D. Submission to Congress and the General Accounting Office
Under U.S.C. 801(a)(1)(A) as 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).
E. 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 December 16, 1996. 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).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen oxides, Ozone, Particulate matter, Sulfur oxides.
Dated: August 29, 1996.
Robert F. McGhee,
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, (c) is amended by adding paragraph (c)(140) to
read as follows:
Sec. 52.2220 Identification of plan.
* * * * *
(c) * * *
(140) Permit-by-rule regulations for Knox County Department of Air
Pollution Control submitted by the Knox County Department of Air
Pollution Control through the Tennessee Department of Environment and
Conservation on May 23, 1995 as part of Knox County's portion of the
Tennessee SIP.
(i) Incorporation by reference.
(A) Regulation Section 25.10 of the Knox County portion of the
Tennessee SIP as adopted by the Knox County Air Pollution Control Board
on April 12, 1995.
(ii) Other material. None.
[FR Doc. 96-26199 Filed 10-11-96; 8:45 am]
BILLING CODE 6560-50-P