65FR36362 Clean Air Act Final Approval of Operating Permit Program Revisions; Metropolitan Government of Nashville-Davidson County, TN
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Posting-number: Volume 65, Issue 111, Page 36362
[Federal Register: June 8, 2000 (Volume 65, Number 111)]
[Rules and Regulations]
[Page 36362-36364]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jn00-18]
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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 (PM<INF>10</INF>); 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
* * * * *
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]
* * * * *
[FR Doc. 00-14169 Filed 6-7-00; 8:45 am]
BILLING CODE 6710-09-U