Clean Air Act Full Approval of Operating Permit Program; Forsyth County (North Carolina)

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking final action to fully approve the operating permit program of the Forsyth County Environmental Affairs Department. Forsyth County's operating permit program was submitted in response to the directive in the 1990 Clean Air Act (CAA) Amendments that permitting authorities develop, and submit to EPA, programs for issuing operating permits to all major stationary sources and to certain other sources within the permitting authorities' jurisdiction. EPA granted interim approval to Forsyth County's operating permit program on November 15, 1995. The County revised its program to satisfy the conditions of the interim approval and this action approves those revisions.

DATES:

This direct final rule is effective on August 21, 2000 without further notice unless EPA receives adverse comments in writing by July 24, 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 Forsyth 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 state and local permitting authorities to develop operating permit programs that met certain Federal criteria. In implementing the operating permit programs, the permitting authorities 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 10); 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?

Where an operating permit program substantially, but not fully, met the criteria outlined in the implementing regulations codified at 40 Code of Federal Regulations (CFR) part 70, EPA granted interim approval contingent on the state revising its program to correct the deficiencies. Because Forsyth County's operating permit program substantially, but not fully, met the requirements of part 70, EPA granted interim approval to the program in a rulemaking published on November 15, 1995 (60 FR 57357). The interim approval notice stipulated eight conditions that had to be met in order for the County's program to receive full approval. Forsyth County submitted nine revisions to its interimly approved operating permit program; these revisions were dated September 25, 1995, January 16, 1997, August 1, 1997, April 22, 1998, October 2, 1998, February 18, 1999, September 29, 1999, October 26, 1999, and February 24, 2000. This document describes the changes that have been made in Forsyth County's operating permit program.

What Are the Program Changes That EPA Is Approving?

Full approval of Forsyth County's operating permit program was made contingent upon the following rule changes, as stipulated in EPA's November 15, 1995 rulemaking:

(1) Revise Rule 3Q.0507 to require permit applications include all fugitive emissions, in accordance with 40 CFR 70.3(d). The County revised Rule 3Q.0507(b) to cite 40 CFR 70.3(d) and the local-effective rule change was submitted to EPA on August 1, 1997.

(2) Revise Rule 3Q.0502(c) to ensure that research and development (R&D) facilities which are collocated with manufacturing facilities and which are under common control and belonging to a single major industrial grouping will be considered as the same facility for determining title V applicability. The County deleted Rule 3Q.0502(c) and the local-effective rule change was submitted to EPA on October 26, 1999.

(3) Revise Rule 3Q.0102(b)(2)(B) to adjust the insignificant emission threshold levels downward from potential emissions of 40 tons per year (tpy) to 5 tpy for criteria pollutants and 1000 pounds per year for HAPs, and to provide that the activities listed in Rule 3Q.0102(b)(2)(F) are subject to these caps. In addition, EPA notified the County on July 15, 1996 of another deficiency in its insignificant activities provisions that came to light as a result of the court decision in Western States Petroleum Association (WSPA) v. EPA, 87 F.3d 280 (D.C. Cir. 1996): Rule 3Q.0102(a) had inadvertently been approved without identifying the exemption of insignificant activities from permit requirements as a program deficiency. In the Federal Register document granting final interim approval to the Alaska operating permit program (61 FR 64466, December 5, 1996), EPA acknowledged that its approval of the insignificant activities provisions in the North Carolina programs may have been inconsistent with the WSPA decision. Further review revealed this to be true.

Forsyth County addressed the deficiencies in its insignificant activities provisions by removing Rule 3Q.0102 from its operating permit program and revising Rule 3Q.0503 to define two categories of insignificant activities: “insignificant activities because of category” and “insignificant activities because of size or production rate.” The first category includes:

(a) Mobile sources,

(b) Air conditioning units used for human comfort that are not subject to applicable requirements under Title VI of the Federal Clean Air Act and do not exhaust air pollutants into the ambient air from any manufacturing or other industrial process,

(c) Ventilating and heating units used for human comfort that do not exhaust air pollutants into the ambient air from any manufacturing or other industrial process,

(d) Noncommercial food preparation,

(e) Consumer use of office equipment,

(f) Janitorial services and consumer use of janitorial products,

(g) Internal combustion engines used for landscaping purposes, and

(h) New residential wood heaters subject to 40 CFR 60, Subpart AAA.

The second category, “insignificant activities because of size or production rate,” is defined as “any activity whose emissions would not violate any applicable emissions standard and whose potential emission of particulate, sulfur dioxide, nitrogen oxides, volatile organic compounds, and carbon monoxide before air pollution control devices, i.e., potential uncontrolled emissions, are each no more than five tons per year and whose potential emissions of hazardous air pollutants before air pollution control devices are each below 1000 pounds per year.” The County also revised Rule 3Q.0508(f)(3) to remove the exemption from monitoring, recordkeeping, and reporting requirements for insignificant activities, and revised Rule 3Q.0508(aa) to require the inclusion of insignificant activities in permits. The local-effective rule changes were submitted to EPA on October 26, 1999.

(4) Revise Rule 3Q.0514(a) to clarify that: (a) Administrative permit amendments may be used to change test dates or construction dates only as long as no applicable requirements are violated in the process, and (b) an administrative permit amendment may be used to move terms and conditions from the state-enforceable portion of the permit to the state-and Federal-enforceable portion of the permit provided that the term being moved is a requirement which has become Federally enforceable through sections 110, 111, 112, or other parts of the Act. The County added language to Rule 3Q.0514(a)(4) stipulating that changes in test dates or construction dates qualify as administrative permit amendments “provided that no applicable requirements are violated by the change in test dates or construction dates.” The County also added language to Rule 3Q.0514(a)(5) stipulating that administrative permit amendments may be used to move terms and conditions from the County-enforceable portion of the permit to the County-and-Federal enforceable portion of the permit “provided that terms and conditions being moved have become federally enforceable through section 110, 111, or 112 or other parts of the federal Clean Air Act.” The local-effective rule changes were submitted to EPA on August 1, 1997.

(5) Revise Rule 3Q.0515(f) to stipulate that a permit shield may not be granted for a minor permit modification. The County revised Rule 3Q.0515 to disallow permit shields for minor permit modifications and submitted the local-effective rule change to EPA on August 1, 1997.

(6) Revise Rule 3Q.0515(d) to require minor permit modifications to be processed within 90 days after receiving the application or 15 days after the end of EPA's 45-day review period, whichever is later. The County revised Rule 3Q.0515(d) accordingly and submitted the local-effective rule change to EPA on August 1, 1997.

(7) Revise Rule 3Q.0517(b) to provide that: (a) a part 70 permit shall be reopened and reissued within 18 months after a newly applicable requirement is promulgated, and (b) no reopening is required if the effective date of the newly applicable requirement is after the expiration of the permit, unless the term of the permit was extended based on the fact that it had not been renewed prior to its expiration. The County revised Rule 3Q.0517(b) to require the completion of permit reopenings within 18 months after newly applicable requirements are promulgated. This rule was also revised to state that “[n]o reopening is required if the effective date of the requirement is after the expiration of the permit term unless the term of the permit was extended pursuant to Rule .0513(c). . .” The local-effective revised rule was submitted to EPA on August 1, 1997.

(8) Revise Rule 3Q.0518(f) to remove the phrase “subject to adjudication” from the requirement to take action on a complete permit application. The County deleted Rule 3Q.0518(f) and submitted the local-effective rule revision to EPA on September 25, 1995.

Forsyth County made several additional program changes after EPA granted interim approval on November 15, 1995. The definition of “Major facility” as “a major source as defined under 40 CFR 70.2” was added to Rule 3Q.0103 in the general provisions of the County's air quality permitting regulations. The County submitted the local-effective rule revision to EPA on January 16, 1997. The County also changed the method for determining its annual title V fee. Forsyth County's operating permit program was initially approved based on use of the “presumptive minimum” fee described in 40 CFR 70.9(b)(2)(i). However, the County revised Rule 3Q.0204 in October 1996 to use 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 actual costs of the operating permit program. The County now establishes its annual fee schedule based on the actual cost of administering the title V program during the previous year. The County submitted the revised fee rule to EPA on January 16, 1997, and submitted documentation of fee increases on April 22, 1998, February 18, 1999 and February 24, 2000. The County also submitted a fee program update on September 29, 1999 demonstrating that its title V program is adequately funded by operating permit fees.

The other substantive changes in Forsyth County's title V program involve the following:

(1) Revising the definition of “Affected States” in Rule 3Q.0503 to mean all States or local air pollution control agencies whose areas of jurisdiction are contiguous to Forsyth County, rather than contiguous to the entire state. The local-effective rule revision was submitted to EPA on October 2, 1998.

(2) Deleting the part 70 permit application processing schedule in Rule 3Q.0507(f) and replacing it with a new application processing schedule in Rule 3Q.0525. The new schedule established time frames for the County to complete various aspects of permit issuance, including acknowledging receipt of the application, the completeness check, the technical review, mailing the public notice, and holding a public hearing if one is requested. Rule 3Q.0525 was initially submitted to EPA on September 25, 1995 and then amended in September 1998 to ensure that final action on permit applications would be taken within 18 months of being deemed complete, as stipulated in 40 CFR 70.7(a)(2). The amended rule was submitted to EPA on October 2, 1998.

What is involved in this final action?

The Forsyth County Environmental Affairs Department has fulfilled the conditions of the interim approval granted on November 15, 1995, and EPA is taking final action by this notice to fully approve the County's operating permit program. EPA is also taking action to approve other program changes made by the County since the interim approval was granted.

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 21, 2000 unless the Agency receives adverse comments by July 24, 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 21, 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.

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 21, 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

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 revising the entry for North Carolina to read as follows:

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

North Carolina

(a)(1) Department of Environment and Natural Resources: submitted on November 12, 1993, and supplemented on December 17, 1993, May 31, 1994, and August 3, 1994, March 23, 1995, and August 9, 1995; interim approval effective on December 15, 1995; interim approval expires June 1, 2000.

(2) [Reserved]

(b)(1) Forsyth County Environmental Affairs Department: submitted on November 12, 1993, and supplemented on May 31, 1994 and November 28, 1994; interim approval effective on December 15, 1995; interim approval expires June 1, 2000.

(2) Forsyth County submitted program revisions on September 25, 1995, January 16, 1997, August 1, 1997, April 22, 1998, October 2, 1998, February 18, 1999, September 29, 1999, October 26, 1999, and February 24, 2000. The rule revisions contained in the September 25, 1995, August 1, 1997, and October 26, 1999 submittals adequately addressed the conditions of the interim approval which would expire on June 1, 2000. The County is hereby granted final full approval effective on August 21, 2000.

(3) [Reserved]

(c)(1) Mecklenburg County Department of Environmental Protection: submitted on November 12, 1993, and supplemented on June 5, 1995; interim approval effective on December 15, 1995; interim approval expires June 1, 2000.

(2) [Reserved]

(d)(1) Western North Carolina Regional Air Pollution Control Agency: submitted on November 12, 1993, and supplemented on January 12, 1994, September 16, 1994, October 11, 1994, and May 17, 1995; interim approval effective on December 15, 1995; interim approval expires June 1, 2000.

(2) [Reserved]