[Federal Register Volume 59, Number 73 (Friday, April 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8970]


[[Page Unknown]]

[Federal Register: April 15, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[TN 106-6076; 087-6137: FRL-4857-6]

 

Approval and Promulgation of Implementation Plans Tennessee: 
Approval of Revisions to Nashville-Davidson Regulation Number 3: New 
Source Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is granting limited approval of revisions to the 
Nashville-Davidson County portion of the Tennessee State Implementation 
Plan (SIP). On July 13, 1990, and February 26, 1993, Nashville-Davidson 
County, through the State of Tennessee Department of Environment and 
Conservation, submitted revisions to the Nashville-Davidson County 
portion of the Tennessee SIP. These approved revisions involve changes 
which were intended to bring their regulations into conformity with 
EPA's current New Source Review (NSR) requirements and EPA's Prevention 
of Significant Deterioration (PSD) increments for nitrogen dioxide 
(NO2).
    EPA has evaluated the proposed revision to the SIP and is granting 
limited approval. Even though the revisions to the NSR portion of the 
Nashville-Davidson County submittal do not fully meet the NSR 
requirements of the Clean Air Act, EPA is approving the submitted 
revisions because the submittal as a whole substantially strengthens 
the Nashville-Davidson County portion of the Tennessee SIP. Guidance on 
how Nashville-Davidson County can fully satisfy the current NSR 
requirements of the Clean Air Act (CAA) is provided in the 
Supplementary Information section of this document.

DATES: This final rule will be effective June 14, 1994 unless notice is 
received by May 16, 1994 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: Copies of the material submitted by Nashville-Davidson 
County 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.
    Region IV Air Programs Branch, Environmental Protection Agency, 345 
Courtland Street, Atlanta, Georgia 30365.
    Tennessee Department of Health and Environment, Bureau of 
Environment, Division of Air Pollution Control, 701 Broadway, 
Nashville, Tennessee 37219-5403.
    Metropolitan Government of Nashville and Davidson County, 
Metropolitan Health Department, 311-23rd Avenue, North Nashville, 
Tennessee 37203.

FOR FURTHER INFORMATION CONTACT: William Denman of the EPA Region IV 
Air Programs Branch at (404) 347-2864 and at the above address.

SUPPLEMENTARY INFORMATION: On July 13, 1990, and February 26, 1993, 
Nashville-Davidson County, through the State of Tennessee Department of 
Environment and Conservation, submitted various revisions to the 
Nashville-Davidson County portion of the Tennessee State Implementation 
Plan (SIP). This submittal included revisions to Regulation 3, ``New 
Source Review'' which were intended to bring Nashville-Davidson 
County's regulations into conformity with EPA's Prevention of 
Significant Deterioration (PSD) increments for NO2 and the EPA's 
current New Source Review (NSR) requirements. EPA is approving the 
following revisions to the Nashville portion of the Tennessee SIP.

Regulation 3 New Source Review

    Section 3-1 (d) Definitions: The existing definition for ``baseline 
concentration'' was replaced with a definition for ``baseline 
concentration'' consistent with 40 CFR 51.166 (b)(13).
    Section 3-1 (e) Definitions: The definition for ``baseline date'' 
was added to this section.
    Section 3-1 (t) Definitions: The definition for ``major 
modification'' was amended by deleting ``insignificant'' after 
``considered'' and before ``for'' and replacing with ``significant.''
    Section 3-1 (x) Definitions: Paragraph (7) was added so that the 
definition for ``net emissions increase'' is consistent with 40 CFR 
51.166 (b)(3).
    Section 3-1 (ee) Definitions: Paragraph (3) was added to the 
definition of ``significant'' to indicate that oxides of nitrogen would 
be acknowledged as precursors to tropospheric ozone formation and that 
offsets would be required for major or significant increases in 
NOx emissions.
    Section 3-1 (gg) Definitions: The definition of ``volatile organic 
compound'' was deleted and replaced with a definition that is 
consistent with 40 CFR 51.166 (b)(29).
    Section 3-1 (hh) Definitions: The definition of ``baseline area'' 
was added to this section.
    Section 3-2 Registration and Permits: Paragraph (b)(2)(ii) was 
deleted and replaced with new wording which clarified that ``actual'' 
not ``allowable'' emissions were to be considered in satisfying offsets 
when qualifying for a construction permit and set the ratio of total 
emission reductions to total increased emissions to 1.15 to 1.00.
    Section 3-2 Registration and Permits: Paragraph (b)(3) was amended 
by deleting ``carbon monoxide or'' after ``major'' and before 
``volatile.''
    Section 3-3 Prevention of Significant Deterioration (PSD) Review: 
In paragraph (e)(2)(iii), the maximum increase over the baseline 
concentration for NO2 added as an annual arithmetic mean of 25 ug/
m3.
    The above listed revisions to the Nashville-Davidson County NSR SIP 
are being approved because they provide substantial enhancement of the 
existing SIP. However, deficiencies in the Nashville-Davidson county 
NSR SIP remain. The following is a list of deficiencies which must be 
corrected for Nashville's NSR SIP to meet the requirements of the CAA.
    (1) The term ``legally enforceable'' which is used extensively 
throughout the regulation must be defined to provide for Federal 
enforceability.
    (2) The definition of ``commenced'' (section 3-1 (i)) must be 
revised to be consistent with 40 CFR 51.165 (a)(1)(xvi). The provision 
that the owner or operator has all necessary preconstruction approvals 
or permits must be added.
    (3) The definition of ``emission offset'' (section 3-1 (l)) must be 
better defined to provide that emission reductions used as credits are 
from actual emissions.
    (4) The present definition of ``Lowest Achievable Emission Rate 
(LAER)'' (section 3-1 (s)) must be revised to be consistent with the 
definition contained in 40 CFR 51.165 (a)(1)(xiii).
    (5) The definition of ``Reasonable Further Progress''(section 3-1 
(bb)) must be revised to be consistent with section 171 of the CAA.
    (6) The definition of ``significant emissions'' (section 3-1 (ee)) 
omits the criteria for a source locating within 10 km of a Class I area 
and causing a 1 ug/m3 impact.
    (7) Section 3-2 (b)(3) must be revised to add NOx.
    (8) Section 3-2 (d) must be revised to be consistent with 40 CFR 
51.165 (a)(5)(ii). The phrase ``as though construction had not yet 
commenced on the source or modification'' must be added to the end of 
the last sentence.
    (9) In section 3-2 (e), Nashville must add that EPA also be 
notified prior to approval or disapproval of an application for a 
construction permit.

Final Action

    EPA is granting limited approval under sections 110(k)(3) and 
301(a) of the aforementioned revisions to the Nashville-Davidson County 
portion of the Tennessee SIP. EPA is approving the revisions to the 
regulations in the SIP because the revised regulations are a 
substantial enhancement of the existing SIP. However, the approval is 
``limited'' in the sense that EPA is not granting full approval of the 
NSR SIP as meeting part D requirements. Nashville's NSR regulations 
have deficiencies as identified in the Supplementary section of this 
document. Nevertheless, EPA is not taking action to disapprove 
Nashville's NSR SIP. Nashville must submit revisions to their NSR SIP 
correcting the identified deficiencies for their NSR SIP to meet the 
requirements of the CAA.
    EPA is currently developing a rule to implement the changes under 
the 1990 Amendments in the NSR provisions in parts C and D of title I 
of the CAA. EPA anticipates that the proposed rule will be published 
for public comment in the summer of 1994. EPA expects to take final 
action to promulgate a rule to implement the parts C and D changes 
sometime during 1994 or 1995. Upon promulgation of those regulations, 
EPA will review NSR SIPs to determine whether additional SIP revisions 
are necessary to satisfy the requirements of the rule.
    This action is being taken without prior proposal because the 
changes are noncontroversial and EPA anticipates no significant 
comments on them. The public should be advised that this action will be 
effective June 14, 1994. However, if notice is received by May 16, 1994 
that someone wishes to submit adverse or critical comments, this action 
will be withdrawn and two subsequent documents will be published before 
the effective date. One document will withdraw the final action and 
another will begin a new rulemaking by announcing a proposal of the 
action and establishing a comment period.
    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 June 14, 
1994. 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).)
    This action has been classified as a Table 2 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989, (54 FR 2214-2225), as revised by an October 4, 1993, 
memorandum from Michael H. Shapiro, Acting Assistant Administrator for 
Air and Radiation. A future document will inform the general public of 
these tables. On January 6, 1989, the Office of Management and Budget 
(OMB) waived Table 2 and 3 SIP revisions (54 FR 2222) from the 
requirements of section 3 of Executive Order 12291 for two years. The 
EPA has submitted a request for a permanent waiver for Table 2 and 
Table 3 SIP revisions. The OMB has agreed to continue the waiver until 
such time as it rules on EPA's request. This request continues in 
effect under Executive Order 12866 which superseded Executive Order 
12291 on September 30, 1993.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a revision to 
any SIP. 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.
    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.
    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).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

    Dated: March 22, 1994.
Patrick M. Tobin,
Acting Regional Administrator.

    Part 52, chapter I, title 40 of the 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 is amended by adding paragraph (c)(114) to read 
as follows:


Sec. 52.2220  Identification of plan.

 * * * * *
    (c) * * *
    (114) On July 13, 1990, and February 26, 1993, Nashville-Davidson 
county submitted revisions to the Nashville-Davidson county portion of 
the Tennessee SIP through the Tennessee Department of Air Pollution 
Control which were intended to bring their regulations into conformity 
with EPA's New Source Review (NSR) requirements and EPA's Prevention of 
Significant Deterioration (PSD) increments for nitrogen dioxide 
(NO2). The USEPA is granting limited approval to the revisions to 
the Nashville-Davidson county NSR regulations because the revised 
regulations strengthen the SIP.
    (i) Incorporation by reference.
    (A) Amendments to sections 3-1(e) and 3-3(e)(2)(iii) of the 
Nashville-Davidson county portion of the Tennessee regulations were 
adopted by the Nashville Metropolitan Board of Health on April 12, 
1990.
    (B) Amendments to sections 3-1(d), 3-1(t), 3-1(x)(7),3-1(ee)(3), 3-
1(gg), 3-1(hh), 3-2(b)(2)(ii), and 3-2(b)(3) were adopted by the 
Nashville Metropolitan Board of Health on December 8, 1992.
    (ii) Other material--none.
[FR Doc. 94-8970 Filed 4-14-94; 8:45 am]
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