[Federal Register Volume 60, Number 28 (Friday, February 10, 1995)]
[Rules and Regulations]
[Pages 7913-7917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3332]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TN-139-1-6667a; FRL-5140-9]
Approval and Promulgation of Air Quality Implementation Plans;
Tennessee; Revision to New Source Review, Construction and Operating
Permit Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: In this document, EPA is approving revisions to the State
Implementation Plan (SIP) submitted by the State of Tennessee through
the Tennessee Department of Environment and Conservation on August 17,
1994. The submittal included revisions to the State's new source review
(NSR) regulations, which were promulgated to bring the State's
regulations into compliance with the 1990 amendments to the Clean Air
Act and the Federal regulations. EPA finds that the revised State rules
meet the Federal nonattainment NSR permitting requirements of the Clean
Air Act as amended in 1990 (CAA) for the State's ozone (O3)
nonattainment areas.
On January 15, 1993, in a letter from Patrick M. Tobin to Governor
Ned McWherter, EPA notified the State of Tennessee that EPA had made a
finding of failure to submit required programs for the nonattainment
area. The revised State NSR rules satisfy those requirements for this
area. Therefore, the sanctions clock was stopped by the complete
submittal and the Federal implementation plan clock will be stopped at
the time of this approval.
DATES: This final rule will be effective April 11, 1995 unless adverse
or critical comments are received by March 13, 1995. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Written comments should be addressed to: Ms. Karen Borel, at
the Regional Office Address listed.
Copies of the material submitted by the State of Tennessee 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. [[Page 7914]]
Tennessee Division of Air Pollution Control, 701 Broadway, Customs
House, 4th Floor, Nashville, Tennessee 37247-1531.
FOR FURTHER INFORMATION CONTACT: Ms. Karen Borel, Regulatory Planning
and Development Section, Air Programs Branch, Air, Pesticides & Toxics
Management Division, Region 4 Environmental Protection Agency, 345
Courtland Street, NE., Atlanta, Georgia 30365. The telephone number is
404/347-3555, x4197. Reference file TN-139-1-6667a.
SUPPLEMENTARY INFORMATION:
A. Nonattainment NSR Requirements of the Amended Act
The air quality planning requirements for nonattainment NSR are set
out in part D of title I of the CAA. EPA has issued a ``General
Preamble'' describing EPA's preliminary views on how EPA intends to
review SIPs and SIP revisions submitted under part D, including those
state submittals containing nonattainment area NSR SIP requirements
(see 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992)).
Because EPA is describing its interpretations here only in broad terms,
the reader should refer to the General Preamble for a more detailed
discussion of the interpretations of part D advanced in this document
and the supporting rationale. A brief discussion of the specific
elements required in a state's NSR program also is included in section
II.B. of this document.
EPA is currently developing rule revisions to implement the changes
under the 1990 Clean Air Act Amendments in the NSR provisions of parts
C and D of title I of the CAA. EPA anticipates that the proposed rule
will be published for public comment in the spring of 1995. If EPA has
not taken final action on states' NSR submittals by that time, EPA may
generally refer to the proposed rule as the most authoritative guidance
available regarding the approvability of the submittals. EPA expects to
take final action to promulgate the rule revisions to implement the
part C and D changes in early 1996. Upon promulgation of those revised
regulations, EPA will review NSR SIPs to determine whether additional
SIP revisions are necessary to satisfy the requirements of the
rulemaking.
Prior to EPA approval of the State's NSR SIP submission, the State
may continue permitting only in accordance with the new statutory
requirements for permit applications completed after the relevant SIP
submittal date. This policy was explained in transition guidance
memoranda from John Seitz dated March 11, 1991, and September 3, 1992.
As explained in the March 11, 1991, memorandum, EPA does not
believe Congress intended to mandate the more stringent title I NSR
requirements during the time provided for SIP development. States were
thus allowed to continue to issue permits consistent with requirements
in their current NSR SIPs during that period, or to apply 40 CFR part
51, appendix S for newly designated areas that did not previously have
NSR SIP requirements.
The September 3, 1992, memorandum addressed the situation where
states did not submit the part D NSR SIP revisions by the applicable
statutory deadline. For permit applications complete by the SIP
submittal deadline, states may issue final permits under the prior NSR
rules, assuming certain conditions in the September 3, 1992, memorandum
are met. However, for applications completed after the SIP submittal
deadline, EPA will consider the source to be in compliance with the CAA
where the source obtains, from the state, a permit that is consistent
with the substantive new NSR part D provisions in the CAA. EPA believes
this guidance continues to apply to permitting pending final action on
Tennessee's NSR SIP submittal.
For O3 nonattainment areas, section 182(a)(2)(C) of the CAA
requires the states to submit to EPA by November 15, 1992, new or
augmented NSR rules that meet the provisions of part D of title I of
the CAA. The part D NSR permitting provisions applicable in O3
nonattainment areas are generally in sections 172(c)(5), 173, 182, and
184 of the CAA. The State of Tennessee adopted regulatory revisions
necessary to bring the State's NSR regulations in compliance with the
CAA and amended Federal regulations, and submitted those revisions on
August 17, 1994. The State also submitted revisions to the Nashville/
Davidson County portion of the Tennessee SIP on September 27, 1994. The
only rule revisions being approved in this action are the revised
statewide rules submitted on August 17, 1994. The EPA will take action
on the Nashville/Davidson County rule revisions in a separate Federal
Register document.
B. Federal Implementation Plan (FIP) Clock
On January 15, 1993, in a letter from Patrick M. Tobin to Governor
Ned McWherter, EPA notified the State of Tennessee that EPA had made a
finding of failure to submit required programs for the nonattainment
area. The revised State NSR rules satisfy those requirements for this
area. Therefore, the sanctions clock was stopped by the complete
submittal and the FIP clock will be stopped at the time of this
approval.
C. Procedural Background
Section 110(k) of the CAA sets out provisions governing EPA's
review of SIP submittals (see 57 FR 13565).
The State of Tennessee held a public hearing on February 22, 1994,
on the proposed revisions to the SIP. Following the public hearing, the
plan was adopted by the State and submitted by the Tennessee Department
of Environment and Conservation on August 17, 1994, as a revision to
the SIP.
Specifically, the State submitted revisions to its NSR permitting
regulations in Tennessee's Chapter 1200-3 by submitting revised
Paragraph 1200-3-9-.01(5) entitled Growth Policy. The revisions to the
State's NSR regulations were made to bring the State's rules into
compliance with the CAA, as amended in 1990, and Federal regulations.
The SIP revision was reviewed by EPA to determine completeness, and
a letter of completeness, dated August 18, 1994, was forwarded to the
State of Tennessee. EPA finds that the revisions provide for
consistency with the CAA and corresponding Federal regulations, and
that the revisions meet the new nonattainment NSR provisions for ozone
nonattainment areas.
D. Nonattainment NSR Requirements of the CAA
The general statutory requirements for nonattainment NSR SIPs and
permitting as amended by the 1990 Amendments are found in sections 172
and 173 of the CAA. Tennessee currently has nonattainment areas for
O3, sulfur dioxide, and lead. These requirements apply in all
nonattainment areas. The State of Tennessee's nonattainment NSR
regulations, which had been approved prior to the 1990 Amendments, were
written to be nonattainment area-specific. The NSR permitting
requirements applied to new or modified sources proposing to locate in
any nonattainment area in the State, including those designated
pursuant to enactment of the 1990 Amendments. Thus, in order to meet
the nonattainment NSR program submittal requirements, the State needed
to address the new NSR requirements of the amended CAA.
Many of the revisions to sections 172 and 173 of the CAA as
discussed in the General Preamble clarified previously existing Federal
regulations and policy. [[Page 7915]] The following represents EPA's
review of the State's submitted regulations for meeting the
requirements of the amended CAA:
(1) The CAA repealed the construction ban provisions previously
found in section 110(a)(2)(I) with certain exceptions. No construction
bans are currently imposed in Tennessee, so this provision is not
applicable.
(2) Section 173(a)(1)(A) of the CAA requires a demonstration for
permit issuance that the new source growth does not interfere with
reasonable further progress (RFP) for the area (e.g., greater than 1:1
emission offsets should insure no interference with RFP). In addition,
calculations of emissions offsets must be based on the same emissions
baseline used in the demonstration of RFP. In Section 1200-3-9-
.01(5)(b)(2)(iv) the State has established provisions that adequately
address the requirements of section 173(a)(1).
(3) Section 173(c)(1) of the CAA requires that offsets must
generally be obtained by the same source or other sources in the same
nonattainment area. However, offsets may be obtained from other
nonattainment areas if the following conditions are met: the area in
which the offsets are obtained has an equal or higher nonattainment
classification; and emissions from the nonattainment area in which the
offsets are obtained contribute to a national ambient air quality
standard (NAAQS) violation in the area in which the source would
construct. In Chapter 1200-3-9-.01(5)(b)(2)(v)(1), the State has
established provisions that adequately meet these requirements of
section 173(c)(1).
(4) Section 173(c)(1) of the CAA requires that any emissions
offsets obtained in conjunction with the issuance of a permit to a new
or modified source must be in effect and enforceable by the time the
new or modified source commences operation and that any emission
increases from new or modified major stationary sources must be offset
by reductions in actual emissions. In Chapter 1200-3-9-.01(5)(b)(2)(v),
the State has established provisions that adequately meet these
requirements of section 173(c)(1).
(5) Section 173(c)(2) of the CAA prohibits emissions reductions
otherwise required by the CAA from being credited for purposes of
satisfying the part D offset requirements. In Chapter 1200-3-9-
.01(5)(b)(2)(v)(VII), the State has established provisions that
adequately meet the requirements of section 173(c)(2).
(6) Revised sections 172(c)(4), 173(a)(1)(B), and 173(b) of the CAA
limit or invalidate use of certain growth allowances in nonattainment
areas. In Chapter 1200-3-9-.01(5)(b)(2)(iv)(1), the State has
established provisions that adequately meet the requirements of
sections 172(c)(4), 173(a)(1)(B), and 173(b).
(7) Revised section 173(a)(5) of the CAA requires that, as a
prerequisite to issuing any part D permit, an analysis of alternative
sites, sizes, production processes, and environmental control
techniques for a proposed source must be completed, which demonstrates
that the benefits of the proposed source significantly outweigh the
environmental and social costs imposed as a result of its location,
construction, or modification. In Chapter 1200-3-9-.01(5)(b)(2)(vi),
the State has established provisions that adequately meet the
requirements of section 173(a)(5).
(8) Section 173(d) of the CAA requires States to submit control
technology information from permits to EPA for the purposes of making
such information available through the RACT/BACT/LAER clearinghouse. In
Chapter 1200-3-9-.01 (5)(b)(2)(iii)(V), the State has established
provisions that adequately meet the requirements of section 173.
(9) In Chapter 1200-3-9-.01(5)(b)(xviii) the State has submitted a
revised definition for the lowest achievable emission rate (LAER). In
the previously approved SIP, LAER is defined for the prevention of
significant deterioration (PSD) in subparagraph 1200-3-9-
.01(4)(o)(5)(b)(3), and for new sources in subparagraph 1200-3-9-
.01(5)(b)(3). The same definition is used in both places. LAER is
defined as that rate of emissions which reflects the most stringent
emission limitation which is achieved in practice by such class or
category of sources. In no event shall a new or modified source emit
any pollutant in excess of the applicable New Source Performance
Standards (NSPS).
Revisions to Tennessee's PSD regulations, which have been submitted
to EPA, but not yet acted upon, delete the definition of LAER from
paragraph 1200-3-9-.01(4) and add it to the general definitions for the
issuance of construction permits, which will be found in subparagraph
1200-3-9-.01(2)(e). This section defines LAER, for any major stationary
source or major modifications, as the more stringent rate of emissions
based on the following: (1) The most stringent emissions limitation
which is contained in the applicable standards under this Division
1200-3, or in any SIP for such class or category of stationary source,
unless the owner or operator of the proposed source demonstrates that
such limitations are not achievable; or (2) The most stringent
emissions limitation which is achieved in practice by such class or
category of stationary source. This limitation, when applied to a
modification, means the lowest achievable emissions rate for the new or
modified emissions units within the stationary source. In no event
shall the application of this term permit a proposed new or modified
stationary source to emit any air contaminant in excess of the amount
allowable under applicable new source standards of performance.
The State previously submitted revisions to their volatile organic
compound (VOC) regulations on June 22, 1993, which included a request
for the deletion of rule 1200-3-18-.03 Standard for New Sources. This
rule includes a definition of LAER which means for any source, that
rate of emissions which reflects the most stringent emission limitation
which is achieved in practice by such class or category of source. In
no event shall a new or modified source emit any pollutant in excess of
the applicable NSPS. This deletion was previously disapproved by EPA
(see 59 FR 18310) because Tennessee did not have federally approved NSR
regulations which would apply to some of the sources covered by that
chapter. In 59 FR 18310 EPA recommended that Tennessee submit the
deletion of this rule with the submittal of their revised NSR
regulations.
The revised NSR rules define LAER as the more stringent rate of
emissions of the most stringent emissions limitation contained in
Division 1200-3 of the state rules or in any SIP for such class or
category of source. In no event may LAER be in excess of the applicable
NSPS. This revised definition closely parallels the statutory
definition of LAER in section 171(3) of the CAA and eliminates the
previous discrepancy between the state definition and the statutory,
and EPA approves the revision as satisfying part D requirements.
In addition to all of the general nonattainment NSR provisions
mentioned above, there are also nonattainment area-specific NSR
provisions in subparts 2, 3, and 4 of part D of the CAA, some of which
supersede general NSR provisions. The following provisions are
additional NSR provisions that apply in Tennessee's nonattainment
areas.
1. Ozone Nonattainment Areas
The State has adopted the appropriate major source threshold in
Rule 1200-3-9-.01(5)(b)(1)(iv), 100 tons per year (tpy),
[[Page 7916]] for the nonattainment areas in the state, including the
ozone nonattainment areas, which are currently classified as marginal
and moderate ozone nonattainment areas. Because it has not adopted the
applicable lower major thresholds for serious, severe, and extreme
ozone nonattainment areas, the State would be required to revise its
rules if an ozone nonattainment area becomes classified as serious,
severe, or extreme. In accordance with section 182 of the CAA, the
State has adopted the applicable emissions offset ratios for increases
in emissions of VOCs or NOx in section 1200-3-9-
.01(5)(b)(2)(v)(III), namely: marginal-at least 1.1 to 1, moderate-at
least 1.15 to 1, serious-at least 1.2 to 1, severe-at least 1.3 to 1,
and extreme-at least 1.5 to 1. The State has adopted provisions in Rule
1200-3-9-.01(5)(b)(1)(iv-v, x, and xxxiii) to ensure that any new or
modified major source of NOx satisfies the requirements applicable
to any major source of VOCs, unless a special exemption is granted by
the Administrator under section 182(f).
2. Carbon Monoxide Nonattainment Areas
The State of Tennessee had one carbon monoxide (CO) nonattainment
area, which was designated as low moderate; this was the Memphis-Shelby
County area. (See 40 CFR 81.343 for Tennessee's CO nonattainment area
designations). However, this area was redesignated as an attainment
area on August 31, 1994 (59 FR 44938); NSR is not required for the CO
maintenance plan.
3. Other Revisions to NSR Regulations
Other revisions to the State's regulations were made to bring the
State's regulations into compliance with the CAA as amended in 1990.
EPA is approving these revisions because they provide for clarity and
consistency with the Federal requirements in the CAA and 40 CFR 51.165
and 51.166. For further information on the revisions addressed in this
submittal, please see the Technical Support Document (TSD) accompanying
this document.
4. Deletion of Previous Disapproval to Delete Rule 1200-3-18-.03
The State previously submitted revisions to their VOC regulations
on June 22, 1993, which included a request for the deletion of rule
1200-3-18-.03 Standard for New Sources. This deletion was disapproved
by EPA (see 59 FR 18310) because Tennessee did not have federally
approved NSR regulations that would apply to some of the sources
covered by that rule. As recommended by EPA, Tennessee resubmitted the
deletion of this rule together with their revised NSR regulations (see
59 FR 18310). The deletion of Rule 1200-3-18-.03 is approved, and the
earlier EPA disapproval is deleted, in conjunction with the approval of
the State's revised NSR regulations.
Rule 1200-3-18-.03 provided that: new or modified sources anywhere
in the State which emit or have the potential to emit 100 tpy or more
of VOCs must utilize LAER, as then defined; new or modified sources in
Davidson, Shelby, and Hamilton Counties with the potential to emit less
than 100 tpy must utilize BACT; and new or modified sources in other
counties with the potential to emit less than 100 tpy must utilize
reasonable and proper controls. The revised NSR rules for VOC sources,
which would replace Rule 1200-3-18-.03, provides that: in ozone
nonattainment areas, new or major modifications of sources which emit
or have the potential to emit 100 tpy must utilize LAER, as defined in
a revised definition; in ozone nonattainment areas, new or modified
sources which have the potential to emit less than 100 tpy must utilize
BACT; and in ozone attainment areas, the PSD rules, rather than the
nonattainment NSR rules, apply.
Tennessee's revised NSR rules closely follow the statutory NSR
requirements of part D, and provide additional protection in
nonattainment areas by requiring BACT for minor sources and minor
modifications. As discussed above, the revised definition of LAER also
follows the CAA. Although the State will no longer impose a 100 tpy
major source threshold for all source categories or require LAER in
ozone attainment areas, based on a review of the deletion of rule 1200-
3-18-.03 and the revised NSR rules, EPA concludes that the revisions
satisfy the requirements of part D and the General Savings Clause in
section 193 of the CAA. However, sources that were permitted under rule
1200-3-18-.03 will remain under the controls previously specified in
their permits pursuant to that rule. Additionally, all sources located
in attainment areas with the potential to emit 100 tpy or greater
uncontrolled are required to implement Reasonably Available Control
Technology (RACT).
Final Action
EPA is approving the revised Tennessee Chapter 1200-3-9-.01(5)
Growth Policy, which is a replacement for the State's current federally
approved Chapter 1200-3-9-.01(5). Specifically, EPA is approving the
State's submittal as meeting the NSR requirements of the CAA as amended
in 1990 for the State's ozone nonattainment areas. EPA is also
rescinding the previous disapproval (59 FR 18310) of the deletion of
rule 1200-3-18-.03 Standard for New Sources and is approving the
deletion.
EPA is publishing this action without prior proposal because the
Agency views this as a noncontroversial action 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 submitted. This action will be
effective on April 11, 1995 unless, by March 13, 1995, adverse or
critical 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 on April 11, 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 April 11,
1995. 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) of the CAA, 42 U.S.C. 7607 (b)(2)).
The Office of Management and Budget (OMB) has exempted these
actions from review under Executive Order 12866.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to any 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
[[Page 7917]] and 604. Alternatively, EPA may certify that the rule
will not have a significant economic impact on a substantial number of
small entities. Small entities include small business, 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. 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, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements.
Dated: January 9, 1995.
Patrick M. Tobin,
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 is amended by adding paragraph (c)(124) to read
as follows:
Sec. 52.2220 Identification of plan.
* * * * *
(c) * * *
(124) On August 17, 1994, the Tennessee Department of Environment
and Conservation submitted revisions to the new source review
requirements in the Tennessee Division of Air Pollution Control
Regulations. These revisions incorporate changes to Chapter 1200-3-9 by
substituting for the present paragraph 1200-3-9-.01(5) of the Tennessee
SIP with new requirements, which are required in the Clean Air Act as
amended in 1990 and 40 CFR part 51, subpart I.
(i) Incorporation by reference. Tennessee Division of Air Pollution
Control Regulations, Chapter 1200-3-9-.01(5) Growth Policy, effective
August 15, 1994.
(ii) Other material. None.
3. Section 52.2228 is amended by adding a new paragraph (f) to read
as follows:
Sec. 52.2228 Review of new sources and modifications.
* * * * *
(f) The State of Tennessee proposed to delete rule 1200-3-18-.03
``Standard for New Sources'' from the Tennessee State Implementation
Plan (SIP). In paragraph (e) of this section, EPA disapproved the
deletion of this rule because Tennessee did not have federally approved
New Source Review (NSR) regulations that applied to some of the sources
in this chapter. EPA is hereby approving the deletion of section 1200-
3-18-.03 of the Tennessee SIP, and is deleting EPA's earlier
disapproval in paragraph (e) of this section.
[FR Doc. 95-3332 Filed 2-9-95; 8:45 am]
BILLING CODE 6560-50-F