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

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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