[Federal Register Volume 62, Number 127 (Wednesday, July 2, 1997)]
[Rules and Regulations]
[Pages 35681-35683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17183]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TN 104-1-9706(b); TN 148-1-9705(b); FRL-5849-1]


Approval of Revisions to the Tennessee State Implementation Plan 
Regarding Visibility

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving the visibility protection chapter for the 
State of Tennessee submitted to EPA on February 9, 1993, and December 
19, 1994, by Tennessee, through the Tennessee Department of Environment 
and Conservation (TDEC). The intended effect of these revisions is to 
meet the requirements of the Clean Air Act (CAA) for the purpose of 
assuring visibility protection in mandatory Class I Federal areas.

DATES: This final rule is effective September 2, 1997 unless adverse or 
critical comments are received by August 1, 1997. If the effective date 
is delayed, timely notice will be published in the Federal Register.

ADDRESSES: Written comments on this action should be addressed to 
William Denman at the Environmental Protection Agency, Region 4 Air 
Planning Branch, 61 Forsyth Street, SW, Atlanta, Georgia 30303. Copies 
of documents relative to this action are available for public 
inspection during normal business hours at the following locations. The 
interested persons wanting to examine these documents should make an 
appointment with the appropriate office at least 24 hours before the 
visiting day. Reference files TN104-01-9706 and TN148-01-9705. The 
Region 4 office may have additional background documents not available 
at the other 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 Planning Branch, 61 
Forsyth Street, SW, Atlanta, Georgia 30303. William Denman 404/562-9030
Tennessee Department of Environment and Conservation, Division of Air 
Pollution Control, 9th Floor L & C Annex, 401 Church Street, Nashville, 
Tennessee 37243-1531.

FOR FURTHER INFORMATION CONTACT: William Denman at 404/562-9030.

SUPPLEMENTARY INFORMATION: On February 9, 1993 (reference file TN104), 
and December 19, 1994 (reference file TN148) the State of Tennessee, 
through the Tennessee Department of Environment and Conservation 
(TDEC), submitted to the EPA for incorporation into their SIP, 
revisions to Chapter 1200-3-9 ``Construction and Operating Permits,'' a 
non-regulatory visibility long term strategy, and a new Chapter 1200-3-
23 ``Visibility Protection.'' The EPA is taking no action on the 
revisions to Chapter 1200-3-9 because these revisions were replaced in 
a subsequent submittal and action was taken by EPA to approve these 
revisions on July 18, 1996 (61 FR 37387). On May 6, 1997, Tennessee 
withdrew the nonregulatory portion of the visibility protection plan 
because Tennessee is revising its visibility long-term strategy to meet 
the requirements of 40 CFR 51 Subpart P. The EPA is approving the 
entire chapter 1200-3-23 ``Visibility Protection'' into the SIP because 
it meets the regulatory requirements of 40 CFR 51 Subpart P. 
Tennessee's visibility protection chapter contains the following 
provisions for the protection of visibility in Federal Class I areas.

1200-3-23-.01  Purpose

    This section states that the purpose of this chapter is to assure 
reasonable progress toward meeting the goal of prevention of any 
future, and remedy of any existing impairment of visibility in 
mandatory Class I Federal areas in which impairment results from man-
made air pollution.

1200-3-23-.02  Definitions

    Definitions of the following terms are included in this section: 
Best Available Retrofit Technology (BART), existing stationary 
facility, Federal Class I Area, fixed capital cost, in existence, in 
operation, mandatory Class I Federal Area, natural conditions, 
reconstruction, visibility impairment, significant impairment, integral 
vista, continuous program of physical on-site construction, substantial 
loss, adverse impact on visibility, pollutant, and reasonably 
attributable. The definitions are consistent with EPA and CAA 
requirements.

1200-3-23-.03  General Visibility Protection Standards

    This section states that no person shall cause or allow emissions 
in excess of the standards in this chapter, and that possession of a 
valid permit shall not protect the source from enforcement actions if 
permit conditions are not met. Also, upon mutual agreement of the 
owner/operator of a source and the Technical Secretary, a more 
restrictive emissions limitation than specified in this chapter may be 
established, operating parameters may be established as a binding 
limit, those limits will be stated as special condition(s) for any 
permit or order concerning the source, and violation of any accepted 
special limitation is grounds for revocation of the issued permit.

1200-3-23-.04  Specific Emission Standards for Existing Stationary 
Facilities

    This section states that for existing stationary sources which 
cause a visibility impairment in any mandatory Class I Federal Area, 
the Technical Secretary shall specify on the operating permit(s) as 
permit conditions the emission limitation that is best available 
retrofit technology (BART).

[[Page 35682]]

1200-3-23-.05  Specific Emission Standards for Existing Sources

    This section states that for any existing source that causes 
visibility impairment in any mandatory Class I Federal Area, the 
Technical Secretary may specify on the operating permit(s) an emissions 
limitation that is equivalent to BART. This section also states that 
existing sources subject to the provision of rule (.04) are not subject 
to the provisions of this Rule.

1200-3-23-.06  Visibility Standards for New and Modified Sources

    This section states that a new ``major stationary source'' or a 
``major modification'' construction in an attainment area or 
unclassifiable area must meet Prevention of Significant Deterioration 
(PSD) requirements, and in a nonattainment area must meet applicable 
New Source Review (NSR) requirements. In addition, for any new source 
or modification, the Technical Secretary may require BART.

1200-3-23-.07  Visibility Monitoring Requirements

    This section states that the Technical Secretary may require 
visibility monitoring in the vicinity of a source regulated by this 
Chapter and that the monitoring shall be done in accordance with the 
requirements as specified by the Technical Secretary.

1200-3-23-.08  Exemptions from BART Requirements

    This section provides exemptions from BART as follows:
    1. Any existing stationary facility subject to the BART requirement 
may apply to the Administrator of the EPA through the Technical 
Secretary for an exemption.
    2. An application under this rule must include all available 
documentation relevant to the impact of the source's emissions on 
visibility in any mandatory Class I Federal Area and a demonstration by 
the existing stationary facility that it does not or will not, by 
itself or in combination with other sources, emit any air pollutant 
which may be reasonably anticipated to cause a significant impairment 
of visibility in any mandatory Class I Federal Area.
    3. A fossil-fuel fired power plant with a total generating capacity 
of 750 megawatts or more may receive an exemption from BART only if the 
owner/operator demonstrates to the Technical Secretary that it is 
located at such a distance from all mandatory Class I Federal Areas 
that it will not emit any air pollutant which may reasonably be 
anticipated to cause significant impairment of visibility.
    4. The existing stationary source must give written notice to all 
affected Federal Land Managers of any application for exemption.
    5. The Federal Land Manager may provide an initial recommendation 
or comment on the disposition of such application.
    6. Within 90 days of receipt of an application for exemption the 
Technical Secretary will provide notice of receipt and notice of 
opportunity for public hearing. If the Technical Secretary concurs, the 
application for exemption will be forwarded to the Administrator of EPA 
who may grant or deny the exemption. An exemption granted by the 
Administrator of the EPA will be effective only upon concurrence by all 
affected Federal Land Managers.

Final Action

    The EPA is approving the submitted revisions into the Tennessee SIP 
as described in the SUPPLEMENTARY INFORMATION section. The EPA is 
publishing this action without prior proposal because the Agency views 
this as a noncontroversial amendment and anticipates no adverse 
comments. However, in a separate document in this Federal Register 
publication, the EPA is proposing to approve the SIP revision should 
adverse or critical comments be filed. This action will be effective 
September 2, 1997 unless, by August 1, 1997 adverse or critical 
comments are received.
    If the 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 be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. The 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 September 2, 1997.
    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 the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

Administrative Requirements

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    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 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. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2) and 
7410(k)(3).

C. Unfunded Mandates

    Under Section 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 
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

[[Page 35683]]

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.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by September 2, 1997. 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).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Ozone, 
Particulate matter, Reporting and recordkeeping requirements.

    Dated: June 17, 1997.
A. Stanley Meiburg,
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)(147) to read 
as follows:


Sec. 52.2220  Identification of plan.

* * * * *
    (c) *  *  *
    (147) Addition of a new chapter 1200-3-23 ``Visibility Protection'' 
to the Tennessee Air Pollution Control Regulations submitted by the 
Tennessee Department of Environment and Conservation on February 9, 
1993, and December 19, 1994.
    (i) Incorporation by reference.
    (A) Chapter 1200-3-23 ``Visibility Protection,'' effective July 24, 
1994.
    (ii) Other material. None.
* * * * *
[FR Doc. 97-17183 Filed 7-1-97; 8:45 am]
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