[Federal Register Volume 72, Number 140 (Monday, July 23, 2007)]
[Proposed Rules]
[Pages 40105-40109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14171]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2006-0042-200715; FRL-8443-4]


Approval and Promulgation of Implementation Plans Tennessee; 
Approval of Revisions to the Tennessee SIP and the Nashville/Davidson 
County Portion of the Tennessee SIP; Prevention of Significant 
Deterioration and Nonattainment New Source Review

AGENCY: Environmental Protection Agency (EPA).

[[Page 40106]]


ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve State Implementation Plan (SIP) 
revisions submitted by the State of Tennessee on February 23, 2006, and 
May 31, 2006. The proposed revisions modify Tennessee's and Nashville/
Davidson County's Prevention of Significant Deterioration (PSD) and 
Nonattainment New Source Review (NNSR) regulations in the SIP to 
address changes to the federal NSR regulations, which were promulgated 
by EPA on December 31, 2002 (67 FR 80186) and reconsidered with minor 
changes on November 7, 2003 (68 FR 63021) (collectively, these two 
final actions are called the ``2002 NSR Reform Rules''). EPA's 2002 NSR 
Reform Rules, proposed for inclusion in the Tennessee SIP and the 
Nashville/Davidson County portion of the Tennessee SIP, contain 
provisions for baseline emissions calculations, an actual-to-projected-
actual methodology for calculating emissions changes, options for 
plant-wide applicability limits, and recordkeeping and reporting 
requirements.

DATES: Comments must be received on or before August 22, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2006-0042, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: 404-562-9019.
    4. Mail: ``EPA-R04-OAR-2006-0042,'' Air Planning Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 
30303-8960.
    5. Hand Delivery or Courier: Ms. Yolanda Adams, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960. Such deliveries are only accepted during 
the Regional Office's normal hours of operation. The Regional Office's 
official hours of business are Monday through Friday, 8:30 a.m. to 4:30 
p.m., excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2006-0042. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy at the Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all 
possible, you contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule your inspection. The Regional Office's 
official hours of business are Monday through Friday, 8:30 a.m. to 4:30 
p.m., excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the 
Tennessee State Implementation Plan, contact Mr. James Hou, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number 
is (404) 562-8965. Mr. Hou can also be reached via electronic mail at 
[email protected]. For information regarding New Source Review, contact 
Ms. Yolanda Adams, Air Permits Section, at the same address above. The 
telephone number is (404) 562-9214. Ms. Adams can also be reached via 
electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, references to 
``EPA,'' ``we,'' ``us,'' or ``our,'' are intended to mean the 
Environmental Protection Agency. The supplementary information is 
arranged as follows:

I. What action is EPA proposing today?
II. Why is EPA proposing this action?
III. What is EPA's Analysis of Tennessee's and Nashville/Davidson 
County's NSR Rule Revisions?
IV. What action is EPA taking today?
V. Statutory and Executive Order Reviews

I. What action is EPA proposing today?

    On February 23, 2006, and May 31, 2006, the State of Tennessee, 
through the Tennessee Department of Environment and Conservation 
(TDEC), submitted revisions to the Tennessee SIP, and the Nashville/
Davidson County portion of the Tennessee SIP. Nashville/Davidson County 
is separately authorized to implement and enforce the NSR program in 
that region of Tennessee. The February 23, 2006, SIP submittal consists 
of revisions to the Tennessee Air Pollution Control Regulations. 
Specifically, the proposed SIP revisions include changes to TDEC Rule 
.01 of chapter 1200-3-9 entitled, ``Construction Permits.'' The May 31, 
2006, submittal consists of revisions to the Nashville Pollution 
Control Division's (NPCD's) Regulation 3 entitled, ``New Source 
Review.'' TDEC submitted these revisions in response to EPA's December 
31, 2002, revisions to the Federal NSR program.
    In a letter to EPA dated April 16, 2007, Tennessee requested to 
amend the February 23, 2006, SIP submittal in light of the decision 
issued by the U.S. Circuit Court of Appeals for the District of 
Columbia Circuit (DC Circuit Court) on June 24, 2005. The June 24, 
2005, decision is discussed in further detail below. Tennessee 
requested that the portion of the Tennessee SIP revision related to the 
EPA rules that were vacated by the DC Circuit Court (specifically the 
clean unit and pollution control project provisions) not be approved 
into the SIP. The affected portions of the February 23, 2006, submittal 
are as follows: sections

[[Page 40107]]

(b)2.(i)(VIII), (b)4.(iii)(III), (b)4.(vi)(IV), (b)35., (b)39., 
(c)4.(v), (c)6., (p), (q), and (r) of Rule 1200-3-9-.01(4); sections 
(b)1.(v)(III)VIII, (b)1.(vi)(III)III, (b)1.(vi)(V)V, (b)1.(xxxvii), 
(b)1.(xli), (b)2.(v)(IX), (b)2.(v)(X), (b)2.(xvi), (b)2.(xix), (b)7., 
(b)8., and (b)9. of Rule 1200-3-9-.01(5); and all references to clean 
units and pollution control projects at sections (a)11. and (c)4.(vi) 
of Rule 1200-3-9-.01(4); and sections (b)2.(xvii) and (b)5. of Rule 
1200-3-9-.01(5). EPA is now proposing to approve the SIP revisions 
submitted by TDEC on February 23, 2006, May 31, 2006, and April 16, 
2007, which will revise the Tennessee SIP and the Nashville/Davidson 
County portion of the Tennessee SIP.

II. Why is EPA proposing this action?

    On December 31, 2002, EPA published final rule changes to 40 Code 
of Federal Regulations (CFR) parts 51 and 52, regarding the Clean Air 
Act's (CAA or Act) PSD and NNSR programs (67 FR 80186). On November 7, 
2003, EPA published a notice of final action on the reconsideration of 
the December 31, 2002, final rule changes (68 FR 63021). In that 
November 7, 2003, final action, EPA added the definition of 
``replacement unit,'' and clarified an issue regarding plantwide 
applicability limitations (PALs). The December 31, 2002, and the 
November 7, 2003, final actions are collectively referred to as the 
``2002 NSR Reform Rules.'' The purpose of this action is to propose to 
approve the SIP submittals from the State of Tennessee, which include 
the provisions of EPA's 2002 NSR Reform Rules.
    The 2002 NSR Reform Rules are part of EPA's implementation of Parts 
C and D of title I of the CAA, 42 U.S.C. 7470-7515. Part C of title I 
of the CAA, 42 U.S.C. 7470-7492, is the PSD program, which applies in 
areas that meet the National Ambient Air Quality Standards (NAAQS)--
``attainment'' areas--as well as in areas for which there is 
insufficient information to determine whether the area meets the 
NAAQS--``unclassifiable'' areas. Part D of title I of the CAA, 42 
U.S.C. 7501-7515, is the NNSR program, which applies in areas that are 
not in attainment of the NAAQS--``nonattainment'' areas. Collectively, 
the PSD and NNSR programs are referred to as the ``New Source Review'' 
or NSR programs. EPA regulations implementing these programs are 
contained in 40 CFR 51.165, 51.166, 52.21, 52.24, and part 51, appendix 
S.
    The CAA's NSR programs are preconstruction review and permitting 
programs applicable to new and modified stationary sources of air 
pollutants regulated under the CAA. The NSR programs of the CAA include 
a combination of air quality planning and air pollution control 
technology program requirements. Briefly, section 109 of the CAA, 42 
U.S.C. 7409, requires EPA to promulgate primary NAAQS to protect public 
health and secondary NAAQS to protect public welfare. Once EPA sets 
those standards, states must develop, adopt, and submit to EPA for 
approval, a SIP that contains emissions limitations and other control 
measures to attain and maintain the NAAQS. Each SIP is required to 
contain a preconstruction review program for the construction and 
modification of any stationary source of air pollution to assure that 
the NAAQS are achieved and maintained; to protect areas of clean air; 
to protect air quality related values (such as visibility) in national 
parks and other areas; to assure that appropriate emissions controls 
are applied; to maximize opportunities for economic development 
consistent with the preservation of clean air resources; and to ensure 
that any decision to increase air pollution is made only after full 
public consideration of the consequences of the decision.
    The 2002 NSR Reform Rules made changes to five areas of the NSR 
programs. In summary, the 2002 Rules: (1) Provide a new method for 
determining baseline actual emissions; (2) adopt an actual-to-
projected-actual methodology for determining whether a major 
modification has occurred; (3) allow major stationary sources to comply 
with plant-wide applicability limits to avoid having a significant 
emissions increase that triggers the requirements of the major NSR 
program; (4) provide a new applicability provision for emissions units 
that are designated clean units; and (5) exclude pollution control 
projects (PCPs) from the definition of ``physical change or change in 
the method of operation.'' On November 7, 2003, EPA published a notice 
of final action on its reconsideration of the 2002 NSR Reform Rules (68 
FR 63021), which added a definition for ``replacement unit'' and 
clarified an issue regarding PALs. For additional information on the 
2002 NSR Reform Rules, see 67 FR 80186 (December 31, 2002), and http://www.epa.gov/nsr.
    After the 2002 NSR Reform Rules were finalized and effective (March 
3, 2003), industry, state, and environmental petitioners challenged 
numerous aspects of the 2002 NSR Reform Rules, along with portions of 
EPA's 1980 NSR Rules (45 FR 52676, August 7, 1980). On June 24, 2005, 
the D.C. Circuit Court issued a decision on the challenges to the 2002 
NSR Reform Rules. New York v. United States, 413 F.3d 3 (DC Cir. 2005). 
In summary, the DC Circuit Court vacated portions of the rules 
pertaining to clean units and pollution control projects, remanded a 
portion of the rules regarding recordkeeping, e.g. 40 CFR 52.21(r)(6) 
and 40 CFR 51.166(r)(6), and either upheld or did not comment on the 
other provisions included as part of the 2002 NSR Reform Rules. On 
March 8, 2007, EPA issued a proposed rule in response to the Court's 
remand regarding the recordkeeping provisions. The proposed rule 
describes two alternative options to clarify what constitutes 
``reasonable possibility'' and when the ``reasonable possibility'' 
recordkeeping requirements apply (72 FR 10445). The ``reasonable 
possibility'' standard identifies for sources and reviewing authorities 
the circumstances under which a major stationary source undergoing a 
modification that does not trigger major NSR must keep records. 
Further, on June 13, 2007, EPA took final action to revise the 2002 NSR 
Reform Rules to exclude the portions that were vacated by the DC 
Circuit Court (72 FR 32526). Today's action on the Tennessee SIP is 
consistent with the decision of the DC Circuit Court because 
Tennessee's submittals do not include any portions of the 2002 NSR 
Reform Rules that were vacated as part of the June 2005 decision.
    The 2002 NSR Reform Rules require that state agencies adopt and 
submit revisions to their SIP permitting programs implementing the 
minimum program elements of the 2002 NSR Reform Rules no later than 
January 2, 2006. (Consistent with changes to 40 CFR 51.166(a)(6)(i), 
state agencies are now required to adopt and submit SIP revisions 
within 3 years after new amendments are published in the Federal 
Register.) State agencies may meet the requirements of 40 CFR part 51, 
and the 2002 NSR Reform Rules, with different but equivalent 
regulations. However, if a state decides not to implement any of the 
new applicability provisions, that state is required to demonstrate 
that its existing program is at least as stringent as the federal 
program.
    On February 23, 2006, May 31, 2006, and April 16, 2007, the State 
of Tennessee submitted SIP revisions for the purpose of revising the 
State's and Nashville/Davidson County's NSR permitting provisions. 
These changes were made primarily to adopt EPA's 2002 NSR Reform Rules. 
As discussed in further detail below, EPA believes the revisions 
contained in the Tennessee

[[Page 40108]]

submittals are approvable for inclusion into the Tennessee SIP and the 
Nashville/Davidson County portion of the Tennessee SIP.

III. What is EPA's Analysis of Tennessee's and Nashville/Davidson 
County's NSR Rule Revisions?

    Tennessee and Nashville/Davidson County currently have SIP-approved 
NSR programs for new and modified stationary sources. EPA is proposing 
to approve revisions to Tennessee's and Nashville/Davidson County's 
existing NSR regulations in the SIP. The Tennessee proposed revisions 
became state-effective on February 14, 2006, and were submitted to EPA 
on February 23, 2006. The Nashville/Davidson County proposed revisions 
were approved by the Air Pollution Control Board of the State of 
Tennessee on May 10, 2006, and were submitted to EPA on May 31, 2006. 
Copies of the revised rules, as well as the State's Technical Support 
Documents, can be obtained from the Docket, as discussed in the 
``Docket'' section above. A discussion of the specific changes to 
TDEC's and NPCD's rules that are proposed for inclusion in the SIP are 
summarized below.
    TDEC's Rule 1200-3-9-.01(4) contains the preconstruction review 
program that provides for the PSD of ambient air quality as required 
under Part C of title I of the CAA. NPCD's Regulation 3 contains 
Nashville/Davidson County's PSD program. The PSD program applies to 
major stationary sources or modifications constructed in areas that are 
designated as attainment or unclassifiable with respect to the NAAQS. 
TDEC's PSD program was originally approved into the SIP by EPA on April 
24, 1980, and has been revised several times. NPCD's PSD program was 
originally approved into the Nashville/Davidson County portion of the 
Tennessee SIP on June 24, 1982, and has been revised several times as 
well.
    TDEC's permitting requirements for major sources in or impacting 
upon nonattainment areas are set forth at Rule 1200-3-9-.01(5). NPCD's 
NNSR requirements are set forth at Regulation 3. The Tennessee NNSR 
program was originally approved into the Tennessee SIP on June 7, 1979, 
with subsequent amendments. The Nashville NNSR program was originally 
approved into the Nashville/Davidson County portion of the Tennessee 
SIP on June 24, 1982, with subsequent amendments. The NNSR requirements 
apply to the construction and modification of any major stationary 
source of air pollution in a nonattainment area, as required by Part D 
of title I of the CAA. To receive approval to construct, a source that 
is subject to these requirements must show that it will not cause a net 
increase in pollution, will not create a delay in meeting the NAAQS, 
and that the source will install and use control technology that 
achieves the lowest achievable emissions rate.
    The current revisions to TDEC's Rule 1200-3-9-.01, and NPCD's 
Regulation 3, which EPA is proposing to approve into the Tennessee SIP 
and the Nashville/Davidson County portion of the Tennessee SIP, were 
provided to update the existing provisions to be consistent with the 
current Federal PSD and NNSR rules, including the 2002 NSR Reform 
Rules. These revisions address baseline actual emissions, actual-to-
projected-actual applicability tests, and PALs. State agencies may meet 
the requirements of 40 CFR part 51, and the 2002 NSR Reform Rules, with 
different but equivalent regulations. TDEC and NPCD have made one 
change to the Federal regulations. The definition of ``baseline actual 
emissions,'' found in parts 1200-3-9-.01(4)(b)45 and 1200-3-
9-.01(5)(b)1.(xlvii) of the TDEC rule, and Section 3-1(e) of NPCD 
Regulation 3, was changed to remove the provision allowing different 
consecutive 24-month periods for different pollutants. Therefore, under 
TDEC's and NPCD's rules, a single 24-month period must be used for all 
regulated NSR pollutants when calculating baseline actual emissions. 
This provision was changed from the Federal requirements on the 
recommendation of the industry and environmental advocacy 
representatives in the Tennessee stakeholder group that worked with the 
State to develop the revisions to the Tennessee NSR program.
    As part of our review of the Tennessee SIP submittals, we performed 
a line-by-line review of the proposed revisions, including the 
provision which differs from the Federal rules, and have determined 
that they are consistent with the program requirements for the 
preparation, adoption and submittal of implementation plans for NSR set 
forth at 40 CFR 51.165 and 51.166. TDEC's Rule 1200-3-9-.01 and NPCD's 
Regulation 3 do not incorporate the portions of the Federal rules that 
were vacated by the DC Circuit Court, including the clean unit 
provisions, the pollution control projects exclusion, and the equipment 
replacement provision which was promulgated shortly after the 2002 NSR 
Reform Rules. As noted earlier, EPA responded to the DC Circuit Court's 
remand of the recordkeeping provisions of EPA's 2002 NSR Reform Rules 
by proposing two alternative options to clarify when the recordkeeping 
requirements apply. TDEC's and NPCD's rules contain recordkeeping 
requirements that are substantially the same as the remanded Federal 
rule. While final action by EPA with regard to the remand may require 
EPA to take further action on the Tennessee SIP, at this time the rules 
contained in the proposed SIP revisions are the same as existing 
Federal law and are therefore approvable.

IV. What action is EPA taking today?

    For the reasons discussed above, EPA is proposing to approve the 
changes made to Tennessee's Rule 1200-3-9-.01 (Construction Permits) as 
submitted by TDEC on February 23, 2006, and amended on April 16, 2007, 
as revisions to the Tennessee SIP. In addition, EPA is proposing to 
approve changes made to NPCD Regulation 3 (New Source Review) as 
submitted by TDEC on May 31, 2006, as revisions to the Nashville/
Davidson County portion of the Tennessee SIP.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action''' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
proposed action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that the 
proposed approvals in this proposed rule will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule 
proposes to approve pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This proposed rule also does not have tribal implications because 
it will not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes, as specified by Executive 
Order 13175

[[Page 40109]]

(59 FR 22951, November 9, 2000). This action also does not have 
Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action 
merely proposes to approve a state rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the CAA. This proposed rule 
also is not subject to Executive Order 13045, ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 
23, 1997), because it approves a sate rule implementing a Federal 
standard.
    In reviewing SIP submissions, EPA's role is to approve choices, 
provided that they meet the criteria of the CAA. In this context, in 
the absence of a prior existing requirement for the state to use 
voluntary consensus standards (VCS), EPA has no authority to disapprove 
a SIP submission for failure to use VCS. It would thus be inconsistent 
with applicable law for EPA, when it reviews a SIP submission, to use 
VCS in place of a SIP submission that otherwise satisfies the 
provisions of the CAA. Thus, the requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) do not apply. This proposed 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.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: July 12, 2007.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.
[FR Doc. E7-14171 Filed 7-20-07; 8:45 am]
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