[Federal Register Volume 74, Number 226 (Wednesday, November 25, 2009)]
[Rules and Regulations]
[Pages 61535-61537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28148]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 97

[EPA-R04-OAR-2009-0765; FRL-8984-6]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Implementation Plans; Tennessee; Clean Air 
Interstate Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve revisions to the 
Tennessee State Implementation Plan (SIP) submitted by the State of 
Tennessee through the Tennessee Department of Environment and 
Conservation (TDEC) on July 13, 2009. This revision incorporates 
provisions related to the implementation of EPA's Clean Air Interstate 
Rule (CAIR), promulgated on May 12, 2005, subsequently revised on April 
28, 2006, and December 13, 2006, and the CAIR Federal Implementation 
Plan (FIP) concerning sulfur dioxides (SO2), nitrogen oxides 
(NOX) annual, and NOX ozone season emissions for 
the State of Tennessee, promulgated on April 28, 2006, and subsequently 
revised December 13, 2006.

DATES: Effective Date: This final rule is effective November 25, 2009.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2009-0765. All documents in the docket 
are listed on the http://www.regulations.gov Web site. Although listed 
in the index, some information is not publicly available, i.e., 
Confidential Business Information 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 through 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 to 4:30, excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Twunjala Bradley, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, Region 4, U.S. Environmental Protection Agency, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. Ms. Bradley can be 
reached by telephone at (404) 562-9352 and by electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. EPA's Action
II. Background
III. Final Action
IV. Effective Date
V. Statutory and Executive Order Reviews

I. EPA's Action

    EPA is taking final action to approve a revision to Tennessee's 
SIP, submitted by Tennessee on July 13, 2009, as clarified herein, that 
is modifying the application of certain provisions of the CAIR FIP 
concerning NOX ozone season emissions. (As discussed in the 
notice of proposed rulemaking for this submission, this less 
comprehensive CAIR SIP is termed an abbreviated SIP.) Tennessee is 
subject to the CAIR FIPs that implement the CAIR requirements by 
requiring certain energy generating units (EGUs) to participate in the 
EPA administered CAIR cap-and-trade programs addressing SO2, 
NOX annual, and NOX ozone season emissions. This 
SIP revision provides a methodology for allocating NOX 
allowances for the NOX ozone season trading program for 
NOX SIP Call trading sources that are not EGUs as defined by 
CAIR, but are subject to the CAIR NOX ozone season trading 
program. The CAIR FIPs provide that this methodology will be used to 
allocate NOX Ozone Season allowances to sources in 
Tennessee. Consistent with the flexibility provided in the FIPs, these 
provisions will also be used to replace or supplement, as appropriate, 
the corresponding provisions in the CAIR FIP for Tennessee. EPA is also 
approving technical corrections to the CAIR NOX Ozone Season 
Trading Program opt-in provisions, as noted in the August 20, 2007, 
approval. Since EPA will no longer administer the NOX Budget 
Trading Program, Tennessee has chosen to terminate its Budget Trading 
program rules (TAPCR Rule 1200-03-27-.06). EPA is, therefore, approving 
provisions which terminate the State's NOX Budget Trading 
Program because those requirements are now addressed by the CAIR 
NOX Ozone Season FIP, as modified by the State's abbreviated 
SIP. Finally, EPA is not making any changes to the CAIR FIP, but is 
amending the appropriate appendices to note EPA's approval of 
Tennessee's SIP revision.

II. Background

    On February 11, 2009, Tennessee adopted a revision to its CAIR 
NOX Ozone Season Trading Program, and on July 13, 2009, 
submitted a request to EPA for approval of these revisions into the 
SIP. That request was revised on September 21, 2009, and supplemented 
by a letter to EPA dated September 24, 2009, clarifying portions of the 
submittal.
    The CAIR FIPs established budgets for Tennessee as 50,973 (2009-
2014) and 42,478 (2015-thereafter) tons for NOX annual 
emissions, 22,842 (2009-2014) and 19,035 (2015-thereafter) tons for 
NOX ozone season emissions and 137,216 (2010-2014) and 
96,051 (2015-thereafter) tons for SO2 emissions. In 
Tennessee's SIP revision, submitted on July 13, 2009, Tennessee has 
chosen to include all NOX SIP Call trading sources that are 
not EGUs under CAIR in the CAIR NOX ozone season trading 
program. As a result of this SIP revision, the CAIR NOX 
ozone season budget will be increased annually by 5,666 tons to account 
for such NOX SIP Call trading sources. The total Tennessee 
CAIR NOX ozone season budgets are therefore, 28,508 (2009-
2014) and 24,701 (2015-thereafter) tons. EPA is approving Tennessee 
State trading budgets under TAPCR 1200-3-27-.11(2)(c).
    EPA published a notice of proposed rulemaking to approve 
Tennessee's revisions to the CAIR SIP on October 14, 2009, (74 FR 
52717). EPA did not receive any comments during the public comment 
period for the proposed rulemaking.
    EPA notes that, in North Carolina v. EPA, 531 F.3d 836 (DC Cir. 
Jul.11, 2008) at 916-21, the Court determined, among other things, that 
the state SO2 and NOX

[[Page 61536]]

budget established in CAIR were arbitrary and capricious\1\. However, 
the action approved today is consistent with the Court's decision to 
leave CAIR in place to ``temporarily preserve the environmental values 
covered by CAIR'' pending EPA's development and promulgation of a 
replacement rule that remedies CAIR's flaws. North Carolina v. EPA, 550 
F.3d at 1178. Pursuant to the Court's ruling, EPA is developing a new 
rule that will undergo notice and comment which will result in a final 
replacement rule for CAIR. In the meantime, EPA is implementing CAIR by 
approving SIP revisions that are consistent with CAIR (such as the 
provisions setting state SO2 and NOX budgets for 
the CAIR trading programs) in order to ``temporarily preserve'' the 
environmental benefits achievable under the CAIR trading programs.
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    \1\ The Court also determined that the CAIR trading programs 
were unlawful (id. at 906-8) and that the treatment of title IV 
allowances in CAIR was unlawful (id. at 921-23). For the same 
reasons that EPA is approving the provisions of Tennessee's SIP 
revision that use the SO2 and NOX budgets set 
in CAIR, EPA is also approving, as discussed below, Tennessee's SIP 
revision to the extent the SIP revision adopts the CAIR trading 
programs, including the provisions addressing applicability, 
allowance allocations, and use of title IV allowances.
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III. Final Action

    EPA is taking final action to approve Tennessee's SIP revision that 
includes an abbreviated CAIR SIP submitted on July 13, 2009, as 
clarified herein. Tennessee is covered by the CAIR FIPs which require 
participation in the EPA administered CAIR FIP cap and trade programs 
for SO2, NOX annual, and NOX ozone 
season emissions. Under this SIP revision and consistent with the 
flexibility given to the States in the FIPs, EPA is approving 
Tennessee's CAIR NOX ozone season provisions expanding the 
current applicability provisions in the CAIR NOX ozone 
season trading program to include units that are not otherwise subject 
to the trading program but are subject to Tennessee's NOX 
Budget Trading Program; revisions to the allocation methodology 
provisions (interpreted as discussed above) in the CAIR NOX 
ozone season trading program to cover these units; and corrections to 
the CAIR NOX ozone season trading program opt-in provisions 
(as discussed above).
    As provided for in the CAIR FIP, the provisions in the abbreviated 
SIP revision will replace or supplement the corresponding provisions of 
the CAIR FIPs in Tennessee. The abbreviated SIP revision meets the 
applicable requirements in 40 CFR 51.123(ee), with regard to 
NOX ozone season emissions. EPA is not making any changes to 
the CAIR FIP, but is amending the appropriate appendices to note EPA's 
approval of Tennessee's SIP revision.
    This action also approves the termination of the State's 
NOX Budget Trading Program as discussed in Section 1.

IV. What Is the Effective Date

    An expedited effective date for this action is authorized under 
both 5 U.S.C. 553(d)(1), which provides that rule actions may become 
effective less than 30 days after publication if the rule ``grants or 
recognizes an exemption or relieves a restriction'' and section 5 
U.S.C. 553(d)(3), which allows an effective date less than 30 days 
after publication ``as otherwise provided by the agency for good cause 
found and published with the rule.'' EPA finds that there is good cause 
for this approval to become effective upon publication.
    CAIR SIP approvals relieve States and CAIR sources within States 
from being subject to provisions in the CAIR FIPs that otherwise would 
apply to them, allowing States to implement CAIR based on their SIP-
approved State rule. The relief from these obligations is sufficient 
reason to allow an expedited effective date of the rule under 5 U.S.C. 
553(d)(1). In addition, Tennessee's relief from these obligations 
provides good cause to make this rule effective immediately upon 
publication, pursuant to 5 U.S.C. 553(d)(3). The purpose of the 30-day 
waiting period prescribed in 5 U.S.C. 553(d) is to give affected 
parties a reasonable time to adjust their behavior and prepare before 
the final rule takes effect. Where, as here, the final rule relieves 
obligations rather than imposes obligations, affected parties, such as 
the State of Tennessee and CAIR sources within the State, do not need 
time to adjust and prepare before the rule takes effect.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act (CAA), the Administrator is required to 
approve a SIP submission that complies with the provisions of the Act 
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the CAA. Accordingly, 
this action merely approves State law as meeting Federal requirements 
and does not impose additional requirements beyond those imposed by 
State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 1312 (64 FR 43255, August 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because applications of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on Tribal governments or preempt Tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

[[Page 61537]]

    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 January 25, 2010. 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.)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Electric 
utilities, Intergovernmental relations, Incorporation by reference, 
Carbon monoxide, Nitrogen dioxide, Ozone, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur dioxide.

40 CFR Part 97

    Environmental protection, Air pollution control, Electric 
utilities, Intergovernmental relations, Incorporation by reference, 
Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur dioxide.

    Dated: November 16, 2009.
J. Scott Gordon,
Acting Regional Administrator, Region 4.

0
40 CFR parts 52 and 97 are amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart RR--Tennessee

0
2. In Sec.  52.2220(c), Table 1 is amended under Chapter 1200-3-27, by 
revising the entry for ``Section 1200-3-27.11'' to read as follows:


Sec.  52.2220  Identification of plan.

* * * * *
    (c) * * *

                                   Table 1--EPA-Approved Tennessee Regulations
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                                                                State
          State citation                Title/subject      effective date    EPA approval date      Explanation
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                                                  * * * * * * *
                                        Chapter 1200-3-27 Nitrogen Oxides
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                                                  * * * * * * *
Section 1200-3-27.11..............  CAIR NOX Ozone Season         10/4/09  11/25/09 [Insert       ..............
                                     Trading Program.                       citation of
                                                                            publication].
 
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PART 97--[AMENDED]

0
3. The authority citation for part 97 continues to read as follows:

    Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651, et 
seq.

0
4. Appendix A to Subpart AAAA is amended by adding the entry 
``Tennessee'' in alphabetical order to read as follows:

Appendix A to Subpart AAAA of Part 97--States With Approved State 
Implementation Plan Revisions Concerning Applicability

* * * * *

Tennessee

[FR Doc. E9-28148 Filed 11-24-09; 8:45 am]
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