[Federal Register Volume 77, Number 41 (Thursday, March 1, 2012)]
[Rules and Regulations]
[Pages 12484-12487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4892]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-0696-201202(a); FRL-9636-8]


Approval and Promulgation of Implementation Plans; Tennessee: 
Prevention of Significant Deterioration; Greenhouse Gases--Automatic 
Rescission Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve the State 
Implementation Plan (SIP) revision submitted by the State of Tennessee, 
through the Tennessee Department of Environmental Conservation (TDEC), 
Air Pollution Control Division, to EPA on January 11, 2012, for the 
purpose of amending the State's New Source Review (NSR) Prevention of 
Significant Deterioration (PSD) regulations as they relate to 
greenhouse gases (GHGs). Specifically, Tennessee amended its PSD 
regulations to add automatic rescission provisions. These provisions 
provide that in the event that the U.S. Court of Appeals for the DC 
Circuit or the U.S. Supreme Court issues an order which would render 
GHGs not subject to regulation under the Clean Air Act's PSD permitting 
program, then GHGs shall not be subject to regulation under Tennessee's 
PSD regulations as of the effective date of EPA's Federal Register 
notice of vacatur. Further, the provisions provide that in the event 
that there is a change to Federal law that supersedes regulation of 
GHGs under the Clean Air Act's PSD permitting program, then GHGs shall 
not be subject to regulation under Tennessee's PSD regulations as of 
the effective date of the change in federal law. EPA took action to 
approve the GHG Tailoring Rule PSD provisions into the Tennessee SIP in 
a separate rulemaking. EPA is approving Tennessee's January 11, 2012, 
SIP revision because the Agency has made the determination that this 
SIP revision is not contrary to section 110 and part C of the Clean Air 
Act (CAA or Act) or EPA regulations regarding PSD permitting for GHGs.

DATES: This direct final rule is effective April 30, 2012 without 
further notice, unless EPA receives adverse comment by April 2, 2012. 
If EPA receives such comments, it will publish a timely withdrawal of 
the direct final rule in the Federal Register and inform the public 
that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number, ``EPA-
R04-OAR-2010-0696,'' by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: 404-562-9019.
    4. Mail: ``EPA-R04-OAR-2010-0696,'' 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.
    5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief, 
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. 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 Number, ``EPA-R04-
OAR-2010-0696.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at 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 
www.regulations.gov or email, information that you consider to be CBI 
or otherwise protected. The 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 email comment directly to EPA without 
going through www.regulations.gov, your email 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

[[Page 12485]]

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 
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 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, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number 
is (404) 562-9352. Ms. Bradley can be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. EPA's Analysis of the Approvability of Tennessee's Automatic 
Rescission Provisions
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    On January 11, 2012, in response to EPA's GHG Tailoring Rule \1\ 
and earlier GHG-related EPA rules,\2\ TDEC submitted a final revision 
to EPA for approval into the Tennessee SIP to establish appropriate 
emission thresholds for determining which new or modified stationary 
sources become subject to Tennessee's PSD permitting requirements for 
GHG emissions.\3\ Specifically, Tennessee's January 11, 2012, SIP 
revision included changes to TDEC's Air Quality Regulations, Chapter 
1200-03-09-.01(4)--Construction and Operating Permits, Prevention of 
Significant Deterioration, which became state-effective February 8, 
2011. The changes to Chapter 1200-03-09-.01(4) addressed the thresholds 
for GHG permitting applicability. In a rulemaking separate from today's 
rulemaking, EPA took final action to approve TDEC's air quality 
regulations impacting the regulation of GHG under Tennessee's PSD 
program. Detailed background information and EPA's rationale for the 
proposed approval of Tennessee's GHG regulations under the State's PSD 
program are provided in EPA's November 5, 2010, Federal Register 
notice. See 75 FR 68265.
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    \1\ ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 
2010).
    \2\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009); ``Interpretation of Regulations that 
Determine Pollutants Covered by Clean Air Act Permitting Programs.'' 
75 FR 17004 (April 2, 2010); and ``Light-Duty Vehicle Greenhouse Gas 
Emission Standards and Corporate Average Fuel Economy Standards; 
Final Rule.'' 75 FR 25324 (May 7, 2010).
    \3\ Tennessee's submittal also amends the State's title V 
regulations at Chapter 1200-03-09-.02, to add rescission provisions, 
however, title V regulations are not part of a state's federally 
approved SIP. EPA is not taking action to approve Tennessee's title 
V regulations at this time.
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    Also on January 11, 2012, TDEC submitted a SIP revision (the 
subject of today's rulemaking) to include changes to TDEC's air quality 
regulations at Chapter 1200-03-09-.01(4)(b)46(i) to add automatic 
rescission provisions related to EPA's GHG permitting requirements 
(state effective November 27, 2011). EPA's analysis of the 
approvability of Tennessee's automatic rescission provisions is 
provided in section II of this rulemaking.

II. EPA's Analysis of the Approvability of Tennessee's Automatic 
Rescission Provisions

    Tennessee's January 11, 2012, SIP submittal adds automatic 
rescission provisions to the State's PSD regulations at Chapter 1200-
03-09. The automatic rescission provisions at Chapter 1200-03-
09-.01(4)(b)46(i) provide that in the event that the D.C. Circuit or 
the U.S. Supreme Court issues an order which would render GHG emissions 
not subject to regulation under the Clean Air Act's PSD permitting 
program, then GHGs shall not be subject to regulation under Tennessee's 
PSD regulations as of the effective date of the Federal Register notice 
of vacatur. Further, the provisions provide that in the event that 
there is a change to federal law that supersedes regulation of GHGs 
under the Clean Air Act's PSD permitting program, then GHGs shall not 
be subject to regulation under Tennessee's PSD regulations as of the 
effective date of the change in Federal law.
    EPA has determined that Tennessee's automatic rescission provisions 
are approvable. In assessing the approvability of these provisions, EPA 
considered two key factors: (1) Whether the public will be given 
reasonable notice of any change to the SIP that occurs as a result of 
the automatic rescission provisions, and (2) whether any future change 
to the SIP that occurs as a result of the automatic rescission 
provisions would be consistent with EPA's interpretation of the effect 
of the triggering action on Federal GHG permitting requirements. These 
criteria are derived from the SIP revision procedures set forth in the 
CAA and Federal regulations.
    Regarding public notice, CAA section 110(l) provides that any 
revision to a SIP submitted by a State to EPA for approval ``shall be 
adopted by such State after reasonable notice and public hearing.'' In 
accordance with CAA section 110(l), TDEC followed applicable notice-
and-comment procedures prior to adopting the automatic rescission 
provisions. Thus, the public is on notice that the automatic rescission 
provisions approved into Tennessee's SIP by today's action will enable 
the SIP to update automatically to reflect any order by the D.C. 
Circuit or the U.S. Supreme Court or any change in federal law that 
renders GHGs not subject to regulation under the Clean Air Act's PSD 
permitting program. In addition, the automatic rescission provisions 
provide that no change to the SIP as a result of an order by the D.C. 
Circuit or the U.S. Supreme Court will occur until EPA publishes a 
Federal Register notice of vacatur. Likewise, a change to federal law 
that supersedes regulation of GHGs under the federal PSD program would 
not affect Tennessee's SIP until the effective date of the federal law 
change. Thus, the timing and extent of any future SIP change resulting 
from Tennessee's automatic rescission provisions will be clear to both 
the regulated community and the general public.
    EPA's consideration of whether any SIP change resulting from 
Tennessee's automatic rescission provisions would be consistent with 
EPA's interpretation of the effect of the triggering action on federal 
GHG permitting requirements is based on 40 CFR 51.105. Under 40 CFR

[[Page 12486]]

51.105, ``[r]evisions of a plan, or any portion thereof, will not be 
considered part of an applicable plan until such revisions have been 
approved by the Administrator in accordance with this part.'' 40 CFR 
51.105. To be consistent with 40 CFR 51.105, any automatic SIP change 
resulting from a court order or federal law change must be consistent 
with EPA's interpretation of the effect of such order or Federal law 
change on GHG permitting requirements. EPA concludes that Tennessee's 
rescission provisions include sufficient safeguards to ensure that any 
resulting SIP change will be consistent with EPA's interpretation of 
the effect of the triggering action on federal GHG permitting 
requirements. Specifically, any automatic SIP change resulting from a 
court order pursuant to Chapter 1200-03-09-.01(4)(b)46(i)(I) would 
occur only after EPA's publication of a Federal Register notice of 
vacatur. Likewise, with respect to the revocation of GHG permitting 
requirements pursuant to Chapter 1200-03-09-.01(4)(b)46(i)(II) 
following ``a change to Federal law that supersedes regulation of 
GHGs'' under the CAA, EPA reads this provision to mean that Tennessee 
will wait for and follow EPA's interpretation as to the impact of any 
federal law change on Federal GHG permitting requirements before 
changing its own application of Tennessee's SIP. In the event of a 
court decision or Federal law change that triggers (or likely triggers) 
application of Tennessee's automatic rescission provisions, EPA intends 
to promptly describe the impact of the court decision or Federal law 
change on the enforceability of its GHG permitting regulations.

III. Final Action

    EPA is taking direct final action to approve Tennessee's January 
11, 2012, SIP revision to amend Tennessee's SIP-approved regulations to 
adopt automatic rescission provisions at Chapter 1200-03-
09-.01(4)(b)46(i). Specifically, the provisions establish that GHGs 
would not be subject to regulation under TDEC's PSD program in the 
event that an order by the D.C. Circuit or the U.S. Supreme Court or a 
change in Federal law renders GHGs not subject to regulation under the 
CAA's PSD permitting program. EPA has made the determination that 
Tennessee's January 11, 2012, SIP revision is approvable because it is 
not contrary to section 110 and part C of the CAA or EPA regulations 
regarding PSD permitting for GHGs.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a non-controversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
adverse comment be filed. This rule will be effective on April 30, 2012 
without further notice unless the Agency receives adverse comment by 
April 2, 2012.
    If EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. If no such comments 
are received, the public is advised this rule will be effective on 
April 30, 2012 and no further action will be taken on the proposed 
rule.

IV. Statutory and Executive Order Reviews

    Under the 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 13132 (64 FR 43255, August 10, 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 application 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, 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).
    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 April 30, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the

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proposed rulemaking. This action may not be challenged later in 
proceedings to enforce its requirements. See CAA section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Greenhouse gases, 
Incorporation by reference, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: February 10, 2012.
A. Stanley Meiburg,
Acting Regional Administrator; Region 4.
    40 CFR part 52 is 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. Section 52.2220 (c) is amended under Table 1, Chapter 1200-3-9 by 
revising the entry for ``Section 1200-3-9-.01'' 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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                                                  * * * * * * *
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                               Chapter 1200-3-9 Construction and Operating Permits
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Section 1200-3-9-.01...........  Construction            11/27/2011  3/1/2012 [Insert    EPA is approving
                                  Permits.                            citation of         Tennessee's May 28,
                                                                      publication].       2009 SIP revisions to
                                                                                          Chapter 1200-3-9-.01
                                                                                          with the exception of
                                                                                          the ``baseline actual
                                                                                          emissions''
                                                                                          calculation revision
                                                                                          found at 1200-3-9-.01
                                                                                          (4)(b)45(i)(III),
                                                                                          (4)(b)45(ii)(IV),
                                                                                          (5)(b)1(xlvii)(I)(III)
                                                                                          and
                                                                                          (5)(b)1(xlvii)(II)(IV)
                                                                                          of the submittal.
 
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[FR Doc. 2012-4892 Filed 2-29-12; 8:45 am]
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