[Federal Register Volume 83, Number 185 (Monday, September 24, 2018)]
[Rules and Regulations]
[Pages 48245-48249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20629]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2017-0050; FRL-9984-10--Region 4]
Air Plan Approval; TN: Revisions to New Source Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving changes
to the Tennessee State Implementation Plan (SIP) to revise New Source
Review (NSR) regulations. Specifically, EPA is approving the portions
of a SIP revision submitted by the State of Tennessee, through the
Tennessee Department of Environment and Conservation (TDEC), on May 28,
2009, that modify the definitions of ``baseline actual emissions.''
This action is being taken pursuant to the Clean Air Act (CAA or Act).
DATES: This rule is effective October 24, 2018.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2017-0050. All documents in the docket
are listed on the www.regulations.gov website. Although listed in the
index, some information may not be 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 www.regulations.gov or in hard
copy at the Air Regulatory Management Section, Air Planning and
Implementation 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: D. Brad Akers, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia
30303-8960. Mr. Akers can be reached via telephone at (404) 562-9089 or
via electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. What action is EPA taking?
On May 28, 2009, TDEC submitted a SIP revision to EPA for approval
that contains changes to Tennessee's SIP-approved major NSR permitting
regulations at Tennessee Air Pollution Control Regulations (TAPCR)
1200-3-9-.01--``Construction Permits,'' including the adoption of
federal requirements and the modification of certain other provisions.
In this action, EPA is approving the portions of this SIP submission
that make changes to the definitions of ``baseline actual emissions''
in Tennessee's SIP-approved Prevention of Significant Deterioration
(PSD) and nonattainment NSR (NNSR) regulations at TAPCR 1200-3-
9-.01(4)--``Prevention of Significant Air Quality Deterioration'' and
1200-3-9-.01(5)(b)--``Nonattainment Areas,'' respectively. Tennessee's
NSR regulations at TAPCR 1200-3-9-.01 were last revised in the SIP on
July 25, 2013 (78 FR 44886).
On June 20, 2018 (83 FR 28577), EPA published a notice of proposed
rulemaking (NPRM) proposing to approve the portions of Tennessee's SIP
revision described in Section II, below. The details of Tennessee's SIP
revision and the rationale for EPA's actions are further explained in
the NPRM. EPA received no adverse comments on the proposed approval.
II. Analysis of Tennessee's Submittal
Tennessee's May 28, 2009, submittal revises the SIP-approved
definitions of ``baseline actual emissions'' at TAPCR 1200-3-
9-.01(4)(b)(45)(i)(III) and 1200-3-9-.01(4)(b)(45)(ii)(IV) for PSD, and
1200-3-9-.01(5)(b)(1)(xlvii)(I)III and 1200-3-
9-.01(5)(b)(1)(xlvii)(II)IV for NNSR. The revised definitions read as
follows (strikethrough indicates language removed from the SIP in this
action and underlined text indicates language added):
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\1\ The ``baseline actual emissions'' for a proposed project are
considered when determining whether a ``significant emissions
increase'' will occur. If a ``significant emissions increase'' is
shown as a result of the project, then the ``net emissions
increase'' is calculated, considering contemporaneous and creditable
increases and decreases from unrelated projects to determine whether
the project will result in a ``significant net emissions increase.''
Thus, the baseline period referenced here is most relevant to the
determination of a ``significant emissions increase.''
\2\ Although the revision refers to modifications and new
sources, it does not affect new sources or new units because
Tennessee's SIP-approved rules require new sources/units to use the
actual-to-potential test--not the actual-to-projected-actual test--
and the corresponding baseline actual emissions for new sources/
units are set to zero. This is consistent with federal rules. The
revision only applies to projects that involve multiple existing
emissions units.
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The changes mean that a project involving multiple emissions units
is no longer subject to major NSR permitting under the revised
definitions if it meets the limiting criteria identified above for the
use of pollutant-specific baseline periods. EPA's major NSR rules do
not contain such limiting criteria. Under the federal major NSR rules,
a state must adopt the federal definitions into its SIP unless the
state's definitions are more stringent than, or at least as stringent
as, the federal definitions. See 40 CFR 51.165(a)(1) and 51.166(b). EPA
finds that Tennessee's changes to its SIP-approved definitions of
``baseline actual emissions'' are more stringent than the federal
definitions given the limiting criteria and are therefore allowable
changes to Tennessee's SIP-approved NSR program pursuant to 40 CFR
51.165(a)(1) and 51.166(b).
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\3\ See footnote 2.
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Section 110(l) of the CAA prohibits EPA from approving a SIP
revision that would interfere with any applicable requirement
concerning attainment and RFP (as defined in section 171), or any other
applicable requirement of the CAA. EPA has determined that the changes
to the Tennessee SIP, as described above, would not violate section
110(l) for the following reasons: (1) Tennessee's changes will maintain
the State program at a more stringent level than the federal NSR
requirements; \4\ (2) the State is currently attaining all of the NAAQS
except for the 2010 1-hour sulfur dioxide (SO2) NAAQS in a
portion of Sullivan County; \5\ and (3) any projects that would not
qualify as major modifications under the revised definitions would
still be subject to the preconstruction review and permitting
requirements of Tennessee's SIP-approved minor NSR regulations at TAPCR
1200-3-9-.01(1). For a more complete discussion, see the NPRM.
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\4\ EPA also believes that the impact, if any, on air quality as
a result of the changes would be small given the nature of the
actual-to-projected-actual test and the limited applicability of the
multiple baseline provision.
\5\ On May 12, 2017, TDEC submitted a plan to EPA to attain the
2010 1-hour SO2 NAAQS in Sullivan County. EPA proposed
approval of the of the Sullivan County attainment demonstration on
June 29, 2018 (83 FR 30609).
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III. Incorporation by Reference
In this document, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of the portions
of TAPCR 1200-3-9-.01--``Construction Permits,'' \6\ which specifically
revise the definitions of ``baseline actual emissions'' in Tennessee's
SIP-approved PSD and NNSR regulations as discussed in Section II
above,\7\ state effective April 24, 2013. EPA has made, and will
continue to make, these materials generally available through
www.regulations.gov and at the EPA Region 4 Office (please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information).
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Therefore, these materials have been approved by EPA for inclusion in
the State implementation plan, have been incorporated by reference by
EPA into that plan, are fully federally enforceable under sections 110
and 113 of the CAA as of the effective date of the final rulemaking of
EPA's approval, and will be incorporated by reference in the next
update to the SIP compilation.\8\
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\6\ The title of this regulation is erroneously listed as
``Definitions'' in the ``Title/subject'' column of 40 CFR
52.2220(c). Therefore, EPA is correcting the ``Title/subject'' entry
in this action.
\7\ The state effective date of the rule changes to the
definitions of ``baseline actual emissions'' in Tennessee's May 28,
2009, SIP revision is May 10, 2009. However, these changes to
Tennessee's rule are captured and superseded by the version of TAPCR
1200-3-9-.01 that was state effective on April 24, 2013. On July 25,
2013 (78 FR 44889), EPA approved portions of the April 24, 2013
version of TAPCR 1200-3-9-.01 that were included in a May 10, 2013
SIP revision and modified the state effective date at 40 CFR
52.2220(c) accordingly.
\8\ See 62 FR 27968 (May 22, 1997).
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IV. Final Action
EPA is approving the changes to the definitions of ``baseline
actual emissions'' in Tennessee's SIP-approved PSD and NNSR regulations
at TAPCR 1200-3-9-.01(4)--``Prevention of Significant Air Quality
Deterioration'' and 1200-3-9-.01(5)(b)--``Nonattainment Areas,''
respectively, because they are consistent with the CAA and federal
regulations.
V. 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. See 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. 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 Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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).
The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it 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 November 23, 2018. 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. 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: September 10, 2018.
Onis ``Trey'' Glenn, III,
Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
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, table 1 in paragraph (c) is amended by revising
the entry ``Section 1200-3-9-.01'' to read as follows:
Sec. 52.2220 Identification of plan.
* * * * *
(c) * * *
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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 1200-3-9 Construction and Operating Permits
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Section 1200-3-9-.01............. Construction 4/24/2013 9/24/2018, [insert EPA approved
Permits. Federal Register Tennessee's May
citation]. 10, 2013, SIP
revision to
Chapter 1200-3-9-
.01 on July 25,
2013, with the
exception of the
PM2.5 SILs (at
1200-3-9-.01(5)(b)
1(xix)) and SMC
(at 1200-3-9-
.01(4)(d)6(i)(III)
) as promulgated
in the October 20,
2010, PM2.5
Increments-SILs-
SMC Rule.
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[FR Doc. 2018-20629 Filed 9-21-18; 8:45 am]
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