[Federal Register Volume 84, Number 44 (Wednesday, March 6, 2019)]
[Rules and Regulations]
[Pages 7998-8001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03956]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2018-0631; FRL-9990-32-Region 4]


Air Plan Approval; Tennessee; NOX SIP Call and CAIR

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to conditionally approve a portion of a State Implementation 
Plan (SIP) revision submitted by the State of Tennessee, through the 
Tennessee Department of Environment and Conservation (TDEC) with a 
letter dated February 27, 2017, to establish a SIP-approved state 
control program to comply with the obligations of the Nitrogen Oxides 
(NOX) SIP Call with respect to certain sources. EPA is also 
taking final action to fully approve the remaining portion of the same 
Tennessee SIP revision to remove the SIP-approved portions of the 
State's Clean Air Interstate Rule (CAIR) Program rules from the 
Tennessee SIP. In addition, EPA is also fully approving a revision to 
the Tennessee SIP submitted with a letter dated April 3, 2018, to 
remove regulations related to a previous NOX trading 
program.

DATES: This rule will be effective April 5, 2019.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2018-0631. 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: Madolyn Sanchez, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Pesticides 
and Toxics Management Division, Region 4, U.S. Environmental Protection 
Agency, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Ms. Sanchez 
can be reached by telephone at (404) 562-9644 or via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    Under Clean Air Act (CAA or Act) section 110(a)(2)(D)(i)(I), which 
EPA has traditionally termed the good neighbor provision, states are 
required to address the interstate transport of air pollution. 
Specifically, the good neighbor provision requires that each state's 
implementation plan contain adequate provisions to prohibit air 
pollutant emissions from within the state that significantly contribute 
to nonattainment of the national ambient air quality standards (NAAQS), 
or that interfere with maintenance of the NAAQS, in any other state.
    In October 1998 (63 FR 57356), EPA finalized the ``Finding of 
Significant Contribution and Rulemaking for Certain States in the Ozone 
Transport Assessment Group Region for Purposes of Reducing Regional 
Transport of Ozone''--commonly called the ``NOX SIP Call.'' 
The NOX SIP Call addressed the good neighbor provision for 
the 1979 1-hour ozone NAAQS and was designed to mitigate the impact of 
transported NOX emissions, one of the precursors of 
ozone.\1\ The rule originally required 22 states--including Tennessee--
and the District of Columbia to amend their SIPs to reduce 
NOX emissions that contribute to ozone nonattainment in 
downwind states. EPA developed the NOX Budget Trading 
Program, an allowance trading program that states could adopt to meet 
their obligations under the NOX SIP Call. The NOX 
Budget Trading Program allowed certain types of sources to participate 
in a regional NOX cap and trade program: generally electric 
generating units (EGUs) greater than 25 megawatts (MW); and industrial 
non-electric generating units, such as boilers and turbines, with a 
rated heat input greater than 250 million British thermal units per 
hour

[[Page 7999]]

(MMBtu/hr), referred to as ``large non-EGUs.'' \2\ On January 22, 2004, 
EPA approved into the Tennessee SIP the State's NOX Budget 
Trading Program rule.\3\ The NOX Budget Trading Program was 
implemented from 2003 to 2008, and in 2009 it was effectively replaced 
by the ozone season NOX program under CAIR.
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    \1\ See 63 FR 57356 (October 27, 1998). As originally 
promulgated, the NOX SIP Call also addressed good 
neighbor obligations under the 1997 8-hour ozone NAAQS, but EPA 
subsequently stayed the rule's provisions with respect to that 
standard. 40 CFR 51.121(q).
    \2\ The NOX SIP Call also identified potential 
emissions reductions from other non-EGUs, including cement kilns and 
stationary internal combustion (IC) engines.
    \3\ See 69 FR 3015 (January 22, 2004).
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    On May 12, 2005 (70 FR 25162), EPA promulgated CAIR to address 
transported emissions that would significantly contribute to downwind 
states' nonattainment or interfere with maintenance of the 1997 ozone 
and fine particulate matter (PM2.5) NAAQS. CAIR required SIP 
revisions in 28 states--including Tennessee--and the District of 
Columbia to reduce emissions of sulfur dioxide (SO2) and/or 
NOX, precursors of PM2.5 (SO2 and 
NOX) and ozone (NOX). Under CAIR, EPA developed 
separate cap-and-trade programs for annual NOX, ozone season 
NOX, and annual SO2 emissions. On April 28, 2006 
(71 FR 25328), EPA also promulgated federal implementation plans (FIPs) 
requiring the EGUs greater than 25 MW in each affected state, but not 
large non-EGUs, to participate in the CAIR trading programs. An 
affected state could comply with the requirements of CAIR either by 
remaining under the FIP, which applied only to EGUs, or by submitting a 
CAIR SIP revision that achieved the required emission reductions from 
EGUs and/or other types of sources. States had the further option to 
remain subject to the CAIR FIP generally, but also adopt 
``abbreviated'' CAIR SIP provisions that made certain modifications to 
the trading programs by allocating allowances among covered units, 
allowing units to opt-in to the trading programs, or expanding 
applicability of the CAIR ozone season NOX trading program 
to the non-EGUs that formerly participated in the NOX Budget 
Trading Program under the NOX SIP Call.
    On August 20, 2007, EPA approved into the Tennessee SIP an 
abbreviated CAIR SIP revision with allowance allocation and opt-in 
provisions.\4\ On November 25, 2009, EPA approved into the Tennessee 
SIP a further abbreviated CAIR SIP revision expanding applicability of 
the CAIR ozone season NOX trading program to NOX 
SIP Call non-EGUs.\5\
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    \4\ See 72 FR 46388 (August 20, 2007).
    \5\ See 74 FR 61535 (November 25, 2009).
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    EPA discontinued administration of the NOX Budget 
Trading Program in 2009 upon the start of the CAIR trading programs. 
The NOX SIP Call requirements continued to apply, however, 
and EGUs that formerly participated in the NOX Budget 
Trading Program in almost all states continued to meet their 
NOX SIP Call requirements under the generally more stringent 
requirements of the CAIR ozone season trading program. States needed to 
assess their NOX SIP Call requirements and take other 
regulatory action as necessary to ensure that their obligations for the 
large non-EGUs continued to be met either through submission of a CAIR 
SIP or other NOX regulation. EPA has implementing 
regulations for the NOX SIP Call at 40 CFR 51.121.
    On December 23, 2008, CAIR was remanded to EPA by the United States 
Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in 
North Carolina v. EPA, 531 F.3d 896 (2008), modified on rehearing, 550 
F.3d 1176. This ruling allowed CAIR to remain in effect until a new 
interstate transport rule consistent with the Court's opinion was 
developed. While EPA worked on developing a new rule to address the 
interstate transport of air pollution, the CAIR program continued to be 
implemented with the NOX annual and ozone season programs 
beginning in 2009 and the SO2 annual program beginning in 
2010.
    EPA issued the Cross-State Air Pollution Rule (CSAPR) in July 2011 
to replace CAIR \6\ and address the requirements of the good neighbor 
provision for the 1997 Annual PM2.5 NAAQS, the 2006 24-hour 
PM2.5 NAAQS, and the 1997 8-hour Ozone NAAQS. As amended 
(including by the 2016 CSAPR Update, which addressed good neighbor 
requirements for the 2008 8-hour Ozone NAAQS), CSAPR currently requires 
27 Eastern states--including Tennessee--to limit their statewide 
emissions of SO2 and/or NOX in order to mitigate 
transported air pollution impacting other states' ability to attain or 
maintain the previously-listed NAAQS. As a mechanism for achieving 
compliance with the emissions limitations, CSAPR establishes five 
federal emissions trading programs: A program for annual NOX 
emissions, two geographically separate programs for annual 
SO2 emissions, and two geographically separate programs for 
ozone-season NOX emissions. Currently, through FIP 
provisions established in CSAPR and subsequent SIP revisions from 
various states, each affected state's units are required to participate 
in up to three of the five CSAPR trading programs.
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    \6\ Implementation of CAIR was formally sunset upon the 
implementation of CSAPR, which--because of extended litigation--was 
delayed until 2015. See 79 FR 71663 (December 3, 2014) and 81 FR 
13275 (March 14, 2016).
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    The CSAPR trading programs for annual NOX, annual 
SO2, and ozone season NOX are applicable to the 
large EGUs (i.e., EGUs that are greater than 25 MW) in each covered 
state, and a state may also expand trading program applicability to 
include certain smaller EGUs. Under CSAPR as originally promulgated, 
states could not expand the applicability under CSAPR's ozone season 
NOX trading program to include non-EGUs that formerly 
participated in the NOX Budget Trading Program. Starting in 
2017, with implementation of the CSAPR Update, states once again have 
this option, as they did under CAIR.
    With respect to Tennessee, large EGUs in Tennessee are currently 
subject to three of the CSAPR trading programs, including one 
addressing ozone season NOX emissions. Tennessee has not 
chosen to expand CSAPR applicability to small EGUs or non-EGUs.
    In a notice of proposed rulemaking (NPRM) published on December 17, 
2018 (83 FR 64497), EPA proposed to conditionally approve the portion 
of a February 27, 2017, SIP revision to add Tennessee Comprehensive 
Rules and Regulation (TCRR) 1200-03-27-.12--``NOX SIP Call 
Requirements for Stationary Boilers and Combustion Turbines'' (except 
paragraph 1200-03-27-.12(7)(b)4.) to the Tennessee SIP,\7\ which 
establishes a state control program to comply with the obligations of 
the NOX SIP Call, as clarified in a July 24, 2018, 
letter.\8\ EPA stated that approval of this portion of the February 27, 
2017, SIP revision would be conditioned on Tennessee submitting by 
December 31, 2019, a complete SIP revision amending the rule's

[[Page 8000]]

applicability provisions to cover certain potential new units as 
discussed in section II.A. of the NPRM, consistent with the State's 
commitment in letters to EPA dated May 11, 2018, and October 11, 
2018.\9\ In addition, EPA proposed to fully approve the portion of the 
February 27, 2017, SIP submission to remove the SIP-approved portions 
of the State's CAIR trading program rules from the Tennessee SIP at 
TCRR 1200-03-14-.04--``CAIR SO2 Annual Trading Program,'' 
1200-03-27-.10--``CAIR NOX Annual Trading Program,'' and 
1200-03-27-.11--``CAIR NOX Ozone Season Trading Program.'' 
Further, EPA proposed to fully approve an April 3, 2018, SIP revision 
to remove a previous NOX SIP Call trading program at TCRR 
1200-03-27-.06--``NOX Budget Trading Program for State 
Implementation Plans.'' The details of Tennessee's submissions and the 
rationale for EPA's actions are explained in the NPRM. Comments on the 
proposed rulemaking were due on or before January 16, 2019. EPA did not 
receive any comments on the proposed action. EPA is now taking final 
action consistent with its proposal.
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    \7\ TCRR 1200-03-27-.12(7)(b) specifies additional reporting and 
recordkeeping requirements related to each facility, which require 
the facility to report its emissions and to generally maintain 
records for at least five years. The February 27, 2018 SIP 
submission contains paragraph 1200-3-27-.12(7)(b)4 that requires 
sources to report to the Tennessee Division of Air Pollution 
Control, in addition to EPA. However, as reporting to EPA continues 
to be required for sources, Tennessee withdrew 1200-3-27-.12(7)(b)4 
from the February 27, 2018 submission in a July 24, 2018 letter 
(hereinafter ``the July 24, 2018 Letter''). As a result, EPA is not 
acting on the withdrawn paragraph.
    \8\ The July 24, 2018 Letter clarifies that, consistent with 
TCRR 1200-03-27-.12(6)(a), the State interprets TCRR 1200-03-
27-.12(6)(d) to require that any adjusted allowance allocation 
amounts for existing affected units under 1200-03-27.12(6)(d) be 
submitted to EPA for approval as a SIP revision to be incorporated 
into the SIP prior to allocation. EPA's action on Tennessee's SIP is 
therefore based on the clarification of the State's interpretation 
of this provision as explained in the July 24, 2018 Letter.
    \9\ On May 11, 2018, Tennessee submitted a commitment letter 
requesting conditional approval of the 2017 NOX SIP Call 
Rule and committing to provide a SIP revision to EPA by April 30, 
2019, that addresses the deficiency discussed in Section II.A. of 
the NPRM by revising the definition of ``affected unit'' to remove 
the unqualified exclusion for any unit that serves a generator that 
produces power for sale. In a letter dated October 11, 2018, 
Tennessee revised the commitment date from April 30, 2019, to 
December 31, 2019.
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II. 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 TCRR 1200-03-
27-.12--``NOX SIP Call Requirements for Stationary Boilers 
and Combustion Turbines'' (with the exception of paragraph 1200-3-
27-.12(7)(b)4.), state effective February 19, 2017, which establishes a 
state control program to comply with the obligations of the 
NOX SIP Call. 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). 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.\10\
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    \10\ See 62 FR 27968 (May 22, 1997).
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III. Final Action

    As described above and in the NPRM, EPA is conditionally approving 
the portion of the February 27, 2017, SIP revision to add TCRR 1200-03-
27-.12--``NOX SIP Call Requirements for Stationary Boilers 
and Combustion Turbines'' (except paragraph 1200-03-27-.12(7)(b)4.) to 
the Tennessee SIP, as clarified in the July 24, 2018 Letter. Approval 
of this portion of the February 27, 2017, SIP revision is conditioned 
on Tennessee submitting by December 31, 2019, a complete SIP revision 
amending the rule's applicability provisions to cover certain potential 
new units as discussed in section II.A. of the NPRM, consistent with 
the State's commitment. In addition, EPA is approving the portion of 
the February 27, 2017 SIP submission to remove the SIP-approved 
portions of the State's CAIR trading program rules from the Tennessee 
SIP at TCRR 1200-03-14-.04--``CAIR SO2 Annual Trading 
Program,'' 1200-03-27-.10--``CAIR NOX Annual Trading 
Program,'' and 1200-03-27-.11--``CAIR NOX Ozone Season 
Trading Program.'' Further, EPA is approving the April 3, 2018, SIP 
revision to remove a previous NOX SIP Call trading program 
at TCRR 1200-03-27-.06--``NOX Budget Trading Program for 
State Implementation Plans.''

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. 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. These actions merely 
approve state law as meeting Federal requirements and do not impose 
additional requirements beyond those imposed by state law. For that 
reason, these actions:
     Are not significant regulatory actions 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);
     Are not Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory actions because SIP approvals are exempted under 
Executive Order 12866;
     Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are certified as not having significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.);
     Do 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);
     Do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not economically significant regulatory actions based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Are not significant regulatory actions subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Are 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
     Do 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

[[Page 8001]]

action must be filed in the United States Court of Appeals for the 
appropriate circuit by May 6, 2019. 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: February 20, 2019.
Mary S. Walker,
Acting 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. Section 52.2219 is added to read as follows:


Sec.  52.2219  Conditional approval.

    Tennessee submitted a SIP revision on February 27, 2017, to add 
TCRR 1200-03-27-.12--``NOX SIP Call Requirements for 
Stationary Boilers and Combustion Turbines'' (except paragraph 1200-03-
27-.12(7)(b)4.) to the Tennessee SIP, which establishes a state control 
program to comply with the obligations of the NOX SIP Call. 
In letters dated May 11, 2018 and October 11, 2018, Tennessee committed 
to submit, by December 31, 2019, a complete SIP revision amending the 
rule's applicability provisions to cover certain potential new units. 
EPA conditionally approved the portion of the February 27, 2017, SIP 
revision to add TCRR 1200-03-27-.12 to the SIP in an action published 
in the Federal Register on March 6, 2019 based on this commitment. If 
Tennessee fails to meet its commitment by December 31, 2019, the 
conditional approval will become a disapproval and EPA will issue a 
notice to that effect.
0
3. Section 52.2220(c) Table 1 is amended:
0
a. Under CHAPTER 1200-3-14 by removing the entry for ``Section 1200-3-
14-.04'', and
0
b. Under CHAPTER 1200-3-27 by:
0
i. Removing the entries for ``Section 1200-3-27-.06'', ``Section 1200-
3-27-.10'', and ``Section 1200-3-27-.11''; and
0
ii. Adding an entry in numerical order for ``Section 1200-3-27-.12''.
    The revisions and additions 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 1200-3-27 Nitrogen Oxides
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                                                  * * * * * * *
Section 1200-3-27-.12.........  NOX SIP Call                   2/19/17  3/6/19 [Insert     With the exception of
                                 Requirements for                        Federal Register   paragraph 1200-3-27-
                                 Stationary Boilers                      citation].         .12(7)(b)4. The
                                 and Combustion                                             remainder of Section
                                 Turbines.                                                  1200-3-27-.12 is
                                                                                            conditionally
                                                                                            approved through
                                                                                            December 31, 2019.
 
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[FR Doc. 2019-03956 Filed 3-5-19; 8:45 am]
 BILLING CODE 6560-50-P