[Federal Register Volume 86, Number 39 (Tuesday, March 2, 2021)]
[Rules and Regulations]
[Pages 12092-12095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04061]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2018-0631; FRL-10018-05-Region 4]


Air Plan Approval; Tennessee; Nitrogen Oxides SIP Call Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision concerning nitrogen oxides 
(NOX) emissions submitted by the State of Tennessee, through 
the Tennessee Department of Environment and Conservation (TDEC), 
through a letter dated December 19, 2019, which revises the Tennessee 
Air Pollution Control Rule (TAPCR) titled ``NOX SIP Call 
Requirements for Stationary Boilers and Combustion Turbines'' (TN 2017 
NOX SIP Call Rule) to correct the definition of ``affected 
unit'' and to clarify requirements related to stationary boilers and 
combustion turbines. EPA is also converting the conditional approval of 
the TN 2017 NOX SIP Call Rule to a full approval.

DATES: This rule is effective April 1, 2021.

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 can either 
be retrieved electronically via www.regulations.gov or in hard copy at 
the Air Regulatory Management Section, Air Planning and Implementation 
Branch, Air and Radiation 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

[[Page 12093]]

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: Steven Scofield, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air and 
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is 
(404) 562-9034. Mr. Scofield can also be reached 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 will significantly 
contribute to nonattainment of the national ambient air quality 
standards (NAAQS), or that will 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'' (``NOX SIP Call''). The NOX 
SIP Call required eastern states, including Tennessee, to submit SIPs 
that prohibit excessive emissions of ozone season NOX by 
implementing statewide emissions budgets.\1\ The NOX SIP 
Call addressed the good neighbor provision for the 1979 ozone NAAQS and 
was designed to mitigate the impact of transported NOX 
emissions, one of the precursors of ozone. EPA developed the 
NOX Budget Trading Program, an allowance trading program 
that states could adopt to meet their obligations under the 
NOX SIP Call. This trading program allowed the following 
sources to participate in a regional cap and trade program: Generally 
electric generating units (EGUs) with capacity greater than 25 
megawatts (MW); and large industrial non-EGUs, such as boilers and 
combustion turbines, with a rated heat input greater than 250 million 
British thermal units per hour. The NOX SIP Call also 
identified potential reductions from cement kilns and stationary 
internal combustion engines.
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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 and later rescinded the rule's provisions with 
respect to that standard. See 65 FR 56245 (September 18, 2000); 84 
FR 8422 (March 8, 2019).
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    On January 22, 2004, EPA approved into the Tennessee SIP the 
State's NOX Budget Trading Program rule.\2\ The 
NOX Budget Trading Program was implemented from 2003 to 
2008. The provisions required EGUs and large non-EGUs in the state to 
participate in the NOX Budget Trading Program.
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    \2\ See 69 FR 3015 (January 22, 2004).
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    In 2005, EPA published the Clean Air Interstate Rule (CAIR), which 
required eastern states, including Tennessee, to submit SIPs that 
prohibited emissions consistent with ozone season (and annual) 
NOX budgets. See 70 FR 25162 (May 12, 2005). CAIR addressed 
the good neighbor provision for the 1997 ozone NAAQS and 1997 fine 
particulate matter (PM2.5) NAAQS and was designed to 
mitigate the impact of transported NOX emissions with 
respect to not only ozone but also PM2.5. CAIR established 
several trading programs that EPA implemented through federal 
implementation plans (FIPs) for EGUs greater than 25 MW in each 
affected state, but not large non-EGUs; states could submit SIPs to 
replace the FIPs that achieved the required emission reductions from 
EGUs and, at their discretion, could include other types of sources as 
well.\3\ When the CAIR trading program for ozone season NOX 
was implemented beginning in 2009, EPA discontinued administration of 
the NOX Budget Trading Program; however, the requirements of 
the NOX SIP Call continued to apply.
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    \3\ CAIR had separate trading programs for annual sulfur dioxide 
emissions, seasonal NOX emissions and annual 
NOX emissions.
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    On August 20, 2007, EPA approved into the Tennessee SIP an 
abbreviated CAIR SIP revision with allowance allocations 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.
    \5\ See 74 FR 61535.
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    In 2011, EPA published the Cross-State Air Pollution Rule (CSAPR) 
to replace CAIR and address the good neighbor provisions for the 1997 
ozone NAAQS, the 1997 PM2.5 NAAQS, and the 2006 
PM2.5 NAAQS. See 76 FR 48208 (August 8, 2011). Through FIPs, 
CSAPR required EGUs in eastern states, including Tennessee, to meet 
annual and ozone season NOX emission budgets and annual 
SO2 emission budgets implemented through new trading 
programs. Implementation of CSAPR began on January 1, 2015.\6\ CSAPR 
also contained provisions that would sunset CAIR-related obligations on 
a schedule coordinated with the implementation of the CSAPR compliance 
requirements.
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    \6\ See 79 FR 71663 (December 3, 2014) and 81 FR 13275 (March 
14, 2016).
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    In 2016, EPA published the CSAPR Update to address the good 
neighbor provision for the 2008 ozone NAAQS. See 81 FR 74504 (October 
26, 2016). Although for most covered states, EPA found the CSAPR Update 
may only partially address the states' good neighbor obligations for 
this NAAQS, EPA found the rule fully addresses Tennessee's good 
neighbor obligation for this NAAQS.\7\ The CSAPR Update trading program 
replaced the original CSAPR trading program for ozone season 
NOX for most covered states. Tennessee's EGUs participate in 
the CSAPR Update trading program, generally also addressing the state's 
obligations under the NOX SIP Call for EGUs. However, 
Tennessee has not chosen to expand applicability of the CSAPR Update 
trading program to its large non-EGUs.
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    \7\ See 81 FR at 74540. EPA notes that the aspects of the CSAPR 
Update affecting Tennessee were not challenged in the litigation 
over the rule and are not affected by the remand of the rule in 
Wisconsin v. EPA, 983 F.3d 303 (D.C. Cir. 2019).
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    Through a letter to EPA dated February 27, 2017,\8\ Tennessee 
provided a SIP revision to incorporate a new provision--TACPR 1200-03-
27-.12, ``NOX SIP Call Requirements for Stationary Boilers 
and Combustion Turbines'' (TN 2017 NOX SIP Call Rule)--into 
the SIP. The TN 2017 NOX SIP Call Rule established a state 
control program for sources that are subject to the NOX SIP 
Call, but not covered under CSAPR or the CSAPR Update. The TN 2017 
NOX SIP Call Rule contains several subsections that together 
comprise a non-EGU control program under which Tennessee will allocate 
a specified budget of allowances to affected sources. Subsequently, on 
May 11, 2018, and October 11, 2018, Tennessee submitted letters 
requesting conditional approval of the TN 2017 NOX SIP Call 
Rule and committing to provide a SIP revision to EPA by December 31, 
2019, to address a deficiency by revising the definition of ``affected 
unit'' to remove the unqualified exclusion for any unit that serves a 
generator that produces power for sale. Based on the State's commitment 
to submit a SIP revision

[[Page 12094]]

addressing the identified deficiency, EPA conditionally approved the 
February 27, 2017, submission. In the same action, EPA approved removal 
of the State's NOX Budget Trading Program and CAIR rules 
from Tennessee's SIP. See 84 FR 7998 (March 6, 2019).
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    \8\ EPA notes that it received the submittal on February 28, 
2017.
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    Tennessee submitted a SIP revision on December 19, 2019, which 
revised TAPCR 1200-03-27-.12, ``NOX SIP Call Requirements 
for Stationary Boilers and Combustion Turbines'' to correct the 
definition of ``affected unit'' and to clarify requirements related to 
stationary boilers and combustion turbines. On June 8, 2020 (85 FR 
35046), EPA published a notice of proposed rulemaking (NPRM) proposing 
to correct the definition of ``affected unit'' and to clarify 
requirements related to stationary boilers and combustion turbines. EPA 
also proposed to convert the conditional approval of the TN 2017 
NOX SIP Call Rule to a full approval. See EPA's June 8, 2020 
(85 FR 35046), NPRM for further detail on these changes and EPA's 
rationale for approving them.

II. Response To Comment

    EPA received one public comment on the June 8, 2020, NPRM. The 
comment is provided in the docket for this final rulemaking. EPA's 
response to this comment is below.
    Comment: The commenter asserts that EPA should not approve this 
rule and that EPA should rescind its prior conditional approval of the 
TN 2017 NOX SIP Call Rule. The commenter asserts that court 
rulings have found that EPA's reliance on modeling for the year 2023 
was improper, and EPA must fully address upwind state's significant 
contribution by the applicable attainment date. The commenter further 
asserts that the CSAPR Update does not fully address downwind 
contributions under the Wisconsin and New York court decisions. The 
commenter also asserts that EPA cannot approve this action until it 
addresses the court decisions, including Wisconsin, New York, and 
Maryland.
    Response: EPA disagrees with the comment that EPA should not 
approve this rule and should rescind its prior approval of the TN 2017 
NOX SIP Call Rule. As discussed above, EPA has already 
approved the TN 2017 NOX SIP Call Rule, which addressed 
Tennessee's ongoing NOX SIP Call obligations for existing 
and new large non-EGUs and which EPA conditionally approved due to a 
deficiency in the definition of affected unit. See 84 FR 7998 (March 6, 
2019). In this action, EPA is approving into the Tennessee SIP changes 
to the TN 2017 NOX SIP Call Rule that correct the definition 
of ``affected unit,'' clarify requirements related to stationary 
boilers and combustion turbines, and convert the conditional approval 
to a full approval. See NPRM. EPA has evaluated these changes, has 
determined that the changes correct the deficiency and provide 
clarifying edits that are consistent with the NOX SIP Call 
and the CAA, and is approving those changes into the SIP. See id. In 
this action, EPA is not approving any changes to the NOX SIP 
Call or to Tennessee's obligations under the NOX SIP Call, 
and did not approve any such changes through its prior approval of the 
TN 2017 NOX SIP Call Rule.\9\
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    \9\ EPA is not reopening its prior rulemaking actions in this 
action.
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    With respect to the commenter's assertions regarding Wisconsin, New 
York, Maryland, and 2023 modeling, EPA believes these comments to be 
beyond the scope of this rulemaking. Nevertheless, EPA is providing the 
following explanation. The NOX SIP Call fully addressed 
obligations under the good neighbor provision for the 1979 1-hour ozone 
NAAQS. In contrast, the CSAPR Update, which was at issue in Wisconsin 
v. EPA, 938 F.3d 303, 308-37 (D.C. Cir. 2019), and the CSAPR Close-out, 
which was at issue in New York v. EPA, 781 F. App'x 4 (D.C. Cir. 2019), 
involved obligations under the good neighbor provision for the 2008 
ozone NAAQS. Further, Maryland v. EPA, 958 F.3d 1185 (D.C. Cir. 2020), 
which applied the Wisconsin decision in the context of EPA's denial of 
a petition under CAA section 126(b), included a discussion with regard 
to obligations for the 2015 ozone NAAQS. None of these cases bear on 
the approval action here, which has nothing to do with the selection of 
an analytic year or developing a full remedy for addressing good 
neighbor obligations.

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 TAPCR 1200-
03-27-.12, ``NOX SIP Call Requirements for Stationary 
Boilers and Combustion Turbines,'' state effective December 12, 2019, 
which revises Tennessee's state control program to comply with the 
obligations of the NOX SIP Call. EPA has made, and will 
continue to make the SIP 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, the revised materials 
as stated above, have been approved by EPA for inclusion in the SIP, 
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.

IV. Final Action

    EPA is approving Tennessee's December 19, 2019, submission, which 
revises TAPCR 1200-03-27-.12, ``NOX SIP Call Requirements 
for Stationary Boilers and Combustion Turbines,'' to correct the 
definition of ``affected unit'' and to clarify requirements related to 
stationary boilers and combustion turbines. In addition, EPA is 
converting the March 6, 2019, conditional approval of TAPCR 1200-03-
27-.12 to a full approval. EPA has concluded that these changes will 
not interfere with attainment and maintenance of the NAAQS, reasonable 
further progress, or any other applicable requirement of the CAA.

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 CAA 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. 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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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

[[Page 12095]]

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, 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 and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 May 3, 2021. 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, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides.

    Dated: February 23, 2021.
John Blevins,
Acting Regional Administrator, Region 4.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 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


Sec.  52.2219  [Amended]

0
2. Amend Sec.  52.2219 by removing and reserving paragraph (a).

0
3. In Sec.  52.2220 amend Table 1 in paragraph (c) by revising the 
entry for ``Section 1200-3-27-.12'' to read as follows:


Sec.  52.2220  Identification of plan.

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    (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                 12/12/2019  3/2/2021, [Insert   ..................
                                  Requirements for                         citation of
                                  Stationary Boilers and                   publication].
                                  Combustion Turbines.
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[FR Doc. 2021-04061 Filed 3-1-21; 8:45 am]
BILLING CODE 6560-50-P