[Federal Register Volume 87, Number 141 (Monday, July 25, 2022)]
[Proposed Rules]
[Pages 44076-44078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15817]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52 and 70
[EPA-R04-OAR-2021-0363; FRL-10016-01-R4]
Air Plan and Operating Permit Program Approval; TN; Electronic
Notice (e-Notice) Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve changes to the Tennessee State Implementation Plan (SIP) and
the Tennessee title V operating permit program (title V) submitted by
the State of Tennessee, through the Tennessee Department of Environment
and Conservation (TDEC), Division of Air Pollution Control on March 23,
2021, and supplemented on July 1, 2022. These changes address the
public notice rule provisions for the New Source Review (NSR) and title
V programs of the Clean Air Act (CAA or Act) by providing for
electronic notice (e-notice) and removing the mandatory requirement to
provide public notice of a draft air permit in a newspaper. EPA is
proposing to approve these changes as they are consistent with the CAA
and implementing Federal regulations.
DATES: Comments must be received on or before August 24, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2021-0363 at www.regulations.gov. Follow the online instructions
for submitting comments. Once submitted, comments cannot be edited or
removed from Regulations.gov. EPA may publish any comment received to
its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Sarah LaRocca, 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) 562-8994. Ms. LaRocca can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On October 5, 2016, EPA finalized revised public notice provisions
for the NSR, title V, and Outer Continental Shelf permitting programs
of the CAA. See 81 FR 71613 (October 18, 2016). These rule revisions
removed the mandatory requirement to provide public notice of
permitting actions through publication in a newspaper and allow for
internet e-notice as an option for permitting authorities implementing
their own EPA-approved SIP rules and title V rules, such as Tennessee's
EPA-approved permitting programs. Permitting authorities are not
required to adopt e-notice. Nothing in the revised rules prevents a
permitting authority with an EPA-approved permitting program from
continuing to use newspaper notification and/or from supplementing e-
notice with newspaper notification and/or additional means of
notification. For permits issued by permitting authorities with EPA-
approved programs, the rule requires the permitting authority to use
``a consistent noticing method'' for all permit notices under the
specific permitting program. When e-notice is provided, EPA's rule
requires electronic access (e-access) to the draft permit for the
duration of the public comment period.
EPA anticipates that e-notice, which is already being practiced by
many permitting authorities, will enable permitting authorities to
communicate permitting and other affected actions to the public more
quickly and efficiently and will provide cost savings over newspaper
publication. EPA further anticipates that e-access will expand
[[Page 44077]]
access to permit-related documents. A full description of the e-notice
and e-access provisions are contained in EPA's October 18, 2016
rulemaking notice. See 81 FR 71613.
EPA is proposing to approve changes to Rule 1200-03-09-.01,
Construction Permits; and Rule 1200-03-09-.02, Operating Permits, of
Chapter 1200-03-09, Construction and Operating Permits submitted by the
State of Tennessee on March 23, 2021,\1\ related to NSR, and title V
permits. These changes seek to establish a revised method of
publication of public notices for public hearings and public comment
periods and change how documents related to permit proceedings will be
available for public inspection.
---------------------------------------------------------------------------
\1\ In a letter dated July 1, 2022, TDEC clarifies that it is
requesting approval of revisions to its title V program as well as
to the SIP to provide for e-notice.
---------------------------------------------------------------------------
II. EPA's Analysis of Tennessee's Submittal
The SIP and title V program revisions change Chapter 1200-03-09,
Construction and Operating Permits, to allow e-notice for TDEC's minor
NSR, Prevention of Significant Deterioration (PSD), Nonattainment New
Source Review (NNSR), and title V regulations at Rules 1200-03-09-.01,
Construction Permits; and 1200-03-09-.02, Operating Permits.\2\ In this
proposed action, EPA is proposing to approve the following changes to
Rules 1200-03-09-.01 and 1200-03-09-.02.
---------------------------------------------------------------------------
\2\ As discussed in more detail in the description of changes to
the title V program below, the revisions to the public participation
provisions would also change the State's public participation method
to e-notice for the SIP-approved Federal enforceable state operating
permits (FESOPs) program.
---------------------------------------------------------------------------
Rule 1200-03-09-.01(1) Application for Construction Permit applies
to construction permits in general, including minor source construction
permits, and subparagraph (h) is revised to change the monthly public
notification method for permit applications from newspaper to e-notice
on the Department's website and specify that comments must be submitted
via U.S. mail or email. While this is a generally applicable
construction permitting rule, where other program rules, such as for
the major source programs--PSD, NNSR, and title V, have more specific
requirements, those requirements listed in their respective paragraphs
of 1200-03-09-.01 and 1200-03-09-.02 apply.
The State's PSD program at Rule 1200-03-09-.01(4), Prevention of
Significant Air Quality Deterioration, is revised to provide for e-
notice. First, subparagraph (a)7(vi) is revised to provide e-notice on
the Department's website rather than newspaper notification whenever
the Technical Secretary of the Air Pollution Control Board of the State
of Tennessee rescinds a permit. Next, subparagraph (l)2(iii) is revised
to provide e-notice on the Department's website rather than newspaper
notification of permit applications, preliminary determinations, and
expected increment consumption for PSD permitting actions. This
subparagraph is further updated to require the Department to post
notice of public comment, draft permits, information on how to access
the administrative record for the draft permit, and how to request and/
or attend a public hearing on the draft permit on the Department's
website for the duration of the comment period. As described above,
posting draft permits on a designated website is required for
consistency under 40 CFR 51.166(q)(2)(iii), when e-notice is provided.
The State's NNSR requirements are at Rule 1200-03-09-.01(5), Growth
Policy, and subparagraph (b)2(viii)(III) is revised to provide e-notice
on the Department's website rather than newspaper notification whenever
the Technical Secretary of the Air Pollution Control Board of the State
of Tennessee rescinds a permit. Next, subparagraph (b)3(i)(III) is
revised to provide e-notice of information submitted by applicants and
the Technical Secretary's analysis of the effect on air quality. The e-
notice will be available on the Department's website for the duration
of the comment period and includes draft permits, information on how to
access the administrative record for the draft permit, and how to
request and/or attend a public hearing on the draft permit. Similar to
PSD requirements, posting draft permits on a designated website is
required for consistency under 40 CFR 51.165(i)(1), when e-notice is
provided. This subparagraph is also updated to provide further notice
in newspapers of general circulation in the area where the source is
located at the applicant's expense, if deemed necessary by the
Technical Secretary.
The State's title V requirements are at Rule 1200-03-09-.02(11),
Major Stationary Source Operating Permits, and subparagraph (f)8.(i)(I)
is revised to provide for e-notice on the Department's website of
permit proceedings that require public notice, including initial permit
issuance, significant modifications and renewals. The SIP's FESOP
provisions are found at Rule 1200-03-09-.02(11)(a), which provide an
option for sources to limit their potential to emit such that they are
below the major source applicability threshold. In order to exercise
this option, Rule 1200-03-09-.02(11)(a) states that the permit shall be
subjected to the opportunity for comment and hearing by EPA, affected
states, and the public consistent with this paragraph. Thus, the FESOP
permits must be public noticed consistent with the requirements at Rule
1200-03-09-.02(11)(f)8, which is revised to include e-notice.\3\
---------------------------------------------------------------------------
\3\ The changes to Rule 1200-03-09.-02(11)(f)8.(i)(I) discussed
in this notice apply to FESOPs; however, this specific provision is
not approved into the SIP and is not being proposed for
incorporation into the SIP. For purposes of FESOPs, only Rule 1200-
03-09-.02(11)(a) is approved into the SIP. See EPA's final approval
of Tennessee's FESOP program at 62 FR 6724 (February 13, 1997) for
more information on this program and associated public notice
requirements.
---------------------------------------------------------------------------
Furthermore, in accordance with 40 CFR 70.7(h)(1), Rule 1200-03-
09-.02(11)(f)8.(i)(I) is updated to require the Department post draft
title V permits on the Department's website for the duration of the
public comment period. As described above, posting draft permits on a
designated website is required for consistency under the Federal rules,
when e-notice is provided.
The State is replacing the public notice method for the
aforementioned permit programs from newspaper publication to website
notification as well as providing for e-access to draft permits. These
methods of public notification and availability are consistent with the
public participation requirements for permits under 40 CFR 51.161,
51.166(q), 51.165(i), and 70.7 and the criteria for FESOP programs (see
54 FR 27274 (June 28, 1989)).
In addition, this SIP submission contains minor textual changes to
provide clarity and greater consistency. The textual revisions include:
changing ``publication of'' to ``date of'', adding ``permit'' before
referencing recissions, clarifying that the public must be notified of
the degree of increment consumption that is expected from both the
proposed source construction and modification, and changing ``Sub
part'' to ``subpart''.
EPA is proposing to approve these revisions because the revisions
are consistent with the SIP revision requirements of CAA section 110,
the title V program revision requirements of 40 CFR 70.4, and EPA's
permitting requirements for public participation.
III. Incorporation by Reference
In this document, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with
[[Page 44078]]
requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference Rule 1200-03-09-.01, Construction Permits, state effective
January 21, 2021, into the Tennessee SIP.\4\ The proposed incorporation
includes minor textual changes, establishes a revised means of
publication for public notices for public hearing and public comment
periods, and changes how documents related to permit proceedings will
be available for permit proceedings. 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).
---------------------------------------------------------------------------
\4\ EPA is not proposing to incorporate the January 21, 2021,
state effective version of: 1200-03-09-.01(1)(a); 1200-03-
09-.01(1)(d); 1200-03-09-.01(1)(f); 1200-03-09-.01(1)(j); 1200-03-
09-.01(4)(b)24(XVII); 1200-03-09-.01(4)(b)29; 1200-03-
09-.01(4)(b)47(i)(IV); 1200-03-09-.01(4)(j)3; 1200-03-09-.01(4)(k);
1200-03-09-.01(5)(b)1(x)(VII); the PM2.5 annual and 24-
hour averaging time as part of subparagraph 1200-03-
09-.01(5)(b)(1)(xix); 1200-03-09-.01(5)(b)2(iii)(II). These
provisions are either not approved into the SIP or the January 21,
2021, version of the rule contains language changes that are not
before EPA for approval into the SIP. If EPA finalizes this action,
the Agency will update the SIP table at 40 CFR 52.2220(c) to reflect
these exceptions.
---------------------------------------------------------------------------
IV. Proposed Action
EPA is proposing to approve the changes to Chapter 1200-03-09,
Construction and Operating Permits; Rule 1200-03-09-.01, Construction
Permits of the Tennessee SIP; and Rule 1200-03-09-.02, Operating
Permits, of the Tennessee title V program, as submitted on March 23,
2021, and supplemented on July 1, 2022 for the reasons stated above.
V. Statutory and Executive Order Reviews
In reviewing SIP and title V submissions, EPA's role is to approve
such submissions, provided that they meet the criteria under the CAA,
and EPA's implementing regulations. This action merely proposes to
approve state law as meeting Federal requirements and does not impose
additional requirements beyond those imposed by state law. For that
reason, this proposed 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 1955 (Pub. L. 104-4);
Does not have Federalism implications as specified in the
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
any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rules do
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will they impose substantial direct
costs on tribal governments or preempt tribal law.
Furthermore, the proposed rules regarding title V operating permit
programs do not have tribal implications because they are not approved
to apply to any source of air pollution over which an Indian Tribe has
jurisdiction, nor will these proposed rules impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects
40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Reporting and recordkeeping requirements.
40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Operating Permits, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 19, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022-15817 Filed 7-22-22; 8:45 am]
BILLING CODE 6560-50-P