05-24415. Approval and Promulgation of Implementation Plans; Tennessee; Nitrogen Oxides Budget and Allowance Trading Program, Phase II

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The EPA is approving State Implementation Plan (SIP) revisions submitted by the State of Tennessee on May 6, 2005. The revision responds to the EPA's regulation entitled, “Interstate Ozone Transport: Response to Court Decisions on the NO_X SIP Call, NO_X SIP Call Technical Amendments, and Section 126 Rules,” otherwise known as the “NO_X SIP Call Phase II.” This revision satisfies EPA's rule that requires Tennessee to submit NO_X SIP Call Phase II revisions needed to achieve the necessary incremental reductions of nitrogen oxides (NO_X). The intended effect of this SIP revision is to reduce emissions of NO_X in order to help attain the national ambient air quality standard (NAAQS) for ozone. Specifically, this revision addresses compliance plans for NO_X emissions from stationary internal combustion engines.

DATES:

This direct final rule is effective February 27, 2006, without further notice, unless EPA receives adverse comment by January 26, 2006. If adverse comment is received, EPA 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 Regional Material in EDocket (RME) ID No. R04-OAR-2005-TN-0005, by one of the following methods:

1. Federal eRulemaking Portal: ­http://www.regulations.gov. Follow the on-line instructions for submitting comments.

2. Agency Web site: http://docket.epa.gov/​rmepub/​ RME, EPA's electronic public docket and comment system, is EPA's preferred method for receiving comments. Once in the system, select “quick search,” then key in the appropriate RME Docket identification number. Follow the on-line instructions for submitting comments.

3. E-mail: [e-mail].

4. Fax: [phone].

5. Mail: “R04-OAR-2005-TN-0005” 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.

6. Hand Delivery or Courier. Deliver your comments to: James Hou, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division 12th floor, 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 to 4:30, excluding federal holidays.

Instructions: Direct your comments to RME ID No. R04-OAR-2005-TN-0005. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://docket.epa.gov/​rmepub/​,, 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 information that you consider to be CBI or otherwise protected through RME, regulations.gov, or e-mail. The EPA RME Web site and the federal regulations.gov Web site are “anonymous access” systems, 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 e-mail comment directly to EPA without going through RME or regulations.gov, your e-mail 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 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.

Docket: All documents in the electronic docket are listed in the RME index at http://docket.epa.gov/​rmepub/​. 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 RME 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:

James Hou, 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 [phone]. Mr. James Hou can also be reached via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On October 27, 1998, EPA published a final rule known as the “NO_X SIP Call” (See 63 FR 57356). The NO_X SIP Call originally required 22 states, including the State of Tennessee, and the District of Columbia (DC) to meet statewide NO_X emission budgets during the ozone season in order to reduce the amount of ground level ozone that is transported across the eastern United States (Phase I). EPA identified NO_X emission reductions by source category that could be achieved by using cost-effective measures. The source categories include electric generating units (EGUs), non-electric generating units (non-EGUs), internal combustion (IC) engines and cement kilns. EPA determined that state-wide NO_X emission budgets based on the implementation of these cost effective controls for each affected jurisdiction are to be met by the year 2007. The Phase I NO_X SIP Call gave states the flexibility to decide which source categories to regulate in order to meet the statewide budgets. IC engines were not addressed by Tennessee in response to Phase I, but are addressed in Phase II. For more information regarding the specifics of these Phase I source categories and budgets, see 69 FR 3015, January 22, 2004.

A number of parties, including certain states as well as industry and labor groups, challenged the NO_X SIP Call rule. On March 2, 2000 (65 FR 11222), EPA published additional technical amendments to the NO_X SIP Call in the Federal Register. On March 3, 2000, the D.C. Circuit issued its decision on the NO_X SIP Call, ruling in favor of EPA on all the major issues. Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000). The DC Circuit Court denied petitioners' requests for rehearing or rehearing en banc on July 22, 2000. However, the Circuit Court remanded four specific elements to EPA for further action: (1) The definition of EGU, (2) the level of control for stationary IC engines, (3) the geographic extent of the NO_X SIP Call for Georgia and Missouri, and (4) the inclusion of Wisconsin. On March 5, 2001, the U.S. Supreme Court declined to hear an appeal by various utilities, industry groups and a number of upwind states from the DC Circuit's ruling on EPA's NO_X SIP Call rule.

On November 7, 2000, the Tennessee Department of Environment and Conservation (TDEC) submitted a draft NO_X emission control rule to the EPA. Subsequently, TDEC submitted additional materials on July 11, 2001 and October 4, 2001. EPA published a conditional approval of the SIP revision on August 14, 2002, and later published a final approval of the SIP revision on January 22, 2004 (69 FR 3015) after making a determination that the final revisions to the Tennessee SIP met the requirements of the NO_X SIP Call Phase I.

EPA published a final rule, dated April 21, 2004 (69 FR 21604), that addresses the remanded portion of the NO_X SIP Call Rule. This rule is entitled, “Interstate Ozone Transport: Response to Court Decisions on the NO_X SIP Call, NO_X SIP Call Technical Amendments, and Section 126 Rules,” otherwise known as the “NO_X SIP Rule Phase II.” This action finalizes specific changes in response to the Court's rulings on the NO_X SIP Call. Specifically, it finalizes certain aspects of the definitions of EGU and non-EGU, the control level assumed for large stationary IC engines in the NO_X SIP Call, partial state budgets for Georgia, Missouri, Alabama, and Michigan in the NO_X SIP Call, changes to the statewide NO_X budgets, the SIP submittal dates for the required states to address the Phase II portion of the budget, and for Georgia and Missouri to submit full SIPs meeting the NO_X SIP Call, the compliance date for all covered sources to meet Phase II of the NO_X SIP Call and the exclusion of Wisconsin from the NO_X SIP Call (See 69 FR 21604, April 21, 2004). This final rule also requires states that submitted NO_X SIP Call Phase I revisions to submit Phase II SIP revisions as needed to achieve the necessary incremental reductions of NO_X.

II. Analysis of State's Submittal

The State of Tennessee submitted a revision to its SIP on May 6, 2005. The revision responds to the NO_X SIP Call Phase II (69 FR 21604, April 21, 2004). TDEC is revising its regulations to remain consistent with EPA requirements. Under Rule 1200-3-27-.09, “Compliance Plans for NO_X Emissions From Stationary Internal Combustion Engines,” after May 1, 2007, all owners or operators of “Large NO_X SIP Call Engines” must submit a compliance plan to the Technical Secretary, demonstrating enforceable NO_X emission reductions. “Large NO_X SIP Call Engines” are defined as any stationary reciprocating IC engine, which is used at a facility for more than 12 consecutive months, and emits more than one ton of NO_X per average ozone season day. The compliance plan must include a list of engines subject to the plan, the projected hours of operation, a description of the NO_X emission controls used on affected engines, past and projected NO_X emission rates, and provisions for monitoring, reporting, and record keeping on each affected engine. Additionally, these large gas-fired IC engines, orignially identified by EPA as part of the NO_X SIP Call Rule, are required to have a NO_X control efficiency of 82 percent. As a result, EPA has made the determination that Rule 1200-3-27-.09 will achieve the required NO_X reductions of 2,877 tons for Tennessee.

III. Final Action

EPA is approving the aforementioned changes to the SIP. EPA is publishing this rule without prior proposal because the Agency views this as a non-controversial submittal 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 comments be filed. This rule will be effective February 27, 2006, without further notice unless the Agency receives adverse comments by January 26, 2006.

If the 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. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on February 27, 2006, and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

IV. Statutory and Executive Order Reviews:

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 rule 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 27, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: December 9, 2005.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart RR—Tennessee

2. Section 52.2220(c) is amended in table 1 by adding an entry for “Section 1200-3-27-.09 ” to read as follows:

§ 52.2220

Identification of plan.

* * * * *

(c) * * *

Table 1.—EPA Approved Tennessee Regulations

State citation	Title/subject	State effective date	EPA approval date	Federal Register Notice
Chapter 1200-3-27 Nitrogen Oxides
*         *         *         *         *         *         *
Section 1200-3-27-.09	Compliance plans for NOX Emissions From Stationary Internal Combustion Engines	11/14/05	12/27/05	[Insert citation of publication]
*         *         *         *         *         *         *

* * * * *