E7-17975. Approval and Promulgation of Implementation Plans Tennessee; Approval of Revisions to the Tennessee SIP and the Nashville/Davidson County Portion of the Tennessee SIP; Prevention of Significant Deterioration and Nonattainment New Source ...

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is taking final action to approve revisions to the Tennessee State Implementation Plan (SIP) submitted by the State of Tennessee on February 23, 2006, and amended on April 16, 2007; and revisions to the Nashville/Davidson County portion of the Tennessee SIP submitted by the State of Tennessee on May 31, 2006. The SIP revisions modify the Tennessee and Nashville/Davidson County Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) regulations in the Tennessee SIP to address changes to the federal new source review (NSR) regulations, which were promulgated by EPA on December 31, 2002, and reconsidered with minor changes on November 7, 2003 (commonly referred to as the “2002 NSR Reform Rules”). EPA proposed approval of these revisions on July 23, 2007; no comments were received on that proposal. The revisions include provisions for baseline emissions calculations, an actual-to-projected-actual methodology for calculating emissions changes, options for plant-wide applicability limits, and recordkeeping and reporting requirements.

DATES:

Effective Date: This rule will be effective October 15, 2007.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2006-0042. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not 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 http://www.regulations.gov 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 a.m. to 4:30 p.m., excluding federal holidays.

FOR FURTHER INFORMATION CONTACT:

For information regarding the Tennessee State Implementation Plan, contact Mr. 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. Hou can also be reached via electronic mail at [e-mail]. For information regarding New Source Review, contact Ms. Yolanda Adams, Air Permits Section, at the same address above. The telephone number is [phone]. Ms. Adams can also be reached via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Is EPA Taking?

II. What Is the Background for This Action?

III. Final Action

IV. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

EPA is taking final action to approve revisions to the Tennessee SIP and the Nashville/Davidson County portion of the Tennessee SIP regarding the Tennessee and Nashville NSR programs. On February 23, 2006, and May 31, 2006, the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC), submitted revisions to the Tennessee SIP and the Nashville/Davidson County portion of the Tennessee SIP. Nashville/Davidson County is separately authorized to implement and enforce the NSR program in that region of Tennessee. The February 23, 2006, SIP submittal consists of changes to the Tennessee Air Pollution Control Regulations. Specifically, the proposed SIP revisions include changes to TDEC Rule .01 of chapter 1200-3-9 entitled, “Construction Permits.” The May 31, 2006, submittal consists of revisions to the Nashville Pollution Control Division's Regulation 3 entitled, “New Source Review.” TDEC submitted these revisions in response to EPA's December 31, 2002, revisions to the federal NSR program.

In a letter to EPA dated April 16, 2007, Tennessee requested to amend the February 23, 2006, SIP submittal in light of the decision issued by the U.S. Circuit Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court) on June 24, 2005. Notably, on June 13, 2007 (72 FR 32526), EPA took final action to revise the 2002 NSR Reform Rules to exclude the portions that were vacated by the D.C. Circuit Court.

TDEC requested that the portion of the Tennessee SIP revision related to the EPA rules that were vacated by the D.C. Circuit Court (specifically the clean unit and pollution control project (PCP) provisions) not be approved into the SIP. The affected portions of the February 23, 2006, submittal are as follows: Sections (b)2.(i)(VIII), (b)4.(iii)(III), (b)4.(vi)(IV), (b)35., (b)39., (c)4.(v), (c)6., (p), (q), and (r) of Rule 1200-3-9-.01(4); sections (b)1.(v)(III)VIII, (b)1.(vi)(III)III, (b)1.(vi)(V)V, (b)1.(xxxvii), (b)1.(xli), (b)2.(v)(IX), (b)2.(v)(X), (b)2.(xvi), (b)2.(xix), (b)7., (b)8., and (b)9. of Rule 1200-3-9-.01(5); and all references to clean units and PCPs at sections (a)11. and (c)4.(vi) of Rule 1200-3-9-.01(4)., and sections (b)2.(xvii) and (b)5. of Rule 1200-3-9-.01(5). The May 31, 2006, submittal which consists of revisions to NPCD Regulation 3, did not include the clean unit and PCP provisions.

On July 23, 2007 (72 FR 40105), EPA published a notice of proposed rulemaking (NPR) in the Federal Register, proposing to approve the Tennessee SIP revisions. The July 23, 2007, NPR provides additional information about the proposed Tennessee SIP revisions and the rationale for this final action. The public comment period for the proposed action ended on August 22, 2007. No comments were received on EPA's proposed action. EPA is now taking final action to approve the SIP revisions submitted by TDEC on February 23, 2006, May 31, 2006, and April 16, 2007.

II. What Is the Background for This Action?

On December 31, 2002 (67 FR 80186), EPA published final rule changes to 40 Code of Federal Regulations (CFR) parts 51 and 52, regarding the CAA PSD and NNSR programs. On November 7, 2003 (68 FR 63021), EPA published a notice of final action on its reconsideration of the 2002 rules. On June 13, 2007 (72 FR 32526), EPA took final action to revise the 2002 NSR Reform Rules to exclude the clean units and PCP provisions that were vacated by the D.C. Circuit Court on June 24, 2005. The purpose of this action is to approve the SIP submittals from the State of Tennessee, incorporating rule changes consistent with EPA's 2002 NSR Reform Rules.

The June 24, 2005, D.C. Circuit Court decision also involved a remand of the recordkeeping provisions of the 2002 NSR Reform Rules. EPA continues to move forward with its evaluation of the portion of its NSR Reform Rules that were remanded by the D.C. Circuit Court. On March 8, 2007 (72 FR 10445), EPA responded to the Court's remand regarding the recordkeeping provisions by proposing two alternative options to clarify what constitutes “reasonable possibility” and when the “reasonable possibility” recordkeeping requirements apply. The “reasonable possibility” standard identifies for sources and reviewing authorities the circumstances under which a major stationary source undergoing a modification that does not trigger major NSR must keep records. Tennessee's SIP revisions are approvable at this time because the Tennessee and Nashville rules are substantially the same as the current federal rules. If EPA adopts recordkeeping criteria that are more stringent than the current Tennessee and Nashville rules, the Tennessee and Nashville rules may need to be revised to be at least as stringent as the federal requirement.

On February 23, 2006, May 31, 2006, and April 16, 2007, the State of Tennessee submitted SIP revisions including changes to Tennessee's and Nashville's NSR programs. The NSR program changes were made primarily to adopt EPA's 2002 NSR Reform Rules. On July 23, 2007 (72 FR 40105), EPA published a NPR proposing to approve revisions to Tennessee's Rule .01 of chapter 1200-3-9 entitled, “Construction Permits” and Nashville's Regulation 3 entitled, “New Source Review.” Tennessee's revisions are consistent with the federal NSR regulations published December 31, 2002 (67 FR 80186) and November 7, 2003 (68 FR 63021). As is discussed in greater detail in the NPR, EPA reviewed the SIP revisions and determined that they were at least as stringent as the federal NSR program. As a result, the SIP revisions are approvable pursuant to the CAA.

The July 23, 2007, NPR and the docket for this action provide more details about the SIP revisions being approved and the rationale for EPA's final action. For additional information on EPA's 2002 NSR Reform Rules, see 67 FR 80186 (December 31, 2002), and http://www.epa.gov/​nsr.

III. Final Action

EPA is taking final action to approve changes to Tennessee's Rule 1200-3-9-.01 (Construction Permits) as submitted by TDEC on February 23, 2006, and amended on April 16, 2007, as revisions to the Tennessee SIP. In addition, EPA is taking final action to approve changes made to the Nashville Regulation 3 (New Source Review) as submitted by TDEC on May 31, 2006, as revisions to the Nashville/Davidson County portion of the Tennessee SIP.

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 final 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 (59 FR 22951, 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 state and local rules implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. 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 approves a state rule implementing a Federal Standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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 CAA. 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 13, 2007. 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
• Carbon monoxide
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: September 5, 2007.

J.I. Palmer, Jr.,

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. In § 52.2220(c) Table 1 and Table 5 are amended as follows:

a. In Table 1 under Chapter 1200-3-9 by revising the entry for “Section 1200-3-9-.01”,

b. In Table 5 under Article II. by revising the entries under Regulation No. 3 for “Section 3-1”, “Section 3-2” and “Section 3-3”, and

c. In Table 5 under Article II. by adding in numerical order a new entry under Regulation No. 3 for “Section 3-4”.

§ 52.2220

Identification of plan.

* * * * *

(c) * * *

Table 1.—EPA-Approved Tennessee Regulations

State citation	Title/subject	State effective date	EPA approval date	Explanation
*         *         *         *         *         *         *
CHAPTER 1200-3-9 CONSTRUCTION AND OPERATING PERMITS
Section 1200-3-9-.01	Construction Permits	02/14/06	09/14/07 [Insert citation of publication]
*         *         *         *         *         *         *

Table 5.—EPA-Approved Nashville-Davidson County, Regulations

State citation	Title/subject	State effective date	EPA approval date	Explanation
*         *         *         *         *         *         *
Article II. Standards for Operation
*         *         *         *         *         *         *
Regulation No. 3 New Source Review
Section 3-1	Definitions	03/14/06	09/14/07 [Insert citation of publication]
Section 3-2	New Source Review	03/14/06	09/14/07 [Insert citation of publication]
Section 3-3	Prevention of Significant Deterioration (PSD) Review	03/14/06	09/14/07 [Insert citation of publication]
Section 3-4	Plantwide Applicability Limits (PAL)	03/14/06	09/14/07 [Insert citation of publication]

* * * * *