2018-20629. Air Plan Approval; TN: Revisions to New Source Review

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving changes to the Tennessee State Implementation Plan (SIP) to revise New Source Review (NSR) regulations. Specifically, EPA is approving the portions of a SIP revision submitted by the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC), on May 28, 2009, that modify the definitions of “baseline actual emissions.” This action is being taken pursuant to the Clean Air Act (CAA or Act).

DATES:

This rule is effective October 24, 2018.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2017-0050. 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:

D. Brad Akers, 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. Mr. Akers can be reached via telephone at [phone] or via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. What action is EPA taking?

On May 28, 2009, TDEC submitted a SIP revision to EPA for approval that contains changes to Tennessee's SIP-approved major NSR permitting regulations at Tennessee Air Pollution Control Regulations (TAPCR) 1200-3-9-.01—“Construction Permits,” including the adoption of federal requirements and the modification of certain other provisions. In this action, EPA is approving the portions of this SIP submission that make changes to the definitions of “baseline actual emissions” in Tennessee's SIP-approved Prevention of Significant Deterioration (PSD) and nonattainment NSR (NNSR) regulations at TAPCR 1200-3-9-.01(4)—“Prevention of Significant Air Quality Deterioration” and 1200-3-9-.01(5)(b)—“Nonattainment Areas,” respectively. Tennessee's NSR regulations at TAPCR 1200-3-9-.01 were last revised in the SIP on July 25, 2013 (78 FR 44886).

On June 20, 2018 (83 FR 28577), EPA published a notice of proposed rulemaking (NPRM) proposing to approve the portions of Tennessee's SIP revision described in Section II, below. The details of Tennessee's SIP revision and the rationale for EPA's actions are further explained in the NPRM. EPA received no adverse comments on the proposed approval.

II. Analysis of Tennessee's Submittal

Tennessee's May 28, 2009, submittal revises the SIP-approved definitions of “baseline actual emissions” at TAPCR 1200-3-9-.01(4)(b)(45)(i)(III) and 1200-3-9-.01(4)(b)(45)(ii)(IV) for PSD, and 1200-3-9-.01(5)(b)(1)(xlvii)(I)III and 1200-3-9-.01(5)(b)(1)(xlvii)(II)IV for NNSR. The revised definitions read as follows (strikethrough indicates language removed from the SIP in this action and underlined text indicates language added):

 

The changes mean that a project involving multiple emissions units is no longer subject to major NSR permitting under the revised definitions if it meets the limiting criteria identified above for the use of pollutant-specific baseline periods. EPA's major NSR rules do not contain such limiting criteria. Under the federal major NSR rules, a state must adopt the federal definitions into its SIP unless the state's definitions are more stringent than, or at least as stringent as, the federal definitions. See 40 CFR 51.165(a)(1) and 51.166(b). EPA finds that Tennessee's changes to its SIP-approved definitions of “baseline actual emissions” are more stringent than the federal definitions given the limiting criteria and are therefore allowable changes to Tennessee's SIP-approved NSR program pursuant to 40 CFR 51.165(a)(1) and 51.166(b).

Section 110(l) of the CAA prohibits EPA from approving a SIP revision that would interfere with any applicable requirement concerning attainment and RFP (as defined in section 171), or any other applicable requirement of the CAA. EPA has determined that the changes to the Tennessee SIP, as described above, would not violate section 110(l) for the following reasons: (1) Tennessee's changes will maintain the State program at a more stringent level than the federal NSR requirements; ^[4] (2) the State is currently attaining all of the NAAQS except for the 2010 1-hour sulfur dioxide (SO₂) NAAQS in a portion of Sullivan County; ^[5] and (3) any projects that would not qualify as major modifications under the revised definitions would still be subject to the preconstruction review and permitting requirements of Tennessee's SIP-approved minor NSR regulations at TAPCR 1200-3-9-.01(1). For a more complete discussion, see the NPRM.

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 the portions of TAPCR 1200-3-9-.01—“Construction Permits,” ^[6] which specifically revise the definitions of “baseline actual emissions” in Tennessee's SIP-approved PSD and NNSR regulations as discussed in Section II above,^[7] state effective April 24, 2013. 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.^[8]

IV. Final Action

EPA is approving the changes to the definitions of “baseline actual emissions” in Tennessee's SIP-approved PSD and NNSR regulations at TAPCR 1200-3-9-.01(4)—“Prevention of Significant Air Quality Deterioration” and 1200-3-9-.01(5)(b)—“Nonattainment Areas,” respectively, because they are consistent with the CAA and federal regulations.

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 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. 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);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• 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 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 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 action must be filed in the United States Court of Appeals for the appropriate circuit by November 23, 2018. 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
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: September 10, 2018.

Onis “Trey” Glenn, III,

Regional Administrator, Region 4.

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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, table 1 in paragraph (c) is amended by revising the entry “Section 1200-3-9-.01” 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	Explanation
*         *         *         *         *         *         *
Chapter 1200-3-9 Construction and Operating Permits
Section 1200-3-9-.01	Construction Permits	4/24/2013	9/24/2018, [insert Federal Register citation]	EPA approved Tennessee's May 10, 2013, SIP revision to Chapter 1200-3-9-.01 on July 25, 2013, with the exception of the PM2.5 SILs (at 1200-3-9-.01(5)(b)1(xix)) and SMC (at 1200-3-9-.01(4)(d)6(i)(III)) as promulgated in the October 20, 2010, PM2.5 Increments-SILs-SMC Rule.
*         *         *         *         *         *         *

* * * * *

Footnotes

1.  The “baseline actual emissions” for a proposed project are considered when determining whether a “significant emissions increase” will occur. If a “significant emissions increase” is shown as a result of the project, then the “net emissions increase” is calculated, considering contemporaneous and creditable increases and decreases from unrelated projects to determine whether the project will result in a “significant net emissions increase.” Thus, the baseline period referenced here is most relevant to the determination of a “significant emissions increase.”

2.  Although the revision refers to modifications and new sources, it does not affect new sources or new units because Tennessee's SIP-approved rules require new sources/units to use the actual-to-potential test—not the actual-to-projected-actual test—and the corresponding baseline actual emissions for new sources/units are set to zero. This is consistent with federal rules. The revision only applies to projects that involve multiple existing emissions units.

3.  See footnote 2.

4.  EPA also believes that the impact, if any, on air quality as a result of the changes would be small given the nature of the actual-to-projected-actual test and the limited applicability of the multiple baseline provision.

5.  On May 12, 2017, TDEC submitted a plan to EPA to attain the 2010 1-hour SO₂ NAAQS in Sullivan County. EPA proposed approval of the of the Sullivan County attainment demonstration on June 29, 2018 (83 FR 30609).

6.  The title of this regulation is erroneously listed as “Definitions” in the “Title/subject” column of 40 CFR 52.2220(c). Therefore, EPA is correcting the “Title/subject” entry in this action.

7.  The state effective date of the rule changes to the definitions of “baseline actual emissions” in Tennessee's May 28, 2009, SIP revision is May 10, 2009. However, these changes to Tennessee's rule are captured and superseded by the version of TAPCR 1200-3-9-.01 that was state effective on April 24, 2013. On July 25, 2013 (78 FR 44889), EPA approved portions of the April 24, 2013 version of TAPCR 1200-3-9-.01 that were included in a May 10, 2013 SIP revision and modified the state effective date at 40 CFR 52.2220(c) accordingly.

8.  See 62 FR 27968 (May 22, 1997).