[Federal Register Volume 83, Number 185 (Monday, September 24, 2018)]
[Rules and Regulations]
[Pages 48245-48249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20629]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2017-0050; FRL-9984-10--Region 4]


Air Plan Approval; TN: Revisions to New Source Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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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 (404) 562-9089 or 
via electronic mail at [email protected].

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):
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[GRAPHIC] [TIFF OMITTED] TR24SE18.001


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    \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.

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[GRAPHIC] [TIFF OMITTED] TR24SE18.002

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    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).
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    \3\ See footnote 2.
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    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.
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    \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).
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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).

[[Page 48248]]

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\
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    \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).
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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

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart RR--Tennessee

0
2. In Sec.  52.2220, table 1 in paragraph (c) is amended by revising 
the entry ``Section 1200-3-9-.01'' to read as follows:


Sec.  52.2220  Identification of plan.

* * * * *
    (c) * * *

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                                   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 1200-3-9 Construction and Operating Permits
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Section 1200-3-9-.01.............  Construction              4/24/2013  9/24/2018, [insert   EPA approved
                                    Permits.                             Federal Register     Tennessee's May
                                                                         citation].           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.
 
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[FR Doc. 2018-20629 Filed 9-21-18; 8:45 am]
 BILLING CODE 6560-50-P


