[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]


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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.

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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.
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    \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.
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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.
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    \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.
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    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\
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    \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.
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    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).
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    \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.
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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]
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