SIP Submittal Documents Tennessee Certification fo r Clean Air Act §§110(a)(1) and (2) 2010 NO 2 and SO 2 National Ambient Air Quality Standards Appendix Description Appendix A §110(a)(1) and (2) Infrastructure SIP Appendix B Board Order 14

- 004 Appendix C §110(a)(1) and (2) Infrastructure SIP

Prehearing Draft Submitted to EPA and Public Depository Appendix D Public Notice and Public Hearing Information Appendix E Public Depository Transmittal Letters Appendix F Affected State Notification Appendix G Response to Comments

# Appendix A

§110(a)(1) and (2) Infrastructure SIP 2010 NO 2 

# and SO 2 

# NAAQS

### 1 Certification for NO 2 and SO 2 National Ambient Air Quality Standard s

Clean Air Act Section s 110(a)(1) and (2)

In accordance with U. S. EPA’s Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2) dated September 2013, the Tennessee Department of Environment and Conservation, Division of Air Pollution Control has reviewed the provisions in its existing EPA

- approved SIP and has determined that the existing SIP contains or references provisi ons that satisfy the requirements of section 110(a)(2), as applicable, for purposes of implementing the new or revised NAAQS.

The following certification cites the specific statutes, regulations, or non

- regulatory measures, as appropriate, in the EPA

- app roved SIP and explains how these provisions meet the specific infrastructure element requirements

. This certification addresses Tennessee’s obligations under §§110(a)(1) and (2) of the Clean Air Act for the following National Ambient Air Quality Standards:

N itrogen D ioxide (NO 2 ) : A revised NAAQS for nitrogen dioxide was promulgated by EPA on January 22, 2010 . This rule establishes a new primary ambient air quality standard of 100 parts per billion ( one

hour average ).

Sulfur Dioxide (SO 2 ): A revised NAAQS for sulfur dioxide was promulgated by EPA on June 2, 2010. This rule establishes a new primary ambient air quality standard of 75 parts per billion (one

- hour average).

States must submit State Implementation Plans (SIPs) for a reas desig nated as nonattainment for any NAAQS

. SIPs must provide for attainment of the NAAQS as expeditiously as practicable, but no t later than five years from the date o f the nonattainment designation. States are also required to adopt and submit ‘‘infrastructu re’’ SIPs to EPA to address the requirements of §§110(a)(1) and (2) of the Clean Air Act within three years after the promulgation of new or revised NAAQS. These ‘‘infrastructure SIPs’’ provide assurances of State resources and authorities, and establish the basic State programs, to implement, maintain, and enforce new or revised standards.

The basic infrastructure requirements of §§110(a)(1) and (2) are listed on the following pages

. Tennessee’s State Implementation Plan meets all of the required eleme nts of §§110(a)(1) and (2), as indicated below.

Emission limits and other control measures: §110(a)(2)(A) requires SIPs to include enforceable limits and other control measures, means or techniques, schedules for compliance, and other related matters

. Pursuant to §68

- 201

- 105 (a) of the Tennessee Air Quality Act (“the Act”) 1 , the Tennessee Air Pollution Control Board and the Division of Air Pollution Control have the authority to:

 Promulgate rules and regulations to effect the intent and purpose of the Act
, including ambient air quality standards; emission standards; general policies or plans; a system of permits; a schedule of fees for review of plans and specifications, issuance or renewal of permits , and inspection of air contaminant sources ;

 A u thorize the T echnical S ecretary to issue permits that contain all applicable provisions of the Act and of the F ederal Clean Air Act ;

 Hold hearings and issue such orders and determinations as may be necessary to effect the intent and purpose of the Act ; and

1 A copy of the Tennessee Air Quality Act is enclosed as Attachment 1.

### 2

 Cause to be instituted in a court of competent jurisdiction, legal proceedings to compel compliance with any order issued by the B oard, requirement of the Act , or rule or regulation adopted pursuant to the Act

.
The Tennessee Air Pollution Control Regulations (TAPCR) 2 are adopted by the Tennessee Air Pollution Control Board and include enforceable limits and other control measures, means or techniques, schedules for compliance, and other related matters.

Table 1: SIP Rules that Establish Enfor ceable Limits and Other Control Measures, Means or Techniques,

Schedules for Compliance, and Other Related Matters (CAA §110(a)(2)(A)) TAPCR Rule Description Last SIP Revision 3

1200

- 03

- 03 Establishes primary and secondary ambient air quality standards for

Tennessee. March 29, 1985

1200

- 03

- 04 Establishes controls on open burning. March 29, 1985 1200

- 03

- 06 Establishes limits particulate matter emissions from non

- process emission

sources and general requirements for non

- process gaseous emissions. November 23, 1988

1200

- 03

- 07 Establishes limits on particulate matter and total reduced sulfur from process

emission sources and general requirements for process gaseous emissions. June 12, 1996

1200

- 03

- 09 Establishes requirements for construction and operating permits. October 28, 2002 4
1200

- 03

- 14 Establishes limits for sulfur dioxide emissions from designated source

categories. March 19, 1996

1200

- 03

- 19 Establishes specific emission standards for existing air contaminant sources

located in or signi ficantly impacting upon an additional control area. November 12 , 1999

1200

- 03

- 21 Establishes a procedure for a source to request alternate emission limits. April 18, 1994 1200

- 03

- 24 Establishes requirements for Good Engineering Practice stack height. October 19, 1988 1200

- 03

- 27 Establishes limits for NO X emissions from designated source categories. December 27, 2005 5
1200

- 03

- 29 I nspection and maintenance requirements for light duty motor vehicles. August 26, 2005

Ambient air quality monitoring/data system : §110(a)(2)(B) requires SIPs to include provisions to provide for establishment and operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to EPA upon request.

TCA 68

- 201

- 105(b)(4) authorizes the Department of Environment and Conservation the authority to provide such technical, scientific and other services as may be required for carrying out the provisions of the Tennessee Air Quality Act. Tennessee currently c ollects ambient air quality monitoring data from a network of monitors located throughout the State sited and operated in accordance with 40 CFR 50 and 40 CFR 58. The data from the monitoring network is reported to EPA in accordance with the Federal reporting requirements , including:

2 All TAPCR provisions listed in this document have been incorporated into the SIP.

3 Date approved by EPA, unless otherwise noted.

4 SIP Revisions TN

- 294

- 1, TN

- 294

- 2, and TN

- 294

- 3 were submitted to EPA on May 28, 2009.

5 TAPCR 1200

- 03

- 27

- .10 (CAIR Annual NO X Trading Program) and 1200

- 3

- 27

- .11 (CAIR Ozone Season NO X Trading Program) were approved into an abbreviated SIP in the Federal Register notice dated August 20, 2007. A revision to TAPCR 1200

- 03

- 27

- .11 was submitted to EPA in July 2009

### 3

 Monitor air quality for the relevant NAAQS pollutant(s) at appropriate locations in accordance with the EPA's ambient air quality monitoring network requirements.

 When a monitoring site is determined to be required f or comparison to the NAAQS, insure that the relevant CFR monitoring requirements are evaluated and complied with for each required pollutant.

 Submit data to the EPA's Air Quality System (AQS) in a timely manner in accordance with 40 CFR 58.

 Provide info rmation to the EPA Regional Office regarding air quality monitoring activities, including a description of how the air agency has complied with monitoring requirements, and an explanation of any proposed changes to the network. Tennessee submits an Annual Network Monitoring Plan , which also addresses the planned changes to the network.

 Obtain EPA’s approval of any planned changes to monitoring sites or to the network plan, consistent with applicable requirements in 40 CFR 58.14 (“System Modification”).

 Routinely submit written request describing any proposed changes to the air monitoring network to EPA for review and approval before any planned changes to the monitoring network are made.

O n March 7, 2013
, EPA extended the deadlines for installation and operation of required near

- road NO 2 monitors from January 1, 2013 to January 1, 2014

. EPA’s action also extended the deadline to January 1, 2015
, for second

year monitors and January 1, 2017
, for any other remaining moni tors. This change was based on the lack of available resources that S tate and local agencies would need to allow for a more rapid deployment under the original timelines. T wo near

- road monitoring sites are scheduled for installation and operation in Nash ville and Memphis, but Tennessee may not be available to provide a full year of air quality data until mid

- spring 2015. Knoxville and Chattanooga will be required to have near

- road NO 2 sites operational by Jan. 1, 2017. The delay in installation of these required monitors will make the first full year of air quality data available in mid

- spring 2018.

Revisions to the NO 2 NAAQS in 2010 require a minimum of one NO 2 monitoring site in any urban area with a population greater than or equal to one million p eople to assess community

- wide concentrations. Therefore, a community

- wide site is required in the Memphis and Nashville CBSA’s. An NO 2 monitoring site that meets the requirements is operating in Nashville (AQS 47

- 037

- 0011). In the Memphis CBSA
, Arkansas currently operates an NO 2 monitor at its Marion site, (AQS 05

- 035

- 0005). Memphis

- Shelby County Air Pollution Control has requested EPA approve this site to meet minimum community

- wide NO 2 monitoring requirements in the Memphis CBSA.

For SO 2 , Tennessee is required to operate one SO 2 monitor in the Knoxville area and one in the Sullivan County area based on the PWEI requirements. EPA has agreed to allow an existing Eastman SO 2 monitor located in the Kingsport area to meet this requirement. F or the Knoxville area, EPA has accepted a new monitor that was installed at the Freels Bend site near Bull Run Fossil plant to meet this need. This SO 2 monitor became operational in February 2013. Additional monitoring may be needed to accompany the SO 2 modeling requirements that will also be used to identify potential SO 2 nonattainment areas

. Based on population

- weighted emission index ( PWEI ) calculations, a single SO 2 monitoring site is required in the Core

- Based Statistical Areas (CBSA) of Memphis, Na shville, and Knoxville. SO 2 monitoring sites are already in operation in Memphis (AQS 47

- 157

- 0075) and Nashville (AQS 47

- 037

- 0011) which should satisfy this requirement. To meet the requirement in Knoxville, Tennessee has located an SO 2 monitor at an exis ting ozone monitoring site (47

- 001

- 0101 ) in Anderson County ( Knoxville CBSA ) . A second SO 2 monitoring site is operated in Shelby County (AQS 47

- 157

- 0075)
, as indicated above. Continued operation of this site allows Memphis

Shelby County Air Pollution Con trol to meet minimum SO 2 monitoring requirements in the Memphis CBSA.

### 4

As of the date of this infrastructure submittal the development of the NO 2 /SO 2 monitoring network is ongoing; therefore Tennessee’s NO 2 /SO 2 monitoring strategy will be established per the requirements set forth in the 2013 and any subsequent Annual Monitoring Network plan relevant to the development of the State’s NO 2 or SO 2 monitoring network.” Tennessee will implement any required changes to the ambient NO 2 and SO 2 monitoring network to address Tennessee’s obligations under §110(a)(2)(B).

Program for enforcement of control measures: §110(a)(2)(C) requires SIP s to include a program providing for enforcement of all SIP measures and the re gulations of construction of new or modified stationary sources to meet prevention of significant deterioration (PSD) and nonattainment new source review (NNSR) requirements.

This element consists of three sub

- elements; enforcement, state

- wide regulatio n of new and modified minor sources and minor modifications of major sources; and preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I part C ( i.e., the PSD program).

Enforcement : TAPCR 1200

- 03

- 13 6 states that failure to comply with any provision of the Tennessee Air Pollution Control regulations constitutes a violation thereof, which shall subject the person or persons responsible therefore to any and all the penalties provided by law. Pursuant to Tennessee Code Annotated ( TCA ) 68

- 201

- 116, the Technical Secretary is authorized to issue orders requiring correction of violations of any part of the Tennessee Air Quality Act, or of any regulation promulgated thereunder. Violators are subject to civil penalties of up to twenty

- five thousand dollars ($25,000) per day for each day of violation and for any damages to the State resulting from the violations.

Regulation of minor sources and minor modifications: Pursuant to TAPCR 1200

- 03

- 09

- .01 (Constructi on Permits) and 1200

- 03

- 09

- .03 (General Provisions) , the Division of Air Pollution Control has the authority to regulate the construction of new or modified minor stationary sources. Table 2 identifies specific preconstruction program requirements.

Table 2: Preconstruction Requirements Rule Citation Requirement 1200

- 03

- 09

- .01(1)(a) Except as specifically exempted in TAPCR 1200

- 03

- 09

- .04, no person shall begin the construction or modification of an air contaminant source without first having applied for and received a construction permit. 1200

- 03

- 09

- .01(1)(b) The application for a construction permit shall be made on forms available from the Technical Secretary not less than 90 days prior to the estimated starting date of construction. Sources identified in TAPCR 1200

- 03

- 09

- .01(4) shall apply not less than 120 days prior to the estimated date of construction. 1200

- 03

- 09

- .01(1)(c) In addition to the information provided in construction permit application forms, the Technical Secretary may requir e submission of information on the nature and amounts of air contaminants to be emitted by the source or by associated mobile sources, and any other information necessary to insure compliance. 1200

- 03

- 09

- .01(1)(d) Construction or modification of an air c ontaminant source must be in accordance with the approved construction permit application, the provisions and stipulations set forth in the construction permit, all provisions of the Tennessee Air Pollution Control Regulations, any applicable measures of t he control strategy, and all provisions of the Tennessee Air Quality Act.

6 Approved by EPA May 31, 1972.

### 5 Table 2: Preconstruction Requirements Rule Citation Requirement 1200

- 03

- 09

- .01(1)(e) No construction permit shall be issued by the Technical Secretary if the approval to construct or modify an air contaminant source would result in a violation o f the ambient air quality standards specified in Chapter 1200

- 03

- 03, would cause a violation of any other regulatory requirement under this Division, 1200

- 03, would result in a violation of applicable portions of the control strategy, or would interfere wi th attainment or maintenance of a national ambient air quality standard in a neighboring state. 1200

- 03

- 09

- .01(1)(f) Source impact analysis shall demonstrate that allowable emission increases would not cause or contribute to air pollution in violation of any ambient air quality standard in Chapter 1200

- 03

- 03, of any national ambient air quality standard, or any applicable maximum allowable increase as defined in paragraph 1200

- 03

- 09

- .01(4). 1200

- 03

- 09

- .01(1)(g) The degree of emission limitation required of any source for control of any air contaminant must not be affected by so much of any source’s stack height that exceeds good engineering practice or by any other dispersion technique except as provided for in TAPCR 1200

- 03

- 24. 1200

- 03

- 09

- .01(1)(h) The Department shall on a monthly basis notify the public, by advertisement in a newspaper of general circulation in each air quality control region in which the proposed source or modification would be constructed, of the applicants seeking to obtain a permit to construct or modify an air contaminant source. This notice shall specify the general vicinity or location of the proposed source or modification, the type of source or modification, and opportunity for public comment. Comments shall be in writing and d elivered to the Technical Secretary within thirty (30) days after the publication of the public notice. 1200

- 03

- 09

- .0 3 (1) Requirement to comply with these regulations at the earliest practicable time,

a uthority of the Board to require early compliance 7

. 1200

- 03

- 09

- .0 3 ( 2 ) Prohibition of circumvention 8

. 1200

- 03

- 09

- .0 3 ( 3 ) Prohibition of discharges that cause a traffic hazard 9

. 1200

- 03

- 09

- .0 3 ( 4 ) Requirement to file emissions data on forms available from the Technical Secretary 10

. 1200

- 03

- 09

- .0 3 ( 6 ) Permits are not transferrable from one person to another 11

. 1200

- 03

- 09

- .0 3 ( 7 ) Authority to suspend or revoke permits for noncompliance. 1200

- 03

- 09

- .0 3 ( 8 ) Authority to impose Federal regulations on permits 12

.

7 There are slight differences in the SIP language and the State rule language. The SIP language references “emission regulations as contained in Chapter V, VI, VII, VIII of these regulations,” and TA PCR requires compliance with “emission regulations as contained in other chapters of these regulations.”

8 There are slight differences in the SIP language and the State rule language. The TAPCR language includes examples of activities that are considere d circumvention.

9 The SIP adds, “

... or an interference with normal means of public transportation.”

10 The SIP adds a requirement to file data at least once per year. The TAPCR language requires affected sources to file revisio ns within 30 days if any changes invalidate the original data.

11 The TAPCR language adds, “Applications for construction permits by the new owner or operator of the new air contaminant source, or by the owner or operator of the air contaminant source at the new location shall be required as if there had been no previous construction permit issued. The new construction permit will address only rules in effect at the time of its issuance.

12 TAPCR 1200

- 03

- 09

- .03(8) is not included in the SIP.

### 6

Tennessee has a minor source preconstruction program in place to regulate construction or modification of minor sources in accordance with the regulations cited above.

PSD program: TAPCR 1200

- 03

- 09

- .01 (4) ( Prevention of Significant Deterioration of Air Quality ) and 1200

- 03

- 09

- .01(5) (Growth Policy) provide for the regulation of construction of new or modified stationary sources to meet prevention of significant deterioration (PSD) and Nonattainment New Source Review (NNSR) requirements, respectively. Tennessee’s PSD regulations include the following updates:

 Ozone Implementation NSR Update (recognizing NO X as an ozone precursor for PSD purposes). Submitted by Tennessee May 28, 2009, a pproved by EPA February 7, 2012.

 Greenhouse Gas Tailoring Rule (regulation of greenhouse gases under Tennessee's P SD program). Submitted by Tennessee August 30, 2010, and revised January 11, 2012. Approved by EPA February 28, 2012.

 2008 NSR PM 2.5 Implementation Rule (requires NSR permits to address directly emitted PM 2.5 and precursor pollutants; establishes significant emission rates for direct PM 2.5 and precursor pollutants, including SO 2 and NO X ; establishes PM 2.5 emission offsets; provides exceptions to PM 10 grandfather policy; and accounts for condensables in PM 2.5 a nd PM 10 emission limits in PSD or nonattainment NSR permits, and adopts interpollutant policy). Submitted by Tennessee July 29, 2011, approved by EPA July 30, 2012

 2010 NSR PM 2.5 Increment Rule (establishes PM 2.5 increments pursuant to CAA § 166(a) to pr event significant deterioration of air quality in areas meeting the NAAQS) . Submitted by Tennessee May 10, 2013, approved by EPA July 25, 2013.

Interstate transport: §110(a)(2)(D) requires SIP s to include provisions prohibiting any source or other type of emissions activity in one State from contributing significantly to nonattainment in another State or interfering with maintenance of the NAAQS in another State, or from interfering with measure s required to prevent significant deterioration of air quality or to protect visibility in another State

. Each such plan shall contain adequate provisions insuring compliance with the applicable requirements of sections 126 and 115 (relating to interstate and international pollution abatement).

Significant Contribution to Nonattainment and Interference with Maintenance : The D.C. Circuit Court’s recent opinion in EME Homer City Generation v. EPA , 696 F.3d 7, 31 (D.C. Cir. 2012), concluded that a 110(a)(2) (D)(i)(I) SIP submission (for s ignificant c ontribution to n onattainment and i nterference with

m aintenance ) cannot be considered a “required” SIP submission until EPA has defined a state’s obligations pursuant to that section. See EME Homer City , 696 F.3d at 32 (“A SIP logically cannot be deemed to lack a ‘required submission’ or deemed to be deficient for failure to meet the good neighbor obligation before EPA quantifies the good neighbor obligation, therefore citing to CAIR to meet this requirement may no t be appropriate either. Please see EPA’s January 15, 2013 (78 FR 2882) rulemaking. Pursuant to EME Homer City Generation v. EPA
, no action is required at this time.

Interference with PSD : SIPs must have provisions prohibiting emissions that would interfere with measures required to be in any other air agency’s SIP under part C of the Act to prevent significant deterioration of air quality. Because part C requires an air agency’s PSD permitting program to address all pollutants subject to regulation under the CAA, the EPA interprets prong 3 to mean that the infrastructure SIP submission should have provisions to prevent emissions of any regulated pollutant from interfering with any other air agency ’ s comprehensive PSD permitting program, in addition to the new or revised NAAQS that is the subject of the

### 7

infrastructure submission. Moreover, the infrastructure SIP should address the potential for such interference by sources throughout the jurisdiction of the air agency.

Tennessee has a fully approved PSD program, which applies to all regulated NSR pollutants. Tennessee’s PSD program includes a regulatory provision , which , consistent with 40 CFR § 51.166(q)(2)(iv), requires the permitting authority to notify air agencies whose lands may be affected by em issions from that source ( TAPCR 1200

- 03

- 09

- 3.04(4)(l)2 ) 13

. Tennessee’s PSD program applies to all regulated NSR pollutants and satisfies the requirements of EPA’s PSD implementation rule(s). Upon promulgation of new or revised implementation guidance for NO 2 or SO 2 , Tennessee will adopt any required SIP revisions to address Tennessee’s obligations under §110(a)(2)(D).

Visibility Transport : Under § 110(a)(2)(D)(i)(II), an infrastructure SIP cannot be approved with respect to visibility transport until EPA has issued final approval of SIP provisions that EPA has found to adequately address any contribution of that state's sources to impacts on visibility program requirements in other S tates. EPA’s infrastructure SIP states that this requirement may be satis fied through confirmation that the State has an approved regional haze SIP
, which fully meets the requirements of 40 CFR § 51.308 or § 51.309. §§ 51.308 and 51.309 require a State participating in a regional planning process to include all measures needed to achieve its apportionment of emission reduction obligations agreed upon through that process. States that do not have fully approved regional haze SIPs have the following options:

1. States that do not have fully approved regional haze SIPs may satisfy the visibility requirement by providing, as an alternative to relying on its regional haze SIP alone, a demonstration in its infrastructure SIP submission that emissions within its jurisdiction do not interfere with other air agencies ’ plans to protect visibil ity. Such an infrastructure SIP submission would need to include measures to limit visibility

- impairing pollutants and ensure that the reductions conform with any mutually agreed regional haze reasonable progress goals for mandatory Class I areas in other states.

2. If the EPA determines the SIP to be incomplete or partially disapproves an infrastructure SIP submission for prong 4, a FIP obligation will be created. If a FIP or FIPs are already in effect that correct all regional haze SIP deficiencies, there w ill be no additional practical consequences from the partial disapproval for the affected air agency, the sources within its jurisdiction, or the EPA. EPA would not be required to take further action with respect to prong 4 because the FIP already in place would satisfy the requirements with respect to prong 4. In addition, unless the infrastructure SIP submission is required in response to a SIP call under CAA section 110(k)(5), mandatory sanctions under CAA section 179 would not apply because the deficien cies are not with respect to a submission that is required under CAA title I part D.
On April 24, 2012, EPA issued a limited approval and limited disapproval of Tennessee’s Regional Haze SIP 14

. EPA disapproved of Tennessee’s SIP revision insofar as the SIP revision relie d up on Clean Air Interstate Rule ( CAIR ) emission reductions 15 to address the impact of emissions from Tennessee’s EGUs 16 , while approving the remaining provisions of the SIP. EPA’s rationale for the limited disapproval was that the remande d CAIR rules could not be used as permanent measures in any SIP submittal.

13 “The Technical Secretary shall make a final determination on the application no later than 6 months after receipt of a comple te application... The review process invo lves performing the following actions... Send a copy of the notice of public comment to the a pplicant and to officials and agencies having cognizance over the location where the proposed construction would occur as follows: State or local air pollution control age ncies, the chief executives of the city and county where the source or modification w ould be located, any comprehensive regional land use planning agency, the EPA Administrator, and any State or Federal Land Manager whose lands may be affected by emissions from the source or modification.”

14 EPA took final action on the entire SIP except for the Best Available Retrofit Technology (BART) determination for Eastman Chemical Company. EPA finalized approval of the BART requirements for Eastman Chemical C ompany on November 27, 2012.

15 TAPCR 1200

- 3

- 14

- .04 (CAIR SO 2 Annual Trading Program), TAPC R 1200

- 3

- 27

- .10 (CAIR Annual NO X Trading Program), and 1200

- 3

- 27

- .11 (CAIR Ozone Season NO X Trading Program) were approved into an abbreviated SIP in the Federal Register notice dated August 20, 2007.

16 The U. S. Court of Appeals for the DC Circuit vacate d the CAIR rules on July 11, 2008. On December 23, 2008, in response to petitions for reconsideration, the Court elected to remand the rules without vacature.

### 8

EPA’s memorandum dated November 19, 2012 ( Attachment 2 )
, revises previous guidance on the use of remanded CAIR rules. The memorandum states :

C ertain state submittals awaiting ap proval by the EPA... may be partly dependent on the assurance of ongoing regional NO X and SO 2 emission reductions... we believe that it will be appropriate to rely on CAIR as permanent and enforceable for certain actions in certain circumstances. Specifically, we believe it will be appropriate to rely on those reductions until that petition and any further proceedings in the [Transport Rule] case are resolved... or until a valid replacement rule is developed and implementation plans complying with an y new rule are submitted by the States and acted upon by the EPA.
Tennessee’s regional haze SIP

– including the disapproved CAIR provisions

– and Tennessee’s CAIR SIP are sufficient to ensure emissions within its jurisdiction do not interfere with other a ir agencies’ plans to protect visibility.

Interstate Pollution Abatement and International Air Pollution : EPA’s SIP guidance states that agencies with PSD programs that have been approved into their SIPs should already have a regulatory provision in plac e, consistent with 40 CFR 51.166(q)(2)(iv), which requires the permitting authority to notify air agencies whose lands may be affected by emissions from that source. Inasmuch as the information that the permitting authority provides to other air agencies i s submitted by the source to the permitting authority, EPA considers the notification by the permitting authority to satisfy the requirement of CAA section 126(a)(1)(A) that a new or modified major source subject to part C notify neighboring air agencies o f its potential downwind impact.

C onsistent with 40 CFR §51.166(q)(2)(iv), TAPCR 1200

- 03

- 09

- 3.04(4)(l)2 requires the permitting authority to notify air agencies whose lands may be affected by emissions from that source.

Adequate resources: §110(a)(2)(E) requires States to provide for adequate personnel, funding, and legal authority under State law to carry out its SIP

- related issues.

This element consists of three sub

- elements: personnel and funding, State Boards, and local program oversight.

Personnel and Funding: EPA’s guidance states that t he SIP should provide necessary assurances that the air agency has adequate personnel and funding to implement the relevant NAAQS. In accordance with the EPA's regulations at 40 CFR part 51, subpart M (“Intergover nmental Consultation”), the infrastructure SIP submission should identify the organizations that will participate in developing, implementing, and enforcing the EPA

approved SIP provisions related to the new or revised NAAQS and thus require resources for doing so. The infrastructure SIP submission should identify the responsibilities of such organizations and include related agreements among the organizations.

TCA 68

- 201

- 105 gives the Tennessee Air Pollution Control Board the power and duty to promulgate rules and regulations to affect the intent and purpose of the Tennessee Air Quality Act, pursuant to the provisions of the Uniform Administrative Procedures Act. The Board may define ambient air quality standards; set emission standards; establish general policies or plans; establish a system of permits; and establish a schedule of fees for review of plans and specifications, issuance or renewal of permits or inspection of air contaminant sources.

TAPCR 1200

- 03

- 26 establish es construction fees, annual emission fees, and permit review fees sufficient to supplement existing S tate and federal funding and to cover reasonable costs associated with the administration of the air pollution control program. These costs include costs a ssociated with review of applications and reports, issuance of permits
, source inspections and unit observation, review and evaluation of monitoring results (stack and/or ambient), modeling, and costs associated with enforcement actions (excluding penalties assessed).

### 9

The Division of Air Pollution Control has adequate personnel and funding to implement the NO 2 and SO 2 NAAQS

.
State Boards : The infrastructure SIP submission (possibly in combination with earlier submissions already approved by the EP A) would need to include the statutory or regulatory provisions that impose the requirements mandated by CAA section 128 pertaining to certain boards, bodies, and personnel involved in approving permits or enforcement orders. Because CAA section 110(a)(2)( e)(ii) directs states to “provide requirements that the state comply with the requirements respecting state boards under section 128,” the provisions that implement CAA section 128 would need to be contained within the SIP. That is, the EPA would not appro ve an infrastructure SIP submission that only provides a narrative description of existing air agency laws, rules, and regulations that are not approved into the SIP to address CAA section 128 requirements.

Rule 0400

- 30

- 17 of the Tennessee Air Pollution C ontrol Regulations 17 addresses the conflict of interest provisions for the Tennessee Air Pollution Control Board and satisfies the requirements of Clean Air Act section 128.

Local Programs: EPA’s infrastructure SIP guidance states that t he infrastructure SIP submission should provide necessary assurances that the state retains responsibility for ensuring adequate implementation of SIP obligations with respect to relevant NAAQS. A state may authorize a local or regional agency to carry out the SIP or a port ion of the SIP within that agency's jurisdiction, if the SIP demonstrates that the local agency has the necessary legal authority. However, in these cases the infrastructure SIP submission needs to also provide assurances that the state air agency retains responsibility for ensuring adequate implementation of the SIP. Under subpart L, see 40 CFR 51.232 ("Assignment of legal authority to local agencies").

TCA 68

- 201

- 115 (Local Pollution Control Programs) states that any municipality or county in Tennessee m ay enact regulations not less stringent than the standards adopted for the State or may incorporate by reference any State or Federal regulations.

Before such ordinances or resolutions become effective, the municipality or county must receive a certific ate of exemption from the Board. The Board may grant a certificate of exemption in whole or in part, may prescribe a time schedule for various parts of an exemption to become effective, and may make a certificate of exemption conditional or provisional as is deemed appropriate. In granting any certificate of exemption, Tennessee reserves the right to enforce any applicable resolution, ordinance, or regulation of the local program (enforcement proceedings for local program ordinances and regulations are the same as for enforcement of any State regulation).

TCA 68

- 201

- 115 directs the Department of Environment and Conservation to frequently determine whether or not any local program meets the terms of the exemption granted and continues to comply with th e provisions of the law. If the Department determines that the local program does not meet the terms of the exemption or does not otherwise comply with the law, the board may suspend the exemption in whole or in part until the local program complies with t he State standards.

Stationary source monitoring system: §110(a)(2)(F) requires States to establish a system to monitor emissions from stationary sources and to submit periodic emissions reports.

TAPCR 1200

- 03

- 10 (Required Sampling, Recording, and R eporting) gives the Technical Secretary the authority to monitor emissions at stationary sources, and to require these sources to conduct emissions monitoring and to submit periodic emissions reports.

17 Last revised June 25, 2013, effective September 23, 2013.

### 10

Emergency power: §110(a)(2)(G) requires States to p rovide for authority to address activities causing imminent and substantial endangerment to public health, including contingency plans to implement the emergency episode provisions in their SIP.
Tennessee’s emergency powers are outlined in TAPCR 1200

- 03

- 15 (Emergency Episode Plan)

. This rule establishes conditions justifying the proclamation of an air pollution episode (air pollution alert, air pollution warning, or air pollution emergency), specific emissions reductions for each episode level, and emer gency episode plan requirements for major sources located in or significantly impacting a nonattainment area 18

. The Commissioner of the Department of Environment and Conservation has additional powers to issue emergency stop orders to air contaminant sour ces, as enumerated in TCA 68

- 201

- 109. This law provides that if the Commissioner finds that emissions from the operation of one or more air contaminant sources are causing imminent danger to human health and safety, the commissioner may, with the approval of the governor, order the person(s) responsible to reduce or discontinue immediately the emission of air contaminants. The law provides for a hearing to be held before the Commissioner within 24 hours of the order, in which the Commissioner must affirm, modify or set aside the order.

Tennessee has no Priority I, IA, or II regions and is not required to develop a contingency plan for SO 2 or NO 2 . Upon promulgation of new or revised guidance for emergency episode plans, Tennessee will adopt any required SIP revisions to address Tennessee’s obligations under §110(a)(2)(G).

Future SIP revisions: §110(a)(2)(H) requires States to have the authority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for attaining the NAAQS, or in response to an EPA finding that the SIP is substantially inadequate.

§68

- 201

- 105(a) of the Tennessee Air Quality Act authorizes the Tennessee Air Pollution Control Board to promulgate rules and regulations to effect the intent and purpose of the Act, including ambient air quality standards; emission standards; general policies or plans; a system of permits; a schedule of fees for revi ew of plans and specifications, issuance or renewal of permits, and inspection of air contaminant sources.

Consultation with government officials : §110(a)(2)(J) requires States to provide a process for consultation with local governments and Federal La nd Managers carrying out NAAQS implementation requirements pursuant to §121 relating to consultation

.
TAPCR 1200

- 03

- 34 (Conformity) provides for inter

- agency consultation on both transportation and general conformity related issues.

Public notification : §110(a)(2)(J) further requires States to notify the public if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances.

The infrastructure SIP submission need s to show that the air agency does the following: regularly notifies the public of instances or areas in which the new or revised primary NAAQS was exceeded; advises the public of the health hazards associated with such exceedances; and enhances public awareness of measures that can preven t such exceedances and of ways in which the public can participate in regulatory and other efforts to improve air quality. 40 CFR 51.285 ("Public notification"), repeats the language of CAA section 127.

The existing Air Quality Index and Air Quality Forec asting programs provide for a method to alert the public if the NAAQS are exceeded in an area. The current forecasting program provides for notification to the public

18 These emission sources must submi t acceptable air pollution episode emissions reduction plan to be followed during the alert, warning, and emergency levels or an air pollution episode.

### 11

(Code Orange days) when an exceedance is forecasted to occur in the major metropolitan a reas. The Code Orange day corresponds with the primary standard and is directly tied to the air quality index. Some areas of the state are required to have a daily air quality index (AQI) issued to the public. The AQI includes information on the health hazards associated with the pollutant(s) and provides guidance on how to mitigate exposures to sensitive individuals and the population in general and steps to help reduce actions that may contribute to elevated levels of the pollutants in question. The a nnual network monitoring plan update also includes the previous year’s design value for all criteria pollutant s and that plan/report is required to be sent out for public participation review and comment each year.

PSD and visibility protection : §110(a)(2)(J) also requires States to meet applicable requirements of part C related to prevention of significant deterioration and visibility protection.

Prevention of significant deterioration (PSD) requirements are addressed in TAPCR 1200

- 03

- 09

- .01 (4) (Prevention of Significant Air Quality Deterioration)

. As stated above, Tennessee has a fully approved PSD program, which applies to all regulated NSR pollutants. EPA’s infrastructure SIP guidance notes that when EPA establishes or revises a NAAQ S, visibility requirements under part C do not change , and there are no new visibility protection requirements under part C as a result of a revised NAAQS . Therefore, Tennessee is not addressing the visibility subelement in this submittal.

Air quality mod

eling/data: §110(a)(2)(K) requires that SIPs provide for performing air quality modeling for predicting effects on air quality of emissions from any NAAQS pollutant and submission of such data to EPA upon request.
The PSD requirements found in TAPCR 12 00

- 03

- 09

- .01(4) (Prevention of Significant Air Quality Deterioration) specify when modeling and when monitoring (pre

- or post

- construction) must be performed and that the resulting data be made available for review to EPA. 

### Tennessee has personnel with tra ining and experience to conduct

source

- oriented dispersion modeling with models approved by the EPA.
EPA’s strategy for SO 2 seeks to characterize air quality for the SO 2 NAAQS using a mixed approach of monitoring and air quality modeling, and EPA has published several guidance documents to assist States with implementation of the SO 2 NAAQS 19 . EPA has also stated that future rulemaking will establish requirements for chara cterizing SO 2 air quality in priority areas 20 :
In a future rule (2014), the EPA will establish requirements for characterizing SO 2 air quality in priority areas, focusing on areas with sources that have emissions higher than a threshold amount. The EPA exp ects to establish these thresholds taking population into account. States will have the flexibility to characterize air quality using modeling of actual emissions or using appropriately sited existing and new monitors. These data would be used in two futur e rounds of designations in 2017 (based on modeling) and 2020 (based on new monitoring).

Attainment demonstrations submitted to the EPA will provide any required air quality modeling. The modeling work will comply with EPA’s final guidance on the use of models in attainment demonstrations and will use the latest methods and techniques to document modeling information and computer model performance evaluations.

Permitting fees: §110(a)(2)(L) requires SIPs to require each major stationary source to pay pe rmitting fees to cover the cost of reviewing, approving, implementing, and enforcing a permit.

19 Current EPA guidance includes draft modeling and ambient monitoring guidance documents published in December 2013. These documents provide recommendations for others to consider as they develop information to be used in future separate final actions, such as area designations and other NAAQS implementation actions, but do not impose binding and enforcea ble requirements or obligations on any person.

20 U. S. EPA, SO 2 NAAQS Designations Modeling Technical Assistance Document , draft guidance document, December 2013.

### 12

Funding for review of PSD and nonattainment NSR permits comes from permit

- specific fees that are charged to the applicant (greenfield facilities) or from annual emission fees charged to Title V facilities (existing sources paying Title V annual emission fees that apply for major modifications under PSD or nonattainment NSR). T he cost of reviewing, approving, implementing, and enforcing PSD and major nonattainmen t NSR permit s for are covered as follows:

New construction ( all major stationary sources that are not paying Title V annual emission fees ) TAPCR 1200

- 03

- 26

- .02(5) requires each new source to pay a construction permit application filing/processing fee as set forth in 1200

- 03

- 26

- .02(5)(g), Schedule A.

New construction or modifications at existing Title V facilities (sources subject to TAPCR 1200

- 03

- 09

- .02(11)) Permitting costs are covered by Title V annual emission fees established pursuant to TAPCR 1200

- 03

- 26

- .02(9). Pursuant to TAPCR 1200

- 03

- 26

- .02(9)(a), once a major stationary source begins to pay Title V annual emission fees, it will not be subject to the construction permit fees of paragraph 1200

- 03

- 26

- .02(5) for any additional construction occ urring at the source.

For new construction, t he fees charged to PSD and nonattainment NSR permit applicants reflect the reasonable cost of review, approval, implementation and enforcement of PSD and nonattainment NSR permits and are sufficient to operate the state’s permitting program. For existing Title V facilities applying for major modifications, the T itle V annual emission fees cover the reasonable cost of implementation and enforcement of PSD and nonattainment NSR permits after they have been issue d.

Consultation/participation by affected local entities: §110(a)(2)(M) requires States to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP.

TCA 68

- 201

- 105 authorizes and requires t he Tennessee Air Pollution Control B oard to p romulgate rules and regulations to effect the intent and purpose of this part, pursuant to the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. TCA 4

- 5

- 202 (Uniform Administr ative Procedures Act) requires agencies to precede all rulemaking with a notice and public hearing, except as specifically exempted. TCA 4

- 5

- 203 (Uniform Administrative Procedures Act) states that w henever an agency is required by law to hold a public hearing as part of its rulemaking process, the agency shall: (1) Transmit written notice of the hearings to the secretary of state for publication in the notice section of the administrative register web site and, (2) Take such other steps as it deems nece ssary to convey effective notice to persons who are likely to have an interest in the proposed rulemaking.

TCA 68

- 201

- 105(b)(7) authorizes and requires the Department of Environment and Conservation to advise, consult and cooperate with other agencies, persons or groups in matters pertaining to air pollution; and encourage authorized air pollution agencies of political subdivisions to handle air pollution problems within their respective jurisdictions to the greatest extent possible and to provide techni cal assistance to political subdivisions.

TAPCR 1200

- 03

- 34 (Conformity) provide s for inter

- agency consultation on both transportation and general conformity related issues.

# Attachment 1 Tennessee Air Quality ActT. 68, Ch. 201, Refs & Annos, TN ST T. 68, Ch. 201, Refs & Annos

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 West's Tennessee Code Annotated Title 68. Health, Safety and Environmental Protection Environmental Protection Chapter 201. Tennessee Air Quality Act

T. C. A. T. 68, Ch. 201, Refs & Annos

Currentness

T. C. A. T. 68, Ch. 201, Refs & Annos, TN ST T. 68, Ch. 201, Refs & Annos Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.T. 68, Ch. 201, Pt. 1, Refs & Annos, TN ST T. 68, Ch. 201, Pt. 1, Refs & Annos

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 West's Tennessee Code Annotated Title 68. Health, Safety and Environmental Protection Environmental Protection Chapter 201. Tennessee Air Quality Act Part 1. Tennessee Air Quality Act

T. C. A. T. 68, Ch. 201, Pt. 1, Refs & Annos

Currentness

T. C. A. T. 68, Ch. 201, Pt. 1, Refs & Annos, TN ST T. 68, Ch. 201, Pt. 1, Refs & Annos Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-101. Short title, TN ST § 68-201-101

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 West's Tennessee Code Annotated Title 68. Health, Safety and Environmental Protection Environmental Protection Chapter 201. Tennessee Air Quality Act (Refs & Annos) Part 1. Tennessee Air Quality Act (Refs & Annos)

T. C. A. § 68-201-101

§ 68-201-101. Short title

Currentness

This part shall be known and may be cited as the “Tennessee Air Quality Act.”

Credits 1967 Pub.Acts, c. 367, § 1; 1971 Pub.Acts, c. 362, § 1; 1979 Pub.Acts, c. 299, § 7.

Formerly § 53-3408; § 68-25-101.

T. C. A. § 68-201-101, TN ST § 68-201-101 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-102. Definitions, TN ST § 68-201-102

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 West's Tennessee Code Annotated Title 68. Health, Safety and Environmental Protection Environmental Protection Chapter 201. Tennessee Air Quality Act (Refs & Annos) Part 1. Tennessee Air Quality Act (Refs & Annos)

T. C. A. § 68-201-102

§ 68-201-102. Definitions

Currentness

As used in this part, unless the context otherwise requires:

(1) “Air contaminant” means particulate matter, dust, fumes, gas, mist, smoke, or vapor, or any combinations thereof;

(2) “Air contaminant source” means any and all sources of emission of air contaminants, whether privately or publicly owned or operated. Without limiting the generality of the definition of air contaminant source, air contaminant source includes all types of business, commercial and industrial plants, works, shops and stores, and heating and power plants and stations, buildings and other structures of all types, including multiple family residences, apartments, houses, office buildings, hotels, restaurants, schools, hospitals, churches and other institutional buildings, automobiles, trucks, tractors, buses and other motor vehicles, garages and vending and service locations and stations, railroad locomotives, ships, boats and other waterborne craft, portable fuel-burning equipment, incinerators of all types, indoor and outdoor, refuse dumps and piles, and all stack and other chimney outlets from any of the foregoing;

(3) “Air pollution” means presence in the outdoor atmosphere of one (1) or more air contaminants in sufficient quantities and of such characteristics and duration as to be injurious to human, plant or animal life or to property, or which unreasonably interfere with the enjoyment of life and property;

(4) “Board” means the air pollution control board;

(5) “Commissioner” means the commissioner of environment and conservation or the commissioner's duly authorized representative or, in the event of such person's absence or a vacancy in the office of commissioner, the deputy commissioner;

(6) “Department” means the department of environment and conservation;

(7) “Person” means any individual, partnership, copartnership, firm, company, corporation, association, joint stock company, trust, estate, political subdivision, an agency, authority, commission or department of the United States government or of the state of Tennessee government, or any other legal entity, or their legal representative, agent, or assigns;

(8) “Political subdivision” means any municipality, city, incorporated town, county, district or authority, or any portion or combination of two (2) or more thereof;§ 68-201-102. Definitions, TN ST § 68-201-102

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 (9) “Regulations” means the standards, policies, rules and regulations promulgated by the board to attain and maintain ambient air quality standards within the intent and purpose of this part; and

(10) “Technical secretary” means the technical secretary of the air pollution control board.

Credits 1967 Pub.Acts, c. 367, § 2; 1971 Pub.Acts, c. 362, § 2; 1977 Pub.Acts, c. 169, § 1; 1979 Pub.Acts, c. 299, §§ 1, 7; 1984 Pub.Acts, c. 788, § 1; 2004 Pub.Acts, c. 926, § 7, eff. June 8, 2004

.
Formerly § 53-3409; § 68-25-102.

Notes of Decisions (1)

T. C. A. § 68-201-102, TN ST § 68-201-102 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-103. Legislative intent and purpose, TN ST § 68-201-103

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T. C. A. § 68-201-103
§ 68-201-103. Legislative intent and purpose

Currentness

It is the intent and purpose of this part to maintain purity of the air resources of the state consistent with the protection of normal health, general welfare and physical property of the people, maximum employment and the full industrial development of the state. The board and department shall seek the accomplishment of these objectives through the prevention, abatement and control of air pollution by all practical and economically feasible methods. It is also the intent of this part to qualify for receipt of federal funds available for state air pollution control programs and, to that end, this part shall be construed to give the authority to so qualify and maintain such qualification.

Credits 1967 Pub.Acts, c. 367, § 3; 1971 Pub.Acts, c. 362, § 3; 1979 Pub.Acts, c. 299, § 7; 1984 Pub.Acts, c. 788, § 2.

Formerly § 53-3410; § 68-25-103.

T. C. A. § 68-201-103, TN ST § 68-201-103 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-104. Boards and commissions, TN ST § 68-201-104

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 West's Tennessee Code Annotated Title 68. Health, Safety and Environmental Protection Environmental Protection Chapter 201. Tennessee Air Quality Act (Refs & Annos) Part 1. Tennessee Air Quality Act (Refs & Annos)

T. C. A. § 68-201-104

§ 68-201-104. Boards and commissions
Effective: August 5, 2013 Currentness

(a) There is created an agency to be known as the air pollution control board.

(b)(1) The members of the board shall be the commissioner of environment and conservation, the commissioner of economic and community development, and twelve (12) other members who shall be appointed by the governor, as follows:

(A) One (1) shall be a registered professional engineer as defined in title 62, chapter 2, who shall have at least five (5) years' experience in the field of air pollution control;

(B) One (1) shall be a physician, licensed in compliance with title 63, chapter 6, who shall be experienced in the health effects of air contaminants;

(C) One (1) shall be engaged in a field which is directly related to agriculture or conservation;

(D) One (1) shall be actively engaged in the management of and with current full-time employment in a private manufacturing concern and have a college degree and eight (8) years’ of combined technical training and experience in permit compliance for Title 5 or non-Title 5 sources for a manufacturing facility permitted in the state of Tennessee, and may be appointed from lists of qualified persons submitted by interested manufacturing groups, including, but not limited to, the Tennessee Chamber of Commerce and Industry;

(E) One (1) shall be a county mayor or chief executive officer of a Tennessee county who may be appointed from lists of qualified persons submitted by interested county services groups, including, but not limited to, the Tennessee county services association;

(F) One (1) shall be engaged in municipal government who may be appointed from lists of qualified persons submitted by interested municipal groups, including, but not limited to, the Tennessee Municipal League;

(G) Two (2) shall be from Tennessee industry and with current full-time employment with a private manufacturing concern and have a college degree in engineering or equal and eight (8) years of combined technical training and experience in air pollution abatement for either a Title 5 permit holder or a non-Title 5 permitted source in the state of Tennessee, and may§ 68-201-104. Boards and commissions, TN ST § 68-201-104

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 be appointed from lists of qualified persons submitted by interested manufacturing groups, including, but not limited to, the Tennessee Chamber of Commerce and Industry;

(H) One (1) shall be involved in the program of an institute of higher learning in the state involved in the conducting of training in air pollution evaluation and control;

(I) One (1) who may be appointed from lists of nominees submitted to the governor by interested conservation groups, including, but not limited to, the Tennessee Conservation League;

(J) One (1) shall be a small generator of air pollution who may be appointed from lists of qualified persons submitted by interested automotive groups, including, but not limited to, the Tennessee Automotive Association; and

(K) One (1) may be appointed from lists of qualified persons submitted by interested environmental groups, including, but not limited to, the Tennessee Environmental Council.

(2) The governor shall consult with interested groups, including, but not limited to, the organizations listed in subdivision (b) (1) to determine qualified persons to fill positions on the board.

(3) The twelve (12) appointed members' terms of office shall be four (4) years and until their successors are selected and qualified, except that the terms of those first appointed shall expire as follows: two (2) at the end of one (1) year after date of appointment, two (2) at the end of two (2) years after date of appointment, two (2) at the end of three (3) years after date of appointment, two (2) at the end of four (4) years after the date of appointment, and, of the two (2) appointed in 1970 pursuant to former subdivisions (b)(8) and (9), one (1) at the end of two (2) years after date of appointment and one (1) at the end of four (4) years after date of appointment as designated by the governor at the time of appointment. In making appointments to the board, the governor shall strive to ensure that at least one (1) person appointed to serve on the board is sixty (60) years of age or older and that at least one (1) person appointed to serve on the board is a member of a racial minority. If a vacancy occurs, the governor may appoint a member for the remaining portion of the unexpired term created by the vacancy. The governor may remove any appointed member for cause. Each member shall be reimbursed for travel in accordance with the comprehensive travel regulations as approved by the attorney general and reporter and the commissioner of finance and administration. A per diem allowance of fifty dollars ($50.00) shall only be paid to members for meetings at which a quorum is present.

(c) The board shall hold at least two (2) regular meetings each calendar year at a place and time to be fixed by the board. The commissioner of environment and conservation shall be chair of the board and the board shall select at its first meeting one (1) of its members to serve as vice chair. At the first regular meeting in each calendar year thereafter, the vice chair for the ensuing year shall be selected from among the members of the board. The director of the air pollution control division or service of the department of environment and conservation shall be technical secretary of the board. The director shall receive no additional compensation for such services. Special meetings may be called by the chair or by three (3) members of the board upon delivery of written notice to the office of each member of the board. Eight (8) members of the board shall constitute a quorum, and a quorum may act for the board in all matters. The decision of a majority of a quorum shall be determinative of any question before the board except as otherwise specially provided in this part.§ 68-201-104. Boards and commissions, TN ST § 68-201-104

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 Credits 1967 Pub.Acts, c. 367, § 4; 1970 Pub.Acts, c. 538, §§ 1, 2; 1971 Pub.Acts, c. 108, § 1; 1971 Pub.Acts, c. 362, §§ 4, 5; modified; impl. am. by 1972 Pub.Acts, c. 542, § 15; 1976 Pub.Acts, c. 639, § 1; 1976 Pub.Acts, c. 806, § 1(5); impl. am. by 1978 Pub.Acts, c. 934, §§ 16, 36; 1984 Pub.Acts, c. 788, § 3; 1988 Pub.Acts, c. 1013, § 66; 1994 Pub.Acts, c. 610, §§ 1 to 5, eff. March 16, 1994 ; 1994 Pub.Acts, c. 628, §§ 1, 2, eff. March 16, 1994 ; 1995 Pub.Acts, c. 501, § 2, eff. June 12, 1995 ; 1996 Pub.Acts, c. 728, §§ 1 to 3, eff. April 10, 1996 ; 2004 Pub.Acts, c. 677, § 2, eff. May 18, 2004 ; 2012 Pub.Acts, c. 765, §§ 3, 4 eff. April 19, 2012

.
Formerly § 53-3411; § 68-25-104.

Editors' Notes

TERMINATION OF GOVERNMENTAL ENTITY

<The air pollution control board, created by this section, is set to be terminated June 30, 2015, by § 4-29-236.>

T. C. A. § 68-201-104, TN ST § 68-201-104 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-105. Powers and duties, TN ST § 68-201-105

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 West's Tennessee Code Annotated Title 68. Health, Safety and Environmental Protection Environmental Protection Chapter 201. Tennessee Air Quality Act (Refs & Annos) Part 1. Tennessee Air Quality Act (Refs & Annos)

T. C. A. § 68-201-105

§ 68-201-105. Powers and duties
Effective: August 5, 2013 Currentness

(a)(1) The board has the power and duty to:

(A) Promulgate rules and regulations to effect the intent and purpose of this part, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Such rules and regulations may include, but are not necessarily limited to, those defining: ambient air quality standards; emission standards; general policies or plans; a system of permits; and a schedule of fees for review of plans and specifications, issuance or renewal of permits or inspection of air contaminant sources. Emission standards for stationary sources adopted by the board shall include regulations based on the weight of materials entering the process causing the emission as an optional alternative to regulations previously adopted;

(B) Promulgate rules that authorize the technical secretary to issue permits that contain all provisions applicable to sources that are necessary under the federal Clean Air Act, compiled in 42 U.S.C. § 7401 et seq., and the effective regulations pursuant to such act, and that are necessary under this chapter and the effective rules of the board. The issuance of a permit by the technical secretary under the rules authorized by this subsection (a) shall not repeal by implication any rules of the board. The board shall monitor regulations under the Clean Air Act that are proposed by the United States environmental protection agency. If the environmental protection agency promulgates a rule that would roll back federal requirements under the Clean Air Act, the board shall initiate rulemaking on that subject and determine whether Tennessee should have a more restrictive rule than the federal rule on that subject;

(2) Hold hearings and issue such orders and determinations as may be necessary to effect the intent and purpose of this part;

(3) Establish, modify, or amend, without hearing, policies, practices, rules or regulations with respect to procedural aspects of board activities; and

(4) Cause legal proceedings to be instituted in a court of competent jurisdiction, to compel compliance with any order issued by the board, requirement of this part, or rule or regulation adopted pursuant to this part.

(b) The department has the power and duty to:

(1) Develop and recommend to the board plans for a comprehensive air pollution control program for the state, to review such plans from time to time and recommend to the board such changes as may be deemed appropriate;§ 68-201-105. Powers and duties, TN ST § 68-201-105

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 (2) Require that any person furnish the department information required by it in discharge of its duties under this part, if the department has reason to believe such person is, or may be about to, causing or contributing to air pollution; provided, that no such person shall be required to disclose any secret formulae, processes or methods used in any manufacturing operation carried on by such person or under such person's direction. The composition of air contaminants shall not be considered secret unless so declared by the department, and the department shall have the power to issue protection orders to prevent public dissemination;

(3) Enter at all reasonable times in or upon any private or public property except private residences for the purpose of inspecting and investigating any condition which the department shall have reasonable cause to believe to be an air contaminant source;

(4) Provide such technical, scientific and other services as may be required for carrying out this part. The basic personnel for such purposes shall be those employed by the department; however, the department, may, by agreement, secure these or other services from any other agency, and within budgetary limitations may arrange compensation for such services;

(5) Receive, budget, receipt for and administer such moneys as are duly appropriated or granted for the purpose of this part; provided, that all such moneys shall be deposited with the state treasurer;

(6) Represent the state in matters pertaining to plans, procedures or negotiations for interstate compacts relative to air pollution or in matters pertaining to air quality control regions;

(7) Collect and disseminate information relative to air pollution; encourage voluntary cooperation of affected persons or groups in preserving and restoring a reasonable degree of air purity; advise, consult and cooperate with other agencies, persons or groups in matters pertaining to air pollution; and encourage authorized air pollution agencies of political subdivisions to handle air pollution problems within their respective jurisdictions to the greatest extent possible and to provide technical assistance to political subdivisions requesting same; and

(8) Cause to be instituted in a court of competent jurisdiction legal proceedings to compel compliance with any order issued by the board.

(c) In exercising their powers and duties relative to major energy projects, as defined in § 13-18-102 , the board and the departments shall participate in the joint review process and expedited review process provided for by the Major Energy Project Act of 1981, compiled in title 13, chapter 18.

(d)(1) If the board incurs a vacancy, it shall notify the appointing authority in writing within ninety (90) days after the vacancy occurs. All vacancies on the board, other than ex officio members, shall be filled by the appointing authority within ninety (90) days of receiving written notice of the vacancy and sufficient information is provided for the appointing authority to make an informed decision in regard to filling such vacancy. If sufficient information has been provided and the board has more than one (1) vacancy that is more than one hundred eighty (180) days in duration, the board shall report to the government operations committees of the house of representatives and the senate as to why such vacancies have not been filled.

(2) If more than one half ( 1⁄2 ) of the positions on the board are vacant for more than one hundred eighty (180) consecutive days, the board shall terminate; provided, that the board shall wind up its affairs pursuant to § 4-29-112 . If the board is terminated§ 68-201-105. Powers and duties, TN ST § 68-201-105

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 pursuant to subdivision (d)(1) it shall be reviewed by the evaluation committees pursuant to the Uniform Administrative Procedures Act before ceasing all its activities. Nothing in subdivision (d)(1) shall prohibit the general assembly from continuing, restructuring, or re-establishing the board.

(e) The board shall adopt and implement rules and regulations to create a conflict of interest policy for board members. The policy shall mandate annual written disclosures of financial interests, other possible conflicts of interest, and an acknowledgement by board members that they have read and understand all aspects of the policy. The policy shall also require persons who are to be appointed to the board to acknowledge, as a condition of appointment, that they are not in conflict with the conditions of the policy.

Credits 1967 Pub.Acts, c. 367, § 5; 1971 Pub.Acts, c. 321, § 1; 1971 Pub.Acts, c. 362, §§ 6, 11; modified; 1979 Pub.Acts, c. 299, § 7; 1981 Pub.Acts, c. 131, § 27; 1984 Pub.Acts, c. 788, § 4; 2000 Pub.Acts, c. 835, § 4, eff. July 1, 2000 ; 2002 Pub.Acts, c. 701, § 1, eff. May 1, 2002 ; 2012 Pub.Acts, c. 765, § 5, eff. April 19, 2012

.
Formerly § 53-3412; § 68-25-105.

Notes of Decisions (2)

T. C. A. § 68-201-105, TN ST § 68-201-105 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-106. Factors considered prior to exercising powers to..., TN ST § 68-201-106

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T. C. A. § 68-201-106
§ 68-201-106. Factors considered prior to exercising powers to prevent, abate and control pollution
Effective: August 5, 2013 Currentness

Nothing in this part shall be deemed to grant the board or department any jurisdiction or authority with respect to air pollution existing solely within commercial or industrial plants, works or shops or to affect the relations between employers and employees with respect to or arising out of any condition of air pollution. In exercising powers to prevent, abate and control air pollution, the board or department shall give due consideration to all pertinent facts, including, but not necessarily limited to:

(1) The character and degree of injury to, or interference with, the protection of the health, general welfare and physical property of the people;

(2) The social and economic value of the air contaminant source;

(3) The suitability or unsuitability of the air pollution source to the area in which it is located. In this respect it is expressly anticipated that the board may establish zones and categories of air contaminant sources in which the standards, rules and regulations may differ according to zone and category of air contaminant source;

(4) The technical practicability and economic reasonableness of reducing or eliminating the emission of such air contaminants;

(5) The economic benefit gained by the air contaminant source through any failure to comply with this part and regulations promulgated thereunder; and

(6) The amount or degree of effort put forth by the air contaminant source to attain compliance.

Credits 1967 Pub.Acts, c. 367, § 6; 1971 Pub.Acts, c. 362, § 7; 1979 Pub.Acts, c. 299, § 7; 1984 Pub.Acts, c. 788, § 5.

Formerly § 53-3413; § 68-25-106.

T. C. A. § 68-201-106, TN ST § 68-201-106 Current through end of 2013 First Reg. Sess.§ 68-201-106. Factors considered prior to exercising powers to..., TN ST § 68-201-106

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-107. Powers and duties of technical secretary, TN ST § 68-201-107

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T. C. A. § 68-201-107
§ 68-201-107. Powers and duties of technical secretary

Effective: July 1, 2013 Currentness

(a) The technical secretary or such secretary's authorized representative has the power and duty to:

(1) Attend all meetings of the board, but not be entitled to a vote;

(2) Exercise general supervision over all persons employed by the board and by the air pollution control division or service of the department;

(3) Make or cause to be made such investigations as the board may direct or authorize, or as may be warranted due to receipt of information concerning an alleged violation of this part or of any rule, regulation or order promulgated under this part; or as the technical secretary otherwise deems advisable, and for this purpose the technical secretary shall have the right to enter at all reasonable times in or upon any private or public property except private residences;

(4) Endeavor to the fullest extent possible to obtain compliance with this part and with rules and regulations promulgated pursuant to this part by conference, conciliation and persuasion;

(5) Issue formal notice of complaint and prosecute such complaints before the board;

(6) Handle correspondence, keep records, prepare reports and perform such other duties as the board may direct or authorize or as may ensue as an employee of the department;

(7) Initiate alert, warning and emergency action in accordance with emergency episode plans and procedures promulgated as rules or regulations by the board;

(8) At the technical secretary's discretion, request the presence of an alleged violator of this part or of the regulations at an informal meeting of the staff of the division of air pollution control to show cause why further enforcement action ought not be taken by the department. The proceedings of this meeting need not be recorded; and

(9) Establish an expedited review process for any permit filed by a combined heat and power plant or a recoverable waste energy plant as such plant is defined under Subtitle D of the 2007 Energy Independence and Security Act, P.L. 110-140 , H.R. 6.§ 68-201-107. Powers and duties of technical secretary, TN ST § 68-201-107

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 (b) Deleted by 2013 Pub.Acts, c. 181, § 2, eff. July 1, 2013

.

Credits 1967 Pub.Acts, c. 367, § 7; 1970 Pub.Acts, c. 539, § 1; 1971 Pub.Acts, c. 362, § 8; 1973 Pub.Acts, c. 325, § 3; 1979 Pub.Acts, c. 299, § 7; 1984 Pub.Acts, c. 788, § 6; 2008 Pub.Acts, c. 730, § 2, eff. April 10, 2008 ; 2013 Pub.Acts, c. 181, § 2, eff. July 1, 2013

.
Formerly § 53-3414; § 68-25-107.

T. C. A. § 68-201-107, TN ST § 68-201-107 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-108. Hearings, TN ST § 68-201-108

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T. C. A. § 68-201-108
§ 68-201-108. Hearings
Effective: July 1, 2013 Currentness

(a)(1) A person aggrieved by a final action of the technical secretary on a permit, order, or assessment may request a hearing before the board pursuant to this section by filing a petition with the technical secretary within thirty (30) days of issuance of the permit or service of the order or assessment. The hearing shall be conducted as a contested case and shall be heard before an administrative judge sitting alone pursuant to §§ 4-5-301(a)(2) and 4-5-314(b) , unless settled by the parties. The administrative judge to whom the case has been assigned shall convene the parties for a scheduling conference within thirty (30) days of the date the petition is filed. The scheduling order for the contested case issued by the administrative judge shall establish a schedule that results in a hearing being completed within one hundred eighty (180) days of the scheduling conference, unless the parties agree to a longer time or the administrative judge allows otherwise for good cause shown, and an initial order being issued within sixty (60) days of completion of the record of the hearing. The administrative judge's initial order, together with any earlier orders issued by the administrative judge, shall become final unless appealed to the board by the commissioner or other party within thirty (30) days of entry of the initial order or, unless the board passes a motion to review the initial order pursuant
to § 4-5-315 , within the longer of thirty (30) days or seven (7) days after the first board meeting to occur after entry of the initial order. Upon appeal to the board by a party, or upon passage of a motion of the board to review the administrative judge's initial order, the board shall afford each party an opportunity to present briefs, shall review the record and allow each party an opportunity to present oral argument. If appealed to the board, the review of the administrative judge's initial order shall be limited to the record, but shall be de novo with no presumption of correctness. In such appeals, the board shall thereafter render a final order, in accordance with § 4-5-314 , affirming, modifying, remanding, or vacating the administrative judge's order. A final order rendered pursuant to this section is effective upon its entry, except as provided in § 4-5-320(b) unless a later effective date shall be stated therein. A petition to stay the effective date of a final order may be filed under § 4-5-316 . A petition for reconsideration of a final order may be filed pursuant to § 4-5-317 . Judicial review of a final order may be sought by filing a petition for review in accordance with § 4-5-322 . An order of an administrative judge that becomes final in the absence of an appeal or review by the board shall be deemed to be a decision of the board in that case for purposes of the standard of review by a court; however, in other matters before the board, it may be considered but shall not be binding on the board.

(2) Hearings before the board on requests for variances and certificates of exemption may be conducted as contested case hearings in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

(b) The board or the commissioner or the commissioner's representative may hold public hearings on any matter, within their jurisdiction under this part. The board may promulgate regulations concerning subjects on which public hearings are required and the procedures for those hearings. Reasonable notice of such public hearings shall be given.§ 68-201-108. Hearings, TN ST § 68-201-108

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 Credits 1967 Pub.Acts, c. 367, § 8; 1970 Pub.Acts, c. 538, § 3; 1970 Pub.Acts, c. 539, § 2; 1971 Pub.Acts, c. 84, § 1; 1971 Pub.Acts, c. 108, §§ 2 to 7; 1971 Pub.Acts, c. 322, § 1; 1973 Pub.Acts, c. 325, § 5; modified; 1979 Pub.Acts, c. 299, § 7; 1981 Pub.Acts, c. 131, § 28; 1984 Pub.Acts, c. 788, § 7; 2013 Pub.Acts, c. 181, § 3, eff. July 1, 2013

.
Formerly § 53-3415; § 68-25-108.

T. C. A. § 68-201-108, TN ST § 68-201-108 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-109. Orders, TN ST § 68-201-109

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T. C. A. § 68-201-109

§ 68-201-109. Orders
Effective: August 5, 2013 Currentness

Any other law to the contrary notwithstanding, if the commissioner finds that emissions from the operation of one (1) or more air contaminant sources are causing imminent danger to human health and safety, the commissioner may, with the approval of the governor, order the person or persons responsible for the operation or operations in question, or the person or persons causing or contributing to the air pollution, to reduce or discontinue immediately the emission of air contaminants, and such order shall fix a place and time, not later than twenty-four (24) hours thereafter, for a hearing to be held before the commissioner. Not more than twenty-four (24) hours after the commencement of such hearing, and without adjournment thereof, the commissioner shall affirm, modify or set aside the commissioner's previous order. The commissioner shall cause a transcript to be made of the proceedings in any such hearing, copies of which shall be made available to all parties affected, at a reasonable cost.

Credits 1967 Pub.Acts, c. 367, § 9; 1984 Pub.Acts, c. 788, § 9.

Formerly § 53-3416; § 68-25-109.

T. C. A. § 68-201-109, TN ST § 68-201-109 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-110. Appeal and review, TN ST § 68-201-110

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T. C. A. § 68-201-110
§ 68-201-110. Appeal and review

Currentness

An appeal may be taken from any final order or other final determination pursuant to this part by any party, including the department, who is or may be adversely affected by such order or determination. Such appeals shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3; provided, that no hearing shall be allowed by the chancery court from any disposition made by the board if such disposition has become final as a result of a person's failure to appear at a hearing after having requested such hearing or after having received adequate notice.

Credits 1967 Pub.Acts, c. 367, § 10; 1971 Pub.Acts, c. 108, § 8; 1981 Pub.Acts, c. 449, § 2; 1984 Pub.Acts, c. 788, § 10; 1989 Pub.Acts, c. 321, § 12.

Formerly § 53-3417; § 68-25-110.

Notes of Decisions (2)

T. C. A. § 68-201-110, TN ST § 68-201-110 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-111. Injunctions, TN ST § 68-201-111

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T. C. A. § 68-201-111
§ 68-201-111. Injunctions

Currentness

The board or commissioner may cause to be instituted a civil action in any court of competent jurisdiction for injunctive relief to prevent violation of any duly promulgated rule or regulation or of any order of the board.

Credits 1967 Pub.Acts, c. 367, § 11; 1971 Pub.Acts, c. 362, § 9.

Formerly § 53-3418; § 68-25-111.

Notes of Decisions (1)

T. C. A. § 68-201-111, TN ST § 68-201-111 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-112. Crimes and offenses; nuisance, TN ST § 68-201-112

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T. C. A. § 68-201-112

§ 68-201-112. Crimes and offenses; nuisance

Effective: August 5, 2013 Currentness

(a) Any person who knowingly:

(1) Violates or fails to comply with any provision of this part, any board or administrative order, or any duly promulgated air pollution control regulation, or any ordinance adopted pursuant to this part or permit condition;

(2) Makes any false material statement, representation, or certification in any record, report, plan or other document required by permit to be either filed or maintained;

(3) Falsifies, tampers with, or renders inaccurate any monitoring device or method required to be maintained or followed; or

(4) Fails to pay a fee established by the air pollution control board; commits a Class C misdemeanor with the fine not to exceed ten thousand dollars ($10,000) per day per violation. For the purpose of this section, each day of continued violation constitutes a separate offense and is punishable as such.

(b) No warrant, presentment or indictment arising under this part shall be issued except upon application, authorized in writing, by the board, the commissioner, or either of them, or by a local pollution control program operating under a certificate of exemption pursuant to § 68-201-115 , for a violation within its jurisdiction.

(c) It is the duty of the district attorneys general in the various judicial districts throughout the state to assist the board or commissioner, upon request, either by prosecuting or by assisting the board or the commissioner in prosecuting those persons the board or commissioner has reasonable cause to believe are violating any provision of this part or any rule or regulation duly promulgated in accordance with this part.

(d) In addition and supplemental to any criminal action that may be prosecuted under this section, the board and commissioner have and are vested with jurisdiction and authority to determine whether or not any provision of this part, or rules or regulations adopted pursuant to this part, or any order of the board has been violated, and whether or not such violation constitutes a public nuisance. Upon such finding that a public nuisance exists, the board or commissioner has authority to abate any such public nuisance in the manner provided by the general law relating to the abatement of public nuisances.§ 68-201-112. Crimes and offenses; nuisance, TN ST § 68-201-112

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 Credits 1967 Pub.Acts, c. 367, § 12; 1970 Pub.Acts, c. 540, § 1; 1971 Pub.Acts, c. 362, § 10; 1976 Pub.Acts, c. 639, § 2; 1979 Pub.Acts, c. 299, §§ 2, 7; 1979 Pub.Acts, c. 422, § 17; 1989 Pub.Acts, c. 591, § 113; 1994 Pub.Acts, c. 684, §§ 1, 2, eff. March 25, 1994

.
Formerly § 53-3419; § 68-25-112.

Notes of Decisions (1)

T. C. A. § 68-201-112, TN ST § 68-201-112 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-113. Existing civil or criminal remedies, TN ST § 68-201-113

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T. C. A. § 68-201-113
§ 68-201-113. Existing civil or criminal remedies

Currentness

No existing civil or criminal remedy for any wrongful action that is a violation of any provision of this part or that is a violation of any rule or regulation of the board promulgated under this part shall be impaired by this part.

Credits 1967 Pub.Acts, c. 367, § 13; 1979 Pub.Acts, c. 299, § 7.

Formerly § 53-3420; § 68-25-113.

T. C. A. § 68-201-113, TN ST § 68-201-113 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-114. Additional and cumulative remedies, TN ST § 68-201-114

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T. C. A. § 68-201-114

§ 68-201-114. Additional and cumulative remedies

Currentness

The remedies provided for in this part are intended to provide additional and cumulative remedies to prevent, abate and control air pollution in this state. Nothing in this part shall be construed to abridge or alter any rights of action, civil or criminal, arising from statute, common law or equity.

Credits 1967 Pub.Acts, c. 367, § 14; 1984 Pub.Acts, c. 788, § 11.

Formerly § 53-3421; § 68-25-114.

T. C. A. § 68-201-114, TN ST § 68-201-114 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-115. Municipal or county regulation; certificates of..., TN ST § 68-201-115

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T. C. A. § 68-201-115
§ 68-201-115. Municipal or county regulation; certificates of exemption
Effective: April 16, 2013 Currentness

(a) Any municipality or county in this state may enact, by ordinance or resolution respectively, air pollution control regulations not less stringent than the standards adopted for the state pursuant to this part, or any such municipality or county may also adopt or repeal an ordinance or resolution which incorporates by reference any or all of the regulations of the board, or any federal regulations including any changes in such regulations, when such regulations are properly identified as to date and source. Copies of air pollution regulations shall be made available to any interested party, and the city or municipality may charge reasonable compensatory fees for providing such copies. At least three (3) copies of such regulations that are incorporated by reference shall be filed in the office of the county clerk and there kept for public use, inspection and examination. The filing requirements shall not be deemed to be complied with, unless the required copies of such regulations are filed with the clerk for a period of thirty (30) days before the adoption of the ordinance or resolution which incorporated such regulations by reference. No ordinance or resolution incorporating regulations by reference shall be effective until published in a newspaper having a general circulation in the municipality or county.

(b) Before such ordinances or resolutions enacting air pollution control regulations becomes effective, such municipality or county must apply for and receive from the board a certificate of exemption by the following procedure:

(1) Any political subdivision desiring to be exempted from this part may file a petition for certificate of exemption with the technical secretary. The technical secretary shall promptly investigate such petition and make recommendation to the board as to its disposition;

(2) Upon receiving the recommendation of the technical secretary, the board may, if such recommendation is for the granting of the petition, do so without hearing. If the recommendation of the technical secretary is against the granting of the petition or the board, in its discretion, concludes that a hearing would be advisable, then a hearing shall be held not later than sixty (60) days after receipt of recommendation of the technical secretary by the board;

(3) The certificate of exemption shall be granted if the board determines that the municipality or county has enacted provisions for the control of air pollution not less stringent than this part and that such enactments are being, or will be, adequately enforced;

(4) The board may grant a certificate of exemption, in whole or in part, may prescribe a time schedule for various parts of an exemption to become effective, and may make a certificate of exemption conditional or provisional as is deemed appropriate;§ 68-201-115. Municipal or county regulation; certificates of..., TN ST § 68-201-115

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 (5) In granting any certificate of exemption, there is reserved to the state the right to initiate proceedings to enforce any applicable resolution, ordinance or regulation of the municipality or county should it fail to obtain compliance with the resolution, ordinance or regulation. Such proceedings shall be the same as for enforcement of any duly promulgated rule or regulation of the board;

(6) In granting any certificate of exemption, the exemption is to be strictly construed as limited to the language of the exemption. No power or authority that is not expressly stated in the certificate of exemption may be implied. The municipality or county may further petition the board for such power or authority; and

(7) The department shall frequently determine whether or not any exempted municipality or county meets the terms of the exemption granted and continues to comply with this section. If a determination is made that the municipality or county does not meet the terms of the exemption granted or does not comply with this section, the department shall so notify the board, and the board, upon reasonable notice to the municipality, may suspend the exemption in whole or in part until such time as the municipality or county complies with the state standards.

(c)(1) All new certificates of exemption shall be for a fixed term not to exceed two (2) years. This part does not apply to emissions from any air contaminant source, as defined in this part, which burns wood waste solely for the disposition of such wood waste; provided, however, that open burning of wood waste within two hundred feet (200#) of an occupied building by any person other than an occupant of the building shall only be conducted as follows:

(A) At least one (1) person shall be constantly present at the burning during the entire time of the burn;

(B) Each burn shall not exceed forty-eight (48) hours in duration;

(C) Burning shall not occur more than twice in any thirty-day period; and

(D) If the burning occurs within one hundred feet (100#) of an occupied building, it may only occur if an adult occupant of the building gives written authorization for the burn to occur and has not rescinded the authorization in writing.

(2) Provided further, however, that, if a local government has enacted or enacts more stringent requirements concerning such open burning of wood waste, those provisions shall control over the requirements of this subsection (c).

(d) Local government actions taken in accordance with this section shall be conducted in accordance with the Major Energy Project Act of 1981, compiled in title 13, chapter 18, when the action includes a major energy project, as defined in § 13-18-102

.

(e)(1) If a municipality or county has received a certificate of exemption pursuant to this section, then the municipality or county shall offer a process to grant waivers from its open burning regulations.

(2) Open burning waivers may be approved by the director of the municipal or county air pollution program, if there is no other practical, safe, and lawful method of disposal; provided, that the burning is conducted in a manner to protect public health and the environment.§ 68-201-115. Municipal or county regulation; certificates of..., TN ST § 68-201-115

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 (3) Nothing in this subsection (e) shall be construed as eliminating or limiting the sanctions or obligations imposed by title 39, chapter 14, part 3.

Credits 1967 Pub.Acts, c. 367, § 15; 1971 Pub.Acts, c. 266, § 1; 1971 Pub.Acts, c. 365, §§ 1, 2; 1972 Pub.Acts, c. 787, § 1; 1973 Pub.Acts, c. 325, §§ 4, 6; 1974 Pub.Acts, c. 598, § 1; 1975 Pub.Acts, c. 359, § 1; 1977 Pub.Acts, c. 116, § 1; 1977 Pub.Acts, c. 169, § 2; impl. am. by 1978 Pub.Acts, c. 934, §§ 22, 36; 1979 Pub.Acts, c. 299, § 7; 1981 Pub.Acts, c. 131, § 29; 1984 Pub.Acts, c. 788, § 12; 1994 Pub.Acts, c. 658, §§ 1 to 3, eff. March 23, 1994 ; 2007 Pub.Acts, c. 559, § 1, eff. January 1, 2008 ; 2013 Pub.Acts, c. 156, § 1, eff. April 16, 2013

.
Formerly § 53-3422; § 68-25-115.

Notes of Decisions (8)

T. C. A. § 68-201-115, TN ST § 68-201-115 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-116. Correction of violations; civil penalties or damages, TN ST § 68-201-116

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T. C. A. § 68-201-116
§ 68-201-116. Correction of violations; civil penalties or damages

Effective: August 5, 2011 Currentness

(a) When the technical secretary discovers that any provision of this part or of any regulation promulgated under this part has been violated, the technical secretary may issue an order for correction to the responsible person, and this order shall be complied with within the time limit specified in the order. Such order shall be served by personal service or sent by certified mail, return receipt requested. The recipient of such an order may appeal in the same manner as with an assessment of damages or civil penalty under subsection (b).

(b)(1) In addition to the criminal penalties of § 68-201-112 , any person who violates or fails to comply with any provision of this part or any rule, regulation, ordinance, or standard adopted pursuant to this part shall be subject to a civil penalty of up to twenty-five thousand dollars ($25,000) per day for each day of violation. Any person against whom an assessment in excess of ten thousand dollars ($10,000) for each violation has been issued by a local pollution control program pursuant to this section may petition the technical secretary for de novo review of the assessment under this section. The technical secretary shall render an initial determination, and that initial determination may be appealed to the board pursuant to this section. Each day such violation continues constitutes a separate punishable offense, and such person shall also be liable for any damages to the state resulting from the continued violation.

(2) Any civil penalty or damages shall be assessed in the following manner:

(A) The technical secretary or any municipality or county operating under a certificate of exemption pursuant to § 68-201-115 may issue an assessment against any person responsible for the violation or damages. Such person shall receive notice of such assessment by certified mail, return receipt requested;

(B) Any person against whom an assessment has been issued may appeal the assessment by filing a petition for review with the technical secretary or the respective municipality or county within thirty (30) days of receipt of the assessment, setting forth the grounds and reasons for such person's objections and requesting a hearing on the matter; and

(C) If a petition for review of the assessment is not filed within thirty (30) days after the date the assessment is served, the violator shall be deemed to have consented to the assessment and it shall become final.

(c) In assessing such civil penalty, the factors specified in § 68-201-106 may be considered. Damages to the state or respective municipality or county may include any expenses incurred in investigating the enforcing of this part, in removing, correcting, or terminating the effects of air pollution and also compensation for any expense, loss or destruction of plant or animal life or§ 68-201-116. Correction of violations; civil penalties or damages, TN ST § 68-201-116

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 any other actual damages or clean-up expenses caused by the pollution or by the violation. The plea of financial inability to prevent, abate or control pollution by the polluter or violator shall not be a valid defense to liability for violations of this part or of regulations or ordinances promulgated under this part.

(d) The issuance of an order or assessment of civil penalty by a municipality or county operating under a certificate of exemption as provided for in this part is intended to provide additional and cumulative remedies to prevent, abate and control air pollution in this state. Nothing in this subsection (d) shall be construed to preempt, supersede, abridge or otherwise alter any rights, action or remedies of the technical secretary, board or commissioner.

(e)(1) Whenever any order or assessment under this section has become final, a notarized copy of the order or assessment may be filed in the office of the clerk of:

(A) The chancery court of Davidson County, if the final order or assessment is from the board, the commissioner or the technical secretary; or

(B) The chancery court of the county in which all or part of the violation or failure to comply occurred, if the final order or assessment is from any municipality or county.

(2) When filed in accordance with subdivision (e)(1), a final order or assessment shall be considered as a judgment by consent of the parties on the same terms and conditions as those recited in the order of assessment. Such judgment shall be promptly entered by the court. Except as otherwise provided in this section, the procedure for entry of the judgment and the effect of the judgment shall be the same as provided in title 26, chapter 6.

(3)(A) A judgment under subdivision (e)(2) shall become final thirty (30) days after the date a summons has been served upon the defendant, if the final order or assessment resulting in the judgment is from the board.

(B) Except as provided in subdivision (e)(3)(A), within forty-five (45) days after entry of a judgment under subdivision (e) (2), any citizen shall have the right to intervene on the ground that the penalties or remedies provided are inadequate or are based on erroneous findings of facts. Upon receipt of a timely motion to intervene, the court shall determine whether it is duplicitous or frivolous, and shall notify the movant and the parties of its determination. If the motion is determined not to be duplicitous or frivolous, all parties shall be considered to have sought review of the final order or assessment, and the court shall proceed in accordance with § 4-5-322 . If no timely motion to intervene is filed, or if any such motion is determined to be duplicitous or frivolous, the judgment shall become final forty-five (45) days after the date of entry.

(4) A final judgment under this subsection (e) has the same effect, is subject to the same procedures, and may be enforced or satisfied in the same manner, as any other judgment of a court of record of this state.

Credits 1979 Pub.Acts, c. 299, § 4; 1984 Pub.Acts, c. 788, § 13; 1987 Pub.Acts, c. 263, §§ 1 to 7; 1989 Pub.Acts, c. 321, §§ 1, 2.

Formerly § 53-3423; § 68-25-116.§ 68-201-116. Correction of violations; civil penalties or damages, TN ST § 68-201-116

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 T. C. A. § 68-201-116, TN ST § 68-201-116 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-117. Noncompliance and nonpayment penalties;..., TN ST § 68-201-117

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 West's Tennessee Code Annotated Title 68. Health, Safety and Environmental Protection Environmental Protection Chapter 201. Tennessee Air Quality Act (Refs & Annos) Part 1. Tennessee Air Quality Act (Refs & Annos)

T. C. A. § 68-201-117
§ 68-201-117. Noncompliance and nonpayment penalties; actions and proceedings
Effective: August 5, 2013 Currentness

The technical secretary, the board, and within their respective jurisdictions, the local pollution control programs operating under a certificate of exemption pursuant to § 68-201-115 are authorized to levy noncompliance and nonpayment penalties after appropriate notice and hearing, against any air contaminant source not in final compliance with the applicable Tennessee air pollution control regulations by July 1, 1979. The technical secretary, the board, and the duly exempted local pollution control programs are specifically authorized to accept enforcement responsibility for these civil penalties from the United States environmental protection agency. These penalties are to be equivalent to the economic value a person may realize by a delay in compliance beyond July 1, 1979, including the amount it would have cost the person to comply with all applicable air pollution control regulations had the person chosen to do so. The board shall promulgate regulations specifying the procedures to be used in calculating the penalty and providing for quarterly payment of annualized cost. The technical secretary, the board, and the duly exempted local pollution control programs shall consider the matters in § 120 of the federal Clean Air Act, codified in 42 U.S.C. §7420 , in their actions. The commissioner, the board, and the duly exempted local pollution control programs are also authorized to file suit for the assessment of the penalties as part of any other civil action brought under this part. The commissioner, the board, and the duly exempted local pollution control programs are authorized to file suit for collection or assessment of the civil penalty, along with other equitable relief pursuant to § 68-201-111 in the chancery courts of the county where the pollution is occurring or where the violator or polluter is doing business. The chancery court shall treat a failure to appeal a civil penalty assessment as a confession of judgment by the polluter or violator to the amount of the assessment; and the court is authorized to render judgment and provide for execution of such civil penalties. Such actions for civil penalties shall be triable without a jury.

Credits 1979 Pub.Acts, c. 299, § 6.

Formerly § 53-3424; § 68-25-117.

T. C. A. § 68-201-117, TN ST § 68-201-117 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-118. Variances, TN ST § 68-201-118

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T. C. A. § 68-201-118

§ 68-201-118. Variances
Effective: May 1, 2012 Currentness

(a) Any person seeking a variance shall do so by filing a petition for variance with the technical secretary. The technical secretary shall promptly investigate such petition and make recommendation to the board as to its disposition.

(b) Upon receiving the recommendation of the technical secretary, the board may, if such recommendation is for the granting of a variance, do so without hearing. If the recommendation of the technical secretary is against the granting of a variance, or the board, in its discretion, concludes that a hearing would be advisable, then a hearing shall be held not later than sixty (60) days after the board receives the recommendation of the technical secretary.

(c) The petitioner shall be given written notice at the earliest practicable time as to the time and place of such hearing.

(d) Any member of the board, or, with the approval of the governor, any person licensed to practice law in the state of Tennessee and designated by the board to act as hearing examiner, may act as hearing examiner to conduct hearings, administer oaths, subpoena witnesses, and enforce the attendance of witnesses at the hearing. Any member of the board, the hearing examiner or counsel representing the board may examine or cross-examine all witnesses. A complete record of the hearing shall be made for review by the board members.

(e) All testimony shall be under oath and stenographically recorded. The transcript so recorded shall be made available to the petitioner or any party to the hearing upon payment of the usual charges for such transcript.

(f) The board in considering the granting of a variance shall give due consideration to the equities of the petitioner and others who may be affected by granting or denial of the petition.

(g) The board may make the granting of a petition for variance contingent upon such other requirements or restrictions on the petitioner as it may deem appropriate and reasonable.

(h) Any variance granted shall be for a period not to exceed one (1) year, but may be extended from time to time but in no case for longer than one (1) year at a time upon recommendation of the technical secretary and affirmative action by the board.§ 68-201-118. Variances, TN ST § 68-201-118

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 (i) The board shall issue, enter and mail to the petitioner in writing, by certified mail, return receipt requested, within sixty (60) days following the final argument in such hearing or within sixty (60) days following receipt of the recommendation of the technical secretary when no hearing is held, its final order or determination. Such order or determination shall be approved in writing by at least seven (7) members of the board.

(j) Upon failure of the board to issue, enter and mail to the petitioner a final order or determination within sixty (60) days after the final argument in any such hearing or within sixty (60) days following receipt of the recommendation of the technical secretary when no hearing is held, the petitioner shall be entitled to treat for all purposes such failure to act as a granting of the variance requested.

(k) The burden of proof in such hearings shall be upon the petitioner.

(l)(1) The board may delegate the authority to approve certain types of variances to the commissioner, or the commissioner's designee, pursuant to this subsection (l).

(2) The types of variances that may be delegated for granting by the commissioner upon recommendation by the technical secretary include, but are not limited to, the following:

(A) The use of open burning, not otherwise permitted by rules or regulations, for the limited purpose of testing a fire control device or system in order to obtain insurance; and

(B) The use of a variance in the case of financial hardship or other extenuating circumstances under which a vehicle that fails emissions testing required by § 55-4-130 and for which a waiver under § 55-4-128 , or any rules and regulations promulgated pursuant thereto, is not permitted.

(3) Any petitioner for a variance who objects to a conditional grant of a variance by the commissioner may seek a hearing before the full board as if the variance was denied. Any such hearing shall be subject to the procedural requirements for hearings conducted under subsection (b).

Credits 1984 Pub.Acts, c. 788, § 8; 2012 Pub.Acts, c. 860, § 1, eff. May 1, 2012

.
Formerly § 68-25-118.

T. C. A. § 68-201-118, TN ST § 68-201-118 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-119. Rulemaking, TN ST § 68-201-119

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 West's Tennessee Code Annotated Title 68. Health, Safety and Environmental Protection Environmental Protection Chapter 201. Tennessee Air Quality Act (Refs & Annos) Part 1. Tennessee Air Quality Act (Refs & Annos)

T. C. A. § 68-201-119
§ 68-201-119. Rulemaking

Currentness

The Tennessee air pollution control board shall promulgate rules that:

(1) Specify the type of vehicle inspection and maintenance program to be established and implemented; and

(2) Establish that the inspection associated with the vehicle inspection and maintenance program will occur on an annual basis in connection with vehicle registration renewal.

Credits 2004 Pub.Acts, c. 926, § 5, eff. June 8, 2004

.

T. C. A. § 68-201-119, TN ST § 68-201-119 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-120. Removing or rendering inoperative devices and..., TN ST § 68-201-120

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T. C. A. § 68-201-120
§ 68-201-120. Removing or rendering inoperative devices and design elements on or in motor vehicles
Effective: August 5, 2011 Currentness

It is unlawful for any person to remove or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with regulations under the federal Clean Air Act, compiled in 42 U.S.C. § 7401 et seq., prior to its sale and delivery to the ultimate purchaser, or for any person knowingly to remove or render inoperative any such device or element of design after such sale and delivery to the ultimate purchaser.

Credits 2004 Pub.Acts, c. 926, § 6, eff. June 8, 2004

.

T. C. A. § 68-201-120, TN ST § 68-201-120 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-201. Reserved, TN ST § 68-201-201

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 West's Tennessee Code Annotated Title 68. Health, Safety and Environmental Protection Environmental Protection Chapter 201. Tennessee Air Quality Act (Refs & Annos) Part 2. Miscellaneous Provisions

T. C. A. § 68-201-201

§ 68-201-201. Reserved

Currentness

T. C. A. § 68-201-201, TN ST § 68-201-201 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-202. Municipal or county ordinances or regulations, TN ST § 68-201-202

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 West's Tennessee Code Annotated Title 68. Health, Safety and Environmental Protection Environmental Protection Chapter 201. Tennessee Air Quality Act (Refs & Annos) Part 2. Miscellaneous Provisions

T. C. A. § 68-201-202

§ 68-201-202. Municipal or county ordinances or regulations

Effective: August 5, 2011 Currentness

(a) Any city, town or county having a population of six hundred thousand (600,000) or more, according to the federal census of 1960 or any subsequent federal census, is authorized to enact, by its chief legislative body, ordinances or regulations not less stringent than part 1 of this chapter. A violation of any of the ordinances or enactments of the chief legislative body is punishable as a Class A misdemeanor.

(b) Actions taken in accordance with this section shall be conducted in accordance with the Major Energy Project Act of 1981, compiled in title 13, chapter 18, when the action involves a major energy project, as defined in § 13-18-102

.

Credits 1969 Pub.Acts, c. 89, § 1; 1979 Pub.Acts, c. 299, §§ 3, 7; 1981 Pub.Acts, c. 131, § 30; 1989 Pub.Acts, c. 591, §§ 1, 6.

Formerly § 53-3423; § 53-3426; § 68-25-202.

Notes of Decisions (1)

T. C. A. § 68-201-202, TN ST § 68-201-202 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.§ 68-201-203. Repealed by 2004 Pub.Acts, c. 926, § 8, eff...., TN ST § 68-201-203

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 West's Tennessee Code Annotated Title 68. Health, Safety and Environmental Protection Environmental Protection Chapter 201. Tennessee Air Quality Act (Refs & Annos) Part 2. Miscellaneous Provisions

T. C. A. § 68-201-203

§ 68-201-203. Repealed by 2004 Pub.Acts, c. 926, § 8, eff. June 8, 2004

Currentness

T. C. A. § 68-201-203, TN ST § 68-201-203 Current through end of 2013 First Reg. Sess.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

# Attachment 2

EPA Memorandum dated November 19, 2012

# Appendix B

Board Order 14

- 00 4

# Appendix C

§110(a)(1) and (2) Infrastructure SIP Prehearing Draft Submitted to EPA and Public Depository

### ******DRAFT******

1 Certification for NO 2 and SO 2 National Ambient Air Quality Standard s

Clean Air Act Section s 110(a)(1) and (2)

In accordance with U. S. EPA’s Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2) dated September 2013, Tennessee has reviewed the provisions in its existing EPA

- approved SIP and has determined that the existing SIP contains or references provisions that satisfy the requirements of section 110(a)(2), as applicable, for purpose s of implementing the new or revised NAAQS.

The following certification n cites the specific statutes, regulations, or non

- regulatory measures, as appropriate, in the EPA

- approved SIP and explains how these provisions meet the specific infrastructure elem ent requirements

. This certification addresses Tennessee’s obligations under §§110(a)(1) and (2) of the Clean Air Act for the following National Ambient Air Quality Standards:

N itrogen D ioxide (NO 2 ) : A revised NAAQS for nitrogen dioxide was promulgated by EPA on January 22, 2010 . This rule establishes a new primary ambient air quality standard of 100 parts per billion ( one

hour average ).

Sulfur Dioxide (SO 2 ): A revised NAAQS for sulfur dioxide was promulgated by EPA on June 2, 2010. This rule establishes a new primary ambient air quality standard of 75 parts per billion (one

- hour average).

States must submit State Implementation Plans (SIPs) for a reas designated as nonattainment for any NAAQS

. SIPs must provide for attainment of the NAAQS as expeditiously as practicable, but no t later than five years from the date o f the nonattainment designation. States are also required to adopt and submit ‘‘infrastructure’’ SIPs to EPA to address the requirements of §§110(a)(1) and (2) of the Clean Air Act within three years after the promulgation of new or revised NAAQS. These ‘‘infrastructure SIPs’’ provide assurances of State resources and authorities, and establish the basic State programs, to implement, maintain, and enforce new or revise d standards.

The basic infrastructure requirements of §§110(a)(1) and (2) are listed on the following pages

. Tennessee’s State Implementation Plan meets all of the required elements of §§110(a)(1) and (2), as indicated below.

Emission limits and other control measures: §110(a)(2)(A) requires SIPs to include enforceable limits and other control measures, means or techniques, schedules for compliance, and other related matters

. Pursuant to §68

- 201

- 105 (a) of the Tennessee Air Quality Act (“the Act”) 1 , the Tennessee Air Pollution Control Board has the power and duty to:

 Promulgate rules and regulations to effect the intent and purpose of the Act
, including ambient air quality standards; emission standards; general policies or plans; a system of permits; a schedule of fees for review of plans and specifications, issuance or renewal of permits , and inspection of air contaminant sources ;

 A uthorize the T echnical S ecretary to issue permits that contain all applicable provisions of the Act and of the F ederal Clean Air Act ;

 Hold hearings and issue such orders and determinations as may be necessary to effect the intent and purpose of the Act ; and

1 A copy of the Tennessee Air Quality Act is enclosed as Attachment 1.

### ******DRAFT******

2  Cause to be instituted in a court of competent jurisdiction, legal proceedings to compel compliance with

a ny order issued by the B oard, requirement of the Act , or rule or regulation adopted pursuant to the Act

. The Tennessee Air Pollution Control Regulations (TAPCR) 2 are adopted by the Tennessee Air Pollution Control Board and include enforceable limits and other control measures, means or techniques, schedules for compliance, and other related matters.

Table 1: SIP Rules that Establish Enforceable Limits and Other Control Measures, Means or Techniques,

Schedules for Compliance, and Other Related Matters (CAA §110(a)(2)(A)) TAPCR Rule Description Last SIP Revision 3

1200

- 03

- 03 Establishes primary and secondary ambient air quality standards for

Tennessee. March 29, 1985

1200

- 03

- 04 Establishes controls on open burning. March 29, 1985 1200

- 03

- 06 Establishes limits particulate matter emissions from non

- process emission

sources and general requirements for non

- process gaseous emissions. November 23, 1988

1200

- 03

- 07 Establishes limits on particulate matter and total reduced sulfur from process

emission sources and general requirements for process gaseous emissions. June 12, 1996

1200

- 03

- 09 Establishes requirements for construction and operating permits. October 28, 2002 4
1200

- 03

- 14 Establishes limits for sulfur dioxide emissions from designated source

categories. March 19, 1996

1200

- 03

- 19 Establishes specific emission standards for existing air contaminant sources

located in or significantly impacting upon an additional control area. November 12 , 1999

1200

- 03

- 21 Establishes a procedure for a source to request alternate emission limits. April 18, 1994 1200

- 03

- 24 Establishes requirements for Good Engineering Practice stack height. October 19, 1988 1200

- 03

- 27 Establishes limits for NO X emissions from designated source categories. December 27, 2005 5
1200

- 03

- 29 I nspection and maintenance requirements for light duty motor vehicles. August 26, 2005

Ambient air quality monitoring/data system : §110(a)(2)(B) requires SIPs to include provisions to provide for establishment and operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to EPA upon request.

TCA 68

- 201

- 105(b)(4) states that the Department of Environment and Conservation has the power and duty to provide such technical, scientific and other services as may be required for carrying out the provisions of the Tennessee Air Quality Act. Tennessee c urrently collects ambient air quality monitoring data from a network of monitors located throughout the State sited and operated in accordance with 40 CFR 50 and 40 CFR 58. The data from the monitoring network is reported to EPA in accordance with the Fed eral reporting requirements , including:

2 All TAPCR provisions listed in this document have been incorporated into the SIP.

3 Date approved by EPA, unless otherwise noted.

4 SIP Revisions TN

- 294

- 1, TN

- 294

- 2, and TN

- 294

- 3 were submitted to EPA on May 28, 2009.

5 TAPCR 1200

- 03

- 27

- .10 (CAIR Annual NO X Trading Program) and 1200

- 3

- 27

- .11 (CAIR Ozone Season NO X Trading Program) were approved into an abbreviated SIP in the Federal Register notice dated August 20, 2007. A revision to TAPCR 1200

- 03

- 27

- .11 was submitted to EPA in July 2009

### ******DRAFT******

3  Monitor air quality for the relevant NAAQS pollutant(s) at appropriate locations in accordance with the EPA's ambient air quality monitoring network requirements.

 When a monitoring site is determined to be requi red for comparison to the NAAQS, insure that the relevant CFR monitoring requirements are evaluated and complied with for each required pollutant.

 Submit data to the EPA's Air Quality System (AQS) in a timely manner in accordance with 40 CFR 58.

 Provide information to the EPA Regional Office regarding air quality monitoring activities, including a description of how the air agency has complied with monitoring requirements, and an explanation of any proposed changes to the network. Tennessee submits an An nual Network Monitoring Plan , which also addresses the planned changes to the network.

 Obtain EPA’s approval of any planned changes to monitoring sites or to the network plan, consistent with applicable requirements in 40 CFR 58.14 (“System Modification” ).

 Routinely submit written request describing any proposed changes to the air monitoring network to EPA for review and approval before any planned changes to the monitoring network are made.

O n March 7, 2013
, EPA extended the deadlines for installation and operation of required near

- road NO 2 monitors from January 1, 2013 to January 1, 2014

. EPA’s action also extended the deadline to January 1, 2015
, for second

year monitors and January 1, 2017
, for any other remaining moni tors. This change was based on the lack of available resources that S tate and local agencies would need to allow for a more rapid deployment under the original timelines. T wo near

- road monitoring sites are scheduled for installation and operation in Nash ville and Memphis, but Tennessee may not be available to provide a full year of air quality data until mid

- spring 2015. Knoxville and Chattanooga will be required to have near

- road NO 2 sites operational by Jan. 1, 2017. The delay in installation of these required monitors will make the first full year of air quality data available in mid

- spring 2018.

Revisions to the NO 2 NAAQS in 2010 require a minimum of one NO 2 monitoring site in any urban area with a population greater than or equal to one million p eople to assess community

- wide concentrations. Therefore, a community

- wide site is required in the Memphis and Nashville CBSA’s. An NO 2 monitoring site that meets the requirements is operating in Nashville (AQS 47

- 037

- 0011). In the Memphis CBSA
, Arkansas currently operates an NO 2 monitor at its Marion site, (AQS 05

- 035

- 0005). Memphis

- Shelby County Air Pollution Control has requested EPA approve this site to meet minimum community

- wide NO 2 monitoring requirements in the Memphis CBSA.

For SO 2 , Tennessee is required to operate one SO 2 monitor in the Knoxville area and one in the Sullivan County area based on the PWEI requirements. EPA has agreed to allow an existing Eastman SO 2 monitor located in the Kingsport area to meet this requirement. F or the Knoxville area, EPA has accepted a new monitor that was installed at the Freels Bend site near Bull Run Fossil plant to meet this need. This SO 2 monitor became operational in February 2013. Additional monitoring may be needed to accompany the SO 2 modeling requirements that will also be used to identify potential SO 2 nonattainment areas

. Based on population

- weighted emission index ( PWEI ) calculations, a single SO 2 monitoring site is required in the Core

- Based Statistical Areas (CBSA) of Memphis, Na shville, and Knoxville. SO 2 monitoring sites are already in operation in Memphis (AQS 47

- 157

- 0075) and Nashville (AQS 47

- 037

- 0011) which should satisfy this requirement. To meet the requirement in Knoxville, Tennessee has located an SO 2 monitor at an exis ting ozone monitoring site (47

- 001

- 0101 ) in Anderson County ( Knoxville CBSA ) . A second SO 2 monitoring site is operated in Shelby County (AQS 47

- 157

- 0075)
, as indicated above. Continued operation of this site allows Memphis

Shelby County Air Pollution Con trol to meet minimum SO 2 monitoring requirements in the Memphis CBSA.

### ******DRAFT******

4 As of the date of this infrastructure submittal the development of the NO 2 /SO 2 monitoring network is ongoing; therefore Tennessee’s NO 2 /SO 2 monitoring strategy will be established per the requirements set forth in the 2013 and any subsequent Annual Monitoring Network plan relevant to the development of the State’s NO 2 or SO 2 monitoring network.” Tennessee will implement any required changes to the ambient NO 2 and SO 2 monitoring network to address Tennessee’s obligations under §110(a)(2)(B).

Program for enforcement of control measures: §110(a)(2)(C) requires SIP s to include a program providing for enforcement of all SIP measures and the re gulations of construction of new or modified stationary sources to meet prevention of significant deterioration (PSD) and nonattainment new source review (NNSR) requirements.

This element consists of three sub

- elements; enforcement, state

- wide regulatio n of new and modified minor sources and minor modifications of major sources; and preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I part C ( i.e., the PSD program).

Enforcement : TAPCR 1200

- 03

- 13 6 states that failure to comply with any provision of the Tennessee Air Pollution Control regulations constitutes a violation thereof, which shall subject the person or persons responsible therefore to any and all the penalties provided by law. Pursuant to Tennessee Code Annotated ( TCA ) 68

- 201

- 116, the Technical Secretary is authorized to issue orders requiring correction of violations of any part of the Tennessee Air Quality Act, or of any regulation promulgated thereunder. Violators are subject to civil penalties of up to twenty

- five thousand dollars ($25,000) per day for each day of violation and for any damages to the State resulting from the violations.

Regulation of minor sources and minor modifications: TAPCR 1200

- 03

- 09

- .01 (Construction Permits) and 1200

- 03

- 09

- .03 (General Provisions) regulate the construction of new or modified minor stationary sources. Table 2 identifies specific preconstruction program requirements.

Table 2: Preconstruction Requirements Rule Citation Requirement 1200

- 03

- 09

- .01(1)(a) Except as specifically exempted in TAPCR 1200

- 03

- 09

- .04, no person shall begin the construction or modification of an air contaminant source without first having applied for and received a construction permit. 1200

- 03

- 09

- .01(1)(b) The application for a construction permit shall be made on forms available from the Technical Secretary not less than 90 days prior to the estimated starting date of construction. Sources identified in TAPCR 1200

- 03

- 09

- .01(4) shall apply not less than 120 da ys prior to the estimated date of construction. 1200

- 03

- 09

- .01(1)(c) In addition to the information provided in construction permit application forms, the Technical Secretary may require submission of information on the nature and amounts of air contamina nts to be emitted by the source or by associated mobile sources, and any other information necessary to insure compliance. 1200

- 03

- 09

- .01(1)(d) Construction or modification of an air contaminant source must be in accordance with the approved construction permit application, the provisions and stipulations set forth in the construction permit, all provisions of the Tennessee Air Pollution Control Regulations, any applicable measures of the control strategy, and all provisions of the Tennessee Air Quality A ct.

6 Approved by EPA May 31, 1972.

### ******DRAFT******

5 Table 2: Preconstruction Requirements Rule Citation Requirement 1200

- 03

- 09

- .01(1)(e) No construction permit shall be issued by the Technical Secretary if the approval to construct or modify an air contaminant source would result in a violation of the ambient air quality standards specified in Chapter 1200

- 03

- 03, w ould cause a violation of any other regulatory requirement under this Division, 1200

- 03, would result in a violation of applicable portions of the control strategy, or would interfere with attainment or maintenance of a national ambient air quality standar d in a neighboring state. 1200

- 03

- 09

- .01(1)(f) Source impact analysis shall demonstrate that allowable emission increases would not cause or contribute to air pollution in violation of any ambient air quality standard in Chapter 1200

- 03

- 03, of any nationa l ambient air quality standard, or any applicable maximum allowable increase as defined in paragraph 1200

- 03

- 09

- .01(4). 1200

- 03

- 09

- .01(1)(g) The degree of emission limitation required of any source for control of any air contaminant must not be affected by so much of any source’s stack height that exceeds good engineering practice or by any other dispersion technique except as provided for in TAPCR 1200

- 03

- 24. 1200

- 03

- 09

- .01(1)(h) The Department shall on a monthly basis notify the public, by advertisemen t in a newspaper of general circulation in each air quality control region in which the proposed source or modification would be constructed, of the applicants seeking to obtain a permit to construct or modify an air contaminant source. This notice shall

s pecify the general vicinity or location of the proposed source or modification, the type of source or modification, and opportunity for public comment. Comments shall be in writing and delivered to the Technical Secretary within thirty (30) days after the publication of the public notice. 1200

- 03

- 09

- .0 3 (1) Requirement to comply with these regulations at the earliest practicable time,

a uthority of the Board to require early compliance 7

. 1200

- 03

- 09

- .0 3 ( 2 ) Prohibition of circumvention 8

. 1200

- 03

- 09

- .0 3 ( 3 ) Prohibition of discharges that cause a traffic hazard 9

. 1200

- 03

- 09

- .0 3 ( 4 ) Requirement to file emissions data on forms available from the Technical Secretary 10

. 1200

- 03

- 09

- .0 3 ( 6 ) Permits are not transferrable from one person to another 11

. 1200

- 03

- 09

- .0 3 ( 7 ) Authority to suspend or revoke permits for noncompliance. 1200

- 03

- 09

- .0 3 ( 8 ) Authority to impose Federal regulations on permits 12

.

7 There are slight differences in the SIP language and the State rule language. The SIP language references “emission regulations as contained in Chapter V, VI, VII, VIII of these regulations,” and TAPCR requires compliance with “emission regulations as contained in other chapters of these regul ations.”

8 There are slight differences in the SIP language and the State rule language. The TAPCR language includes examples of activities that are considered circumvention.

9 The SIP adds, “

... or an interference with normal means of public transportatio n.”

10 The SIP adds a requirement to file data at least once per year. The TAPCR language requires affected sources to file revisio ns within 30 days if any changes invalidate the original data.

11 The TAPCR language adds, “Applications for construction permits by the new owner or operator of the new air contaminant source, or by the owner or operator of the air contaminant source at the new location shall be required as if there had been no previou s construction permit issued. The new construction permit will address only rules in effect at the time of its issuance.

12 TAPCR 1200

- 03

- 09

- .03(8) is not included in the SIP.

### ******DRAFT******

6 PSD program: TAPCR 1200

- 03

- 09

- .01 (4) ( Prevention of Significant Deterioration of Air Quality ) and 1200

- 03

- 09

- .01(5) (Growth Policy) provide for the regulation of construction of new or modified stationary sources to meet prevention of significant deterioration (PSD) and Nonattainment New Source Review (NNSR) requirements, respectively. Tennessee’s PSD regulatio ns include the following updates:

 Ozone Implementation NSR Update (recognizing NO X as an ozone precursor for PSD purposes). Submitted by Tennessee May 28, 2009, a pproved by EPA February 7, 2012.

 Greenhouse Gas Tailoring Rule (regulation of greenhouse g ases under Tennessee's PSD program). Submitted by Tennessee August 30, 2010, and revised January 11, 2012. Approved by EPA February 28, 2012.

 2008 NSR PM 2.5 Implementation Rule (requires NSR permits to address directly emitted PM 2.5 and precursor pollutants; establishes significant emission rates for direct PM 2.5 and precursor pollutants, including SO 2 and NO X ; establishes PM 2.5 emission offsets; provides exceptions to PM 10 grandfather policy; and accounts for condensables in PM 2.5 a nd PM 10 emission limits in PSD or nonattainment NSR permits, and adopts interpollutant policy). Submitted by Tennessee July 29, 2011, approved by EPA July 30, 2012

 2010 NSR PM 2.5 Increment Rule (establishes PM 2.5 increments pursuant to CAA § 166(a) to pr event significant deterioration of air quality in areas meeting the NAAQS) . Submitted by Tennessee May 10, 2013, approved by EPA July 25, 2013.

Interstate transport: §110(a)(2)(D) requires SIP s to include provisions prohibiting any source or other type of emissions activity in one State from contributing significantly to nonattainment in another State or interfering with maintenance of the NAAQS in another State, or from interfering with measures required to prevent significant deterioration of air quali ty or to protect visibility in another State

. Each such plan shall contain adequate provisions insuring compliance with the applicable requirements of sections 126 and 115 (relating to interstate and international pollution abatement).

Significant Contribution to Nonattainment and Interference with Maintenance : The D.C. Circuit Court’s recent opinion in EME Homer City Generation v. EPA , 696 F.3d 7, 31 (D.C. Cir. 2012), concluded that a 110(a)(2)(D)(i)(I) SIP submission (for s ignificant c ontribution to n onattainment and i nterference with

m aintenance ) cannot be considered a “required” SIP submission until EPA has defined a state’s obligations pursuant to that section. See EME Homer City , 696 F.3d at 32 (“A SIP logically cannot be deemed to lack a ‘re quired submission’ or deemed to be deficient for failure to meet the good neighbor obligation before EPA quantifies the good neighbor obligation, therefore citing to CAIR to meet this requirement may not be appropriate either. Please see EPA’s January 15, 2013 (78 FR 2882) rulemaking.

Interference with PSD : SIPs must have provisions prohibiting emissions that would interfere with measures required to be in any other air agency’s SIP under part C of the Act to prevent significant deterioration of air quali ty. Because part C requires an air agency’s PSD permitting program to address all pollutants subject to regulation under the CAA, the EPA interprets prong 3 to mean that the infrastructure SIP submission should have provisions to prevent emissions of any r egulated pollutant from interfering with any other air agency ’ s comprehensive PSD permitting program, in addition to the new or revised NAAQS that is the subject of the infrastructure submission. Moreover, the infrastructure SIP should address the potentia l for such interference by sources throughout the jurisdiction of the air agency.
Tennessee’s PSD program has been approved into the SIP and includes a regulatory provision , which , consistent with 40 CFR § 51.166(q)(2)(iv), requires the permitting authority to notify air agencies whose lands may be

### ******DRAFT******

7 affected by emissions from that source 13

. Tennessee’s PSD program applies to all regulated NSR pollutants and satisfies the requirements of EPA’s PSD implementati on rule(s). Upon promulgation of new or revised implementation guidance for NO 2 or SO 2 , Tennessee will adopt any required SIP revisions to address Tennessee’s obligations under §110(a)(2)(D).

Visibility Transport : Under § 110(a)(2)(D)(i)(II), an infrast ructure SIP cannot be approved with respect to visibility transport until EPA has issued final approval of SIP provisions that EPA has found to adequately address any contribution of that state's sources to impacts on visibility program requirements in oth er S tates. EPA’s infrastructure SIP states that this requirement may be satisfied through confirmation that the State has an approved regional haze SIP
, which fully meets the requirements of 40 CFR § 51.308 or § 51.309. §§ 51.308 and 51.309 require a State pa rticipating in a regional planning process to include all measures needed to achieve its apportionment of emission reduction obligations agreed upon through that process. States that do not have fully approved regional haze SIPs have the following options :

1. States that do not have fully approved regional haze SIPs may satisfy the visibility requirement by providing, as an alternative to relying on its regional haze SIP alone, a demonstration in its infrastructure SIP submission that emissions within its jurisdiction do not interfere with other air agencies ’ plans to protect visibility. Such an infrastru cture SIP submission would need to include measures to limit visibility

- impairing pollutants and ensure that the reductions conform with any mutually agreed regional haze reasonable progress goals for mandatory Class I areas in other states.

2. If the EPA de termines the SIP to be incomplete or partially disapproves an infrastructure SIP submission for prong 4, a FIP obligation will be created. If a FIP or FIPs are already in effect that correct all regional haze SIP deficiencies, there will be no additional p ractical consequences from the partial disapproval for the affected air agency, the sources within its jurisdiction, or the EPA. EPA would not be required to take further action with respect to prong 4 because the FIP already in place would satisfy the req uirements with respect to prong 4. In addition, unless the infrastructure SIP submission is required in response to a SIP call under CAA section 110(k)(5), mandatory sanctions under CAA section 179 would not apply because the deficiencies are not with resp ect to a submission that is required under CAA title I part D.
On April 24, 2012, EPA issued a limited approval and limited disapproval of Tennessee’s Regional Haze SIP 14

. EPA disapproved of Tennessee’s SIP revision insofar as the SIP revision relie d up on Clean Air Interstate Rule ( CAIR ) emission reductions 15 to address the impact of emissions from Tennessee’s EGUs 16 , while approving the remaining provisions of the SIP. EPA’s rationale for the limited disapproval was that the remanded CAIR rules could not be used as permanent measures in any SIP submittal.
EPA’s memorandum dated November 19, 2012 ( Attachment 2 )
, revises previous guidance on the use of remanded CAIR rules. The memorandum states :

13 See TAPCR 1200

- 03

- 09

- 3.04(4)(l)2: “The Technical Secretary shall make a final determination on the application no later than 6 months after receipt of a complete application... The review process invo lves performing the following actions... Send a copy of the notice of public comment to the applicant and to officials and agencies havin g cognizance over the location where the proposed construction would occur as follows: State or local air pollution control agencies, the chief executives of the city and county where the source or modification would be located, any comprehensive re gional land use planning agency, the EPA Administrator, and any State or Federal Land Manager whose lands may be affected by emissions from the source or modification.”

14 EPA took final action on the entire SIP except for the Best Available Retrofit Technology ( BART) determination for Eastman Chemical Company. EPA finalized approval of the BART requirements for Eastman Chemical C ompany on November 27, 2012.

15 TAPCR 1200

- 3

- 14

- .04 (CAIR SO 2 Annual Trading Program), TAPCR 1200

- 3

- 27

- .10 (CAIR Annual NO X Trading Pro gram), and 1200

- 3

- 27

- .11 (CAIR Ozone Season NO X Trading Program) were approved into an abbreviated SIP in the Federal Register notice dated August 20, 2007.

16 The U. S. Court of Appeals for the DC Circuit vacated the CAIR rules on July 11, 2008. On Decem ber 23, 2008, in response to petitions for reconsideration, the Court elected to remand the rules without vacature.

### ******DRAFT******

8 C ertain state submittals awaiting approval by the EPA... may be partly dependent on the assurance of ongoing regional NO X and SO 2 emission reductions... we believe that it will be appropriate to rely on CAIR as permanent and enforceable for certain actions in certain circumstances. Specifically, we believe it will b e appropriate to rely on those reductions until that petition and any further proceedings in the [Transport Rule] case are resolved... or until a valid replacement rule is developed and implementation plans complying with any new rule are submitted by the St ates and acted upon by the EPA.
Tennessee’s regional haze SIP

– including the disapproved CAIR provisions

– and Tennessee’s CAIR SIP are sufficient to ensure emissions within its jurisdiction do not interfere with other air agencies’ plans to protect visi bility.

Interstate Pollution Abatement and International Air Pollution : EPA’s SIP guidance states that agencies with PSD programs that have been approved into their SIPs should already have a regulatory provision in place, consistent with 40 CFR 51.166(q )(2)(iv), which requires the permitting authority to notify air agencies whose lands may be affected by emissions from that source. Inasmuch as the information that the permitting authority provides to other air agencies is submitted by the source to the p ermitting authority, EPA considers the notification by the permitting authority to satisfy the requirement of CAA section 126(a)(1)(A) that a new or modified major source subject to part C notify neighboring air agencies of its potential downwind impact.
As stated previously, Tennessee’s PSD program has been approved into the SIP and includes a regulatory provision, which, consistent with 40 CFR §51.166(q)(2)(iv), requires the permitting authority to notify air agencies whose lands may be affected by emiss ions from that source.

Adequate resources: §110(a)(2)(E) requires States to provide for adequate personnel, funding, and legal authority under State law to carry out its SIP

- related issues.

This element consists of three sub

- elements: personnel and funding, State Boards, and local program oversight.

Personnel and Funding: EPA’s guidance states that t he SIP should provide necessary assurances that the air agency has adequate personnel and funding to implement the relevant NAAQS. In accordance with t he EPA's regulations at 40 CFR part 51, subpart M (“Intergovernmental Consultation”), the infrastructure SIP submission should identify the organizations that will participate in developing, implementing, and enforcing the EPA

approved SIP provisions relat ed to the new or revised NAAQS and thus require resources for doing so. The infrastructure SIP submission should identify the responsibilities of such organizations and include related agreements among the organizations.

TCA 68

- 201

- 105 gives the Tennessee Air Pollution Control Board the power and duty to promulgate rules and regulations to affect the intent and purpose of the Tennessee Air Quality Act, pursuant to the provisions of the Uniform Administrative Procedures Act. The Board may define ambient ai r quality standards; set emission standards; establish general policies or plans; establish a system of permits; and establish a schedule of fees for review of plans and specifications, issuance or renewal of permits or inspection of air contaminant source s.

TAPCR 1200

- 03

- 26 establish es construction fees, annual emission fees, and permit review fees sufficient to supplement existing S tate and federal funding and to cover reasonable costs associated with the administration of the air pollution control pro gram. These costs include costs associated with review of applications and reports, issuance of permits
, source inspections and unit observation, review and evaluation of monitoring results (stack and/or ambient), modeling, and costs associated with enfor cement actions (excluding penalties assessed).

The Division of Air Pollution Control has adequate personnel and funding to implement the NO 2 and SO 2 NAAQS

.

### ******DRAFT******

9 State Boards : The infrastructure SIP submission (possibly in combination with earlier submissions already approved by the EPA) would need to include the statutory or regulatory provisions that impose the requirements mandated by CAA section 128 pertaining to certain boards, bodies, and personnel involved in approving permits or enforcement orders. Beca use CAA section 110(a)(2)(e)(ii) directs states to “provide requirements that the state comply with the requirements respecting state boards under section 128,” the provisions that implement CAA section 128 would need to be contained within the SIP. That i s, the EPA would not approve an infrastructure SIP submission that only provides a narrative description of existing air agency laws, rules, and regulations that are not approved into the SIP to address CAA section 128 requirements.

Rule 0400

- 30

- 17 of the Tennessee Air Pollution Control Regulations 17 addresses the conflict of interest provisions for the Tennessee Air Pollution Control Board and satisfies the requirements of Clean Air Act section 128.

Local Programs: EPA’s infrastructure SIP guidance state s that t he infrastructure SIP submission should provide necessary assurances that the state retains responsibility for ensuring adequate implementation of SIP obligations with respect to relevant NAAQS. A state may authorize a local or regional agency to c arry out the SIP or a portion of the SIP within that agency's jurisdiction, if the SIP demonstrates that the local agency has the necessary legal authority. However, in these cases the infrastructure SIP submission needs to also provide assurances that the state air agency retains responsibility for ensuring adequate implementation of the SIP. Under subpart L, see 40 CFR 51.232 ("Assignment of legal authority to local agencies").

TCA 68

- 201

- 115 (Local Pollution Control Programs) states that any municipalit y or county in Tennessee may enact regulations not less stringent than the standards adopted for the State or may incorporate by reference any State or Federal regulations.

Before such ordinances or resolutions become effective, the municipality or coun ty must receive a certificate of exemption from the Board. The Board may grant a certificate of exemption in whole or in part, may prescribe a time schedule for various parts of an exemption to become effective, and may make a certificate of exemption cond itional or provisional as is deemed appropriate. In granting any certificate of exemption, Tennessee reserves the right to enforce any applicable resolution, ordinance, or regulation of the local program (enforcement proceedings for local program ordinanc es and regulations are the same as for enforcement of any State regulation).

TCA 68

- 201

- 115 directs the Department of Environment and Conservation to frequently determine whether or not any local program meets the terms of the exemption granted and continues to comply with the provisions of the law. If the Department determines tha t the local program does not meet the terms of the exemption or does not otherwise comply with the law, the board may suspend the exemption in whole or in part until the local program complies with the State standards.

Stationary source monitoring syste m: §110(a)(2)(F) requires States to establish a system to monitor emissions from stationary sources and to submit periodic emissions reports.

TAPCR 1200

- 03

- 10 (Required Sampling, Recording, and Reporting) gives the Technical Secretary the authority to monitor emissions at stationary sources, and to require these sources to conduct emissions monitoring and to submit periodic emissions reports.

Emergency power: §110(a)(2)(G) requires States to provide for authority to address activities causing immine nt and substantial endangerment to public health, including contingency plans to implement the emergency episode provisions in their SIP.

17 Last revised June 25, 2013, effective September 23, 2013.

### ******DRAFT******

10 Tennessee’s emergency powers are outlined in TAPCR 1200

- 03

- 15 (Emergency Episode Plan)

. This rule establishes cond itions justifying the proclamation of an air pollution episode (air pollution alert, air pollution warning, or air pollution emergency), specific emissions reductions for each episode level, and emergency episode plan requirements for major sources located in or significantly impacting a nonattainment area 18

. The Commissioner of the Department of Environment and Conservation has additional powers to issue emergency stop orders to air contaminant sources, as enumerated in TCA 68

- 201

- 109. This law provides that if the Commissioner finds that emissions from the operation of one or more air contaminant sources are causing imminent danger to human health and safety, the commissioner may, with the approval of the governor, order the person(s) responsible to redu ce or discontinue immediately the emission of air contaminants. The law provides for a hearing to be held before the Commissioner within 24 hours of the order, in which the Commissioner must affirm, modify or set aside the order.

Tennessee has no Priority I, IA, or II regions and is not required to develop a contingency plan for SO 2 or NO 2 . Upon promulgation of new or revised guidance for emergency episode plans, Tennessee will adopt any required SIP revisions to address Tennessee’s obligations under §110 (a)(2)(G).

Future SIP revisions: §110(a)(2)(H) requires States to have the authority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for attaining the NAAQS, or in response to an EPA finding that the SIP is su bstantially inadequate.

§68

- 201

- 105(a) of the Tennessee Air Quality Act authorizes the Tennessee Air Pollution Control Board to promulgate rules and regulations to effect the intent and purpose of the Act, including ambient air quality standards; emissi on standards; general policies or plans; a system of permits; a schedule of fees for review of plans and specifications, issuance or renewal of permits, and inspection of air contaminant sources.

Consultation with government officials : §110(a)(2)(J) re quires States to provide a process for consultation with local governments and Federal Land Managers carrying out NAAQS implementation requirements pursuant to §121 relating to consultation

.
TAPCR 1200

- 03

- 34 (Conformity) provides for inter

- agency consultation on both transportation and general conformity related issues.

Public notification : §110(a)(2)(J) further requires States to notify the public if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to p revent exceedances.

The infrastructure SIP submission need s to show that the air agency does the following: regularly notifies the public of instances or areas in which the new or revised primary NAAQS was exceeded; advises the public of the health haza rds associated with such exceedances; and enhances public awareness of measures that can prevent such exceedances and of ways in which the public can participate in regulatory and other efforts to improve air quality. 40 CFR 51.285 ("Public notification"), repeats the language of CAA section 127.

The existing Air Quality Index and Air Quality Forecasting programs provide for a method to alert the public if the NAAQS are exceeded in an area. The current forecasting program provides for notification to the public (Code Orange days) when an exceedance is forecasted to occur in the major metropolitan areas. The Code Orange day corresponds with the primary standard and is directly tied to the air quality index. Some areas of the state are required to have a d aily air quality index (AQI) issued to the public. The AQI includes information on

18 These emission sources must submit acceptable air pollution episode emissions reduction plan to be followed during the alert, warning, and emergency levels or an air pollution episode.

### ******DRAFT******

11 the health hazards associated with the pollutant(s) and provides guidance on how to mitigate exposures to sensitive individuals and the population in general and steps to h elp reduce actions that may contribute to elevated levels of the pollutants in question. The annual network monitoring plan update also includes the previous year’s design value for all criteria pollutant s and that plan/report is required to be sent out for public participation review and comment each year.
PSD and visibility protection : §110(a)(2)(J) also requires States to meet applicable requirements of part C related to prevention of significant deterioration and visibility protection.

Preventi on of significant deterioration (PSD) requirements are addressed in TAPCR 1200

- 03

- 09

- .01 (4) (Prevention of Significant Air Quality Deterioration)

. As stated above, Tennessee has a fully approved PSD program, which applies to all regulated NSR pollutants. EPA’s infrastructure SIP guidance notes that when EPA establishes or revises a NAAQS, visibility requirements under part C do not change , and there are no new visibility protection requirements under part C as a result of a revised NAAQS . Therefore, Tenne ssee is not addressing the visibility subelement in this submittal.

Air quality modeling/data: §110(a)(2)(K) requires that SIPs provide for performing air quality modeling for predicting effects on air quality of emissions from any NAAQS pollutant and submission of such data to EPA upon request.
The PSD requirements found in TAPCR 1200

- 03

- 09

- .0 1(4) (Prevention of Significant Air Quality Deterioration) specify when modeling and when monitoring (pre

- or post

- construction) must be performed and that the resulting data be made available for review to EPA. 

### Tennessee has personnel with training and e xperience to conduct

source

- oriented dispersion modeling with models approved by the EPA.
EPA’s strategy for SO 2 seeks to characterize air quality for the SO 2 NAAQS using a mixed approach of monitoring and air quality modeling, and EPA has published several guidance documents to assist States with implementation of the SO 2 NAAQS 19 . EPA has also stated that future rulemaking will establish requirements for chara cterizing SO 2 air quality in priority areas 20 :
In a future rule (2014), the EPA will establish requirements for characterizing SO 2 air quality in priority areas, focusing on areas with sources that have emissions higher than a threshold amount. The EPA exp ects to establish these thresholds taking population into account. States will have the flexibility to characterize air quality using modeling of actual emissions or using appropriately sited existing and new monitors. These data would be used in two futur e rounds of designations in 2017 (based on modeling) and 2020 (based on new monitoring).

Attainment demonstrations submitted to the EPA will provide any required air quality modeling. The modeling work will comply with EPA’s final guidance on the use of models in attainment demonstrations and will use the latest methods and techniques to document modeling information and computer model performance evaluations.

Permitting fees: §110(a)(2)(L) requires SIPs to require each major stationary source to pay pe rmitting fees to cover the cost of reviewing, approving, implementing, and enforcing a permit.

T he cost of reviewing, approving, implementing, and enforcing PSD and major nonattainment NSR permit s for are covered as follows:

19 Current EPA guidance includes draft modeling and ambient monitoring guidance documents published in December 2013. These doc uments provide recommendations for others to consider as they develop information to be used in future separate final actions, suc h as area designations and other NAAQS implementation actions, but do not impose binding and enforceable requirements or obligations on any person.

20 U. S. EPA, SO 2 NAAQS Designations Modeling Technical Assistance Document , draft guidance document, Decem ber 2013.

### ******DRAFT******

12 New construction ( all major s tationary sources that not paying Title V annual emission fees ) TAPCR 1200

- 03

- 26

- .02(5) requires each new source to pay a construction permit application filing/processing fee as set forth in 1200

- 03

- 26

- .02(5)(g), Schedule A. Permitting costs are also cov ered by construction permit application filing/processing fees for minor sources, (Schedule A applies to all construction not specifically exempted), annual emission fees for non

- Title V sources (TAPCR 1200

- 03

- 26

- .02(6)), legislative appropriations, and Fe deral grants. New construction or modifications at existing Title V facilities Permitting costs are covered by Title V annual emission fees established pursuant to TAPCR 1200

- 03

- 26

- .02(9). Pursuant to TAPCR 1200

- 03

- 26

- .02(9)(a), once a major stationary source begins to pay Title V annual emission fees, it will not be subject to the construction permit fees of paragraph 1200

- 03

- 26

- .02(5) for any additional construction occurring at the source.

Consultation/participation by affected local entities: §110(a)(2)(M) requires States to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP.

TAPCR 1200

- 03

- 34 (Conformity) provide s for inter

- agency consultation on both transportation and genera l conformity related issues.

### ******DRAFT******



# Attachment 1 Tennessee Air Quality Act

### ******DRAFT******



# Attachment 2 EPA Memorandum dated November 19, 2012

# Appendix D

Public Notice and Public Hearing

InformationNotice of Public Hearing Tennessee Department of Environment and Conservation Division of Air Pollution Control

There will be a public hearing before the Technical Secretary of the Tennessee Air Pollution Control Board to consider the promulgation of an amendment to the Tennessee State Implementation Plan pursuant to Tennessee Code Annotated, Section 68

- 201

- 105. The comments received at this hearing will be presented to the Tennessee Air Pollution Control Board for their consideration in regards to the proposed amendment. The hearing will be conducted in the manner prescribed by the Uniform Administrative Procedures Act, Tennessee Code Annotated, Section 4

- 5

- 201 et. seq. and will take place in the 15 th Floor Conference Room, Division of Air Pollution Control, located at William R. Snodgrass Tennessee Tower
, 312 Rosa L. Parks Avenue, 15 th Floor
, Nashville, TN 37243 at 9 : 30 AM on the 1 0 th day of March , 20 14

. Written comments will be included in the hearing records if received by the close of business on March 1 0 , 2014 , at the office of the Technical Secretary, Tennessee Air Pollution Control Board, William R. Snodgrass Tennessee Tower
, 312 Rosa L. Parks Avenue, 15 th Floor
, Nashville, TN 37243 . Additionally, comments may be submitted via attachments through electronic mail until the close of business on March 1 0 , 2014

. Any individuals with disabilities who wish to partic ipate in these proceedings should contact the Tennessee Department of Environment and Conservation to discuss any auxiliary aids or services needed to facilitate such participation. Such initial contact may be in person, by writing, telephone, or other mea ns, and should be made no less than ten (10) days prior to March 10, 2014 , or the date such party intends to review such filings, to allow time to provide such aid or service. Contact the Tennessee Departmen t of Environment and Conservation ADA Coordinator
, William R. Snodgrass Tennessee Tower, 312 Rosa L. Parks Avenue 2 nd Floor, Nashville, TN 37243, (866) 253

- 5827. Hearing impaired callers may use the Tennessee Relay Service, (800) 848

- 0298.

Tennessee is submitting a proposed certification for public rev iew, which addresses Tennessee’s obligations under §§110(a)(1) and (2) of the Clean Air Act for the revised National Ambient Air Quality Standard s (NAAQS) for nitrogen dioxide (NO 2 ) promulgated by EPA on January 22, 2010 , and for sulfur dioxide (SO 2 ), promulgated by EPA on June 2, 2010

. States are required to submit ‘‘infrastructure’’ SIPs to EPA to address the requirements of §§110(a)(1) and (2) of the Clean Air Act within three years aft er the promulgation of new or revised NAAQS. These ‘‘infrast ructure SIPs’’ provide assurances of State resources and authorities, and establish the basic State programs, to implement, maintain, and enforce new or revised standards. Tennessee’s proposed submittal to EPA states that the State Implementation Plan mee ts all of the required elements of §§110(a)(1) and (2) of the Clean Air Act.

Revisions considered at this hearing may be adopted by the Tennessee Air Pollution Control Board under T.C.A. 68

- 201

- 105, the Board general authority to promulgate rules. Materi als concerning the proposed actions will be available for public inspection during normal working hours starting on February 7, 2014 , at the following locations:

Division of Air Pollution Control William R. Snodgrass Tennessee Tower 312 Rosa L. Parks Aven ue, 15 th Floor Nashville, TN 37243 Division of Air Pollution Control Chattanooga Environmental Field Office 540 McCallie Avenue, Suite 550 Chattanooga, TN 37402

Division of Air Pollution Control Columbia Environmental Field Office 1421 Hampshire Pike Columbia, TN 38401 Division of Air Pollution Control Cookeville Environmental Field Office 1221 South Willow Avenue Cookeville, TN 38506

Division of Air Pollution Control Jackson Environmental Field Office 1625 Hollywood Drive Jackson, TN 38305 Division of Air Pollution Control Johnson City Environmental Field Office 2305 Silverdale Road Johnson City, TN 37601

- 2162

Division of Air Pollution Control Knoxville Environmental Field Office 3711 Middlebrook P ike Knoxville, TN 37921 Division of Air Pollution Control Memphis

- Shelby Co. Health Dept. 814 Jefferson Avenue Memphis, TN 38105

If you have any questions about these changes, you may contact Travis Blake at (615) 532

- 0617. For complete copies of the text of the notice, please contact Travis Blake, Department of Environment and Conservation, William R. Snodgrass Tennessee Tower
, 312 Rosa L. Parks Avenue, 15 th Floor
, Nashville, TN 37243

.All persons interested in the air quality of the State of Tennessee are urged to attend and will be afforde d the opportunity to present testimony to the hearing officer regarding the proposed revisions to the State Implementation Plan . Any person desiring to present lengthy comments should be prepared at the hearing to offer a written statement to be incorporat ed into the record. Written statements not presented at the hearings will only be considered part of the records if received by 4:30 PM March 1 0 , 2014
, at the office of the Technical Secretary, Tennessee Air Pollution Control Board, William R. Snodgrass Tennessee Tower, 312 Rosa L. Parks Avenue, 15th Floor, Nashville, TN 37243.Page 1 of 1

1 

### Public Hearing

Division of Air Pollution Control William R. Snodgrass Tennessee Tower 312 Rosa L. Parks Avenue, 15 th Floor Nashville, Tennessee 37243



### 9:30 AM. March 10, 2014

Hearing Officer: Malcolm Butler Division of Air Pollution Control Representatives: Lida Galbreath (Recording Secretary) APC Lacey Hardin TDEC APC Travis Blake TDEC APC

Other Divisions: Resources Management Bureau None Public None

This public hearing has been called to consider the proposed Certification for NO2 and SO2 National Ambient Air Quality Standards Clean Air Act Sections 110(a)(1) and (2) pursuant to Tennessee Code Annotated, Section 68

- 201

- 105.



## Comment Summary

There were no public comments received at the public hearing.

Phc4 4 .doc

### Page 1 of 1 Pages

Public Hearing Tennessee Division of Air Pollution Control William R. Snodgrass Tennessee Tower 312 Rosa L. Parks Avenue, 15 th Floor Nashville, Tennessee 37243 9:30 A.M. March 10, 2014

Opening Statement for Hearing

I would like to call this he aring to order. It is 9:30 a

. m

. March 10, 2014

. We are in Conference Room A, 15 th Floor William R. Snodgrass Tennessee Tower, 312 Rosa L. Parks Avenue , Nashville, Tn. My name is Malcolm Butler, I'm an Environmental Protection Specialist V with the Divisi on of Air Pollution Control and I'm the Hearing Officer for this meeting. This hearing is being held under the authority of the Tennessee Air Pollution Control Board.

This public hearing has been called to consider the proposed Certification for NO2 and S O2 National Ambient Air Quality Standards Clean Air Act Sections 110(a)(1) and (2) pursuant to Tennessee Code Annotated, Section 68

- 201

- 105.

This hearing is a requirement of the Uniform Administrative Procedures Act, and the Federal Clean Air Act.

I wa nt to emphasize (1) that we are not here to debate any testimony presented, but to listen and only ask questions for clarification and (2) that written statements or transcripts of comments are requested and will be considered as a part of this record if r eceived in the office of the Technical Secretary, Tennessee Air Pollution Control Division, 15 th Floor William R. Snodgrass Tennessee Tower, 312 Rosa L. Parks Avenue , Nashville, Tennessee 37243 by close of business Monday
, March 10, 2014

.

Materials concer ning the proposed actions were available at www.tn.gov/environment/ppo/#air and also for public inspection during normal working hours at various locations detailed in the Notice of Rulemaking Hearing

. A copy of these notices will be made a permanent part of the record.

The proceedings of this hearing are being recorded and copies of the hearing record will be available for the cost of reproduction. Requests for such copies should be sent to the Techn ical Secretary at the previously mentioned address.

Compilers of the testimony presented at this hearing reserve the right to include extensive or bulky testimony by reference only.

Verbal or written testimony, either for or against matters under discuss ion, may be presented at this hearing.

Is there any one here who would like to make an oral comment? Comments________________________________

Is there anyone else here who would like to make an oral comment for the hearing record? I declare a recess until 10:00

a.m.
It is 10:00 a.m., the recess is ended. The public hearing will come to order.

Is there anyone else here who would like to make an oral comment for the hearing record?

Written statements not presented at the hearings will only be consi dered part of the records if received by 4:30 p.m

. today March 10, 2014
, at the office of the Technical Secretary, Tennessee Air Pollution Control Board, 15 th Floor William R. Snodgrass Tennessee Tower, 312 Rosa L. Parks Avenue , Nashville, TN 37243

.

Since there is no one else here desiring to make an oral comment for the hearing record, the hearing is adjourned. winword \ ohs4 2 .doc

# Appendix E

Public Depository Transmittal Letters

# Appendix F

Affected State Notification

# Appendix G

Response to Comments

### 1

V IA 

### E LECTRONIC 

### M AIL AND 

### U.S. M AIL



### March 10, 2014

Technical Secretary Tennessee Air Pollution Control Board William R. Snodgrass Tennessee Tower 312 Rosa L. Parks Avenue 15th Floor Nashville, TN 37243

Re: Comments Concerning Tennessee’s Section 110(a) Infrastructure State Implementation Plan (SIP) Certification Submittal for NO 2 

### and SO 2 

### National Ambient Air Quality Standards

Dear Sir of Madam:
On behalf of the Sierra Club, its over 6,500 members in Tennessee, and others who are adversely impacte d by Tennessee’s sources of sulfur dioxide (“SO 2 

### ”) and nitrogen dioxide (“NO 2 

### ”) pollution, we submit the following comments on Tennessee’s proposed Infrastructure State Implementation Plan (“SIP”) addressing the requirements for the January 22, 2010 one

ho ur primary NO 2 

### National Ambient Air Quality Standard (“NAAQS”) and the June 2, 2010

one

- hour primary SO 2 

### NAAQS, required by sections 110(a)(1) and (2) of the Clean Air Act (“CAA” or “Act”), hereinafter “I

- SIP Submission.” 42 U.S.C. § 7410(a)(1) & (2). 1



### T he primary NAAQS define the levels of air quality that the U.S. Environmental Protection Agency (“EPA”) Administrator determines to be necessary to protect public health with an adequate margin of safety. See 42 U.S.C. § 7409( b)(1). On January 22, 2010, EPA promulgated a new one

- hour primary NO 2 

### NAAQS, set at a level of 100 parts per billion (“ppb”) based on the three

- year average of the annual 98th percentile of one

- hour daily maximum concentrations, as a supplement to the existing annual primary NO 2 

### NAA QS. See Primary

1 

### A copy of these comments and all exhibits and supporting modeling files can be found at: https://app.box.com/s/fu6jc0uoj8uqpqp1pzer.

### 2

National Ambient Air Quality Standards for Nitrogen Dioxide Final Rule, 75 Fed. Reg. 6474 (February 9, 2010) (effective April 12, 2010). EPA set this short

- term standard to address evidence of a causal connection between short

- term exposu re to NO 2 

### and adverse respiratory effects, including emergency department visits and hospitalizations, airway hyper

responsiveness, airway inflammation, and decreased lung function. 75 Fed. Reg. at 6480. Similarly, on June 2, 2010, EPA revised the primar y SO 2 

### NAAQS by establishing a new one

hour standard at a level of 75 ppb which is met at an ambient air quality monitoring site when the 3

- year average of the annual 99 th percentile of the daily maximum one

- hour average concentrations is less than or equal t o 75 ppb. See Primary National Ambient Air Quality Standard for Sulfur Dioxide Final Rule, 75 Fed. Reg. 35,520, (June 20, 2010) [hereinafter “Final SO 2 

### NAAQS Rule”]. The primary SO 2 

### NAAQS was set at such a level in order to protect public health from the serious threats posed by short

- term exposure to SO 2 

### , including decreased lung function, increased respiratory distress such as chest tightness, wheezing, and shortness of breath, and other serious indicators of respiratory illness, especially in asthmatic s, children, and the elderly. See Final SO 2 

### NAAQS Rule at 35,525

- 26. The health data relied upon by EPA in promulgating the new SO 2 

### standard overwhelmingly indicates that increased asthma attacks and hospital visits are attributable to short

- term concent rations of sulfur compounds in the air. Id

. Due to these and other serious impairments caused by short

- term NO 2 

### and SO 2 

### exposure, the Tennessee Department of Environment and Conservation (“DEC”) must properly implement the

one

- hour NO 2 

### and SO 2 

### NAAQS thro ugh this SIP process in order to protect public health as required by law.
According to the Notice of Public Hearing on the proposed amendment to the Tennessee SIP, written comments will be included in the hearing records if received by the close of busin ess on March 10, 2014, making this submission timely.

I. LEGAL BACKGROUND The Clean Air Act creates a framework for the “development of cooperative Federal, State, regional, and local programs to prevent and control air pollution.” 42 U.S.C. § 7401(a)(4). P ursuant to section 109(b)(1) of the Act, EPA has established primary NAAQS for six criteria air pollutants, “the attainment and maintenance of which . . . are requisite to protect the public health.” Id. § 7409(b)(1). States have “primary responsibility” for assuring air quality within the state. Id . § 7407(a). Following promulgation of a NAAQS, the Act requires that a state shall “adopt and submit to the Administrator . . . a plan which provides for implementation, maintenance, and enforcement of such primary [NAAQS].” Id. § 7410(a)(1). For attainment and unclassifiable areas, section 110(a)(2)(A) requires that these plans (which EPA refers to as Infrastructure SIPs or “I

- SIPs”) “include enforceable emission limitations . . . as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements” of the Clean Air Act, including the requirement to maintain the NAAQS. 42 U.S.C. §§ 7410(a)(2)(A), 7410(a)(1); Conn. Fund for Env’t, Inc. v. EPA , 696 F.2d 1 69, 172 (2d Cir. 1982) (CAA requires that SIPs contain “measures necessary to ensure the attainment and maintenance of NAAQS”); Mont. Sulphur & Chem. Co. v. EPA , 666 F.3d 1174, 1180 (9th Cir. 2012) ( “ The Clean Air Act directs states to develop implementati on plans

— SIPs

— that ‘assure’ attainment and maintenance of national ambient air quality standards (“NAAQS”) through enforceable emission limitations.”) (citing 42 U.S.C. §§ 7407(a), 7410(a)(2)(A)); Hall v. EPA , 273 F.3d 1146, 1153 (9th Cir. 2001) (“Each Sta te must submit a

### 3

[SIP] that specif[ies] the manner in which [NAAQS] will be achieved and maintained within each air quality control region in the State”) (internal citations omitted); see also EPA, “Sulfur Dioxide Implementation

— Programs and Requirements f or Reducing Sulfur Dioxide,” available
at http://www.epa.gov/airquality/sulfurdioxide/implement.html.
EPA may approve an Infrastructure SIP only if the I

- SIP meets the requirements of 110(a)(2) of the Act. See 42 U.S.C. § 7410(a)(2)(A)

- (M). The state bear s the burden of demonstrating that its SIP submission satisfies the standards of section 110(a)(2). Mich. Dept. of Envtl. Quality v. Browner , 230 F.3d 181, 183, 185 (6th Cir. 2000) (affirming EPA’s rejection of a SIP proposal where the state “failed to of fer evidence that [the] proposed rules will not interfere with the attainment and maintenance of the NAAQS.”). For a plan to be adequate, it “must demonstrate that the measures, rules, and regulations contained in it are adequate to provide for the timely attainment and maintenance of the national standard that it implements.” 40 C.F.R. § 51.112(a) (noting also the adequacy of a plan’s control measures “shall be demonstrated by means of applicable air quality models . . .”)

A. The Plain Language and Legislat ive History of the Clean Air Act Require That Infrastructure SIPs Must Impose Emission Limits Adequate to Prevent NAAQS Exceedances in Areas Not Designated Nonattainment

. The Clean Air Act, on its face, requires I

- SIPs to be adequate to prevent exeedances o f the NAAQS. Following promulgation of a NAAQS, a state must “adopt and submit to the Administrator . . . a plan which provides for implementation, maintenance, and enforcement of such [NAAQS].” 42 U.S.C. § 7410(a)(1). Pursuant to section 110(a)(2)(A), this I

- SIP must “include enforceable emission limitations . . . as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements” of the Clean Air Act (which include the requirement to maintain comp liance with the NAAQS). Id. § 7410(a)(2)(A) (emphasis added). As defined by the Act, the term “emission limitation” means “a requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air p ollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design, equipment, work practice or operational standard promulgated under this chapter.” Id. § 7602(k). Thus, the plain language of section 110(a)(2)(A) requires that I

- SIPs include enforceable emission limitations on sources sufficient to ensure maintenance of the NAAQS.
The legislative history of the Clean Air Act supports this interpretation . As the Senate Committee Report accompanying the 1970 Clean Air Act explained, the Act “would establish certain tools as potential parts of an implementation plan and would require that emission requirements be established by each State for sources of ai r pollution agents or combinations of such agents in such region and that these emission requirements be monitored and enforceable.” Sen. Cmte. on Pub. Works Rpt. at 12 (Sept. 17, 1970) (emphasis added), attached hereto as Exhibit 1. This was reaffirmed i n the subsequent Senate Conference Report, which stated that: “In order to implement the national ambient air quality standards, these [state implementation] plans must provide for emission limitations on all services in the region covered by the plan
, tog ether with schedules and timetables of compliance, systems for monitoring both ambient air

### 4

and emissions from individual sources, and adequate enforcement authority.” Sen. Conf. Rpt., 116 Cong. Rec. 42,381, 42,384 (Dec. 18, 1970) (emphasis added), attache d hereto as Exhibit 2. 2



### B. EPA Regulations Implementing the Clean Air Act Require That Infrastructure SIPs Must Impose Emission Limits Adequate to Prohibit NAAQS Exceedances in Areas Not Designated Nonattainment

. EPA regulations implementing section 110(a)(2) also require that I

- SIPs be adequate to prohibit exceedances of the NAAQS. Pursuant to these regulations, in order for a SIP to be approved by EPA, it “must demonstrate that the measures, rules, and regulations contained in it are adequate to provide for the timely attainment and maintenance of the national standard that it implements.” 40 C.F.R. § 51.112(a). 3 

### The regulation clearly states that all SIPs must contain emission limits that adequately ensure the NAAQS is achieved. See 40 C.F.R. § 51.112(a). Although these regulations were developed before the Clean Air Act separated Infrastructure SIPs from nonattainment SIPs

— a process that began with the 1977 amendments and was completed by the 1990 amendments

— the regulations nonetheless apply to I

- SIPs. EPA has not changed the regulation since 1990, and in the preamble to the final rule promulgating 40 C.F.R. § 51.112, EPA expressly identifies that its new regulations were not implementing Subpart D, the new nonattainment provisions of the Act. See Air Q uality Implementation Plans; Restructuring SIP Preparation Regulations, 51 Fed. Reg. 40,656, 40,656 (Nov. 7, 1986) (“It is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act . . . .”). Consequently, 40 C.F.R. § 51.112 was intended to apply to I

- SIPs. Thus, it is clear that I

- SIPs must contain “measures, rules, and regulations” sufficient to ensure maintenance of the NAAQS.

2 

### Although the language of current section 110(a)(2)(A) was originally found in section 110(a)(2)(B), the substance has remained true to the statements found in the Senate Committee Reports. There were only two substantive changes between 1970 and the present. First, t he addition of former section 172(c)’s requirement that SIPs’ emission limitations, schedules, and timetables be “enforceable.” See Rpt. of the Senate Cmte. on Envt. and Pub. Works accompanying the Clean Air Act Amendments of 1989 at 20 (Dec. 20, 1989) (ex plaining that “Paragraph (1) of rewritten section 110(c) combines and streamlines existing section 110(a)(2)(b) and the enforceability requirements of section 172(c) of current law”), attached hereto as Exhibit 3 ; see also 42 U.S.C. § 7502(c) (section 172( c)) (requiring that a SIP revision submitted before July 1, 1982 pursuant to a demonstration under subsection (a)(2) “shall contain enforceable measures to assure attainment of the applicable standard not later than December 1, 1987”). Second, the clarifi cation in the 1990 Clean Air Act Amendments that the “means[] or techniques” for meeting the requirements of the Act included “economic incentives such as fees, marketable permits, and auctions of emissions rights.” 42 U.S.C § 7410(a)(2)(A).
3 

### 40 C.F.R. § 51.112(a)(1) further specifies that “[t]he adequacy of a control strategy shall be demonstrated by means of applicable air quality models , data bases, and other requirements specified in appendix W of this part (Guideline on Air Quality Models).” (emphas is added). Consequently, of relevance to our discussion of the SO 2 

### NAAQS in these comments, 40 C.F.R. § 51.112(a)(1) supports the use of sulfur dioxide air dispersion modeling to evaluate the adequacy of sulfur dioxide I

- SIPs for maintaining the one

- hour sulfur dioxide NAAQS.

### 5 C. Prior EPA Interpretations of the Act Require That Infrastructure SIPs Must Impose Emission Limits Adequate to Prohibit NAAQS Exceedances in Areas Not Designated Nonattainment

. EPA has relied on section 110(a)(2)(A) and 40 C.F.R. § 51.112 on multiple occasions to reject Infrastructure SIPs that did not contain specific emissions limits sufficient to demo nstrate attainment and maintenance of the NAAQS. For example, in March 2006, EPA disapproved Missouri’s attempt to revise the SO 2 

### emission limits in its I

- SIP for two power plants because the new emission limits would not ensure maintenance of the short

- term sulfur dioxide NAAQS. See Approval and Promulgation of Implementation Plans; State of Missouri, 71 Fed. Reg. 12,623, 12,624 (Mar. 13, 2006). In so doing, EPA explained that “Section 110(a)(2)(A) of the [Act] requires, in part, that the [st ate implementation] plan include emission limitations to meet the requirements of the Act, including the requirement in section 110(a)(1) that the plan must be adequate to attain and maintain ambient air quality standards.” Id . EPA further explained that “40 C.F.R. 51.112 requires that the plan demonstrate that rules contained in the SIP are adequate to attain the ambient air quality standards.” Id. In the case of Missouri’s proposed I

- SIP, EPA expressed concern that the sulfur dioxide emission rates fo r two power plants in question were “not protective of the short

- term sulfur dioxide NAAQS” because, while Missouri had lowered the emission rates for the facilities, it had dramatically increased the averaging times (from a 3

- hour average to an annual ave rage) without providing “a demonstration, as required by the [Clean Air Act] and EPA regulations, that the [sulfur dioxide national ambient air quality] standards, and particularly the three

- hour and the twenty

- four hour standards, can be protected by an a nnual emission limit.” Id. More recently, in December 2013, EPA rejected a revision to Indiana’s sulfur dioxide I

SIP pursuant to 40 C.F.R. § 51.112, because Indiana failed to demonstrate that the SIP
, as revised
, was sufficient to ensure maintenance of the sulfur dioxide NAAQS. See Approval of Air Quality Implementation Plans; Indiana; Disapproval of State Implementation Plan Revision for ArcelorMittal Burns Harbor; Final Rule, 78 Fed. Reg. 78,720, 78,721 (Dec. 27, 2013). Indiana had submitted a request t o EPA to revise its sulfur dioxide SIP for the ArcelorMittal Burns Harbor facility to remove the SO 2 

### emission limit for the blast furnace flare at the facility. Id. In the proposed disapproval, EPA explained that “[u]nder 40 C.F.R. 51.112(a), each SIP must demonstrate that the measures, rules, and regulations it contains are adequate to provide for the timely attainment and maintenance of the NAAQS.” See Approval of Air Quality Implementation Plans; Indiana; Disapproval of State Implementation Plan Revision for ArcelorMittal Burns Harbor; Proposed Rule, 78 Fed. Reg. 17,157, 17,158 (Mar. 20, 2013). Because Indiana did not demonstrate that the ArcelorMittal blast furnace gas flare’s existing emission limit was “redundant, unnecessary, or that its removal would not result in or allow an increase in actual SO 2 

### emissions,” and, consequently, that removal of the limit would not “affect the validity of the emission rates used in the existing attainment demonstration, thus undermining the SIP’s ability to ensure protection of the SO 2 

### NAAQS,” EPA rejected the proposed amendment. Id. at 17,159; see also 78 Fed. Reg. at 78,721.

In addition , while in its recent Infrastructure SIP guidance EPA purported to postpone certain I

- SIP start

- up, shutdown, and malfunc tion (“SSM”) requirements, nowhere in that

### 6

guidance does EPA discuss postponement of any other I

- SIP requirement. 4 

### See U.S. EPA, Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Section 110(a)(1) and 110(a)(2), at 19

- 20 (Sept. 13, 2013) [hereinafter “EPA I

- SIP Guidance”]. This is simply a further indication that the CAA requires I

- SIPs to include emission limits adequate to ensure attainment of the NAAQS and that the imposition of such limits may not be delayed.

D. Supreme and Appellate Court Opinions Hold That Infrastructure SIPs

Must Impose Emission Limits Adequate to Prohibit NAAQS Exceedances in Areas Not Designated Nonattainment

. Since the inception of the modern Clean Air Act in 1970, courts have interpreted the language presently found in section 110(a)(2)(A) to require that SIPs contain enforceable emission limits sufficient to prevent exceedances of the NAAQS. In Train v. NRDC
, a seminal case on SIP approval requirements, the Supreme Court explained that:
In complying with this requirement [that a SIP provide for attainment and maintenance of the NAAQS] a State’s plan must include ‘emission limitations,’ which are regulations of the composition of substances emitted into the ambient air from such sources a s power plants, service stations, and the like. They are the specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meets the national standards.

421 U.S. 6 0, 78 ( 1975 ) ; see also id. at 67 (cit ing language from then

- current section 110(a)(2)(B) now found in section 110(a)(2)(A)).
Courts of appeals have echoed the same conclusion. For example, in Pennsylvania Department of Environmental Resources v. EPA , the Third Circuit stated that the Clean Air Act “directs the EPA to withhold approval from a state implementation plan if the ‘maintenance of [the] standard’ cannot be assured.” 932 F.2d 269, 272 (3rd Cir. 1991). 5 

### The court observed that the “need to maintain the Clean Air Act standards once they are reached is well

- recognized by the Courts.” Id. Other courts have provided similar analyses. In Mision Industrial, Inc. v. EPA
, for example, the First Circuit explained that, “[b]efore approving an air quality implementation plan or revision, th e Administrator must determine that it ‘includes emission limitations . . . and such other measures as may be necessary to insure attainment and maintenance of (the) primary or secondary standard . . . .’” 547 F.2d 123, 129 (1st Cir. 1976) (quoting former section 110(a)(2)(B)).
The 1990 Clean Air Act amendments do not alter this picture. Court decisions since the 1990 amendments have continued to hold that I

- SIPs must have emission limits that maintain the NAAQS. In Alaska Department of Environmental C onservation v. EPA , the Supreme Court

4 

### Sierra Club disagrees, however, with EPA’s apparent postponement of those same SSM requirements; such postponement is unsupported by the CAA.
5 

### The court was interpreting the 1977 version of the statute in which Subpart 1 of Pa rt D had been added, id. at 271 n.1, but relied on the language of then

- current section 110(a)(2)(B) (now found in section 110(a)(2)(A)). Pennsylvania Department of Environmental Resources, 32 F.2d at 272.

### 7

explained that an Infrastructure SIP under CAA section 110(a)(1) must be a “plan which provides for implementation, maintenance, and enforcement of [NAAQS].” 540 U.S. 461, 470 (2004) (quoting section 110(a)(1)). “Whi le States have wide discretion in formulating their plans

. . . SIPs must include certain measures Congress specified to assure that national ambient air quality standards are achieved.” Id. (internal citations and quotations omitted). Thus, in order for EPA to approve, a SIP, it “must ‘include enforceable emission limitations and other control measures, means, or techniques . . . as may be necessary or appropriate to meet the applicable [CAA] requirements.’” Id. (quoting 42 U.S.C. § 7410(a)(2)(A)).

The circuit courts have also been clear that section 110(a)(2)(A) from the post

- 1990 Clean Air Act requires enforceable emission limits in I

- SIPs. For example, the Ninth Circuit recently affirmed that “[t]he Clean Air Act directs states to develop implementa tion plans

— SIPs

— that ‘assure’ attainment and maintenance of national ambient air quality standards (‘NAAQS’) through enforceable emission limitations .” Mont. Sulphur & Chem. Co. , 666 F.3d at 1180 (citing 42 U.S.C. §§ 7407(a), 7410(a)(2)(A)) (emphasis adde d). And the Sixth Circuit has explained that “EPA’s deference to a state is conditioned on the state’s submission of a plan ‘which satisfies the standards of § 110(a)(2)’ and which includes emission limitations that result in compliance with the NAAQS.” Mich. Dept. of Envtl Quality , 230 F.3d at 185 ( quoting Train
, 421 U.S. at 79).
Additionally, in Hall v. EPA
, the Ninth Circuit held that EPA had not fulfilled its responsibility under another provision

— section 110(l) 6



### — to evaluate whether a revised air qu ality plan will achieve the pollution reductions required under the Act. 273 F.3d at 1152. In Hall
, EPA incorrectly approved a revision to an air quality plan solely on the basis that the revisions did not relax the existing SIP, rather than “measur[ing] the existing level of pollution, compar[ing] it with the national standards, and determin[ing] the effect on this comparison of specified emission modifications.” Id . at 1157

- 58 ( quoting Train , 421 U.S. at 93). EPA claimed a statutory equivalence betwee n non

- relaxation of rules approved in 1981 and non

- interference with current attainment requirements. Id. at 1155. The court rejected EPA’s application of the “no relaxation” rule, finding it inconsistent with the Act because it set an improper baseline that failed to take into consideration the 1990 amendments, which set new deadlines for attainment and established other new requirements for incremental progress towards attainment. Id . at 1160

- 61. Those current attainment requirements were the baseline from which EPA should have measured “non

- interference.” Id. EPA’s analysis was required to reflect consideration of the prospects of meeting current attainment requirements under a revised air quality plan. Id . Just as a plan revision must not interfe re with attainment of the NAAQS under section 110(l), an I

- SIP must likewise include enforceable limits sufficient to ensure the initial plan provides for maintenance of the NAAQS under 110(a)(2)(A).

6 

### Section 110(l) provides, in relevant part, that “[t]he Administrator shall not approve a revision of a [state implementation] plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress . . . or any other applicable requirement of this chap ter.” 42 U.S.C. § 7410(l).

### 8

II. TENNESSEE’S PROPOSED INFRASTRUCTURE SIP R EGULATIONS FA IL TO INCLUDE THE 20 10 NO 2 

### AND SO 2 

### NAAQS.

The 2010 NO 2 

### NAAQS imposes a one

- hour standard at a level of 1 00 ppb, based on the three

- year average of the annual 98th percentile of one

- hour daily maximum concentrations. 40 C.F.R. § 50.11(b),(f). The 2010 SO 2 

### NAAQS imposes a new one

- hour standard at a level of 196 micrograms per cubic meter (“μg/m3”) or 75 ppb, which is met when the 3

- year average of the 99th percentile of the annual distribution of daily maximum one

- hour average concentrations is less than or equal to 75 ppb. 40 C.F.R. § 50.17(a)

- (b). Tennessee lists its ambient air quality standards at Chapter 1200

- 03

- 03 Ambient Air Quality Standards, but neither the NO 2 

### standard nor the SO 2 

### standard contained in the proposed SIP regulation is reflective of the 2010 NAAQS limits. See TAPCR 1200

- 3

- 3

- .03(1)(a). Moreover, the listed NO 2 

### and SO 2 

### standards contain outdated averaging times. See TAPCR 1200

- 3

- 3

- .03(1)(a) (averaging times listed in annual, 24 hour, or three hour time periods).

The I

- SIP is meant to implement, maintain, and enforce the 2010 NO 2 

### and SO 2 

### NAAQS and, therefore, must contain regulations which establish the correct primary and secondary ambient air quality standards within the state in order to ensure its effectiveness. 42 U.S.C. § 7410( a)(2)(A). Tennessee’s current SIP and regulations are outdated and inadequate due to the fact that the proposed SIP TAPCR Rule 1200

- 03

- 03 contains the previous , outdated standards for NO 2 

### and SO 2 

### . Chapter 1200

- 3

- 3

- .03, which has been incorporated into this propose d I

- SIP, was last revised in October 2006, well before the one

- hour 2010 NO 2 

### and SO 2 

### NAAQS were promulgated. Accordingly, Tennessee’s proposed I

- SIP must be revised so that Chapter 1200

- 03

- 03 contains accurate and up

- to

- date ambient air quality standards reflective of the 2010 one

hour NO 2 

### and SO 2 

### NAAQS in order to comply with the Clean Air Act.

III. THE TENNESSEE PROPOSED INFRASTRUCTURE SIP FAILS TO INCLUDE ENFORCEABLE ONE

- HOUR SO 2 

### EMISSION LIMITATIONS TO ENSURE ATTAINMENT AND MAINTENANCE OF THE PRIMARY SO 2 

### NA AQS. Tennessee’s proposed I

- SIP fails to include restrictions on major SO 2 

### sources to ensure that areas not designated nonattainment will attain and maintai n the new one

- hour SO 2 

### NAAQS.

A. Tennessee must include enforceable one

- hour SO 2 

### emission limits for sources currently allowed to cause exceedances of the NAAQS, including the TVA Allen Fossil Plant in Memphis and TVA Gallatin Fossil Plant in Gallatin.

DEC f ails to include adequate enforceable emission limitations for sources of SO 2 

### sufficient to ensure attainment and maintenance of the 2010 SO 2 

### NAAQS. Emission limits are especially important for meeting the one

- hour SO 2 

### NAAQS given the “strong source

- orien ted nature of SO 2 

### ambient impacts.” Final SO 2 

### NAAQS Rule, 75 Fed. Reg. at 35,570. Nationally, large point sources account for 95 percent of SO 2 

### emissions, 66 percent of which come from fossil fuel combustion at electric facilities. Id

. at 35,524. Speci fically, in Tennessee, coal

- fired electric generating units are responsible for 77 percent of all SO 2 

### emissions released in the State,

or 120,134 tons in 2011. See 2011 NEI SO 2 

### 07 Mar 2014.xlsx (based on 2011 National Emissions Inventory)
, E xcel W orksheet “ CHARTS (TN) ”
, a ttached hereto as Exhibit 4; see also

### 9

The National Emissions Inventory, http://www.epa.gov/ttn/chief/net/2011inventory.html . The graph below demonstrates how much SO 2 

### is released by coal

- fired EGUs.
Figure 1: SO 2 

### Emission in Tons, Coal

- fired EGUs versu s Facilities not Identifying as Coal

- fired EGUs in Tennessee

Id

. In fact, Tennessee’s total SO 2 

### emissions are some of the largest in the nation. NEI data from 2011 show s that Tennessee’s sources emitted more SO 2 

### than 38 ot her states, having the 1 3 th largest total of SO 2 

### emissions (over 15 6 ,000 tons )

. See Exhibit 4
, 2011 NEI SO 2 

### 07 Mar 2014.xlsx
, E xcel W orksheet “ SO2 Emissions by State ” . Coal

- fired power plants that are contributing to SO 2 

### emissions in Tennessee , including the TVA Allen Fossil Plant in M emphis and the TVA Gallatin Fossil Plant in Gallatin, currently lack SO 2 

### emission limits that prevent exceedances of the 2010 SO 2 

### NAAQS. In order to comply with section 110(a)(2)(A), the Tennessee proposed SIP must be amended to ensure these sources ca nnot cause exceedances.
DEC has not even attempted to demonstrate that emissions allowed by the proposed I

- SIP will ensure compliance with the one

- hour SO 2 

### standard. As determined by expert air dispersion modeling conducted at Sierra Club’s request, t he limits in place under the proposed I

- SIP are insufficient to attain and maintain the NAAQS. See Steven Klafka, Allen Fossil Plant, Memphis, Tennessee, Sierra Club Evaluation of Compliance with 1

- hour SO 2 

### NAAQS (December 10, 2012) [hereinafter “Allen Re port”], attached hereto as Exhibit 5 ; Steven Klafka, Gallatin Fossil Plant Gallatin, Tennessee, Sierra Club Evaluation of Compliance with 1

- hour SO 2 

### NAAQS (March 9, 2012 ), [hereinafter “Gallatin Report”], attached hereto as Exhibit 6

. The Allen Report and Gallatin Report presen t the results of an air dispersion modeling analysis for each plant that compares the modeled ambient air concentrations of each plant’s SO 2 

### emissions with the 2010 one

- hour primary NAAQS. The modeling analyses employed EPA’s AERMOD program to mod el the plants’ “allowable” (based on the current Title V permit) and “actual” (based on maximum plant

- wide hourly emissions obtained from EPA’s Clean Air Markets Data and Maps database) emissions to determine whether each plant could cause

### 10

exceedances of t he one

- hour SO 2 

### NAAQS. See Allen Report at 7; see also Gallatin Report at 7. While the reports include analyses of both allowable and maximum emissions, the modeling based on the allowable emission is crucial to a determination of whether the Tennessee pr oposed I

- SIP is adequate to attain and maintain the SO 2 

### NAAQS.
The modeling protocol employed in these analyses is consistent with all available technical guidance, including Appendix W and EPA’s March 2011 guidance for implementing the one

- hour SO 2 

### NAAQ S. Additionally, the modeler used the most recent version of AERMOD, AERMET, and AERMINUTE available at the time of the studies. See Allen Report at 2; see also Gallatin Report at 5, 8. Where any assumptions were made in the running of the models, the m odel er employed conservative inputs, which favor the prediction of lower impacts from the plants so that the results may understate the plants’ SO 2 

### emission impacts. See Allen Report at 3; see also Gallatin Report at 3.
The modeling reports demonstrate t hat the proposed I

- SIP improperly authorizes these plants to cause exceedances of the one

- hour SO 2 

### NAAQS based on their allowable emission rates. See Allen Report at 4, Table 1; see also Gallatin Report at 4, Table 1. The modeling results are above the NA AQS, even without adding in a background concentration of SO 2 

### , and show exceedances in many counties, see Allen Report at 11, Figure 1; see also Gallatin Report at 11, Figure 1, none of which have been designated as nonattainment under the one

- hour SO 2 

### NAA QS. 7 

### See Air Quality Designations for the 2010 Sulfur Dioxide (SO 2 

### ) Primary National Ambient Air Quality Standard, 78 Fed. Reg. 47,191, 47,204 (Aug. 5, 2013), [hereinafter “Final 2010 SO 2 

### Designations”]. Because these power plants are in areas that are not currently d esignated nonattainment
, DEC must submit an I

- SIP that “provides for implementation, maintenance, and enforcement of [the NAAQS] within such State.” 42 U.S.C. § 7410(a)(1). 8


### The findings from each modeling repor t are summarized in Table 1 below.

7 

### At this time, EPA has only designated a portion of Sullivan County as nonattainment under the 2010 one

- hour SO 2 

### NAAQS. See Final 2010 SO2 Desig nations at 47,204. Sullivan County is not one of the counties in Tennessee with modeled impacts from the TVA Allen and Gallatin plants.

8 

### EPA has yet to issue designations for areas aside from those containing monitors that recorded exceedances of the NAAQS. See Final 2010 SO 2 

### Designations at 47,191 (designating areas with monitor violations from 2009

- 2011 as nonattainment).

### 11

Table 1: Summary of Modeled Allowable Emissions

See Allen Report at 4, Table 1; see also Gallatin Report at 4, Table 1.
Based on the modeling results summarized above, DEC must promulgate enforceable emission limits with one

- hour averaging time into its proposed I

- SIP that are no le ss stringent than the limits listed in Table 2, below, to achieve and maintain the one

- hour SO 2 

### NAAQS. These limits represent the maximum rate that each facility can emit without causing NAAQS exceedances, thus reducing each total plant’s allowable emissi ons by the corresponding percentage. These emission limits must apply at all times including during periods of start

- up, shutdown, and malfunction.
Table 2: Limits Necessary to Achieve and Maintain the One

- Hour SO 2 

### NAAQS

9 

### The 75 ppb to μg/m 3 

### calculation is 75/0.3823 = 196.2 μg/m 3



### . 10 

### Both plants also causes cross

- state impacts, resulti ng in SO 2 

### NAAQS exceedances in neighboring states; this is discussed further below in Section III. E. of these comments.
11 

### The modeling analysis for the TVA Allen Plant was conducted in December 2012. Therefore, this is the 2009

- 11 design value for Shelb y County, Tennessee―the lowest measured background concentration in the state.
12 

### The modeling analysis for the TVA Gallatin Plant was conducted in March 2012. Therefore, this is the 2008

- 10 design value for Sevier County, Tennessee―the lowest measured ba ckground concentration in the state. Power Plant Emission

Rates Facility

Impact (μg/m 3 ) Background

(μg/m 3 ) Total Impact

Facility Impact plus Background (μg/m 3 ) SO 2

NAAQS (μg/m 3 ) 9 Impacted TN Counties

(Not Des ignated Nonattainment) 10

TVA Allen Plant Allowable

Permitted 994.9 15.7 11 1,010.6 196.2 Tipton & Shelby

TVA Gallatin Plant Allowable

Permitted 1,421.1 28.8 12 1,449.9 196.2 Robertson, Sumner, Macon, Trousdale, Smith, Dekalb, Wilson, Rutherford, Davidson, Che atham, & Williamson

Plant Required Total Facility

Re duction Based on Allowable Emissions (%) Required Total

Facility Emission Rate (lbs/hr) Required Total Facility 1

-

hour Average Emission Rate (lbs/mmbtu)

TVA Allen Plant 81.9 6,670.6 0.73
TVA Gallatin Plant 88.2 6,811.0

### 12

See Allen Report at 4, Table 3; s ee also Gallatin Report at 4, Table 3.
As demonstrated by the modeling reports, the TVA Allen Fossil Plant and TVA Gallatin Fossil Plant are currently authorized to cause exceedances of the one

- hour SO 2 

### NAAQS based on their allowable emission rates. There fore, DEC must impose additional emission limits on the plants that ensure attainment and maintenance of the NAAQS at all times. 13 

### As the I

- SIP submission does not incorporate emission limitations that are necessary to meet the applicable requirements of t he Clean Air Act (or indeed, any new emission limits for these or other SO 2 

### - emitting facilities), including the requirement to maintain compliance with the 2010 SO 2 

### NAAQS, the proposed I

- SIP fails to comply with CAA section 110(a)(2)(A) and, therefore, mus t be appropriately revised.

B. AERMOD modeling, such as that provided by the Sierra Club, is the appropriate tool for evaluating the adequacy of Infrastructure SIPs and ensuring attainment and maintenance of the NAAQS.
As outlined by EPA in the Final SO 2 

### NAAQ S Rule, 75 Fed. Reg. at 35,551, air dispersion modeling is the best method for evaluating the short

- term impacts of large SO 2 

### sources. This is consistent with EPA’s historic use of air dispersion modeling for attainment designations and SIP revisions. Fu rthermore, an agency may not ignore information put in front of it, such as Sierra Club’s modeling submitted with these comments. See generally Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co. , 463 U.S. 29, 43 (1983) (holding that it was arbitra ry and capricious for the agency to ignore an important aspect of an issue placed before it); see also NRDC v. EPA, 571 F.3d 1245, 1254 (D.C. Cir.2009) (restating EPA’s own statement that additional information presented in a notice

- and

- comment rulemaking must be considered during the rulemaking by the corresponding state and EPA) ( citing 70 Fed. Reg. 71,612, 71,655).
DEC has long been on notice that modeling data is an important resource in the SO 2 

### NAAQS attainment and maintenance process. In fact, Tennessee anticipated that modeling data may be used. S ee Martineau Letter at 1 (recognizing that modeling and monitoring may be used for determining designations). Indeed, EPA has historically used modeling in determining attainment for the SO 2 

### standard. See e.g ., U.S. EPA , Implementation of the 1

- Hour SO 2 

### NAAQS Draft White Paper for Discussion at 3, fn. 1, [hereinafter “EPA White Paper”], available at http://www.epa.gov/airquality/sulfurdioxide/pdfs/20120522whitepaper.pdf; see also Respondent’s Opposition to Mot ion of the State of North Dakota for a Stay of EPA’s 1

- Hour Sulfur Dioxide Ambient Standard Rule at 3, National Environmental Development Association’s Clean Air Project v. EPA (D.C. Cir. 2010) (No. 10

- 1252), attached hereto as Exhibit 7 (“the Agency has h istorically relied on modeling to make designations for sulfur dioxide”). In fact, in EPA’s 1994 SO 2 

### Guideline Document, EPA noted that “for SO 2 

### attainment demonstrations, monitoring data alone will generally not be adequate,” U.S. EPA, 1994 SO 2 

### Guideline

13 

### Infrastructure SIPs have always required emission controls
, as section 110(a)(2)(A) clearly states. Furthermore, DEC recognized that “additional control measures,” such as emission limits, may be needed to help Tene sssee demonstrate compliance with the 2010 SO 2 

### NAAQS. See Letter from Robert J. Martineau, Jr., Commissioner, DEC to Gwendolyn Keyes Fleming, Regional Administrator, EPA Region 4, 2 (May 26, 2011), [hereinafter “Martineau Letter”], available at http://www.epa.gov/airquality/sulfurdioxide/designations/recletters/R4_TN_rec1.pdf

.

### 13

Document, [hereinafter “1994 SO 2 

### Guideline Document”], available at http://www.epa.gov/ttn/oarpg/t1/memoranda/so2_guide_092109.pdf, at 2

- 5, and that “[a]ttainment determinations for SO 2 

### will generally not rely on ambient monitoring data alone, but instead will be supported by an acceptable modeling analysis which quantifies that the SIP strategy is sound and that enforceable emission limits are responsible for attainment.” Id . at 2

- 1. The 1994 SO 2 

### Guideline Document goes on to note that monitoring alone is likely to be inadequate: “[f]or SO 2 

### , dispersion modeling will generally be necessary to evaluate comprehensively a source's impacts and to determine the areas of expected high concentrations based upon current conditions.” Id . at 2

- 3. EPA’s approval and acceptance of modeling for making attainment designations stretches back decades and demonstrates that modeling is equally applicable to determining the adequacy of an Infrastructure SIP. In 1983, the Office of Air Quality Planning and Standards (“OAQPS”) issued a Section 107 Designation Policy Summary. See Sheldon Meyers Memorandum re Section 107 Designation Policy Summary (April 21, 1983), attached hereto as Exhibit 8

. OAQPS explained that “air quality modeling emissions data, etc., should be used to d etermine if the monitoring data accurately characterize the worst case air quality in the area.” Id . at 1. Without modeling data, the worst case air quality may not be accurately characterized. In certain instances, EPA relied solely on modeling data to determine nonattainment designations, demonstrating modeling is accepted and trustworthy. Id . at 2. In fact, reliance on modeling for nonattainment designations stretches back to the Carter Administration. In 1978, EPA designated Laurel, Montana as non attainment “due to measured and modeled violations of the primary SO 2 

### standard.” Mont. Sulphur & Chem. Co. , 666 F.3d at 118 1 (citing 43 Fed. Reg. 8,962 (Mar. 3, 1978)).

EPA’s final 2010 SO 2 

### NAAQS rule simply continued and built upon EP A’s historical practice of using modeling to determine attainment and nonattainment status for SO 2 

### NAAQS. In doing so, EPA properly recognized the “strong source

- oriented nature of SO 2 

### ambient impacts,” Final SO 2 

### NAAQS Rule at 35,370, and concluded that t he appropriate methodology for purposes of determining compliance, attainment, and nonattainment with the new NAAQS is modeling. See id

. at 35,551 (describing dispersion modeling as “the most technically appropriate, efficient and readily available method for assessing short

- term ambient SO 2 

### concentrations in areas with large point sources.”). Accordingly, in promulgating the 2010 SO 2 

### NAAQS, EPA explained that, for the one

- hour standard, “it is more appropriate and efficient to principally use modeling to assess compliance for medium to larger sources . . . .” Id at 35,570. Similarly, EPA then explained in the EPA White Paper that using modeling to determine attainment for the SO 2 

### standard “could better address several potentially problematic issues than would the narrower monitoring

- focused approach discussed in the proposal for the SO 2 

### NAAQS, including the unique source

- specific impacts of SO 2 

### emissions and the special challenges SO 2 

### emissions have historically presented in terms of monitoring short

- ter m SO 2 

### levels for comparison with the NAAQS in many situations (75 FR 35550).” EPA White Paper at 3

- 4. Moreover, the courts have upheld EPA’s use of modeling. For example, in Montana Sulphur , the company challenged a SIP call, a SIP disapproval, and a Fed eral Implementation Plan (“FIP”) promulgation, because they were premised on a modeling analysis that showed the Billings/Laurel, Montana area was in nonattainment for SO 2 

### . 666 F.3d at 1184. The court rejected Montana Sulphur’s argument that EPA’s relian ce on modeling was arbitrary and

### 14

capricious or otherwise unlawful. Id . at 1185; see also Sierra Club v. Costle , 657 F.2d 298, 332 (D.C. Cir. 1981) (“Realistically, computer modeling is a useful and often essential tool for performing the Herculean labors Congress imposed on EPA in the Clean Air Act”); Republic Steel Corp. v. Costle , 621 F.2d 797, 805 (6th Cir. 1980) (approving use of modeling to predict future violations and incorporating “worst

- case” assumptions regarding weather and full

capacity operati ons of pollutant sources). Further demonstrating the superiority of modeling, the D.C. Circuit has acknowledged the inherent problem of using monitored data for criteria pollutants, namely that “a monitor only measures air quality in its immediate vicinit y.” Catawba County v. EPA , 571 F.3d 20, 30 (D.C. Cir 2009).
Indeed, EPA employs and relies on modeling to inform its designations because the agency is well aware that modeling produces reliable results. For example, as John C. Vimont, EPA Region 9’s Regional M eteorologist, has stated under oath:
EPA does recognize the usefulness of ambient measurements for information on background concentrations, provided reliable monitoring techniques are available. EPA does not recommend, however, that ambient measurements be used as the sole basis of setting emission limitations or determining the ambient concentrations resulting from emissions from an industrial source. These should be based on an appropriate modeling analysis.
Declaration of John C. Vimont at 1, 11 (empha sis added), attached hereto as Exhibit 9

. T estimony as to the accuracy and appropriateness of modeling has also been presented by Roger Brode, a physical scientist in EPA’s Air Quality Modeling Group and co

- chairs the AMS/EPA Regulatory Model Improvement Committee (AERMIC) and the AERMOD Implementat ion Workgroup. See Declaration of Roger W. Brode at 1, 2, attached hereto as Exhibit 10 . Mr. Brode has stated under oath that AERMOD is “readily capable of accurately predicting whether the revised primary SO 2 

### NAAQS is attained and whether individual sou rces cause or contribute to a violation of the SO 2 

### NAAQS.” Id . at 2. Mr. Brode has explained:
As part of the basis for EPA adopting the AERMOD model as the preferred model for nearfield applications in the Guideline on Air Quality Models
, Appendix W to 4 0 CFR Part 51, the performance of the AERMOD model was extensively evaluated based on a total of 17 field study data bases (AERMOD: Latest Features and Evaluation Results. EPA

- 454/R

- 03

- 003. U.S. Environmental Protection Agency, Research Triangle Park (2003 ), portions of which are attached to this affidavit) (“EPA 2003”). The scope of the model evaluations conducted for AERMOD far exceeds the scope of evaluations conducted on any other model that has been adopted in Appendix W to Part 51. These evaluations d emonstrate the overall good performance of the AERMOD model based on technically sound model evaluation procedures, and also illustrate the significant advancement in the science of dispersion modeling represented by the AERMOD model as compared to other m odels that have been used in the past. In particular, adoption of the AERMOD model has significantly reduced the potential for overestimation of ambient impacts from elevated sources in complex terrain compared to other

models.

### 15

Id . at 3

- 4 (emphasis added). The TVA Allen Plant and TVA Gallatin Plant are two clear examples of elevated sources. EPA’s practice in a number of other contexts also demonstrates that modeling is a technically superior approach for ascertaining impacts on NAAQS, as well as the exten sive history of EPA’s preference for modeling over monitoring to evaluate compliance. For example, all NO 2 

### , particulate matter with a diameter smaller than 2.5 microns, SO 2 

### NAAQS, and Prevention of Significant Deterioration (“PSD”) increment compliance verification analyses are performed with air dispersion modeling, such as running AERMOD in a manner consistent with the Guideline on Air Quality Models. 40 C.F.R. § 52.21(l)(1). Indeed, in order to ensure consistency in how air impacts are de termined, both existing sources and newly permitted sources should be assessed using the same methods. AERMOD modeling performs particularly well in evaluating emission sources with one or a handful of large emission points. The stacks are well characteri zed in terms of location, dimensions, and exhaust parameters, and have high release heights. AERMOD accurately models medium

- to

- large SO 2 

### sources

— even with conditions o f low wind speed, the use of off

- site meteorological data, and variable weather conditions. Indeed, AERMOD has been tested and performs very well during conditions of low wind speeds: AERMOD’s evaluation analyses included a number of site

- specific meteor ological data sets that incorporate low wind speed conditions. For example, the Tracy evaluation included meteorological data with wind speeds as low as 0.39 meter/second (m/s); the Westvaco evaluation included wind speeds as low as 0.31 m/s; the Kincaid S O 2 

### evaluation included wind speeds as low as 0.37 m/s; and the Lovett evaluation included wind speeds as low as 0.30 m/s. Concerns . . . regarding AERMOD’s ability to model low wind speed conditions seem to neglect the data used in actual AERMOD evaluation s. Comments of Camille Sears 1, at 10, attached hereto as Exhibit 11 (citing AERMOD evaluations and modeled meteorological data, available at http://www.epa.gov/ttn/scram/dispersion_prefrec.htm). Finally, EPA’s use of air dispersion modeling and AERMOD in particular was upheld in the context of a recent Clean Air Act § 126 petition for resolution of cross

- state impacts. See Genon Rema, LLC v. U.S. EPA , 722 F.3d 513, 526 (3rd Cir. 2013). In this case, the EPA granted the New Jersey Department of Environmental Protection’s 126 petition, finding that trans

boundary sulfur dioxide emissions from the Portland coal

- fired power plant in Pennsylvania were significantly contributing to nonattainment and interference with the maintenance of the

one

- hour SO 2 

### NAAQS in New Jersey. Id . at 518. EPA based its finding on a review of the AERMOD dispersion modeling submitted by New Jersey, its independent assessment of AERMOD, and other highly technical analy ses. Id . The court upheld the EPA’s decision after examining the record, which showed that EPA had thoroughly examined the relevant scientific data and clearly articulated a satisfactory explanation of the action that established a rational connection be tween the facts found and the choice made. Id . at 525

- 28.
EPA has acknowledged that, for the one

- hour SO 2 

### NAAQS, modeling is the most accurate means of determining attainment with the NAAQS, Final SO 2 

### NAAQS Rule at 35,551, 35,570, yet the Tennessee pro posed SIP lacks SO 2 

### emissions limitations informed by air

### 16

dispersion modeling. As a result, the proposed amendment fails to ensure that counties in Tennessee will achieve and maintain the 2010 one

- hour SO 2 

### NAAQS. To comply with the Act’s obligations, Ten nessee must include adequate emissions limits in the SIP―that is, source

specific SO 2 

### emission limits that show no exceedances of the NAAQS when modeled.

C. Tennessee must include enforceable SO 2 

### emission limits with a one

- hour averaging period that apply at all times.
As discussed, the emission limitations necessary to comply with section 110(a)(2)(A) mean “a requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuo us basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design, equipment, work practice or operational standard promulgated under this chapter.” 42 U.S.C. at § 7602(k). Th erefore, the emission limitations must also contain proper averaging times

— in this instance, a one

- hour averaging period.
In various contexts, EPA has stated that one

- hour averaging times are necessary to comply with the one

- hour SO 2 

### NAAQS. For instance, i n 2011, EPA disagreed with the Kansas Department of Health and Environment’s issuance of a PSD permit that contained a 30

- day averaging time rather than a one

- hour averaging period. See Letter from Karl Brooks, Regional Administrator, EPA Region 7 to Dr. Robert Moser, Secretary, Kansas Department of Health and Environment (Feb

. 3, 2011), attached hereto as Exhibit 12

. EPA explained
[i]t is well known that there can be considerable variability in actual 1

- hour emission rates. Therefore, to ensure protecti on of the 1

- hour . . . SO 2 

### NAAQS . . . the permit needs to contain . . . SO 2 

### 1

- hour average emission limits for both new and existing steam generating units. To ensure the source does not cause or contribute to air pollution in violation of the NAAQS, the emission limits should be consistent with the modeling rates and have the same averaging period, i.e. in this case maximum hourly emission limits consistent with the 1

- hour NAAQS.

Id . at 2. Similarly, in its disapproval of Missouri’s SIP in 2006, EPA det ermined that the emission rates in the SIP were “not protective of the short

- term sulfur dioxide NAAQS” because they were based on an annual average. See Approval and Promulgation of Implementation Plans; State of Missouri, 71 Fed. Reg. 12,623, 12,624 (Ma r. 13, 2006).
In addition to including emissions limits based on a one

- hour averaging period, Tennessee’s proposed I

- SIP must require monitoring of SO 2 

### emission limits on a continuous basis using a continuous emission monitor system or systems. Clean A ir Act section 110(a)(2)(F) requires Tennessee’s proposed I

- SIP to establish a system to monitor emissions from stationary sources and to submit periodic emissions reports. According to Tennessee’s proposed I

- SIP, “TAPCR 1200

- 03

- 10 (Required Sampling, Rec ording, and Reporting) gives the Technical Secretary the authority to monitor emissions at stationary sources, and to require these sources to conduct emissions monitoring and to submit periodic emissions reports.” See I

- SIP Submission at 9. TAPCR 1200

- 0 3

- 10

- .02(1)(b)1(i)(II) states that “[a] continuous monitoring system for the measurement of sulfur dioxide shall be installed, calibrated, maintained, and operated on any fossil fuel

- fired steam generator of greater than 250 million BTU per hour input whic h has installed sulfur dioxide pollutant control equipment .” (emphasis added). In order to

### 17

ensure emission limits which are protective of the one

- hour SO 2 

### NAAQS, the I

- SIP must require that SO 2 

### emissions are monitored from these sources during every hour of operation, regardless of whether SO 2 

### pollutant control equipment has been installed or not.

Tennessee ’ s I

- SIP is meant to implement, maintain, and enforce the NAAQS and therefore must include “enforceable emission limitations” to ensure its effectivenes s. 42 U.S.C. § 7410(a)(2)(A). EPA has stated that only one

- hour averaging periods can ensure compliance with the one

- hour SO 2 

### NAAQS. Therefore, Tennessee must include appropriate emission limitations based on one

- hour averaging periods monitored continu ously for the all major SO 2 

### sources, including but not limited to the TVA Allen and Gallatin plants, in order to assure compliance with 42 U.S.C. § 7410(a)(2)(A).

D. Tennessee’s Proposed Infrastructure SIP is currently inadequate to comply with section 110( a)(2)(A) of the Act With Regard to the 2010 SO 2 

### NAAQS. Tennessee’s Infrastructure SIP submission fails to include measures that sufficiently demonstrate that it will comply with section 110(a)(2)(A), and therefore it cannot ensure the proper implementation , maintenance, and enforcement of the NAAQS as required. As discussed, under section 110(a)(2)(A), the I

- SIP must “include enforceable emission limitations . . . as well as schedules and timetables for compliance, as may be necessary or appropriate to mee t the applicable requirements” of the Clean Air Act (which include the requirement to maintain compliance with the NAAQS). Yet, Tennessee’s submission neither includes nor references emission limitations or other required measures that ensure compliance w ith the one

- hour primary SO 2 

### NAAQS. See generally I

- SIP Submission.

The statutory and regulatory sections that DEC ha s incorporated into its proposed I

- SIP are insufficient to ensure compliance with the 2010 SO 2 

### NAAQS. In addition, many contain exemptions and variances that undermine its p ermitting and enforcement mechanisms and, as a result, fail to ensure the attainment and maintenance of the SO 2 

### NAAQS. For instance, DEC’s proposed SIP regulations do not provide sufficient emission limits on large SO 2 

### sources to guarantee the NAAQS will be attained and maintained. The SO 2 

### emissions standards co ntained in Chapter 1200

- 03

- 14 are far too weak to attain and maintain the 2010 one

- hour primary NAAQS based on measured and predicted air quality. As discussed above, refined air dispersion modeling shows that more stringent levels are required at least f or the two sources modeled and that the current limits proposed in the I

- SIP submission are insufficient to meet the 2010 SO 2 

### standard. See Allen Report at 4, Table 3; see also Gallatin Report at 4, Table 3. In addition, the proposed SIP regulation 1200

- 0 3

- 14, which establishes limits for SO 2 

### emissions from designated sources, was last revised in 2009 before the 2010 one

- hour standard was promulgated. From the modeling reports, it is clear that the standards contained within it were set in light of the le ss stringent outdated NAAQS and must, therefore, be revised to reflect the applicable short

- term standard. These outdated limits with outdated averaging times are insufficient to meet the requirement of the primary SO 2 

### NAAQS, which sets a maximum ambient SO 2 

### concentration of 75 ppb per hour.
Further, the final I

- SIP must not allow for ambient air incremental increases, variances, exceptions, or exclusions with regard to limitations on SO 2 

### emissions, otherwise compliance with the 2010 SO 2 

### NAAQS cannot be assured. For instance, TAPCR Chapter 1200

- 03

- 09

- .04(f), Construction Permits, allows for ambient air incremental increases in pollutant concentration over a set baseline. This is insufficient and could result in failure to attain or maintain the NAAQS . Likewise, TAPCR Chapter

### 18

1200

- 03

- 09

- .04(n)(3) allows for var iances for sources in Class I areas and allows for increases over baseline concentration for SO 2 

### which far exceed the new primary one

- hour SO 2 

### NAAQS and are improperly averaged as annual, 24

- hour, and 3

- hour values. Any variance of this sort is i mproper, and the proposed I

- SIP must be revised to correct for this insufficiency. Although TAPCR Chapter 1200

- 03

- 09

- .04(i) does appear to set ambient air ceilings so that “no concentration of a pollutant shall exceed the concentration permitted under the Tennessee secondary ambient air quality standard (Chapter 1200

- 03

- 03, Table 1), or the concentration permitted under the Tennessee primary ambient air quality standard (Chapter 1200

- 03

- 03, Table 1) ” , a s noted in Section II of these comments, Chapter 1200

- 03

- 03, Table 1 has not been updated in order to incorporate the applicable 2010 one

- hour SO 2 

### NAAQS . T hus the regulation does not ensure that the 2010 standard is met. According ly, the proposed I

- SIP must be revised to correct such a deficiency in order to assure compliance with this applicable requirement. In addition, TCA § 68

- 201

- 118 should not be included in the I

- SIP, as it appears to offer a discretionary variance to other I

- SIP requirements; to the extent that such variances are available at all, their conditi ons must be delineated in the I

- SIP. Finally, Tennessee cannot rely on its Clean Air Interstate Rule (“CAIR”) SO 2 

### Trading Program regulations contained at C hapter 1200

- 03

- 14

- .04, to assure compliance with the 2010 SO 2 

### NAAQS since CAIR has been remanded, as discussed in detail in Section V below. See generally North Carolina v. EPA , 531 F.3d 896 (D.C. Cir. 2008 )

. As a result of all of these inadequacies, exemptions, variances, and other shortfalls not listed in these comments, the proposed I

- SIP cannot ensure that Tennessee will attain and maintain the 2010 SO 2 

### NAAQS. I n particular, the proposed I

- SIP fails to address large sources of SO 2 

### pollution including the TVA Allen and Gallatin fo ssil plants that lack emission limits necessary to ensure attainment and maintenance of the standard. See generally Allen Report; see generally also Gallatin Report. Tennessee must revise its SIP to include enforceable emission limits that address the exc eedances demonstrated by expert modeling analyses submitted with these comments and that otherwise address the short

- term, one

- hour SO 2 

### NAAQS , and it must update its emission regulations to ensure that proper mass limitations and one

- hour averaging periods are imposed on large SO 2 

### sources, including coal

- fired power plants

. E. The Tennessee proposed infrastructure SIP must be revised to address sources significantly contributing to nonattainment or interfer ence with maintenance of the NAAQS in downwind states.
In addition to causing exceedances of the one

- hour SO 2 

### NAAQS in various counties in Tennessee, the TVA Allen and TVA Gallatin fossil plants are capable of causing cross

- state exceedances of the NAAQS. See Allen Report at 11, Figure 1; see also Gallatin Report at 11, Figure 1. DEC must address these sources in its Infrastructure SIP revisions in order to comply with the Act. Under section 110(a)(2)(D), a SIP must contain “adequate provisions (i) proh ibiting . . . any source . . . from emitting any air pollutant in amounts which will

— (I) contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air qual ity standard . . . .” 42 U.S.C. § 7410(a)(2)(D)(i)(I). Tennessee’s Infrastructure SIP, as proposed, fails to address any

cross

- state impacts that are due to sources within the state. Indeed, Tennessee has failed to address this requirement. See I

- SIP Su bmission at 6

- 7. This is inadequate and should result in EPA disapproving the submittal.
The Clean Air Act sets a mandatory duty for states to submit I

- SIPs within three years of promulgation of a NAAQS. 42 U.S.C. § 7410(a)(1). Under CAA section 110, there is no

### 19

prerequisite action required, such as EPA issuing guidance, before states must fulfill their mandatory duty. Compare with Oklahoma v. EPA
, 723 F.3d 1201, 1205 (recognizing that certain provisions of the CAA require EPA to create guidance) (ci ting 42 U.S.C. § 7491(b)(1)). Therefore, Tennessee must create a SIP to address Prongs 1 and 2 of the Interstate provisions and provide the public with an opportunity to comment on it. 14


### Just as EPA has historically used air dispersion modeling in atta inment designations and SIP revisions, so has the agency relied on modeling to assess cross

- state impacts under the Act’s Good Neighbor provision

— section 110(a)(2)(D)(i)(I). Under Clean Air Interstate Rule (“CAIR”) and the Cross

- State Air Pollution Rule ( “CSAPR”), as well as the 2003 NO x 

### SIP Call, EPA has used modeling to determine pollutants’ cross

- state impacts. Although the D.C. Circuit has subsequently struck down CAIR and CSAPR, the court never questioned the agency’s use of modeling to assess cross

- state impacts. See generally North Carolina v. EPA , 531 F.3d 896 (D.C. Cir. 2008).
Unlike the situation with CAIR and CSAPR, in which the D.C. Circuit Court faulted EPA for failing to sufficiently quantify the contributions of individual upwind states and allocate reductions appropriately, the situation of Tennessee’s large SO 2 

### sources is distinct. Expert air dispersion modeling provided along with these comments clearly identifies the precise contribution to nonattainment by each individual source and identifies the r eductions necessary to ensure that each source will not cause nonattainment or interfere with maintenance in the downwind state. The Allen Report and Gallatin Report not only demonstrates cross

- state impacts but also that the emission limits set by Tennessee for these facilities are incapable of ensuring that pollution from the plants do not cause downwind state s to fail to attain the standard. As currently permitted, the TVA Allen Plant is impermissibly permitted to cause exceedances of the primary SO 2 

### NAAQS in Lee, St. Francis, Crittenden, and Cross c ounties in Arkansas, and Desoto and Tunica c ounties in Mississippi. See Allen Report at 11, Figure 1. Similarly, the TVA Gallatin Plant is impermissibly permitted to cause NAAQS exceedances in Logan, Simpson, Allen, and Monroe c ounties , Kentucky. See Gallatin Report at 11, Figure 1. As such, DEC must include proper emission limitations in its SIP in order to ensure that the Plants do not contribute significantly to nonattainment or interfere with maintenance of the NAAQS in these states in order to comply with Clean Air Act § 110(a)(2)(D).
Moreover, DEC cannot use EME Homer City Generation v. EPA , 696 F.3d 7 (D.C. Cir. 2012)
, cert granted 133 U.S. 2857 (2013) (hereinafter “ Homer City ”), as an excuse to ignore its obl igations under Clean Air Act § 110(a)(2)(D)(i)(I). See I

- SIP Submission at 6. Although in dicta Homer City suggests that EPA must quantify upwind states’ emission reduction obligations in order for states to submit SIPs addressing those obligations, this interpretation conflicts with the plain language of CAA section 110(a)(1), which indisputably requires states to submit Infrastructure SIPs within three years of promulgation or revision of any primary or secondary NAAQS. Further, in the PSD context, Ten nessee cannot put its duty to adopt any required SIP revisions to address required SIP revisions to address the State’s obligations under §110(a)(2)(D) until “promulgation of new or revised implementation guidance for NO2 or SO2.” I

- SIP Submission at 7. CAA section 110(a)(2)(D)(i)(I) requires that these Infrastructure SIPs contain

14 

### Tennessee must create a SIP to address Prongs 1 and 2 of the Interstate provisions to address not only the 2010 SO 2 

### NAAQS, but the 2010 NO 2 

### NAAQS as well.

### 20

adequate provisions prohibiting sources in upwind states from contributing significantly to nonattainment or interfering with maintenance of the NAAQS in any downwind state. 15 

### M oreover, there is no issue with Tennessee being able to determine without additional EPA guidance what its SO 2 

### contributions to downwind states may be, at least with regard to the TVA Allen and Gallatin plants ; it is very clear what reductions DEC must require from thes e two large sources. In any event, agency action on this proposed I

- SIP would be reviewable in the U.S. Court of Appeals for the Sixth Circuit, not the D.C. Circuit. Thus, Homer City provides no protection for DEC’s failure to address section 110(a)(2)(D)(i)(I). DEC mus t provide provisions in its proposed I

- SIP to ensure that pollution from Tennessee is not preventing other states from attaining or maintaining the one

- hour SO 2 

### and NO 2 

### NAAQS.

IV. THE TENNESSEE PROPOSED INFRASTRUCTURE SIP FAILS TO INCLUDE ENFORCEABLE ONE

- HOUR NO 2 

### EMISSION LIMITATIONS TO ENSURE ATTAINMENT AND MAINTENANCE OF THE PRIMARY NO 2 

### NAAQS.
As currently proposed, DEC fails to include enforceable emission limitations for sources of NO 2 

### sufficient to ensure attainment and maintenance of the 2010 NO 2 

### NAAQS. In particular, Tennessee’s final I

- SIP must include enforceable NO 2 

### emission limits with one

- hour averaging periods that apply at all times.

In Tennessee coal

- fired electric generating units are responsible for a significant amount of NO 2 

### emissions, repr esenting over forty percent of total NO x 

### emissions. See 2011 NEI NOx 7 Mar 2014.xlsx , Excel Worksheet “ 2011 EGU v. Non EGU Emissions ” (based on 2011 National Emissions Inventory) , attached hereto as Exhibit 13 ; see also National Emissions Inventory, available at http://www.epa.gov/ttn/chief/net/2011inv entory.html . Yet, coal

- fired power plants that are large sources of NO 2 

### pollution in Tennessee , including the TVA Allen Fossil Plant and the TVA Gallatin Fossil Plant, currently lack emission limits sufficient to attain and maintain the 2010 NO 2 

### NAAQS. In order to comply with section 110(a)(2)(A) of the Clean Air Act, the Tennessee proposed I

- SIP must be amended to ensure these sources cannot cause exceedances of the 2010 NO 2 

### NAAQS.
DEC must promulgate enforceable emission limits with one

- hour averagi ng periods into its SIP in order to ensure attainment and maintenance of the NAAQS at all times. As the I

- SIP submission does not include any one

- hour NO 2 

### emission limitations
, the proposed I

- SIP fails to comply with CAA section 110(a)(2)(A). Tennessee’s proposed I

- SIP is meant to implement, maintain, and enforce the NAAQS and therefore must include “enforceable emission limitations” to ensure its effectiveness. 42 U.S.C. § 7410(a)(2)(A). As discussed, the emission limitations necessary to comply with s ection 110(a)(2)(A) mean “a requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design, equipment, work practice or operational standard promulgated under this chapter.” 42 U.S.C. at § 7602(k). Accordingly,

15 

### Indeed, the Homer City majority opinion ack nowledges that it was not overturning EPA’s prior finding of a failure on the part of the states to submit SIPs addressing interstate impacts
, nor did it take issue with the concordant commencement of the two

- year FIP clock. Homer City , 696 F.3d at 37, n. 34.

### 21

emissions limits must be accompanied by appropriate one

- hour aver aging times to meet the requirement of the primary NO 2 

### NAAQS, which sets a maximum ambient NO 2 

### concentration of 100 ppb per hour, in order to assure compliance with 42 U.S.C. § 7410(a)(2)(A). As discussed in the SO 2 

### NAAQS sections of these comments above, EPA has stated that one

- hour averaging times are necessary to comply with the one

- hour NAAQS

. See Letter from Karl Brooks to Dr. Robert Moser, (Feb

. 3, 2011), at tached hereto as Exhibit 12 ; see also Approval and Promulgation of Implementation Plans; State of Missouri, 71 Fed. Reg. at 12,624

. In addition, the I

- SIP must require monitoring of NO 2 

### emission limits on a continuous basis using a c ontinuous emission monitor system or systems. In order to ensure the emission limits protect the one

- hour NO 2 

### NAAQS, the emission limits must be monitored during every hour of operation. Finally, Tennessee cannot rely on its Clean Air Interstate Rule (“CA IR”) NO 2 

### Trading Program regulations contained at Chapter 1200

- 03

- 27

- .10, to assure compliance with the 2010 NO 2 

### NAAQS since CAIR has been remanded, as discussed in detail in Section V of these
comments. See generally North Carolina v. EPA , 531 F.3d 896 (D .C. Cir. 2008).
Tennessee must revise its SIP to include adequately stringent emission limits that address the short

- term, more stringent one

- hour NO 2 

### NAAQS. As proposed, Tennessee’s Infrastructure SIP submission fails to include measures that sufficien tly demonstrate that it will comply with section 110(a)(2)(A), and therefore it cannot ensure the proper implementation, maintenance, and enforcement of the NO 2 

### NAAQS as required by law. DEC must update its emission regulations to ensure that proper mass limitations and one

- hour averaging periods are imposed on large stationary sources, which will help to ensure attainment and maintenance of the NAAQS.

V. TENNESSEE’S PROPOSED INFRASTRUCTURE SIP IMPERMISSIBLY RELIES ON ITS REGIONAL HAZE SIP TO PROTECT THE VISI BILITY IN OTHER STATES.
Tennessee cannot rely on visibility protection from its Regional Haze State Implementation Plan (“Haze SIP”), because it does not have a fully approved Haze SIP. Tennessee must demonstrate that it satisfies section 110(a)(2)(D)(i)(I I), which requires Tennessee to address any contributions of its sources’ impacts on other states’ visibility program requirements (visibility transport prong). See I

- SIP Submission at 7. Tennessee may satisfy this requirement by showing it has a fully a pproved Haze SIP, s ee EPA I

- SIP Guidance at 38 , thus demonstrating that it meets the requirements of the visibility transport prong.
Here, Tennessee attempts to use a partially approved (and partially disapproved) Haze SIP to meet the visibility transpor t requirements, see I

- SIP Submission at 7

- 8, and, therefore, fails to satisfy section 110(a)(2)(D)(i)(II). In 2012, EPA disapproved in part Tennessee’s Haze SIP and then promulgated a FIP to set CSAPR as Tennessee’s Best Available Retrofit Technology (“BAR T”) alternative program. See 40 C.F.R. 52.2234 (stating Tennessee’s regional haze requirements are not met ) ; 77 Fed. Reg. 24,392, 24,392 (April 24, 2012) (finalizing a limited approval and disapproval of Tennessee’s Haze SIP); 77 Fed. Reg. 33,642, 33,643 ( June 7,2012) (promulgating a FIP to replace the state’s reliance on CAIR). However, Tennessee cannot rely on any benefits from CSAPR because CSAPR has been vacated. A Haze SIP based on a vacated rule cannot adequately protect visibility in ot her states. Further, EPA has said that states cannot rely on FIPs to satisfy any part of requirements of CAA section 110(a). See EPA I

SIP Guidance at 12

- 13 (stating that when a FIP addresses a gap in a SIP, “ the EPA cannot give

### 22

‘credit’ for the FIP when determining whether an air agency has met any later obligations under these sections”)

. As EPA detailed in its guidance, a FIP is not a SIP and cannot be relied upon by the state to satisfy later requirements, such as those imposed in subsequent NAAQS. With regards to Tennessee’s reliance on CAIR, Tennessee cannot rely on CAIR as its BART alternative to protect visibility in other states. To begin with, CAIR is not part of Tennessee’s approved Haze SIP, thus it cannot be relied upon to adequately prote ct visibility in other states. See 40 C.F.R. 52.2234; 77 Fed. Reg. at 24,392; 77 Fed. Reg. at 33,643. Furthermore, CAIR’s reductions are not acceptable because CAIR has been remanded, and as such is only temporarily in place. Therefore, its reductions are not permanent and enforceable. Even if CAIR was found to be permanent and enforceable, CAIR does not meet the standards of the visibility program mandated by Congress in section 169A. Thus, Tennessee cannot use its Haze SIP to satisfy section 110(A)(2)( D)(i)(II) or 110(a)(2)(J)

. 16


### In 2008, the D.C. Circuit vacated CAIR because it failed to require sufficient and timely reductions to meet the needs of downwind states. See North Carolina , 531 F.3d at 906 (stating CAIR had “more than several fatal flaws”) on reh’g in part , 550 F.3d 1176 (2008). EPA attempted to replace CAIR with CSAPR; however, CSAPR has since been vacated. The D.C. Circuit has allowed CAIR to remain in place only until a valid replacement is promulgated to help reduce pollution that both C AIR and CSAPR were meant to address. See Homer City
, 696 F.3d at 38. CAIR is temporary and will only be enforceable until EPA promulgates an acceptable replacement. See North Carolina , 550 F.3d at 1178 (“allowing CAIR to remain in effect until it is rep laced by a rule consistent with [the court’s] opinion that would at least temporarily preserve the environmental values covered by CAIR.”); see also Homer City
, 696 F.3d at 38 (directing EPA to “continue administering CAIR pending the promulgation of a val id replacement.”) (emphasis added). The D.C. Circuit has made it clear that CAIR is a stopgap and not a valid, permanent program; thus, Tennessee cannot rely on CAIR to meet the requirements of sections 110(a)(2)(D)(i)(II) and 110(a)(2)(J).
Further, EPA has long held that CAIR reductions are temporary and insufficient to satisfy 110(a)(2)(D)(i)(II) of the Act. During the CSAPR rulemaking, EPA stated that CAIR SIPs “remained in force for the limited purpose allowed by the [ North Carolina ] Court

– that is , to achieve interim reductions until EPA promulgated a rule to replace CAIR,” which EPA intended CSAPR to do. EPA, Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals, 76 Fed. Reg. 48,40 8, 48,419 (Aug. 8, 2011). EPA held to its position that emission reductions under CAIR were not considered permanent, even after the D.C. Circuit stayed CSAPR pending review, keeping CAIR in place. See Order, No. 11

- 1302, 2 (D.C. Cir. Dec. 30, 2011), ava ilable at http://www.epa.gov/crossstaterule/pdfs/CourtDecision.pdf. In the “CSAPR Better than BART” rulemaking, which was issued after the Homer City court stayed CSAPR pending review, EPA found that “as CAIR has been remanded and only remains in place te mporarily, we cannot fully

16 

### The Commenter disagrees that Tennessee can ignore its duty to address visibility requirements under Clean Air Act section 110(a)(2)(J). See I

- SIP Submission at 11. The statute clearly states that each plan shall meet the requirements relating t o visibility protection. See 42 U.S.C. § 7410(a)(2)(J). Tennessee does not have a fully approved Haze SIP, thus it cannot rely on the Haze SIP to meet the requirements of 110(a)(2)(J).

### 23

approve these regional haze SIP revisions that have relied on the now

- temporary reductions from CAIR.” EPA, Regional Haze: Revisions to Provisions Governing Alternatives to Source

Specific Best Available Retrofit Technology (BAR T) Determinations, Limited SIP Disapprovals, and Federal Implementation Plans, 77 Fed. Reg. 33,642, 33,645 (June 7, 2012). 17


### Similarly, after EPA promulgated CSAPR and before the Homer City panel decision, EPA recognized that under North Carolina , emission reductions under CAIR could not be considered “permanent.” Instead, in several infrastructure SIPs, redesignation requests, and associated maintenance SIPs that relied on CAIR, EPA proposed to find that interim CAIR reductions in tandem with CSAPR reduct ions on a going

- forward basis could create “permanent and enforceable” emissions reductions. Taken alone, however, EPA did not believe that CAIR provided permanent emission reductions. See, e.g.
, EPA, Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Kentucky; Redesignation of the Kentucky Portion of the Cincinnati

- Hamilton 1997 Annual Fine Particulate Matter Nonattainment Area to Attainment, 76 Fed. Reg. 65,458, 65,460 (proposed Oct. 21, 2011) ( “As a result of these court rulings, the power plant emission reductions that resulted solely from the development, promulgation, and implementation of CAIR, and the associated contribution to air quality improvement that occurred solely as a result of CAI R in the Northern Kentucky Area could not be considered to be permanent. . . . [But] CAIR emission reduction requirements limit emissions in Kentucky and states upwind of Kentucky through 2011, and the CSAPR requires similar or greater reductions in the r elevant areas in 2012 and beyond . . . and may be considered to be permanent and enforceable.”); EPA, Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Alabama; Redesignation of the Birmingham 200 6 24

- Hour Fine Particulate Matter Nonattainment Area to Attainment, 76 Fed. Reg. 70,091, 70,093

- 94 (proposed Nov. 10, 2011) (similar language); EPA, Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purpose s; North Carolina: Redesignation of the Greensboro

- Winston

- Salem

- High Point 1997 Annual Fine Particulate Matter Nonattainment Area to Attainment, 76 Fed. Reg. 59,345, 59,347 (proposed Sept. 26, 2011) (similar language) . In these comments, we incorporate b y reference all of EPA’s own arguments used to support its prior determination that states cannot use CAIR to meet their BART obligations.
Even if CAIR, despite being vacated , was found to be a permanent and enforceable program, it d oes not meet the standards of section 169A that are required for CAIR to be an adequate substitute for a visibility program. The visibility program mandated by Congress in section 169A has two major components. The first requires states to submit SIPs th at are adequate to reduce visibility

- impairing pollutants in order to make reasonable progress toward the national goal of remedying visibility impairment in all Class I areas. Those SIPs must meet

17 

### EPA reiterated its position that it could not fully approve SIP rev isions that relied on temporary reductions from CAIR in a number of other regional haze rulemakings. See, e.g.
, EPA, Approval and Promulgation of Air Quality Implementation Plans; Virginia; Regional Haze State Implementation Plan, 77 Fed. Reg. 35,287, 35, 287

- 88 (June 13, 2012); EPA, Approval and Promulgation of Implementation Plans; Commonwealth of Kentucky; Regional Haze State Implementation Plan, 77 Fed. Reg. 19,098, 19,100 (Mar. 30, 2012); EPA, Approval and Promulgation of Air Quality Implementation Pla ns; West Virginia; Regional Haze State Implementation Plan, 77 Fed. Reg. 16,937, 16,938 (Mar. 23, 2012).

### 24

certain requirements and receive EPA approval, but states have substantial discretion in choosing the sources that must be controlled. 42 U.S.C. §7491(b)(2). In the second component, Congress defined an explicit subset of pollution sources that would be subjected to emission controls by states and EPA; Congres s not only defined the sources, it also defined the degree of control

— i.e ., best available retrofit technology, or BART

— and mandated specific procedures and factors to be considered in establishing those controls. 42 U.S.C. §§ 7491(b)(2)(A), 7491(g).

Neit her EPA nor the states can ignore these statutory BART mandates. CAIR is plainly inconsistent with section 169A of the Act and the judicial gloss added to those provisions by the D.C. Circuit Court of Appeals in American Corn Growers, Ass’n v. EPA , 291 F. 3d 1 (D.C. 2002)

. EPA and the states cannot use a cap

- and

- trade program (or any other emission reductions program) as a substitute for or exemption from the explicitly mandated BART provisions of the Act, unless, among other things, the alternate program (a) results in emission reductions that are truly “better than BART” with respect to each and every individual Class I area impacted by the exempted BART sources, (b) does not completely usurp the states’ role in implementing the BART requirements and reas onable progress provisions of section 169A, and (c) does not include reductions that are otherwise required under other CAA regulatory control programs, but does include reductions from all sources that are subject to BART. Tennessee’s submittal does
not meet these requirements and is therefore illegal.
The exemption of BART

- eligible power plants that are subject to a state cap

- and

- trade program under CAIR is in plain violation of section 169A of the Act. It would be contrary to law and an abuse of di scretion to conclude that the reductions required by CAIR categorically satisfy BART requirements for all affected Class I areas. While the reductions required under CAIR may improve visibility on the 20% worst days at some Class I areas, such reductions cannot supplant the manifest protections under the Clean Air Act’s visibility program. Section 169A(b)(2) of the CAA requires states to adopt plans that “contain such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress toward meeting the national goal.” The plans must, at a minimum, include the requirement to “procure, install, and operate, as expeditiously as practicable . . . the best available retrofit technology” for each major source that is in existence on August 7, 1977 but which has not been in operation for more than fifteen years as of that date and that emits any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility in a Class I area. 42 U. S.C. §7491(b)(2)(A). The statute, in turn, delineates relevant factors that must be considered in determining reasonable progress and BART. 42 U.S.C. §7491(g)(1)

- (2). It also prescribes the 26 source categories

— including power plants with more than 250 m illion Btu/hour heat input

— that constitute “major stationary sources” for purposes of BART, provided they have the potential to emit 250 tons or more of any pollutant. 42 U.S.C. §7491(g)(7).
Thus, Congress plainly required that, at a minimum, state impleme ntation plans address all 26

- source categories contributing to regional haze and meeting the BART size and age requirements. Congress singled out these sources for the application of BART; Tennessee cannot now categorically exempt them from the visibility protection requirements. There is no basis in law or fact for such a far

- reaching exemption to plain statutory commands. Section 169A of the Act sets forth explicit conditions pursuant to which EPA may grant an exemption from the BART requirements. To the extent that EPA’s “better than BART” provision purports to exempt BART

- eligible sources from BART, it is arbitrary and capricious and in clear

### 25

violation of the Act. Furthermore, to the extent that EPA’s “better than BART” provision can be interpreted as not providing an exemption from BART, but rather an alternate approach, it must nevertheless meet the mandates of section 169A as interpreted by the federal courts, including the D.C. Circuit Court of Appeals decision in American Corn Growers

. Moreover, compliance with CAIR by a source subject to BART is relevant under section 169A only in the context of the determination of appropriate BART controls for that source. Reductions from other emissions control programs such as the Title IV Acid Rain Program and the NO x 

### SIP Call must be achieved in addition to, not as a substitute for, BART controls. CAIR, of course, is another such emissions control program. Therefore, such reductions cannot be used as the basis for exempting sources from BART or for decli ning to apply BART to such sources; rather, such reductions are relevant only in determining the appropriate level of BART control by evaluation of the statutory BART factor relating to “existing pollution control technology in use at the source.” 42 U.S. C. §7491(g)(2). EPA’s “better than BART” provision also violates the explicit language of section 169A(b)(2)(A), which requires BART for sources that emit any pollutant that may contribute to any visibility impairment in any Class I area. In proposing a B ART exemption in the CAIR context, EPA did not find superior visibility improvement resulting from application of CAIR compared to source

- by

- source BART controls in each and every Class I area that may be impacted by BART

- eligible sources in the CAIR regio n. Rather, EPA evaluated the comparative visibility impact of BART and CAIR in some

— but not all

—

relevant Class I areas. Then, EPA averaged those impacts over the selected areas that had been evaluated, and simply pronounced that because overall average v isibility improvement was projected to be greater under CAIR than under BART, power plants subject to CAIR could be exempted from BART requirements. Supplemental Proposal for the Rule To Reduce Interstate Transport of Fine PM and Ozone (CAIR), 69 Fed. Reg. 32,684, 32,704

- 706 (June 10, 2004). In so doing, EPA has essentially fundamentally changed the BART requirements as currently set forth in the Clean Air Act. There is simply no basis in the Act

— or the Regional Haze Rule, for that matter

— to support a BAR T substitute that has not been demonstrated to produce greater visibility improvement in all Class I areas. This is so because section 169A and the RHR are designed to reduce and eventually eliminate visibility impairment in each and every Class I area. Congress explicitly made any eligible source that impacts visibility in any Class I area subject to BART requirements. 42 U.S.C. § 7491(b)(2)(A). EPA cannot declare these SIP requirements satisfied by fiat, by broadly averaging emissions or visibility ov er a number of different Class I areas, either in

- or out

- of

- state. Rather, reasonable progress towards the visibility goal is to be measured on an area

- by

- area basis. This makes perfect sense, as visibility conditions and source contributions can vary s ubstantially from area to area. For example, in measuring reasonable progress towards the natural visibility goal for each of its Class I areas, a state cannot exempt sources from emission reductions necessary to meet reasonable progress in that state by pointing to greater progress in Class I areas located in some other state

— in other words, visibility improvement is not a commodity that can be “traded” among states or Class I areas

— each state and park will have a different required rate of visibility pro gress and different emission reduction requirements to meet its specific visibility progress rate. Finally, we note that because one effect of EPA’s CAIR

- based exemption is to substitute emission reductions by non

- BART sources for those from BART sources, BART sources will be

### 26

controlled at levels less stringent than the application of source

- by

- source BART would require. EPA estimates that the CAIR SO 2 

### reductions will approximate 70% when the CAIR caps are fully implemented

— sometime after 2020. Moreover, in 2015, EPA estimates an overall SO 2 

### reduction of about 58%. Rule To Reduce Interstate Transport of Fine PM and Ozone (Interstate Air Quality Rule), 69 Fed. Reg. 4,566, 4,579 (Jan. 30, 2004). This is substantially lower than the 95% SO 2 

### reduction presum ed by EPA for uncontrolled sources in the reproposed BART Guidelines. Regional Haze Regulations and Guidelines for Best Available Retrofit Technology (BART) Determinations, 69 Fed. Reg. 25,184, 199

- 201 (May 5, 2004).
In conclusion, b ecause CAIR has been vacated, it canno t be considered a permanent and enforceable measure to address visibility in other states. Moreover, using CAIR does not meet the requirements of section 169A, thus it is not adequate to meet the visibility prong requirements under 110(a)(2)(D)(i)(II) and 110(a)(2)(J). Because Tennessee cannot rely on its partially approved Haze SIP, FIPs, CSAPR, or CAIR, Tennessee must provide new I

- SIP provisions that satisfy 110(a)(2)(D)(i)(II) and 110(a)(2)(J). 18



### VI. THE TENNESSEE PROPOSED INFRASTRUCTURE SIP IMPERMISSIBLY FAILS TO ENSURE VISIBILITY IN OTHER STATES BECAUSE TENNESSEE DOES NOT HAVE AN APPROVED FIVE

- YEAR REGIONAL HAZE PROGRESS REPORT.
Tennessee must provide EPA and EPA must approve a five

- year regional haze progress report to satisfy Clean Air Act sections 110(a)(2)( D)(i)(II)(visibility transport prong) and 110(a)(2)(J), but Tennessee has not submitted a report and EPA has not approved it. Tennessee claims its visibility requirements are satisfied by its Haze SIP. See I

- SIP Submission at 7

- 8. 40 C.F.R. § 51.308(g) mandates that a state must submit to EPA a report, as a SIP revision, evaluating progress towards reasonable progress goals five years after the submittal of the initial implementation plan. In EPA’s recent guidance, EPA reiterated that the visibility pro ng may be satisfied by a “SIP that fully meets the requirements of 40 C.F.R. 51.308 or 51.309.” See EPA I

SIP Guidance at 33 (emphasis added). EPA further underscored the importance of five

- year regional haze progress reports by stating that if the progr ess report indicates the Haze SIP is deficient a state would need to explain how its SIP is meeting its visibility obligations despite the Haze SIP’s failures. See id . at 33

- 34. Tennessee’s initial submittal was on April 4, 2008. See 77 Fed. Reg. at 24,3 92 . Thus, its five

- year Regional Haze Progress Report was due on April 4, 2013. To the commenter’s knowledge, Tennessee has not submitted its five

- year Regional Haze Progress Report, and EPA has not evaluated the report and taken final action on this sub mittal. Without the five

- year status

18 

### Commenter also notes that Tennessee cannot rely on other partially disapproved programs to satisfy any part of section 110(a)(2) for the 2010 NO 2 

### or SO 2 

### NAAQS. Thus, Tennessee cannot rely on a partially disapproved prevention or significant deterioration plan, see 40 C.F.R. 52.2233(a)(1) (stating paragraph 1200

- 3

- 9

- .01(4)

- (0)

- 2. is disapproved), to satisfy section 110(a)(2)(C) or any other provisions of section 110(a)(2). Nor can Tennessee rely on its Prevention of Air Pollution Emergency Episodes to satisfy section 110(a)(2)(G) or any other provisions of section 110(a)(2), because the program failed to provide for the enforcement of emission control actions for mobile sources during air pollution emergency episodes. See 40 C.F.R. 52.2227(a).

### 27

report, EPA cannot assess the efficacy of Tennessee’s Haze SIP. Therefore, e ven if the report has been submitted, until EPA evaluates the report, EPA cannot propose to approve Tennessee’s submission regarding sections 110(a)(2)( D)(i)(II)(visibility transport prong) and 110(a)(2)(J), because EPA does not know if the Haze SIP is actually effective in improving visibility in other states. After evaluation of the five

- year progress report, if EPA deems the Haze SIP ineffective, EPA must disapprove Tennessee’s visibility elements and require Tennessee to supplement its Haze SIP with additional measures to ensure improvements in visibility in other states. Tennessee cannot satisfy this part of 110(a)(2) until it has submitted a five

- ye ar Regional Haze Progress Report and EPA will not be able to approve it.

VII. CONCLUSION
The proposed SIP fails to ensure that the one

- hour NO 2 

### and SO 2 

### NAAQS are attained and maintained, as described above. Tennessee must adopt new provisions into the SIP to protect the public health and comply with the Act’s requirements. The Sierra Club would be happy to provide any other information that might assist Tennessee in evaluating the impacts of these sources and developing a SIP in full compliance with the Act.

Respectfully submitted,

/s/Elizabeth Toba Pearlman

Elizabeth Toba Pearlman Office of Elizabeth Toba Pearlman 1523 27th Street, NW Washington, DC 20007 (202) 643

- 4068 etplaw@gmail.com

Kathryn M. Amirpashaie Law Office of Kathryn M. Amirpashaie, PLC 7 556 Blanford Court Alexandria, VA 22315 (703) 851

- 9111 kmalawoffice@gmail.com

On behalf of Sierra Club1 Public Hearing A public hearing was held on March 10, 2014, to solicit public comments on the proposed infrastructure SIP. There were no co mments received during the public hearing.

EPA Comments The following written comments were submitted by EPA ’s Region 4 Office.

Comment Response 1. Overarching comment for all elements: Please ensure each 110(a)(2) element has a declaration that states which State Implementation Plan (SIP) approved rule or State Statute meets the element requirements. See respon ses to comments 2 through 8 below.

2. Section 110(a)( 2)(B): Please provide any state provisions/statutes or SIP regulations citations of which require the state to monitor and collect air quality data. Cite all state provisions/statutes or SIP regulations that meet the requirements of this element. The pre hearing draft was revised as follows:

TCA 68

- 201

- 105(b)(4) states that authorizes the Department of Environment and Conservation has the power and duty to provide such technical, scientific and other services as may be required for carrying out the provis ions of the Tennessee Air Quality Act

... 3. Section 110(a)(2)(C): Please include a declarative statement that the state has a minor source program in place with the applicable SIP regulation citation to demonstrate this requirement for this element. The prehearing draft was revised as follows:

Pursuant to TAPCR 1200

- 03

- 09

- .01 (Construction Permits) and 1200

- 03

- 09

- .03 (General Provisions) , the Division of Air Pollution Control has the authority to regulate the construction of new or modified minor sta tionary sources

... Tennessee has a minor source preconstruction program in place to regulate construction or modification of minor sources in accordance with the regulations cited above. 4. Section 110(a)(2)(D)(i)(I) Interstate Transport (prongs 1 and 2): EPA suggests that a declarative statement be included stating that at this time nothing is required as a result of the EME Homer court decision. The prehearing draft was revised as follows:

... Please see EPA’s January 15, 2013 (78 FR 2882) rulemaking. Pursuant to EME Homer City Generation v. EPA , no action is required at this time. 5. Section 110(a)(2)(D)(i)(II) PSD (prong 3): Please include the applicable provisions that have been incorporated into the SIP that govern it. There is a regulation cited in footnote 13, however it is not clear that this is regulation that governs Tennessee’s Prevention of Significant Deterioration (PSD) program. What is stated for element J related to PSD will be sufficient to meet this requirement. The prehearing draft wa s revised as follows:

Tennessee has a fully approved PSD program, which applies to all regulated NSR pollutants. Tennessee’s PSD program has been approved into the SIP and includes a regulatory provision, which, consistent with 40 CFR §51.166(q)( 2)(iv), requires the permitting authority to notify air agencies whose lands may be affected by emissions from that source (TAPCR 1200

- 03

- 09

- 3.04(4)(l)2) 13

.2 Comment Response 6. Section 110(a)(2)(D)(ii) Interstate Pollution Abatement and International Air Pollution: Pl ease cite the relevant SIP regulation that has been incorporated into the SIP to govern this requirement. The prehearing draft was revised as follows:
As stated previously, Tennessee’s PSD program has been approved into the SIP and includes a regulatory p rovision, which, consistent Consistent with 40 CFR §51.166(q)(2)(iv), TAPCR 1200

- 03

- 09

- .0 1 (4)(l)2 requires the permitting authority to notify air agencies whose lands may be affected by emissions from that source. 7. Section 110(a)(2)(L): EPA recommends Tennessee respond and document the following information to comply with requirements of 110(a)(2)(L):

Please explain if funding for review of PSD and Nonattainment New Source Review (NNSR) permits comes from permit specific fees charged to the permit appl icant. If not, EPA recommends that Tennessee identify other funding sources (i.e. tax, grant, legislative appropriations operating permit fees or other sources) that cover review, implementation and enforcement of PSD and NNSR permits. This will include c iting all relevant regulations (state, statue or SIP approved) that legally require these type of funding sources. Specific fee amounts are not required for documentation.

In addition to the state regulations already identified, if there other SIP

appro ved or statutory provisions that legally require PSD and NNSR permit applicants to pay a specific fee to cover review, implementation and enforcement of permit applications, cite these regulations here. Also, state that the fees being charged to PSD and NN SR permit applicants reflect the reasonable cost of review, approval, implementation and enforcement of PSD and NNSR permits and are sufficient to operate the state’s permitting program.
Please include the regulatory citation for the state’s title V prog ram. Additionally, include a statement that the title V program fees cover the reasonable cost of implementation and enforcement of PSD and NNSR permits after they have been issued. The prehearing draft was revised as follows:

Funding for review of PSD and nonattainment NSR permits comes from permit

specific fees that are charged to the applicant (greenfield facilities) or from annual emission fees charged to Title V facilities (existing sources paying Title V annual emission fees that apply for major mo difications under PSD or nonattainment NSR). T he cost of reviewing, approving, implementing, and enforcing PSD and major nonattainment NSR permit s for are covered as follows:

New construction (all major stationary sources that are not paying Title V

annu al emission fees) TAPCR 1200

- 03

- 26

- .02(5) requires each new source

to pay as set forth in 1200

- 03

- 26

- .02(5)(g), Schedule A. Permitting costs are also covered by construction permit application filing/processing fees for minor sources (Schedule A applies t o all construction not specifically exempted), annual emission fees for non

Title V sources (TAPCR 1200

- 03

- 26

- .02(6)), legislative appropriations, and Federal grants. New construction or modifications at existing Title V facilities (sources subject to TAPCR 1200

- 03

- 09

- .02(11)) Permitting costs are covered by Title V annual

emission fees established pursuant to TAPCR 1200

- 03

- 26

- .02(9). Pursuant to TAPCR 1200

- 03

- 26

- .02(9)(a), once a major stationary source begins to pay Title V annua l emission fees, it will not be subject to the construction permit fees of paragraph 1200

- 03

- 26

- .02(5) for any additional construction occurring at the

source.
For new construction, the fees charged to PSD and nonattainment NSR permit applicants reflect the reasonable cost of review, approval, implementation and enforcement of PSD and nonattainment NSR permits and are sufficient to operate the state’s permitting program. For existing Title V facilities applying for major modifications, the Title V annual emission fees cover the reasonable3 Comment Response cost of implementation and enforcement of PSD and nonattainment NSR permits after they have been issued. 8. Section 110(a)(2)(M): Please document all relevant SIP

- approved regulations and statutes that require Tennessee to provide for consultation and participation in SIP development by local political s ubdivision affected by the SIP. The prehearing draft was revised as follows:

TCA 68

- 201

- 105 authorizes and requires the Tennessee Air Pollution Control Board to promulgate rules and regulations to effect the intent and purpose of this part, pursuant to the provisions of the Uniform Administrative Procedures Act, compiled in title 4 , chapter 5. TCA 4

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- 202 (Uniform Administrative Procedures Act) requires agencies to precede all rulemaking with a notice and public hearing, except as specifically exempted. TCA 4

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- 203 (Uniform Administrative Procedures Act) states that whenever an age ncy is required by law to hold a public hearing as part of its rulemaking process, the agency shall: (1) Transmit written notice of the hearings to the secretary of state for publication in the notice section of the administrative register web site and, ( 2) Take such other steps as it deems necessary to convey effective notice to persons who are likely to have an interest in the proposed rulemaking.

TCA 68

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- 105(b)(7) authorizes and requires the Department of Environment and Conservation to advise, cons ult and cooperate with other agencies, persons or groups in matters pertaining to air pollution; and encourage authorized air pollution agencies of political subdivisions to handle air pollution problems within their respective jurisdictions to the greates t extent possible and to provide technical assistance to political subdivisions.4 Summary of Sierra Club Comments:

The Sierra Club submitted written comments on the proposed infrastructure SIP on March 10, 2014. The Sierra Club’s comments are summarized below with Tennessee’s responses. A copy of the full comment letter is attached with the final infrastructure SIP s ubmittal.
In general, the commenter argues that the infrastructure SIP must “include enforceable emission limitations . . . as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements” of the Clean Air Act. EPA regulations implementing section 110(a)(2) also require that I

- SIPs be adequate to prohibit exceedances of the NAAQS. Pursuant to these regulations, in order for a SIP to be approved by EPA, it “must demonstrate that the measures, rules , and regulations contained in it are adequate to provide for the timely attainment and maintenance of the national standard that it implements.” The commenter states that the Clean Air Act, EPA regulations, prior EPA interpretations, and Supreme and Appel late Court opinions require infrastructure SIPs to include emission limits that are appropriate to attain and/or maintain the NAAQS. The commenter identifies a series of items in the infrastructure SIP as deficient:

1. Tennessee’s infrastructure SIP does no t include the 2010 NO 2 and SO 2 NAAQS in TAPCR 1200

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2. Tennessee’s infrastructure SIP does not include enforceable SO 2 emission limits (numerical limit with appropriate averaging period) to ensure attainment & maintenance of the SO 2 NAAQS, based on mod eling for Gallatin and Allen fossil plants. The SIP also does not include monitoring to assure compliance with the emission limits.

3. The infrastructure SIP does not address deficiencies in Tennessee’s PSD regulations.

4. Tennessee cannot rely upon CAIR to a ddress the SO 2 NAAQS.

5. Tennessee’s infrastructure SIP does not include enforceable NO 2 emission limits (numerical limit with appropriate averaging period) to ensure attainment & maintenance of the NO 2 NAAQS. The SIP also does not include monitoring to assure compliance with the emission limits.

6. Tennessee cannot rely on visibility protection from its Regional Haze SIP because it does not have a fully approved SIP.

Response:
Tennessee’s infrastructure SIP is not required to include SO 2 emission limits for Gallatin and Allen fossil plants (or any other source) and is not required to include enforceable NO 2 emission limits. In accordance with EPA’s September 2013 infrastructure SIP guidance, Tennessee has certified that the State has the authority and re sources to implement the SO 2 and NO 2 NAAQS. The addition of emission limits, monitoring requirements, changes to PSD regulations, and other perceived deficiencies are beyond the scope of the infrastructure SIP requirements.

With respect to significant contribution and interference with maintenance , Tennessee agrees with EPA’s guidance that no action is required until EME Homer City Generation v. EPA is resolved. We sympathize with continuing frustration over the uncertainty surrounding interstate tran sport issues. However, the ongoing legal dispute that began with North Carolina v. EPA and reached its current state in EME Homer City must resolve itself.

With respect to visibility transport, Tennessee has certified

– in accordance with EPA’s infrastru cture SIP guidance

– that the regional haze SIP is sufficient to ensure emissions within the State do not interfere with other air agencies’ plans to protect visibility. Nothing more is required by EPA guidance.

EPA has outlined a procedure for implement ation of 2010 SO 2 NAAQS. The general requirements are:5  Make an initial round of designations based on existing monitoring networks

– the first round of designations became effective October 4, 2013. Submit a SIP within 18 months of designation and attai n the SO 2 NAAQS by October 4, 2018.

 Make a second round of designations using monitoring and/or air quality modeling. EPA’s data requirements rule will lay out the type of information needed to determine the correct approach for the second round of desig nations. This rule is tentatively scheduled for proposal in spring 2014.

 For any new nonattainment areas established in the second round of designations, submit an attainment demonstration or SIP revision that provides for attainment of the NAAQS on th e schedule established by EPA.

Tennessee will address all of the implementation requirements in a timely fashion, but we will address them on the schedule and in the manner established by EPA. For areas that were not designated as nonattainment in the fir st round of designations, Tennessee is not willing to proceed with modeling or regulatory actions in the absence of Federal rulemaking or final guidance.
For the reasons stated above, Tennessee believes that further response to the commenter’s modeling an alysis is not required. However, during the review of the comments, Tennessee considered the commenter’s summary tables and believes the information contained therein is worth further mention. The commenter submitted the following summary of modeled impac ts (Table 1) and required emission reductions (Table 2).

The required emission rates cited above would be equivalent to the following values in tons per year (assuming 8,760 hours of annual operation).6 Facility Required SO 2 Emission Rate (lb/hr) Equivalent Annual SO 2 Emission s ( tons ) TVA Allen 6,670 29,215 TVA Gallatin 6,811 29,382

Acid Rain Program monitoring data were downloaded from EPA’s Clean Air Markets from both facilities. The monitoring data indicates the following emissions:

Acid Rain Program Monitoring Data, 2005

- 2013

Year SO 2 Emissions (tons)

Allen Gallatin
2005 23,882 25,900
2006 17,413 23,459
2007 13,210 23,113
2008 12,495 23,426
2009 11,871 19,660
2010 11,049 20,590
2011 10,969 23,240
2012 9,609 21,732
2013 9,989 20,714

Granting that ton

- per

- year emissions do not necessarily reflect short

- term emission rates, the Acid Rain Program data suggests that the modeled impacts from these facilities are not necessarily indicative of actual operating conditions at either facility.

Depending on the final requirements for second

- round designations, it is possible that modeling of the existing SIP limits will show nonattainment for one or more sources. Again, if revisions to existing SIP limits are needed, we will make th ese changes on the schedule established by EPA.