SIP Submittal Documents

Tennessee Certification for Clean Air Act §§110(a)(1) and (2)

2010 NO2 and SO2 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 NO2 and SO2 NAAQS
1

Certification for NO2 and SO2 National Ambient Air Quality Standards

Clean Air Act Sections 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 provisions 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-approved 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:

Nitrogen Dioxide (NO2): 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 (onehour average). 

Sulfur Dioxide (SO2): 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 areas designated as nonattainment for any NAAQS. 

SIPs must provide for attainment of the NAAQS as expeditiously as practicable, but not later than five years from 

the date of 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 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 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 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;

 Authorize the Technical Secretary to issue permits that contain all applicable provisions of the Act and of 

the Federal 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 Board, requirement of the Act, or rule or regulation adopted pursuant to the Act. 

The Tennessee Air Pollution Control Regulations (TAPCR)2are 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 Revision3

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, 20024

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 NOX emissions from designated source categories. December 27, 

20055

1200-03-29 Inspection 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 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 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 NOX Trading Program) and 1200-3-27-.11 (CAIR Ozone Season NOX 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 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 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.

On March 7, 2013, EPA extended the deadlines for installation and operation of required near-road NO2 monitors 

from January 1, 2013 to January 1, 2014. EPA’s action also extended the deadline to January 1, 2015, for secondyear monitors and January 1, 2017, for any other remaining monitors. This change was based on the lack of 

available resources that State and local agencies would need to allow for a more rapid deployment under the 

original timelines. Two near-road monitoring sites are scheduled for installation and operation in Nashville 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 NO2 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 NO2 NAAQS in 2010 require a minimum of one NO2 monitoring site in any urban area with a 

population greater than or equal to one million people to assess community-wide concentrations. Therefore, a 

community-wide site is required in the Memphis and Nashville CBSA’s. An NO2 monitoring site that meets the 

requirements is operating in Nashville (AQS 47-037-0011). In the Memphis CBSA, Arkansas currently operates 

an NO2 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 NO2 monitoring requirements in the 

Memphis CBSA.

For SO2, Tennessee is required to operate one SO2 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 SO2 monitor located in the 

Kingsport area to meet this requirement. For 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 SO2 monitor became 

operational in February 2013. Additional monitoring may be needed to accompany the SO2 modeling 

requirements that will also be used to identify potential SO2 nonattainment areas.

Based on population-weighted emission index (PWEI) calculations, a single SO2 monitoring site is required in the 

Core-Based Statistical Areas (CBSA) of Memphis, Nashville, and Knoxville. SO2 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 SO2 monitor at an existing ozone 

monitoring site (47-001-0101) in Anderson County (Knoxville CBSA). A second SO2 monitoring site is operated 

in Shelby County (AQS 47-157-0075), as indicated above. Continued operation of this site allows MemphisShelby County Air Pollution Control to meet minimum SO2 monitoring requirements in the Memphis CBSA.
4

As of the date of this infrastructure submittal the development of the NO2/SO2 monitoring network is ongoing; 

therefore Tennessee’s NO2/SO2 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 NO2 or SO2

monitoring network.” Tennessee will implement any required changes to the ambient NO2 and SO2 monitoring 

network to address Tennessee’s obligations under §110(a)(2)(B). 

Program for enforcement of control measures: §110(a)(2)(C) requires SIPs to include a program providing for 

enforcement of all SIP measures and the regulations 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 regulation 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 1200-03-136states 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 (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 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 require 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 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 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 of 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 

with 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 delivered to the Technical Secretary within thirty (30) days after the

publication of the public notice.

1200-03-09-.03(1) Requirement to comply with these regulations at the earliest practicable time, 

authority of the Board to require early compliance7.

1200-03-09-.03(2) Prohibition of circumvention8.

1200-03-09-.03(3) Prohibition of discharges that cause a traffic hazard9. 

1200-03-09-.03(4) Requirement to file emissions data on forms available from the Technical Secretary10.

1200-03-09-.03(6) Permits are not transferrable from one person to another11.

1200-03-09-.03(7) Authority to suspend or revoke permits for noncompliance.

1200-03-09-.03(8) Authority to impose Federal regulations on permits12.

 

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 regulations.”

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 transportation.”

10 The SIP adds a requirement to file data at least once per year. The TAPCR language requires affected sources to file revisions 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 NOX as an ozone precursor for PSD purposes). 

Submitted by Tennessee May 28, 2009, approved by EPA February 7, 2012.

 Greenhouse Gas Tailoring Rule (regulation of greenhouse gases under Tennessee's PSD program). 

Submitted by Tennessee August 30, 2010, and revised January 11, 2012. Approved by EPA February 28, 

2012.

 2008 NSR PM2.5 Implementation Rule (requires NSR permits to address directly emitted PM2.5 and 

precursor pollutants; establishes significant emission rates for direct PM2.5 and precursor pollutants, 

including SO2 and NOX; establishes PM2.5 emission offsets; provides exceptions to PM10 grandfather 

policy; and accounts for condensables in PM2.5 and PM10 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 PM2.5 Increment Rule (establishes PM2.5 increments pursuant to CAA §166(a) to prevent 

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 SIPs 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 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 significant contribution to nonattainment and interference with 

maintenance) 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 not 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 emissions 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 NO2 or 

SO2, 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 States. 

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 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 visibility. 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 will 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 deficiencies 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 SIP14. 

EPA disapproved of Tennessee’s SIP revision insofar as the SIP revision relied upon Clean Air Interstate Rule 

(CAIR) emission reductions15 to address the impact of emissions from Tennessee’s EGUs16, 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.

 

13 “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 involves performing the following actions... Send a copy of the notice of public comment to the applicant and to officials and agencies having 

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 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 Company on November 27, 2012.

15 TAPCR 1200-3-14-.04 (CAIR SO2 Annual Trading Program), TAPCR 1200-3-27-.10 (CAIR Annual NOX Trading Program), and 1200-3-27-.11 (CAIR 

Ozone Season NOX 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 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:

Certain state submittals awaiting approval by the EPA... may be partly dependent on the 

assurance of ongoing regional NOX and SO2 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 any 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 air 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 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 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 of its potential downwind impact.

Consistent 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 the 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 (“Intergovernmental Consultation”), the infrastructure SIP submission 

should identify the organizations that will participate in developing, implementing, and enforcing the EPAapproved 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 establishes construction fees, annual emission fees, and permit review fees sufficient to 

supplement existing State and federal funding and to cover reasonable costs associated with the administration of 

the air pollution control program. 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 enforcement actions (excluding penalties assessed).
9

The Division of Air Pollution Control has adequate personnel and funding to implement the NO2 and SO2

NAAQS.

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. 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 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 Regulations17 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 the 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 

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 municipality 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 county 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 

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 the 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 the 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 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. 

 

17 Last revised June 25, 2013, effective September 23, 2013.
10

Emergency power: §110(a)(2)(G) requires States to provide 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 emergency 

episode plan requirements for major sources located in or significantly impacting a nonattainment area18. 

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 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 SO2 or NO2. 

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 review 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 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 prevent exceedances. 

The infrastructure SIP submission needs 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 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 

 

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. 
11

(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 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 annual network monitoring plan update also includes the previous year’s 

design value for all criteria pollutants 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 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, Tennessee 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-.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 training and experience to conduct 

source-oriented dispersion modeling with models approved by the EPA. 

EPA’s strategy for SO2 seeks to characterize air quality for the SO2 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 SO2 NAAQS19. EPA has also stated that future rulemaking will establish requirements for 

characterizing SO2 air quality in priority areas20:

In a future rule (2014), the EPA will establish requirements for characterizing SO2 air quality in 

priority areas, focusing on areas with sources that have emissions higher than a threshold amount. 

The EPA expects 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 future 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 permitting 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 enforceable requirements or obligations on any person. 

20 U. S. EPA, SO2 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). The 

cost of reviewing, approving, implementing, and enforcing PSD and major nonattainment NSR permits 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 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 reasonable cost of implementation and enforcement of 

PSD and nonattainment NSR permits after they have been issued. 

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 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 4-5-202 (Uniform Administrative 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 whenever 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 necessary 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 technical assistance to political subdivisions.

TAPCR 1200-03-34 (Conformity) provides for inter-agency consultation on both transportation and general 

conformity related issues.
Attachment 1

Tennessee Air Quality Act
T. 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

 © 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. § 68-201-103

§ 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

 © 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. § 68-201-106

§ 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

 © 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. § 68-201-107

§ 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

 © 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. § 68-201-108

§ 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

 © 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. § 68-201-109

§ 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

 © 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. § 68-201-110

§ 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

 © 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. § 68-201-111

§ 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

 © 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. § 68-201-112

§ 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

 © 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. § 68-201-113

§ 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

 © 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. § 68-201-114

§ 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

 © 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. § 68-201-115

§ 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

 © 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. § 68-201-116

§ 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

 © 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. § 68-201-118

§ 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

 © 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. § 68-201-120

§ 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 14-004

Appendix C

§110(a)(1) and (2) Infrastructure SIP

Prehearing Draft Submitted to EPA

and Public Depository
******DRAFT******

1

Certification for NO2 and SO2 National Ambient Air Quality Standards

Clean Air Act Sections 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 purposes of implementing the new or revised 

NAAQS. 

The following certificationn 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 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:

Nitrogen Dioxide (NO2): 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 (onehour average). 

Sulfur Dioxide (SO2): 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 areas designated as nonattainment for any NAAQS. 

SIPs must provide for attainment of the NAAQS as expeditiously as practicable, but not later than five years from 

the date of 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 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 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;

 Authorize the Technical Secretary to issue permits that contain all applicable provisions of the Act and of 

the Federal 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 

any order issued by the Board, requirement of the Act, or rule or regulation adopted pursuant to the Act. 

The Tennessee Air Pollution Control Regulations (TAPCR)2are 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 Revision3

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, 20024

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 NOX emissions from designated source categories. December 27, 

20055

1200-03-29 Inspection 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 currently 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 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 NOX Trading Program) and 1200-3-27-.11 (CAIR Ozone Season NOX 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 required 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 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.

On March 7, 2013, EPA extended the deadlines for installation and operation of required near-road NO2 monitors 

from January 1, 2013 to January 1, 2014. EPA’s action also extended the deadline to January 1, 2015, for secondyear monitors and January 1, 2017, for any other remaining monitors. This change was based on the lack of 

available resources that State and local agencies would need to allow for a more rapid deployment under the 

original timelines. Two near-road monitoring sites are scheduled for installation and operation in Nashville 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 NO2 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 NO2 NAAQS in 2010 require a minimum of one NO2 monitoring site in any urban area with a 

population greater than or equal to one million people to assess community-wide concentrations. Therefore, a 

community-wide site is required in the Memphis and Nashville CBSA’s. An NO2 monitoring site that meets the 

requirements is operating in Nashville (AQS 47-037-0011). In the Memphis CBSA, Arkansas currently operates 

an NO2 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 NO2 monitoring requirements in the 

Memphis CBSA.

For SO2, Tennessee is required to operate one SO2 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 SO2 monitor located in the 

Kingsport area to meet this requirement. For 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 SO2 monitor became 

operational in February 2013. Additional monitoring may be needed to accompany the SO2 modeling 

requirements that will also be used to identify potential SO2 nonattainment areas.

Based on population-weighted emission index (PWEI) calculations, a single SO2 monitoring site is required in the 

Core-Based Statistical Areas (CBSA) of Memphis, Nashville, and Knoxville. SO2 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 SO2 monitor at an existing ozone 

monitoring site (47-001-0101) in Anderson County (Knoxville CBSA). A second SO2 monitoring site is operated 

in Shelby County (AQS 47-157-0075), as indicated above. Continued operation of this site allows MemphisShelby County Air Pollution Control to meet minimum SO2 monitoring requirements in the Memphis CBSA.
******DRAFT******

4

As of the date of this infrastructure submittal the development of the NO2/SO2 monitoring network is ongoing; 

therefore Tennessee’s NO2/SO2 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 NO2 or SO2

monitoring network.” Tennessee will implement any required changes to the ambient NO2 and SO2 monitoring 

network to address Tennessee’s obligations under §110(a)(2)(B). 

Program for enforcement of control measures: §110(a)(2)(C) requires SIPs to include a program providing for 

enforcement of all SIP measures and the regulations 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 regulation 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 1200-03-136states 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 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 require 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 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 Act.

 

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, 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 

with 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 delivered to the Technical Secretary within thirty (30) days after the

publication of the public notice.

1200-03-09-.03(1) Requirement to comply with these regulations at the earliest practicable time, 

authority of the Board to require early compliance7.

1200-03-09-.03(2) Prohibition of circumvention8.

1200-03-09-.03(3) Prohibition of discharges that cause a traffic hazard9. 

1200-03-09-.03(4) Requirement to file emissions data on forms available from the Technical Secretary10.

1200-03-09-.03(6) Permits are not transferrable from one person to another11.

1200-03-09-.03(7) Authority to suspend or revoke permits for noncompliance.

1200-03-09-.03(8) Authority to impose Federal regulations on permits12.

 

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 regulations.”

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 transportation.”

10 The SIP adds a requirement to file data at least once per year. The TAPCR language requires affected sources to file revisions 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.
******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 regulations include the following updates:

 Ozone Implementation NSR Update (recognizing NOX as an ozone precursor for PSD purposes). 

Submitted by Tennessee May 28, 2009, approved by EPA February 7, 2012.

 Greenhouse Gas Tailoring Rule (regulation of greenhouse gases under Tennessee's PSD program). 

Submitted by Tennessee August 30, 2010, and revised January 11, 2012. Approved by EPA February 28, 

2012.

 2008 NSR PM2.5 Implementation Rule (requires NSR permits to address directly emitted PM2.5 and 

precursor pollutants; establishes significant emission rates for direct PM2.5 and precursor pollutants, 

including SO2 and NOX; establishes PM2.5 emission offsets; provides exceptions to PM10 grandfather 

policy; and accounts for condensables in PM2.5 and PM10 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 PM2.5 Increment Rule (establishes PM2.5 increments pursuant to CAA §166(a) to prevent 

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 SIPs 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 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 significant contribution to nonattainment and interference with 

maintenance) 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 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 

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 

infrastructure submission. Moreover, the infrastructure SIP should address the potential 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 source13. 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 NO2 or SO2, 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 States. 

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 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 visibility. 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 will 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 deficiencies 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 SIP14. 

EPA disapproved of Tennessee’s SIP revision insofar as the SIP revision relied upon Clean Air Interstate Rule 

(CAIR) emission reductions15 to address the impact of emissions from Tennessee’s EGUs16, 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 involves performing the following actions... Send a copy of the notice of public comment to the applicant and 

to officials and agencies having 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 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 Company on November 27, 2012.

15 TAPCR 1200-3-14-.04 (CAIR SO2 Annual Trading Program), TAPCR 1200-3-27-.10 (CAIR Annual NOX Trading Program), and 1200-3-27-.11 (CAIR 

Ozone Season NOX 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 December 23, 2008, in response to petitions for 

reconsideration, the Court elected to remand the rules without vacature. 
******DRAFT******

8

Certain state submittals awaiting approval by the EPA... may be partly dependent on the 

assurance of ongoing regional NOX and SO2 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 any 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 air 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 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 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 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 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 the 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 (“Intergovernmental Consultation”), the infrastructure SIP submission 

should identify the organizations that will participate in developing, implementing, and enforcing the EPAapproved 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 establishes construction fees, annual emission fees, and permit review fees sufficient to 

supplement existing State and federal funding and to cover reasonable costs associated with the administration of 

the air pollution control program. 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 enforcement actions (excluding penalties assessed).

The Division of Air Pollution Control has adequate personnel and funding to implement the NO2 and SO2

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. 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 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 Regulations17 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 the 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 

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 municipality 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 county 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 

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 the 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 the 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 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 imminent 

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 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 emergency 

episode plan requirements for major sources located in or significantly impacting a nonattainment area18. 

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 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 SO2 or NO2. 

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 review 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 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 prevent exceedances. 

The infrastructure SIP submission needs 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 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 daily 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 help 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 pollutants 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 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, Tennessee 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-.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 training and experience to conduct 

source-oriented dispersion modeling with models approved by the EPA. 

EPA’s strategy for SO2 seeks to characterize air quality for the SO2 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 SO2 NAAQS19. EPA has also stated that future rulemaking will establish requirements for 

characterizing SO2 air quality in priority areas20:

In a future rule (2014), the EPA will establish requirements for characterizing SO2 air quality in 

priority areas, focusing on areas with sources that have emissions higher than a threshold amount. 

The EPA expects 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 future 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 permitting fees to 

cover the cost of reviewing, approving, implementing, and enforcing a permit.

The cost of reviewing, approving, implementing, and enforcing PSD and major nonattainment NSR permits for 

are covered as follows:

 

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 enforceable requirements or obligations on any person. 

20 U. S. EPA, SO2 NAAQS Designations Modeling Technical Assistance Document, draft guidance document, December 2013. 
******DRAFT******

12

New construction (all 

major stationary 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 covered 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 Federal 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) provides for inter-agency consultation on both transportation and general 

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 

Information
Notice 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 15th Floor Conference Room, Division 

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

37243 at 9:30 AM on the 10th day of March, 2014.

Written comments will be included in the hearing records if received by the close of business on March 10, 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. Additionally, comments may be submitted via attachments through electronic mail until the close of 

business on March 10, 2014.

Any individuals with disabilities who wish to participate 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 means, 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 Department of 

Environment and Conservation ADA Coordinator, William R. Snodgrass Tennessee Tower, 312 Rosa L. Parks Avenue 2nd 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 review, which addresses Tennessee’s obligations under §§110(a)(1) and (2) 

of the Clean Air Act for the revised National Ambient Air Quality Standards (NAAQS) for nitrogen dioxide (NO2) promulgated by 

EPA on January 22, 2010, and for sulfur dioxide (SO2), 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 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. Tennessee’s proposed submittal to 

EPA states that the State Implementation Plan meets 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. Materials 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 Avenue, 15th 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 Pike

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, 15th Floor, Nashville, TN 37243.
All persons interested in the air quality of the State of Tennessee are urged to attend and will be afforded 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 incorporated 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 10, 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, 15th 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.

Phc44.doc
Page 1 of 1 Pages

Public Hearing

Tennessee Division of Air Pollution Control

William R. Snodgrass Tennessee Tower

312 Rosa L. Parks Avenue, 15th Floor

Nashville, Tennessee 37243

9:30 A.M.

March 10, 2014

Opening Statement for Hearing

I would like to call this hearing to order. It is 9:30 a.m. March 10, 2014. We are in Conference Room A, 15th 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 Division 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 SO2 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 want 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 received in the office of the Technical Secretary, Tennessee Air Pollution Control Division, 15th

Floor William R. Snodgrass Tennessee Tower, 312 Rosa L. Parks Avenue, Nashville, Tennessee 37243 by close of 

business Monday, March 10, 2014.

Materials concerning 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 Technical 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 discussion, 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 considered 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, 15th 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\ohs42.doc 
Appendix E

Public Depository Transmittal Letters







Appendix F

Affected State Notification


Appendix G

Response to Comments



1

VIA ELECTRONIC MAIL AND U.S. MAIL

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 NO2 and SO2 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 impacted by Tennessee’s sources of sulfur dioxide (“SO2”) and nitrogen dioxide 

(“NO2”) pollution, we submit the following comments on Tennessee’s proposed Infrastructure 

State Implementation Plan (“SIP”) addressing the requirements for the January 22, 2010 onehour primary NO2 National Ambient Air Quality Standard (“NAAQS”) and the June 2, 2010 

one-hour primary SO2 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

The 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 NO2 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 NO2 NAAQS. 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 exposure to NO2 and adverse respiratory 

effects, including emergency department visits and hospitalizations, airway hyperresponsiveness, airway inflammation, and decreased lung function. 75 Fed. Reg. at 6480. 

Similarly, on June 2, 2010, EPA revised the primary SO2 NAAQS by establishing a new onehour 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 99th percentile of the daily maximum one-hour average 

concentrations is less than or equal to 75 ppb. See Primary National Ambient Air Quality 

Standard for Sulfur Dioxide Final Rule, 75 Fed. Reg. 35,520, (June 20, 2010) [hereinafter “Final 

SO2 NAAQS Rule”]. The primary SO2 NAAQS was set at such a level in order to protect public 

health from the serious threats posed by short-term exposure to SO2, 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 asthmatics, children, and 

the elderly. See Final SO2 NAAQS Rule at 35,525-26. The health data relied upon by EPA in 

promulgating the new SO2 standard overwhelmingly indicates that increased asthma attacks and 

hospital visits are attributable to short-term concentrations of sulfur compounds in the air. Id. 

Due to these and other serious impairments caused by short-term NO2 and SO2 exposure, the 

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

one-hour NO2 and SO2 NAAQS through 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 

business 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). 

Pursuant 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 

169, 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 implementation 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 State 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 for 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 bears 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 offer 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 Legislative 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 of 

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 compliance 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 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.” 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 air 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 in 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, 

together 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), attached 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 Quality 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, the 

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) (explaining 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 clarification 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).” (emphasis added). 

Consequently, of relevance to our discussion of the SO2 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 demonstrate 

attainment and maintenance of the NAAQS. For example, in March 2006, EPA disapproved 

Missouri’s attempt to revise the SO2 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 [state 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 for 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 average) 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 annual emission limit.” Id. 

More recently, in December 2013, EPA rejected a revision to Indiana’s sulfur dioxide ISIP 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 to EPA to revise its sulfur dioxide SIP for the ArcelorMittal 

Burns Harbor facility to remove the SO2 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 SO2 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 SO2 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 malfunction (“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 as 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. 60, 78 (1975); see also id. at 67 (citing 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, the 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 Conservation 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 Part 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)). “While 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 implementation 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 added). 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 

quality 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 between 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 interfere 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 chapter.” 42 U.S.C. § 7410(l).
8

II. TENNESSEE’S PROPOSED INFRASTRUCTURE SIP REGULATIONS 

FAIL TO INCLUDE THE 2010 NO2 AND SO2 NAAQS.

The 2010 NO2 NAAQS imposes a one-hour standard at a level of 100 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 SO2 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 NO2 standard 

nor the SO2 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 NO2 and SO2 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 NO2 and SO2 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 

NO2 and SO2. Chapter 1200-3-3-.03, which has been incorporated into this proposed I-SIP, was 

last revised in October 2006, well before the one-hour 2010 NO2 and SO2 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 onehour NO2 and SO2 NAAQS in order to comply with the Clean Air Act.

III. THE TENNESSEE PROPOSED INFRASTRUCTURE SIP FAILS TO 

INCLUDE ENFORCEABLE ONE-HOUR SO2 EMISSION LIMITATIONS 

TO ENSURE ATTAINMENT AND MAINTENANCE OF THE PRIMARY 

SO2 NAAQS.

Tennessee’s proposed I-SIP fails to include restrictions on major SO2 sources to ensure 

that areas not designated nonattainment will attain and maintain the new one-hour SO2 NAAQS. 

A. Tennessee must include enforceable one-hour SO2 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 fails to include adequate enforceable emission limitations for sources of SO2

sufficient to ensure attainment and maintenance of the 2010 SO2 NAAQS. Emission limits are 

especially important for meeting the one-hour SO2 NAAQS given the “strong source-oriented 

nature of SO2 ambient impacts.” Final SO2 NAAQS Rule, 75 Fed. Reg. at 35,570. Nationally, 

large point sources account for 95 percent of SO2 emissions, 66 percent of which come from 

fossil fuel combustion at electric facilities. Id. at 35,524. Specifically, in Tennessee, coal-fired 

electric generating units are responsible for 77 percent of all SO2 emissions released in the State, 

or 120,134 tons in 2011. See 2011 NEI SO2 07 Mar 2014.xlsx (based on 2011 National 

Emissions Inventory), Excel Worksheet “CHARTS (TN)”, attached 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 SO2 is released by coal-fired EGUs. 

Figure 1: SO2 Emission in Tons, Coal-fired EGUs versus Facilities not Identifying as Coal-fired 

EGUs in Tennessee

Id.

In fact, Tennessee’s total SO2 emissions are some of the largest in the nation. NEI data from 

2011 shows that Tennessee’s sources emitted more SO2 than 38 other states, having the 13th

largest total of SO2 emissions (over 156,000 tons). See Exhibit 4, 2011 NEI SO2 07 Mar 

2014.xlsx, Excel Worksheet “SO2 Emissions by State”. Coal-fired power plants that are 

contributing to SO2 emissions in Tennessee, including the TVA Allen Fossil Plant in Memphis 

and the TVA Gallatin Fossil Plant in Gallatin, currently lack SO2 emission limits that prevent 

exceedances of the 2010 SO2 NAAQS. In order to comply with section 110(a)(2)(A), the 

Tennessee proposed SIP must be amended to ensure these sources cannot cause exceedances.

DEC has not even attempted to demonstrate that emissions allowed by the proposed I-SIP 

will ensure compliance with the one-hour SO2 standard. As determined by expert air dispersion 

modeling conducted at Sierra Club’s request, the 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 SO2 NAAQS (December 10, 2012) 

[hereinafter “Allen Report”], attached hereto as Exhibit 5; Steven Klafka, Gallatin Fossil Plant 

Gallatin, Tennessee, Sierra Club Evaluation of Compliance with 1-hour SO2 NAAQS (March 9, 

2012), [hereinafter “Gallatin Report”], attached hereto as Exhibit 6.

The Allen Report and Gallatin Report present the results of an air dispersion modeling 

analysis for each plant that compares the modeled ambient air concentrations of each plant’s SO2

emissions with the 2010 one-hour primary NAAQS. The modeling analyses employed EPA’s 

AERMOD program to model 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 the one-hour SO2 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 proposed 

I-SIP is adequate to attain and maintain the SO2 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 SO2 NAAQS. 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 modeler employed conservative inputs, which favor the prediction of lower impacts 

from the plants so that the results may understate the plants’ SO2 emission impacts. See Allen 

Report at 3; see also Gallatin Report at 3.

The modeling reports demonstrate that the proposed I-SIP improperly authorizes these 

plants to cause exceedances of the one-hour SO2 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 NAAQS, even without adding in a background concentration of SO2, 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 SO2

NAAQS.7 See Air Quality Designations for the 2010 Sulfur Dioxide (SO2) Primary National 

Ambient Air Quality Standard, 78 Fed. Reg. 47,191, 47,204 (Aug. 5, 2013), [hereinafter “Final 

2010 SO2 Designations”]. Because these power plants are in areas that are not currently 

designated 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 report 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 SO2 NAAQS. See Final 2010 SO2 Designations 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 SO2 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 less stringent 

than the limits listed in Table 2, below, to achieve and maintain the one-hour SO2 NAAQS. 

These limits represent the maximum rate that each facility can emit without causing NAAQS 

exceedances, thus reducing each total plant’s allowable emissions 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 SO2 NAAQS

 

9 The 75 ppb to μg/m3

calculation is 75/0.3823 = 196.2 μg/m3. 

10 Both plants also causes cross-state impacts, resulting in SO2 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 Shelby 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 

background concentration in the state.

Power 

Plant

Emission 

Rates

Facility 

Impact

(μg/m3)

Background

(μg/m3)

Total Impact

Facility 

Impact plus 

Background

(μg/m3)

SO2

NAAQS

(μg/m3)

9

Impacted TN Counties 

(Not Designated 

Nonattainment)10

TVA 

Allen 

Plant

Allowable 

Permitted 994.9 15.711 1,010.6 196.2 Tipton & Shelby

TVA 

Gallatin 

Plant

Allowable 

Permitted 1,421.1 28.812 1,449.9 196.2

Robertson, Sumner, 

Macon, Trousdale, 

Smith, Dekalb, Wilson, 

Rutherford, Davidson, 

Cheatham, & Williamson

Plant

Required Total Facility 

Reduction 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; see 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 SO2 NAAQS based on 

their allowable emission rates. Therefore, 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 the Clean Air Act (or indeed, any new emission limits for these or other SO2-

emitting facilities), including the requirement to maintain compliance with the 2010 SO2

NAAQS, the proposed I-SIP fails to comply with CAA section 110(a)(2)(A) and, therefore, must 

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 SO2 NAAQS Rule, 75 Fed. Reg. at 35,551, air 

dispersion modeling is the best method for evaluating the short-term impacts of large SO2 

sources. This is consistent with EPA’s historic use of air dispersion modeling for attainment 

designations and SIP revisions. Furthermore, 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 

arbitrary 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 SO2

NAAQS attainment and maintenance process. In fact, Tennessee anticipated that modeling data 

may be used. See 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 SO2 standard. See e.g., U.S. EPA, Implementation of the 1-Hour SO2 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 Motion 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 historically relied on modeling to make designations for sulfur dioxide”). In fact, in 

EPA’s 1994 SO2 Guideline Document, EPA noted that “for SO2 attainment demonstrations, 

monitoring data alone will generally not be adequate,” U.S. EPA, 1994 SO2 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 Tenesssee demonstrate compliance with the 2010 SO2

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 SO2 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 SO2 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 SO2 Guideline Document goes on to note that monitoring alone is likely to be 

inadequate: “[f]or SO2, 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 determine 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 nonattainment “due to measured and modeled violations of the 

primary SO2 standard.” Mont. Sulphur & Chem. Co., 666 F.3d at 1181 (citing 43 Fed. Reg. 

8,962 (Mar. 3, 1978)). 

EPA’s final 2010 SO2 NAAQS rule simply continued and built upon EPA’s historical 

practice of using modeling to determine attainment and nonattainment status for SO2 NAAQS. 

In doing so, EPA properly recognized the “strong source-oriented nature of SO2 ambient 

impacts,” Final SO2 NAAQS Rule at 35,370, and concluded that the 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 SO2 

concentrations in areas with large point sources.”). Accordingly, in promulgating the 2010 SO2

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 SO2 standard “could better address several potentially problematic issues than

would the narrower monitoring-focused approach discussed in the proposal for the SO2 NAAQS, 

including the unique source-specific impacts of SO2 emissions and the special challenges SO2

emissions have historically presented in terms of monitoring short-term SO2 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 Federal Implementation 

Plan (“FIP”) promulgation, because they were premised on a modeling analysis that showed the 

Billings/Laurel, Montana area was in nonattainment for SO2. 666 F.3d at 1184. The court 

rejected Montana Sulphur’s argument that EPA’s reliance 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 fullcapacity operations 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 vicinity.” 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 Meteorologist, 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 (emphasis added), attached hereto as Exhibit 9. 

Testimony 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 Implementation 

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 SO2 NAAQS is attained and whether individual sources cause or contribute 

to a violation of the SO2 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 40 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 demonstrate 

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 models 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 othermodels.
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 extensive 

history of EPA’s preference for modeling over monitoring to evaluate compliance. For example, 

all NO2, particulate matter with a diameter smaller than 2.5 microns, SO2 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 determined, 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 characterized in terms of location, dimensions, and exhaust parameters, and have high 

release heights. AERMOD accurately models medium-to-large SO2 sources—even with 

conditions of 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 

meteorological 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 SO2 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 evaluations.

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 transboundary 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 SO2 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 analyses. 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 between the facts found and the choice made. Id. at 525-28. 

EPA has acknowledged that, for the one-hour SO2 NAAQS, modeling is the most 

accurate means of determining attainment with the NAAQS, Final SO2 NAAQS Rule at 35,551, 

35,570, yet the Tennessee proposed SIP lacks SO2 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 SO2 NAAQS. To comply with the Act’s 

obligations, Tennessee must include adequate emissions limits in the SIP―that is, sourcespecific SO2 emission limits that show no exceedances of the NAAQS when modeled.

C. Tennessee must include enforceable SO2 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 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). Therefore, 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 SO2 NAAQS. For instance, in 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 protection of the 1-hour . . . SO2 NAAQS . . . 

the permit needs to contain . . . SO2 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 determined 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 (Mar. 13, 2006). 

In addition to including emissions limits based on a one-hour averaging period, 

Tennessee’s proposed I-SIP must require monitoring of SO2 emission limits on a continuous 

basis using a continuous emission monitor system or systems. Clean Air 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, 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.” See I-SIP 

Submission at 9. TAPCR 1200-03-10-.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 

which has installed sulfur dioxide pollutant control equipment.” (emphasis added). In order to 
17

ensure emission limits which are protective of the one-hour SO2 NAAQS, the I-SIP must require 

that SO2 emissions are monitored from these sources during every hour of operation, regardless 

of whether SO2 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 effectiveness. 42 U.S.C. 

§ 7410(a)(2)(A). EPA has stated that only one-hour averaging periods can ensure compliance 

with the one-hour SO2 NAAQS. Therefore, Tennessee must include appropriate emission 

limitations based on one-hour averaging periods monitored continuously for the all major SO2

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 SO2

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 meet 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 with the one-hour 

primary SO2 NAAQS. See generally I-SIP Submission. 

The statutory and regulatory sections that DEC has incorporated into its proposed I-SIP are 

insufficient to ensure compliance with the 2010 SO2 NAAQS. In addition, many contain exemptions 

and variances that undermine its permitting and enforcement mechanisms and, as a result, fail to ensure 

the attainment and maintenance of the SO2 NAAQS. For instance, DEC’s proposed SIP regulations do 

not provide sufficient emission limits on large SO2 sources to guarantee the NAAQS will be attained and 

maintained. The SO2 emissions standards contained 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 

for the two sources modeled and that the current limits proposed in the I-SIP submission are insufficient 

to meet the 2010 SO2 standard. See Allen Report at 4, Table 3; see also Gallatin Report at 4, Table 3. In 

addition, the proposed SIP regulation 1200-03-14, which establishes limits for SO2 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 less 

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 SO2 NAAQS, which sets a maximum ambient SO2 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 SO2 emissions, otherwise compliance with the 

2010 SO2 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 variances for sources in Class I areas and allows for increases over 

baseline concentration for SO2 which far exceed the new primary one-hour SO2 NAAQS and are 

improperly averaged as annual, 24-hour, and 3-hour values. Any variance of this sort is improper, 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)”, as 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 SO2 NAAQS. Thus the 

regulation does not ensure that the 2010 standard is met. Accordingly, 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 

conditions must be delineated in the I-SIP. Finally, Tennessee cannot rely on its Clean Air Interstate 

Rule (“CAIR”) SO2 Trading Program regulations contained at Chapter 1200-03-14-.04, to assure 

compliance with the 2010 SO2 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 SO2 NAAQS. In particular, the proposed I-SIP fails to address large sources 

of SO2 pollution including the TVA Allen and Gallatin fossil 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 exceedances demonstrated by expert modeling analyses submitted with 

these comments and that otherwise address the short-term, one-hour SO2 NAAQS, and it must 

update its emission regulations to ensure that proper mass limitations and one-hour averaging 

periods are imposed on large SO2 sources, including coal-fired power plants.

E. The Tennessee proposed infrastructure SIP must be revised to address 

sources significantly contributing to nonattainment or interference with 

maintenance of the NAAQS in downwind states.

In addition to causing exceedances of the one-hour SO2 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) 

prohibiting . . . 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 quality 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 Submission 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) (citing 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 attainment 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 NOx 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 SO2 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 reductions 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 states to fail to attain the standard. As 

currently permitted, the TVA Allen Plant is impermissibly permitted to cause exceedances of the

primary SO2 NAAQS in Lee, St. Francis, Crittenden, and Cross counties in Arkansas, and 

Desoto and Tunica counties 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 counties, 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 

obligations 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, Tennessee 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 SO2 NAAQS, but the 2010 NO2 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 

Moreover, there is no issue with Tennessee being able to determine without additional EPA

guidance what its SO2 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 these 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 must 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 SO2 and NO2 NAAQS.

IV. THE TENNESSEE PROPOSED INFRASTRUCTURE SIP FAILS TO 

INCLUDE ENFORCEABLE ONE-HOUR NO2 EMISSION LIMITATIONS 

TO ENSURE ATTAINMENT AND MAINTENANCE OF THE PRIMARY 

NO2 NAAQS.

As currently proposed, DEC fails to include enforceable emission limitations for sources 

of NO2 sufficient to ensure attainment and maintenance of the 2010 NO2 NAAQS. In particular, 

Tennessee’s final I-SIP must include enforceable NO2 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 NO2 emissions, representing over forty percent of total NOx 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/2011inventory.html. Yet, coal-fired power plants 

that are large sources of NO2 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 NO2 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 NO2 NAAQS. 

DEC must promulgate enforceable emission limits with one-hour averaging 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 NO2 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 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 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 acknowledges 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 averaging times to meet the 

requirement of the primary NO2 NAAQS, which sets a maximum ambient NO2 concentration of 

100 ppb per hour, in order to assure compliance with 42 U.S.C. § 7410(a)(2)(A). As discussed in 

the SO2 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), attached 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 NO2 emission limits on a continuous 

basis using a continuous emission monitor system or systems. In order to ensure the emission 

limits protect the one-hour NO2 NAAQS, the emission limits must be monitored during every 

hour of operation. Finally, Tennessee cannot rely on its Clean Air Interstate Rule (“CAIR”) NO2

Trading Program regulations contained at Chapter 1200-03-27-.10, to assure compliance with the 

2010 NO2 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 NO2 NAAQS. As proposed, 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 NO2 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 VISIBILITY 

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)(II), 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 approved Haze SIP, see 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 transport 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 (“BART”) 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 other states. Further, EPA has said that 

states cannot rely on FIPs to satisfy any part of requirements of CAA section 110(a). See EPA ISIP 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 protect 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 CAIR 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 replaced 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 valid 

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. 48,408, 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), available 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 temporarily, 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 to 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 SourceSpecific Best Available Retrofit Technology (BART) 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 reductions 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 CAIR 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 relevant 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 2006 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 

Purposes; 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 by 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 does 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 that 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 revisions 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 Plans; 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; Congress 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).

Neither 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 reasonable 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 discretion 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 million 

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 implementation 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 NOx 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 declining 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 BART 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 region. 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 visibility 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 

BART 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 over 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 substantially 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 progress 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 SO2 reductions will approximate 70% when the CAIR caps are 

fully implemented—sometime after 2020. Moreover, in 2015, EPA estimates an overall SO2

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% SO2 reduction presumed 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, because CAIR has been vacated, it cannot 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 prong may be 

satisfied by a “SIP that fully meets the requirements of 40 C.F.R. 51.308 or 51.309.” See EPA ISIP Guidance at 33 (emphasis added). EPA further underscored the importance of five-year 

regional haze progress reports by stating that if the progress 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 24,392. 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 submittal. 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 NO2 or SO2 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, even 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-year 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 NO2 and SO2 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

7556 Blanford Court

Alexandria, VA 22315

(703) 851-9111

kmalawoffice@gmail.com

On behalf of Sierra Club
1

Public Hearing

A public hearing was held on March 10, 2014, to solicit public comments on the proposed infrastructure SIP. There were no comments 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 responses 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 prehearing 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 provisions 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 stationary 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 was 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: Please 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 provision, which, consistent Consistent with 40 CFR 

§51.166(q)(2)(iv), TAPCR 1200-03-09-.01(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 

applicant. 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 citing 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 SIPapproved 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 NNSR 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 program. 

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 permitspecific 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). The cost of reviewing, approving, implementing, and 

enforcing PSD and major nonattainment NSR permits 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 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 to all construction not 

specifically exempted), annual emission fees for nonTitle 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 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.

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 reasonable 
3

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 subdivision 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 4-5-202 (Uniform Administrative 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 whenever 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 necessary 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 

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 submittal.

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 Appellate 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 not include the 2010 NO2 and SO2 NAAQS in TAPCR 1200-03-03.

2. Tennessee’s infrastructure SIP does not include enforceable SO2 emission limits (numerical limit with appropriate 

averaging period) to ensure attainment & maintenance of the SO2 NAAQS, based on modeling 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 address the SO2 NAAQS.

5. Tennessee’s infrastructure SIP does not include enforceable NO2 emission limits (numerical limit with 

appropriate averaging period) to ensure attainment & maintenance of the NO2 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 SO2 emission limits for Gallatin and Allen fossil plants (or any 

other source) and is not required to include enforceable NO2 emission limits. In accordance with EPA’s September 2013 

infrastructure SIP guidance, Tennessee has certified that the State has the authority and resources to implement the SO2

and NO2 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 transport 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 infrastructure 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 implementation of 2010 SO2 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 attain the SO2 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 

designations. 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 the 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 first 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 analysis 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 impacts (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 SO2 Emission Rate 

(lb/hr)

Equivalent Annual SO2

Emissions (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

SO2 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 

these changes on the schedule established by EPA.