go att to whom these 'Resents shatt come, Qheeting: 

9, ghe %a!tgeff, Sechetmy oh State 4 the Sbte 4 5ewm 

do hedy CPlrbgy thaf the md is a hue copy 4 

Amendments to Department of Environment and 

Conservation Rules 1200-03-09-.O1 and 1200-03-09-.02, 

filed November 10,2010, effective February 8,2011. 

the ohiginat 01 which i?, now on @?e and a lnaffeh 01 hecohd in this o&ce. 

Sn E6estimony Whaeob, 9 have herceunto subschibed my o&ciat signatuhe md by 

oh& 00 the (jovanoh a&ed the (jneat Seat oh genness~e at the Q+ahtme~t in 

the City 08 CNashvitQe, this "*day 01 Jan~am 2012 
Department of State For Department of State Use Only 

~lvision of Publications 

312 Rosa L Parks Avenue. 8th Floor SnodgrasflN Towar 

Nashv~lla. TN 37243 

Phone' 815-741-2650 

Fax 615-7416133 

Ernaii resuster.mnfomtation@tn.aav 

Sequence Number: 1 (-lo 46 

Rule ID(s): 

File Date: 

Effective Date: 

Rulemaking Hearing Rule@) Filing Form 

Revlsion Type (cheek all that apply): 

- x Amendment 

- New 

- Repeal 

Rule@) Revised (ALL chapters and rules contained in filing must be listed here. If needed, copy and paste 

additional tables to accommodate multiple chapters. Please enter only ONE Rule NurnberlRule Tile per mw) 

~ction Permits 

ng Permits 1 

SS-7039 (July 201 0) RDA 1693 
(Place substance of rules and other info here. Statutory authority must be given for each rule change. For 

information on formatting rules go to hK~:Nstate.tn.uslsosl~lesll360/1360.htm) 

Chapter 1200-03-09 

Construction and Operating Permits 

Amendments 

Part 3 of subparagraph (a) of paragraph (4) of ruie 1200-03-09-.O1 Construction Permlts is amended by deleting 

the "I" in "1981" and replacing it with a "1" so that, as amended, the part shall read: 

3. Any owner or operator who constructs or operates a source or 

modifcation not in accordance with the application submitted pursuant to 

this paragraphor with the terms of any approval to construct, or any 

owner or operator of a source or modification subject to this paragraph 

who commences construction after June 3, 1981 without applying for and 

receiving approval hereunder, shali be subject to appropriate 

enforcement action. 

Part 46 of subparagraph (b) of paragraph (4) of ruie 1200-03-09-.O1 Construction Permits is amended by deleting 

the word "Reserved and replacing it as follows: 

46. "Subject to regulation" means, for any air pollutant, that the pollutant is subject to either a 

provision in the Clean Air Act, or a nationally-applicable regulation codified by the 

Administrator in subchapter C of Chapter I of Title 40 of the Code of Federal Regulations, 

that requires actual control of the quantity of emissions of that pollutant, and that such a 

control requirement has taken effect and is operative to control, lime or restrict the 

quantity of emissions of that pollutant released from the regulated activity. Except that: 

(i) Greenhouse gases (GHGs), the air pollutant defined .in part 86.1818-12(a) of 

Chapter I of Title 40 of the Code of Federal Regulations as the aggregate group of 

six gkenhouse gases: Carbon dioxide, nitrous oxide, methane. 

hydrofluorocarbons. perfluorocarbons, and sulfur hexafiuoride, shall not be subject 

to regulation except as provided in subparts (iv) through (v) of this part. 

(ii) For purposes of subparts (iii) through (v) of this part, the term tpy CO, equivalent 

emtssions (C0,e) shall represent an amount of GHGs emitted, and shall be 

computed as follows: 

(I) Multiplying the mass amount of emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, by the gas's associated global 

warming potential published at Table A1 to subpart A of part 98 of Chapter I 

of Title 40 of the Code of Federal Regulations - Global Warming Potentials. 

(11) Sum the resultant value from item (ii)(l) of this part for each gas to compute a 

tpy C0,e. 

(iii) The ten emissions increase as used in subparts (iv) through (v) of this part shall 

mean that both a -significant emissions increase (as calculated using the 

procedures in part (c)4 of this paragraph) and a significant net emissions increase 

(as defined in parts (b)4 and (b)24 of thisparagraph) occur. For the pollutant 

GHGs, an emissions increase shall be based on tpy Cop, and shall be calculated 

assuming the poilutant GHGs is a regulated NSR pollutant, and "significant" is 

defined as 75,000 tpy GO* instead of applying the value in subpart (b)24(ii) of this 

paragraph. 

(iv) Beginning January 2. 201 1, the pollutant GHGs is subject to regulation if: 

SS-7039 (July 2010) 2 RDA 1693 
(I) The stationary source is a new major stationary source for a regulated NSR 

pollutant that is not GHGs, and also will emit or will have the potential to emit 

75,000 tpy C.02e or more; or 

(11) The stationary source is an existing major stationary source for a regulated 

NSR pollutant that is not GHGs, and also will have an emissions increase of 

a regulated NSR pollutant, and an emissions increase of 75,000 tpy Cole or 

more; and, 

(v) Beginning July 1, 2011, in addition to the provisions in subpart (iv) of this part, the 

pollutant GHGs shall also be subject to regulation: 

(I) At a new stationary source that will emit or have the potential to emit 100,000 

tpy C02e; or 

(11) . At an existing stationary source that emits or has the potential to emit 

100,000 tpy Cole, when such stationary source undertakes a physical 

change or change in the method of operation that will result in an emissions 

increase of 75.000 tpy C02e or more. 

Subpart (N) of part 47 of.subparagraph (b)' of paragraph (4) of rule 120043-09-.bl Construction Permits is 

amended by adding the words 'as defined in part (b)460f this paragraph" after the first occurrence of the words 

"Federal Clean Air Act" and deleting the remainder of the subpart so that, as amended, the subpart shall read: 

(iv) Any pollutant that othewise is subject to regulation under the ~ederal Clean 

Air Act as defined in part (b)46 of this paragraph. 

Part 47 of subparagraph (b)of pa'ragraph (4) of rule 1200-0349-.01 Construction Permits is amended by adding a 

new subpart "(v)" as follows: 

(v) Notwithstanding subparts (b)47(i) through (iv) of this pafagraph, the term 

"regulated NSR pollutant" shall not include any or all hazardous air 

pollutants either listed in section 112 of the Federal Clean Air Act or 

added to the list pursuant to section 112(b)(2) of .the Federal Clean Air 

Act, and which havenot been delisted pursuant to section 112(b)(3) of 

the Federal Clean Air Act, unless the listed hazardous air pollutant is 

also regulated as a constituent or precursor of a general pollutant listed 

under section 108 of the Federal Clean Air Act. 

Subpart (ii) of part 14 of subparagraph (b) of paragraph (11) of rule 12004509-.02 Operating Permits is 

amended by adding the words "subject to regulation" behen the words "air pollutanr and "(including any major 

source of fugitive emissions of any such pollutant, as determined by rule by the Adm~nistrator)" so that, as 

amended, the subpart shall read: 

(ii) A major stationary source of air pollutants, as defined in section 302 of 

the Federal Act, that directly emits or has the potential to emit. 100 tpy or 

more of any air pollutant subject to regulation (including any major 

source of fugitive emissions of any such pollutant, as determined by rule 

by the Administrator). The fugitive emissions of a stationary source shall 

not be considered in determinina whether it is a maior stationaw source 

for the purposes of section 3025) of the Federal A& unless thk source 

belongs to one of the following categories of stationary sources: 

Subparagraph (b) of paragraph (11) of rule 1200-03-09-.02 Operating Permits is amended by adding a new part 

"32" as follows: 

RDA 1693 
32. "Subject to regulation" means, for any air pollutant, that the pollutant is subject to either a 

provision in the Clean Air Act, or a nationally-applicable regulation codified by the 

Administrator in subchapter C of Chapter I of Title 40 of the Code of Federal Regulations, 

, . that requires actual control of the quantity of emissions of that pollutant, and that such a 

control requirement has taken effect and is operative to control, limit or restrict the 

quantity of emissions of that pollutant released from the regulated activity. Except that: 

(i) Greenhouse gases (GHGs), the air pollutant defined in 40 CFR 86.1818-12(a) as 

the aggregate group of six greenhouse gases: carbon dioxide, nitrous oxide, 

methane, hydrofluorocarbons, perfluorocarbons, and sulfur hewfluoride, shall not 

be subject to regulation unless, as of July 1, 2011, the GHG emissions are at a 

stationary source emitting or having the potential to ernit 100,000 tpy 

C02equivalent emissions. 

(ii) The term tpy COzequivalent emissions (Cole) shall represent an amount of GHGs 

emitted, and shall be computed by multiplying the mass amount ofemissions (tpy), 

for each of. the six greenhouse gases in the pollutant GHGs, by the gas's 

associated global warming potential published at Table Prl to subpart A of 40 CFR 

98 - Global Warming Potentials, and summing the resultant value for each to 

compute a tpy C02e. 

Authority: T.C.A. 5568-201-101 et seq. and 4-5-201 et seq. 

SS-7039 (July 2010) RDA 1693 
'If a mllcall vote was necessary, the vote by the Agency on these rulemaking hearing rules was as follows. 

u Michael Atchison 

Dr. J. Ronald 

Bailey 

Dr. Brian 

Christman 

I Dr. Wayne T. 

Davis 

Dr. Mary English I4 I Im Stephen R. 

Honorable Mayor 

Tommy Green, Jr. 

- 

Dr. Shawn A. 

Hawkins J 

Helen S. Hennon 1 / 

Richard M. 

Holland 

I/ 

gm R. Roberts, 1 ; 1 1 

Alicia M. Wilson 

Honorable Mayor \, 

Law Waters 

ibstain Absent 'I Sianature (If required) 

U% 

I cert~fy that this is an accurate and complete copy of rulemaking hearing rules, lawfully promulgated and adopted 

by the Air Pollution Control (boardlcommissionl other authority) on 1011312010 (rnmlddlyyyy), and is in 

compliance with the provisions of TCA 4-5-222. 

55-7039 (July 2010) RDA 1693 
I further certify the following: 

Notice of Rulemaking Hearing filed with the Department of State on. 07/f 6/10 

Rulemaking Hearing(s) Conducted on: (add more dates). 09/09/f 0 

Date: 

Signature: 

Name of Officer: 

Title of Officer Technical Secretary 

Subscribed and sworn to before me on: 

Notary Public Signature: 

My commission expires on: 

All rulemaking hear~ng rules provided for herein have been examined by the Attorney General and Reporter of the 

State of Tennessee and are approved as to legality pursuant to the piovlsions of the Administrative Procedures 

Act, Tennessee Code Annotated, Title 4, Chapter 5. 

Date 

Department of State Use Only 

Filed with the Department of State on: //o - 

SS-7039 (July 2010) 

-- 

Secretary oFState 

. RDA 1693 
Public Hearing Comments 

One copy of a document containing responses to comments made at the public hearing must,accompany the 

filing pursuant to T.C.A. 94-5-222. Agencies shall include only their responses to public hearing comments, which 

can be summarized. No letters of inquiry horn parties questioning the rule will be accepted. When no comments 

are received at the public hearing, the agency need only draft a memorandum stating such and include it with the 

Rulemaking Hearing Rule filing. Minutes of the meeting will not be accepted. Transcripts are not acceptable. 

Comments: "The commenter request that a provision be incorporated in the rules which will state that these 

rules to regulate GHGs are not to be applicable or enforceable if the federal proposal to regulate 

such is withdrawn, limited, rejected, or stayed because of legal challenges or a court decision." 

Response: An attorney in the Department's Office of General Counsel discussed this issue with the 

Tennessee Attorney General's Office, and was told that they would not approve' the rule with this 

type of restriction. It is imperative that this rule become effective as soon as possible to avoid 

tremendous casts to the Department and the regulated community. Should' any of these 

situations occur, the Department will take action to remove the proposed rule from the rulemaking 

process, or delete it from the regulations if the rule has been made final, if such action is 

approved by the Tennessee Air Pollution Control Board. 

Comments "The commenter would further request that a statement be added that the intent of these rules will 

not impose the current Title 5 or non-Title 5 fees on these emissions. Any fee schedule to be 

proposed and adopted by the Air Pollution Control Board under the provision of Administrative 

Fees will be based on the new level of work required to regulate these new emissions." 

Response, As currently written, Chapter 1200-03-26 of the Tennessee Air Pollution Control Regulations does 

not allow the Division to charge construction permit or annual emissions fees for greenhouse gas 

emissions. Any revisions to Chapter 1200-03-26 to charge fees for these emissions will be 

rewewed by the Tennessee Air Pollution Control Board. 

Comments: Rule 1200-03-09-.01(4)(b)24(ii) - "Significant definition: Adding "and part (b)46" to this definition 

has the effect of eliminating the 0 tpy (i.e. any emissions rate) mass basis threshold for GHGs. 

The definition of "significant" in 40 CFR 51.166 does not include this exemption for GHGs. The 

preamble to the Tailoring rule clearly explains that the current significance threshold for GHGs on 

a mass basis remains as "any emissions increase". 

Response: In agreement with this comment. the proposed amendment to Rule 120003-09-.01(4)(b)24(1i) 

has been withdrawn. 

Comments: 1200-0309-.01(4)(b)46(v) -Typographical error: Please revise the provision listed above to read: 

(v) Beginning July 1, 201 1, in addition to the provisions In subpart (iv) of this part, the pollutant 

GHGs shall also be subject to regulation. 

Response: This has been revised. 

SS-7039 (July 2010) RDA 1693 
Regulatory Flexibility Addendum 

Pursuant to T.C.A. g 4-5-401 through 4-5-404, prior to initiating the rule making process as described in T.C.A. 

9 4-5-202(a)(3) and T.C.A. 3 4-5-202(a). all agencies shall conduct a review of whether a proposed rule or rule 

affects small businesses. 

The type or types of small business and an identification and estimate of the number of small businesses 

subject to the proposed rule that would bear the cost of, or directly benefit from the proposed rule: 

This amendment is required by the United States Environmental Protection Agency (USEPA). With this 

rule, it is expected that about fifteen small businesses will be required to obtain major source permits that 

do not already have these permits. Without promulgation of this rule, tens of thousands of small 

businesses in Tennessee could potentially be subject to costly and time-consuming permitting 

requirements. 

The projected reporting, recordkeeping, and other administrative costs required for compliance with the 

proposed rule, including the type of professional skills necessary for preparation of the report or record: 

The Department cannot accurately estimate projected administrative costs as a result of this amendment 

at this time. Worst case costs should not exceed $10,000 in most circumstances. 

A statement of the probable effect on impacted small businesses and consumers: 

This rule will increase industry permitting costs in some sectors This increase may ultimately result in 

higher costs for consumer goods. 

A description of any less burdensome, less intrusive or less costly alternative methods of achieving the 

purpose and objectiies of the proposed rule that may exist, and to what extent the alternative means 

might be less burdensome to small business: 

None. 

A comparison of the proposed rule with any federal or state counterparts: 

The proposed rule revision is required by the USEPA (Pages 31514-31608 of the Federal Register 

published June 3, 2010). All states and local pmgrams must adopt these requirements or the USEPA will 

enforce them directly. 

Analysls of the effect of the poss~ble exemption of small businesses from all or any part of the 

requirements contained in the proposed rule 

Exempbon of small businesses from these requirements at the state level will result in direct regulation of 

these busmesses by the USEPA, whrch 1s typically more costly than regulation by the State of 

Tennessee 

SS-7039 (July 2010) RDA 1693 
Impact on Local Governments 

Pursuant to T.C.A. 4-5-220 and 4-5-228 "any rule proposed to be promulgated shall state in a simple declarative 

sentence, without additional comments on the merits of the ~olicv of the rules or maulation, whether the rule or 

regulation may have a projected impact on local governma&." isee Public chapter Number 1070 

(http:Nstate.tn.udsos/acWlOG/pub/pc1070.pdf) of the 2010 Session of the General Assembly) 

This amendment will impact local governments if they operate certain types of sources. These sources may have 

to receive major source permits. 

SS-7039 (July 2010) RDA 1693 
Additional Information Required by Joint Government Operations Committee 

All agencies, upon filing a rule, must also submit the foilowing pursuant to TCA 4-5-226(i)(I). 

(A) A brief summary of the rule and a description of all relevant changes in previous regulations effectuated by 

such, rule; 

- 

This proposed rule is required by the USEPA. It contains provisions requiring large sources of greenhouse gas 

emissions to be permitted by the Division of'Air Pollution Control. Under this rule, sources with the potential to 

emit 100,000 tons per year of greenhouse gases (measured as carbon dioxide equivalents) will be subject to 

permitting as Title V sources. Existing sources in this category must determine the applicability of the Prevention 

of Significant Deterioration (PSD) permitting requirements if they seek to modify a source of greenhouse gas 

emissions, and new sources in this category will be required to obtain PSD permits. 

(8) A citation to and brief description of any federal law or regulation or any state law or regulation mandating promulgation of such rule or establishing guidelines relevant thereto; 

40 CFR 51 contains the requirements for states that operate their own air pollution control programs. 

Specifically, 40 CFR 51.166 and 40 CFR 70 contain the requirements for Title V permits and Prevention of 

Significant Deterioration permits for maior sources of air pollution. 

(C) Identif~ation of persons, organizations, corporations or governmental entities most directly affected by this 

rule, and whether those persons, organizations, corporations or governmental entities urge adoption or 

rejection of this rule; 

Commercial, Industrial and institutional sources of air polfution (greenhouse gases) are most affected by this 

rule. These entities urge adoption of this rule if it is upheld at the federal level. Without this rule, they will be 

required to obtain Title V and PSD permits at very low levels of emissions of greenhouse gases (100 or 250 tons 

of greenhouse gases per year): 

(D) identification of any opinions of the attorney general and reporter or any judicial ruling that directly relates to 

the rule; 

[ The Department is not aware of any. 1 

(E) An estimate of the probable increase or decrease in state and local government revenues and expenditures, 

if any, resulting from the promulgation of this rule, and assumptions and reasoning upon which the estimate 

is based An agency shall not state that the fiscal impact is minimal if the fiscal impact is more than two 

percent (2%) of the agency's annual budget or five hundred thousand dollars ($500,000), whichever is less; 

I The Department anticipates an increase in expenditures. The amount cannot be esbmated at this time. 1 

(F) Identification of the appropriate agency representative or representabves, possessing substantial knowledge 

and understanding of the rule; 

Lacey J. I-lardin 

Division of Air Pollution Control 

9th Floor. L & C Annex 1 

401 church Street 

Nashville, Tennessee 37243-1531 

SS-7039 (July 2010) 10 RDA 1693 
(G) Identification of the appropriate agency representative or representatives who will explain the rule at a 

scheduled meeting of the committees; 

-- -- 

Alan b4. Le~serson 

Legal Sewices Director 

Department of Environment and conservation 1 

(H) Office address, telephone number, and ematl address of the agency representative or representatives who 

will explain the rule at a scheduled meeting of the committees; and 

Off~ce of General Counsel 

Deoarhnent of Environment and conservation' ___? 

20' Floor L 8, C Tower 

Nashville, Tennessee 37243-1548 

(615) 532-0131 

-aov 

(I) Any additional information relevant to the rule proposed for continuation that the committee requests. 

I The Departments not aware of any. 1 

RDA 1693 
SS-7039 (July 2010) 1 RDA 1693

Department of State

Division of Publications

312 Rosa L. Parks Avenue, 8th Floor Snodgrass/TN Tower

Nashville, TN 37243

Phone: 615-741-2650

Fax: 615-741-5133

Email: register.information@tn.gov

For Department of State Use Only 

Sequence Number:

Rule ID(s):

File Date:

Effective Date:

Rulemaking Hearing Rule(s) Filing Form

Rulemaking Hearing Rules are rules filed after and as a result of a rulemaking hearing. TCA Section 4-5-205

Agency/Board/Commission: Environment and Conservation

Division: Air Pollution Control

Contact Person: Lacey J. Hardin

Address: 9

th Floor L & C Annex

401 Church Street

Nashville, Tennessee 

Zip: 37243-1531

Phone: 615-532-0600

Email: Malcolm.Butler@tn.gov

Revision Type (check all that apply):

x Amendment

New

Repeal

Rule(s) Revised (ALL chapters and rules contained in filing must be listed here. If needed, copy and paste 

additional tables to accommodate multiple chapters. Please enter only ONE Rule Number/Rule Title per row)

Chapter Number Chapter Title

1200-03-09 Construction and Operating Permits

Rule Number Rule Title

1200-03-09-.01 Construction Permits

1200-03-09-.02 Operating Permits
SS-7039 (July 2010) 2 RDA 1693

(Place substance of rules and other info here. Statutory authority must be given for each rule change. For 

information on formatting rules go to http://state.tn.us/sos/rules/1360/1360.htm)

Chapter 1200-03-09

Construction and Operating Permits

Amendments

Part 3 of subparagraph (a) of paragraph (4) of rule 1200-03-09-.01 Construction Permits is amended by deleting 

the “I” in “I981” and replacing it with a “1” so that, as amended, the part shall read:

3. Any owner or operator who constructs or operates a source or 

modification not in accordance with the application submitted pursuant to 

this paragraph or with the terms of any approval to construct, or any 

owner or operator of a source or modification subject to this paragraph 

who commences construction after June 3, 1981 without applying for and 

receiving approval hereunder, shall be subject to appropriate 

enforcement action.

Part 46 of subparagraph (b) of paragraph (4) of rule 1200-03-09-.01 Construction Permits is amended by deleting 

the word “Reserved” and replacing it as follows:

46. “Subject to regulation” means, for any air pollutant, that the pollutant is subject to either a 

provision in the Clean Air Act, or a nationally-applicable regulation codified by the 

Administrator in subchapter C of Chapter I of Title 40 of the Code of Federal Regulations, 

that requires actual control of the quantity of emissions of that pollutant, and that such a 

control requirement has taken effect and is operative to control, limit or restrict the 

quantity of emissions of that pollutant released from the regulated activity. Except that:

(i) Greenhouse gases (GHGs), the air pollutant defined in part 86.1818–12(a) of 

Chapter I of Title 40 of the Code of Federal Regulations as the aggregate group of 

six greenhouse gases: Carbon dioxide, nitrous oxide, methane, 

hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, shall not be subject 

to regulation except as provided in subparts (iv) through (v) of this part.

(ii) For purposes of subparts (iii) through (v) of this part, the term tpy CO2 equivalent 

emissions (CO2e) shall represent an amount of GHGs emitted, and shall be 

computed as follows:

(I) Multiplying the mass amount of emissions (tpy), for each of the six 

greenhouse gases in the pollutant GHGs, by the gas's associated global 

warming potential published at Table A–1 to subpart A of part 98 of Chapter I 

of Title 40 of the Code of Federal Regulations - Global Warming Potentials.

(II) Sum the resultant value from item (ii)(I) of this part for each gas to compute a 

tpy CO2e.

(iii) The term emissions increase as used in subparts (iv) through (v) of this part shall 

mean that both a significant emissions increase (as calculated using the 

procedures in part (c)4 of this paragraph) and a significant net emissions increase 

(as defined in parts (b)4 and (b)24 of this paragraph) occur. For the pollutant 

GHGs, an emissions increase shall be based on tpy CO2e, and shall be calculated 
SS-7039 (July 2010) 3 RDA 1693

assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is 

defined as 75,000 tpy CO2e instead of applying the value in subpart (b)24(ii) of this 

paragraph.

(iv) Beginning January 2, 2011, the pollutant GHGs is subject to regulation if:

(I) The stationary source is a new major stationary source for a regulated NSR 

pollutant that is not GHGs, and also will emit or will have the potential to emit 

75,000 tpy CO2e or more; or

(II) The stationary source is an existing major stationary source for a regulated 

NSR pollutant that is not GHGs, and also will have an emissions increase of 

a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO2e or 

more; and,

(v) Beginning July 1, 2011, in addition to the provisions in subpart (iv) of this part, the 

pollutant GHGs shall also be subject to regulation:

(I) At a new stationary source that will emit or have the potential to emit 100,000 

tpy CO2e; or

(II) At an existing stationary source that emits or has the potential to emit 

100,000 tpy CO2e, when such stationary source undertakes a physical 

change or change in the method of operation that will result in an emissions 

increase of 75,000 tpy CO2e or more.

Subpart (iv) of part 47 of subparagraph (b) of paragraph (4) of rule 1200-03-09-.01 Construction Permits is 

amended by adding the words “as defined in part (b)46 of this paragraph” after the first occurrence of the words 

“Federal Clean Air Act” and deleting the remainder of the subpart so that, as amended, the subpart shall read:

(iv) Any pollutant that otherwise is subject to regulation under the Federal Clean 

Air Act as defined in part (b)46 of this paragraph.

Part 47 of subparagraph (b) of paragraph (4) of rule 1200-03-09-.01 Construction Permits is amended by adding a 

new subpart “(v)” as follows:

(v) Notwithstanding subparts (b)47(i) through (iv) of this paragraph, the term 

“regulated NSR pollutant” shall not include any or all hazardous air 

pollutants either listed in section 112 of the Federal Clean Air Act or 

added to the list pursuant to section 112(b)(2) of the Federal Clean Air 

Act, and which have not been delisted pursuant to section 112(b)(3) of 

the Federal Clean Air Act, unless the listed hazardous air pollutant is 

also regulated as a constituent or precursor of a general pollutant listed 

under section 108 of the Federal Clean Air Act.

Subpart (ii) of part 14 of subparagraph (b) of paragraph (11) of rule 1200-03-09-.02 Operating Permits is 

amended by adding the words “subject to regulation” between the words “air pollutant” and “(including any major 

source of fugitive emissions of any such pollutant, as determined by rule by the Administrator)” so that, as 

amended, the subpart shall read:
SS-7039 (July 2010) 4 RDA 1693

(ii) A major stationary source of air pollutants, as defined in section 302 of 

the Federal Act, that directly emits or has the potential to emit, 100 tpy or 

more of any air pollutant subject to regulation (including any major 

source of fugitive emissions of any such pollutant, as determined by rule 

by the Administrator). The fugitive emissions of a stationary source shall 

not be considered in determining whether it is a major stationary source 

for the purposes of section 302(j) of the Federal Act, unless the source 

belongs to one of the following categories of stationary sources:

Subparagraph (b) of paragraph (11) of rule 1200-03-09-.02 Operating Permits is amended by adding a new part 

“32” as follows:

32. “Subject to regulation” means, for any air pollutant, that the pollutant is subject to either a 

provision in the Clean Air Act, or a nationally-applicable regulation codified by the 

Administrator in subchapter C of Chapter I of Title 40 of the Code of Federal Regulations, 

that requires actual control of the quantity of emissions of that pollutant, and that such a 

control requirement has taken effect and is operative to control, limit or restrict the 

quantity of emissions of that pollutant released from the regulated activity. Except that:

(i) Greenhouse gases (GHGs), the air pollutant defined in 40 CFR 86.1818–12(a) as 

the aggregate group of six greenhouse gases: carbon dioxide, nitrous oxide, 

methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, shall not 

be subject to regulation unless, as of July 1, 2011, the GHG emissions are at a 

stationary source emitting or having the potential to emit 100,000 tpy 

CO2equivalent emissions.

(ii) The term tpy CO2equivalent emissions (CO2e) shall represent an amount of GHGs 

emitted, and shall be computed by multiplying the mass amount of emissions (tpy), 

for each of the six greenhouse gases in the pollutant GHGs, by the gas's 

associated global warming potential published at Table A–1 to subpart A of 40 CFR 

98 - Global Warming Potentials, and summing the resultant value for each to 

compute a tpy CO2e.

Authority: T.C.A. §§68-201-105
SS-7039 (July 2010) 5 RDA 1693

* If a roll-call vote was necessary, the vote by the Agency on these rulemaking hearing rules was as follows:

Board Member Aye No Abstain Absent Signature (if required)

Michael Atchison

Dr. J. Ronald 

Bailey

Tracy R. Carter

Dr. Brian 

Christman

Dr. Wayne T. 

Davis

Dr. Mary English

Stephen R. 

Gossett

Honorable Mayor 

Tommy Green, Jr.

Dr. Shawn A. 

Hawkins

Helen S. Hennon

Richard M. 

Holland

John R. Roberts, 

Sr.

Alicia M. Wilson

Honorable Mayor 

Larry Waters

I certify that this is an accurate and complete copy of rulemaking hearing rules, lawfully promulgated and adopted 

by the __Air Pollution Control_ (board/commission/ other authority) on _10/13/2010 (mm/dd/yyyy), and is in 

compliance with the provisions of TCA 4-5-222.
SS-7039 (July 2010) 6 RDA 1693

I further certify the following: 

Notice of Rulemaking Hearing filed with the Department of State on: 07/16/10

Rulemaking Hearing(s) Conducted on: (add more dates). 09/09/10

Date:

Signature:

Name of Officer: Barry R. Stephens, P.E.

Title of Officer: Technical Secretary

Subscribed and sworn to before me on:

Notary Public Signature:

My commission expires on:

All rulemaking hearing rules provided for herein have been examined by the Attorney General and Reporter of the 

State of Tennessee and are approved as to legality pursuant to the provisions of the Administrative Procedures 

Act, Tennessee Code Annotated, Title 4, Chapter 5. 

______________________________ 

Robert E. Cooper, Jr.

Attorney General and Reporter

______________________________

Date

Department of State Use Only

Filed with the Department of State on:

Effective on: 

______________________________

Tre Hargett

Secretary of State

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SS-7039 (July 2010) 7 RDA 1693

Public Hearing Comments

One copy of a document containing responses to comments made at the public hearing must accompany the 

filing pursuant to T.C.A. §4-5-222. Agencies shall include only their responses to public hearing comments, which 

can be summarized. No letters of inquiry from parties questioning the rule will be accepted. When no comments 

are received at the public hearing, the agency need only draft a memorandum stating such and include it with the 

Rulemaking Hearing Rule filing. Minutes of the meeting will not be accepted. Transcripts are not acceptable.

Comments: “The commentor request that a provision be incorporated in the rules which will state that these 

rules to regulate GHGs are not to be applicable or enforceable if the federal proposal to regulate 

such is withdrawn, limited, rejected, or stayed because of legal challenges or a court decision.”

Response: An attorney in the Department’s Office of General Counsel discussed this issue with the 

Tennessee Attorney General’s Office, and was told that they would not approve the rule with this 

type of restriction. It is imperative that this rule become effective as soon as possible to avoid

tremendous costs to the Department and the regulated community. Should any of these 

situations occur, the Department will take action to remove the proposed rule from the rulemaking 

process, or delete it from the regulations if the rule has been made final, if such action is 

approved by the Tennessee Air Pollution Control Board.

Comments: “The commentor would further request that a statement be added that the intent of these rules will 

not impose the current Title 5 or non-Title 5 fees on these emissions. Any fee schedule to be 

proposed and adopted by the Air Pollution Control Board under the provision of Administrative 

Fees will be based on the new level of work required to regulate these new emissions.”

Response: As currently written, Chapter 1200-03-26 of the Tennessee Air Pollution Control Regulations does 

not allow the Division to charge construction permit or annual emissions fees for greenhouse gas 

emissions. Any revisions to Chapter 1200-03-26 to charge fees for these emissions will be 

reviewed by the Tennessee Air Pollution Control Board.

Comments: 1200-03-09-.01(4)(b)24(ii) - "Significant definition: Adding "and part (b)46" to this definition has 

the effect of eliminating the 0 tpy (i.e. any emissions rate) mass basis threshold for GHGs. The 

definition of "significant" in 40 CFR 51.166 does not include this exemption for GHGs. The 

preamble to the Tailoring rule clearly explains that the current significance threshold for GHGs on 

a mass basis remains as "any emissions increase". 

Response: "and part (b)46" has been removed.

Comments: 1200-03-09-.01(4)(b)46(v) - Typographical error: Please revise the provision listed above to read:

(v) Beginning July 1, 2011, in addition to the provisions in subpart (iv) of this part, the pollutant 

GHGs shall also be subject to regulation.

Response: This has been revised.
SS-7039 (July 2010) 8 RDA 1693

Regulatory Flexibility Addendum

Pursuant to T.C.A. § 4-5-401 through 4-5-404, prior to initiating the rule making process as described in T.C.A. 

§ 4-5-202(a)(3) and T.C.A. § 4-5-202(a), all agencies shall conduct a review of whether a proposed rule or rule 

affects small businesses.

(1) The type or types of small business and an identification and estimate of the number of small businesses 

subject to the proposed rule that would bear the cost of, or directly benefit from the proposed rule: 

This amendment is required by the United States Environmental Protection Agency (USEPA). With this 

rule, it is expected that about fifteen small businesses will be required to obtain major source permits that 

do not already have these permits. Without promulgation of this rule, tens of thousands of small 

businesses in Tennessee could potentially be subject to costly and time-consuming permitting 

requirements. 

(2) The projected reporting, recordkeeping, and other administrative costs required for compliance with the 

proposed rule, including the type of professional skills necessary for preparation of the report or record: 

The Department cannot accurately estimate projected administrative costs as a result of this amendment 

at this time. Worst case costs should not exceed $10,000 in most circumstances.

(3) A statement of the probable effect on impacted small businesses and consumers: 

This rule will increase industry permitting costs in some sectors. This increase may ultimately result in 

higher costs for consumer goods.

(4) A description of any less burdensome, less intrusive or less costly alternative methods of achieving the 

purpose and objectives of the proposed rule that may exist, and to what extent the alternative means 

might be less burdensome to small business: 

None.

(5) A comparison of the proposed rule with any federal or state counterparts: 

The proposed rule revision is required by the USEPA (Pages 31514-31608 of the Federal Register 

published June 3, 2010). All states and local programs must adopt these requirements or the USEPA will 

enforce them directly. 

(6) Analysis of the effect of the possible exemption of small businesses from all or any part of the 

requirements contained in the proposed rule. 

Exemption of small businesses from these requirements at the state level will result in direct regulation of 

these businesses by the USEPA, which is typically more costly than regulation by the State of 

Tennessee.
SS-7039 (July 2010) 9 RDA 1693

Impact on Local Governments

Pursuant to T.C.A. 4-5-220 and 4-5-228 “any rule proposed to be promulgated shall state in a simple declarative 

sentence, without additional comments on the merits of the policy of the rules or regulation, whether the rule or 

regulation may have a projected impact on local governments.” (See Public Chapter Number 1070 

(http://state.tn.us/sos/acts/106/pub/pc1070.pdf) of the 2010 Session of the General Assembly) 

This amendment will impact local governments if they operate certain types of sources. These sources may have 

to receive major source permits.
SS-7039 (July 2010) 10 RDA 1693

Additional Information Required by Joint Government Operations Committee

All agencies, upon filing a rule, must also submit the following pursuant to TCA 4-5-226(i)(1).

(A) A brief summary of the rule and a description of all relevant changes in previous regulations effectuated by 

such rule;

This proposed rule is required by the USEPA. It contains provisions requiring large sources of greenhouse gas 

emissions to be permitted by the Division of Air Pollution Control. Under this rule, sources with the potential to 

emit 100,000 tons per year of greenhouse gases (measured as carbon dioxide equivalents) will be subject to 

permitting as Title V sources. Existing sources in this category must determine the applicability of the Prevention 

of Significant Deterioration (PSD) permitting requirements if they seek to modify a source of greenhouse gas 

emissions, and new sources in this category will be required to obtain PSD permits.

(B) A citation to and brief description of any federal law or regulation or any state law or regulation mandating 

promulgation of such rule or establishing guidelines relevant thereto;

40 CFR 51 contains the requirements for states that operate their own air pollution control programs. 

Specifically, 40 CFR 51.166 and 40 CFR 70 contain the requirements for Title V permits and Prevention of 

Significant Deterioration permits for major sources of air pollution.

(C) Identification of persons, organizations, corporations or governmental entities most directly affected by this 

rule, and whether those persons, organizations, corporations or governmental entities urge adoption or 

rejection of this rule;

Commercial, Industrial and institutional sources of air pollution (greenhouse gases) are most affected by this 

rule. These entities urge adoption of this rule if it is upheld at the federal level. Without this rule, they will be 

required to obtain Title V and PSD permits at very low levels of emissions of greenhouse gases (100 or 250 tons 

of greenhouse gases per year). 

(D) Identification of any opinions of the attorney general and reporter or any judicial ruling that directly relates to 

the rule;

The Department is not aware of any.

(E) An estimate of the probable increase or decrease in state and local government revenues and expenditures, 

if any, resulting from the promulgation of this rule, and assumptions and reasoning upon which the estimate 

is based. An agency shall not state that the fiscal impact is minimal if the fiscal impact is more than two 

percent (2%) of the agency's annual budget or five hundred thousand dollars ($500,000), whichever is less;

The Department anticipates an increase in expenditures. The amount cannot be estimated at this time.

(F) Identification of the appropriate agency representative or representatives, possessing substantial knowledge 

and understanding of the rule;

Lacey J. Hardin

Division of Air Pollution Control

9th Floor, L & C Annex

401 Church Street

Nashville, Tennessee 37243-1531
SS-7039 (July 2010) 11 RDA 1693

(G) Identification of the appropriate agency representative or representatives who will explain the rule at a 

scheduled meeting of the committees;

Alan M. Leiserson

Legal Services Director

Department of Environment and conservation

(H) Office address, telephone number, and email address of the agency representative or representatives who 

will explain the rule at a scheduled meeting of the committees; and

Office of General Counsel

Department of Environment and conservation

20th Floor L & C Tower

Nashville, Tennessee 37243-1548

(615) 532-0131

(I) Any additional information relevant to the rule proposed for continuation that the committee requests.

The Department is not aware of any.

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