[Federal Register Volume 83, Number 119 (Wednesday, June 20, 2018)]
[Proposed Rules]
[Pages 28577-28582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13142]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2017-0050; FRL-9979-66--Region 4]


Air Plan Approval; TN: Revisions to New Source Review

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve changes to the Tennessee State Implementation Plan (SIP) to 
revise New Source Review (NSR) regulations. Specifically, EPA is 
proposing to approve the portions of a SIP revision submitted by the 
State of Tennessee, through the Tennessee Department of Environment and 
Conservation (TDEC), on May 28, 2009, that modify the definitions of 
``baseline actual emissions.'' This action is being proposed pursuant 
to the Clean Air Act (CAA or Act).

DATES: Comments must be received on or before July 20, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2017-0050, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: D. Brad Akers, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 
30303-8960. Mr. Akers can be reached via telephone at (404) 562-9089 or 
via electronic mail at <a href="/cdn-cgi/l/email-protection#44252f2136376a26362520042134256a232b32"><span class="__cf_email__" data-cfemail="5839333d2a2b763a2a393c183d2839763f372e">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. What action is EPA proposing?

    On May 28, 2009, TDEC submitted a SIP revision to EPA for approval 
that contains changes to Tennessee's SIP-approved major NSR permitting 
regulations at Tennessee Air Pollution Control Regulations (TAPCR) 
1200-3-9-.01--``Construction Permits,'' including the adoption of 
federal requirements and the modification of certain other 
provisions.\1\ In this action, EPA is proposing to approve the portions 
of this SIP submission that make changes to the definitions of 
``baseline actual emissions'' in Tennessee's SIP-approved Prevention of 
Significant Deterioration (PSD) and Nonattainment New Source Review 
(NNSR) regulations at TAPCR 1200-3-9-.01(4)--``Prevention of 
Significant Air Quality Deterioration'' and 1200-3-9-.01(5)(b)--
``Nonattainment Areas,'' respectively.\2\ Tennessee's NSR regulations 
at TAPCR 1200-3-9--.01 were last revised in the SIP on July 25, 2013 
(78 FR 44886).
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    \1\ The major NSR program, established in parts C and D of title 
I of the CAA and EPA's implementing regulations at 40 CFR 51.165, 40 
CFR 51.166, and 40 CFR 52.21, is a preconstruction review and 
permitting program applicable to new major stationary sources of 
regulated NSR pollutants and major modifications at existing major 
stationary sources. A major modification is defined as any physical 
change in or change in the method of operation of a major stationary 
source that would result in a significant emissions increase of a 
regulated NSR pollutant and a significant net emissions increase of 
that pollutant from the major stationary source. See 40 CFR 
51.165(a)(1), 51.166(b)(2)(i), and 52.21(b)(2)(i).
    \2\ EPA's regulations governing the implementation of NSR 
permitting programs are contained in 40 CFR 51.160-.166, 52.21, 
52.24, and part 51, Appendix S. The CAA NSR program is composed of 
three separate programs: PSD, NNSR, and Minor NSR. PSD is 
established in part C of title I of the CAA and applies in areas 
that meet the national ambient air quality standards (NAAQS)--
``attainment areas''--as well as areas where there is insufficient 
information to determine if the area meets the NAAQS--
``unclassifiable areas.'' The NNSR program is established in part D 
of title I of the CAA and applies in areas that are not in 
attainment of the NAAQS--``nonattainment areas.'' The Minor NSR 
program addresses construction or modification activities that do 
not qualify as ``major'' and applies regardless of the designation 
of the area in which a source is located. Together, these programs 
are referred to as the NSR programs.

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[[Page 28578]]

II. Background

    On December 31, 2002, EPA published revisions to the federal PSD 
and NNSR regulations. See 67 FR 80186 (hereinafter referred to as the 
2002 NSR Rule). These revisions included several major changes to the 
major NSR program, including the addition of an actual-to-projected-
actual emissions test and the use of ``baseline actual emissions'' for 
determining major NSR applicability for existing emissions units. For 
projects involving multiple existing emissions units, the definitions 
require the use of one consecutive 24-month period to determine 
baseline emissions for the emissions units being changed and allows for 
the use of different consecutive 24-month baseline periods for each 
regulated pollutant. See 40 CFR 51.165(a)(1)(xxxv), 51.166(b)(47), and 
52.21(b)(48). EPA included this language in the definitions because NSR 
is, and has always been treated as, a pollutant-specific program.\3\
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    \3\ See ``Technical Support Document for the Prevention of 
Significant Deterioration (PSD) and Nonattainment Area New Source 
Review (NSR): Reconsideration,'' pp. 14-15, available at https://www.epa.gov/sites/production/files/2015-12/documents/petitionresponses10-30-03.pdf, and included in the docket for this 
proposed action.
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    On September 14, 2007, EPA approved SIP submittals from TDEC 
incorporating revisions to Tennessee's major NSR regulations in 
response to the 2002 NSR Rule (as modified in subsequent EPA 
rulemakings).\4\ In defining ``baseline actual emissions'' in its major 
NSR regulations, Tennessee elected not to adopt the provision in the 
federal definitions that allows the use of different consecutive 24-
month baseline periods for each regulated pollutant for projects 
involving multiple existing emission units. Therefore, Tennessee's SIP-
approved regulations only allow the same 24-month period to be chosen 
for all regulated NSR pollutants when calculating baseline actual 
emissions for major NSR applicability determinations for projects 
involving multiple emissions units. Compared to the federal 
definitions, Tennessee's SIP-approved regulations offer less 
flexibility in determining baseline actual emissions for these 
projects.
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    \4\ EPA published rules on November 7, 2003 (68 FR 63021) and 
June 13, 2007 (72 FR 32526), modifying the 2002 NSR Rule. Sometimes, 
these three rules are collectively referred to as ``NSR reform.'' 
For more information on NSR reform, see https://www.epa.gov/nsr/nsr-regulatory-actions#nsrreform.
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    On May 28, 2009, Tennessee submitted a SIP revision that would, 
among other things, change the definitions of ``baseline actual 
emissions'' in its SIP-approved major NSR regulations to allow for the 
use of different 24-month periods for each regulated NSR pollutant for 
projects involving multiple emissions units, but only under certain 
limiting circumstances not included in the federal definitions. The 
text of Tennessee's proposed changes to its SIP-approved definitions of 
``baseline actual emissions'' is provided in section III along with 
EPA's assessment under CAA section 110(l). Section 110(l) prohibits EPA 
from approving a SIP revision that would interfere with any applicable 
requirement concerning attainment and reasonable further progress (RFP) 
(as defined in section 171), or any other applicable requirement of the 
CAA.

III. Analysis of Tennessee's Submittal

    Tennessee's May 28, 2009, submittal revises the SIP-approved 
definitions of ``baseline actual emissions'' at TAPCR 1200-3-
9-.01(4)(b)(45)(i)(III) and 1200-3-9-.01(4)(b)(45)(ii)(IV) for PSD, and 
1200-3-9-.01(5)(b)(1)(xlvii)(I)III and 1200-3-
9-.01(5)(b)(1)(xlvii)(II)IV for NNSR. The relevant portion of the SIP-
approved definitions read as follows:

    ``For a regulated NSR pollutant, when a project involves 
multiple emissions units, only one consecutive 24-month period must 
be used to determine the baseline actual emissions for the emissions 
units being changed.''

    The proposed language reads as follows (strikethrough indicates 
language removed and underlined text indicates language added):
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[[Page 28579]]

[GRAPHIC] [TIFF OMITTED] TP20JN18.007


[[Page 28580]]


[GRAPHIC] [TIFF OMITTED] TP20JN18.008

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    Accordingly, a project involving multiple emissions units that 
would be subject to major NSR permitting under the current SIP-approved 
regulations would not be subject to these requirements under the 
revised definitions if it met the limiting criteria identified above 
for the use of pollutant-specific baseline periods. As noted above, 
EPA's major NSR rules do not contain such limiting criteria. Under the 
federal major NSR rules, a state must adopt the federal definitions 
into its SIP unless the state's definitions are more stringent than, or 
at least as stringent as, the federal definitions. See 40 CFR 
51.165(a)(1) and 51.166(b). EPA proposes to find that Tennessee's 
revisions to its SIP-approved definitions of ``baseline actual 
emissions'' are more stringent than the federal definitions given the 
limiting criteria and are therefore allowable changes to the State's 
SIP-approved NSR program pursuant to 40 CFR 51.165(a)(1) and 51.166(b).
    As noted above, section 110(l) of the CAA prohibits EPA from 
approving a SIP revision that would interfere with any applicable 
requirement concerning attainment and RFP (as defined in section 171), 
or any other applicable requirement of the CAA. The State is allowed to 
relax its SIP regulations as long as section 110(l) is met. EPA 
proposes to determine that the proposed changes to the Tennessee SIP, 
as described above, would not violate section 110(l) for the reasons 
discussed below.
    First, Tennessee's proposed changes will maintain the State program 
at a more stringent level than the federal NSR requirements. Unlike the 
federal rules, Tennessee's revised rules only allow for the use of 
different 2-year baseline periods under the limiting condition that 
``one or more pollutants were emitted during such 2-year period in 
amounts that were less than otherwise permitted for reasons other than 
operations at a lower production or utilization rate.'' The revised 
rules then provide qualifying examples that would satisfy this 
condition, such as the voluntary use of cleaner fuels, lower volatile 
organic compounds coatings, improvements in control efficiency, 
addition of a control device, and alternate production methods, raw 
materials, or products that result in lower emissions of one or more 
pollutants. The permittee bears the burden of demonstrating that the 
limiting conditions of the regulation have been met, and if the 
demonstration is approved by the TDEC Technical Secretary, the 
demonstration and the Technical Secretary's approval must be included 
in the permit record. Accordingly, Tennessee's revised rules encourage 
sources to reduce emissions in order to qualify for the use of 
multiple, pollutant-specific baselines.
    EPA also believes that the impact, if any, on air quality as a 
result of the proposed change would be small given

[[Page 28581]]

the nature of the actual-to-projected-actual test and the limited 
applicability of the multiple baseline provision for the following 
reasons. First, the definition of ``projected actual emissions'' 
provides that the owner or operator ``[s]hall exclude, in calculating 
any increase in emissions that results from the particular project, 
that portion of the unit's emissions following the project that an 
existing unit could have accommodated during the consecutive 24-month 
period used to establish the baseline actual emissions under part 
(b)45. of this paragraph and that are also unrelated to the particular 
project, including any increased utilization due to product demand 
growth.'' TAPCR 1200-03-09-.01(4)(b)38.(i)(III). Under this provision, 
once the qualifying portion of any projected emissions increase is 
excluded, the result is the increase from the project. Accordingly, in 
most cases, the baseline actual emissions rate would not change the 
calculated emissions increase from an existing emissions unit. Second, 
the provision does not apply to new sources or new units at existing 
sources.\8\ Third, as it relates to existing emissions units, the 
change only applies to projects that involve multiple emissions units 
and only has a potential air quality impact on those projects that 
might otherwise have triggered PSD or NNSR applicability for more than 
one pollutant. Finally, the provision is further restricted to 
permittees who can demonstrate, to the satisfaction of the Technical 
Secretary, that emissions during the single baseline period were less 
than otherwise permitted for reasons other than operations at a lower 
production or utilization rate. In addition to narrowing the number of 
sources that qualify for the use of different baseline periods, this 
restriction also encourages the use of voluntary emissions reduction 
measures.
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    \8\ See footnote 6.
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    Moreover, the State is currently attaining all of the NAAQS except 
for the 2010 1-hour sulfur dioxide (SO<INF>2</INF>) NAAQS in a portion 
of Sullivan County.\9\ Previous nonattainment areas for other NAAQS 
have all been redesignated to attainment, as shown in Table 1. Air 
quality in Tennessee has been improving in recent years, and Table 1 
includes the available margin between current air quality monitoring 
design values, in micrograms per cubic meter ([mu]g/m\3\) and parts per 
billion (ppb), and the most current corresponding NAAQS in each 
redesignated (maintenance) area.\10\ Additionally, none of the monitors 
in Tennessee outside of the Sullivan County SO<INF>2</INF> 
nonattainment area show violating air quality data for any NAAQS.
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    \9\ On May 12, 2017, TDEC submitted a plan to EPA to attain the 
2010 1-hour SO<INF>2</INF> NAAQS in Sullivan County.
    \10\ Air quality design values for all criteria air pollutants 
are available at: https://www.epa.gov/air-trends/air-quality-design-values.

                                         Table 1--Current Air Quality Status in Tennessee for Maintenance Areas
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                                                                                                                                     Margin  relative to
         Maintenance areas            NAAQS for which  area is            Status              Current  NAAQS        2015-2017 DV        current  NAAQS
                                            maintenance                                                                               with  2014-2016 DV
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Chattanooga........................  1997 annual PM2.5 (15.0    Redesignated.............  12.0 [mu]g/m\3\....  9.0 [mu]g/m\3\.....  -3 [mu]g/m\3\
                                      [mu]g/m\3\).                                                                                    (25.0%)
Knoxville..........................  2008 ozone (75.0 ppb)....  Redesignated.............  70 ppb.............  68 * ppb...........  -2 ppb (2.9%)
Knoxville..........................  1997 annual PM2.5 (15.0    Redesignated.............  12.0 [mu]g/m\3\....  10.0 [mu]g/m\3\....  -2 [mu]g/m\3\
                                      [mu]g/m\3\).                                                                                    (16.7%)
Knoxville..........................  2006 24-hour PM2.5 (35     Redesignated.............  35 [mu]g/m\3\......  34 [mu]g/m\3\......  -1 [mu]g/m\3\
                                      [mu]g/m\3\).                                                                                    (2.9%)
Memphis............................  2008 ozone (75 ppb)......  Redesignated.............  70 ppb.............  67 ppb.............  -3 ppb (4.3%)
Sullivan County....................  2008 lead (0.15 [mu]g/     Redesignated.............  0.15 [mu]g/m\3\....  0.01 [mu]g/m\3\....  -0.14 [mu]g/m\3\
                                      m\3\).                                                                                          (93.3%)
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* The TDEC relocated the Loudon Pope ozone site (AQS # 47-105-0108) to Loudon Elementary School (formerly Loudon Middle School, AQS # 47-105-0109)
  between the 2016 and 2017 ozone seasons, in accordance with the monitoring network plan. This is the combined DV between sites 47-105-0108 and 47-105-
  0109.

    Regarding the Sullivan County SO<INF>2</INF> nonattainment area, 
the proposed change would not impact SO<INF>2</INF> concentrations in 
this area because it is in nonattainment for only one pollutant. 
Tennessee's revised rules only have a potential air quality impact in a 
nonattainment area with a multiple-unit project that could avoid NNSR 
through the use of different baseline periods for different pollutants. 
Therefore, in a nonattainment area such as Sullivan County where only 
one pollutant is subject to NNSR review, the revised rule has no 
impact.
    Additionally, any projects that would not qualify as major 
modifications under the revised definitions would still be subject to 
the preconstruction review and permitting requirements of Tennessee's 
SIP-approved minor NSR regulations at TAPCR 1200-3-9-.01(1). Under the 
SIP, no construction permit shall be issued if approval to construct or 
modify the air contaminant source would violate ambient air quality 
standards, would cause a violation of any requirement under TAPCR 1200-
3, would result in a violation of applicable portions of the control 
strategy, or would interfere with attainment or maintenance of NAAQS in 
a neighboring state. See TAPCR 1200-3-9-.01(1)(e).\11\ Therefore, the 
revision should not interfere with attainment or maintenance or any 
other requirement of the CAA because any project that would qualify for 
the use of different baseline periods would still be subject to the 
preconstruction review and permitting requirements of the SIP-approved 
minor NSR program.
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    \11\ Tennessee's SIP-approved minor NSR rules require a source 
impact analysis with modeling. See TAPCR 1200-3-9-.01(1)(f). These 
rules also require BACT for minor NSR sources in nonattainment 
areas. See TAPCR 1200-3-9-.01(5)(b)2.(ii).
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IV. Incorporation by Reference

    In this document, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference the portions of TAPCR 1200-3-9-.01 ``Construction Permits,'' 
effective April 24, 2013, that specifically revise the definitions of 
``baseline actual

[[Page 28582]]

emissions'' in Tennessee's SIP-approved PSD and NNSR regulations as 
discussed above.\12\ EPA has made, and will continue to make, these 
materials generally available through www.regulations.gov and at the 
EPA Region 4 office (please contact the person identified in the For 
Further Information Contact section of this preamble for more 
information).
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    \12\ The state effective date of the rule changes to the 
definitions of ``baseline actual emissions'' in Tennessee's May 28, 
2009, SIP revision is May 10, 2009. However, these changes to 
Tennessee's rule are captured and superseded by the version of TAPCR 
1200-3-9-.01 that was state effective on April 24, 2013. On July 25, 
2013 (78 FR 44889), EPA approved portions of the April 24, 2013 
version of TAPCR 1200-3-9-.01 into the SIP and modified the state 
effective date at 40 CFR 52.2220(c) accordingly.
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V. Proposed Action

    EPA is proposing to approve the portions of Tennessee's May 28, 
2009, SIP revision that change the definitions of ``baseline actual 
emissions'' in TAPCR 1200-3-9-.01,--``Construction Permits,'' as 
discussed above.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. This action merely 
proposes to approve state law as meeting Federal requirements and does 
not impose additional requirements beyond those imposed by state law. 
For that reason, this proposed action:
    <bullet> Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
    <bullet> Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
    <bullet> Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
    <bullet> Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Sulfur oxides, Volatile organic compounds.

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

    Dated: June 8, 2018.
 Onis ``Trey'' Glenn, III,
Regional Administrator, Region 4.
[FR Doc. 2018-13142 Filed 6-19-18; 8:45 am]
 BILLING CODE 6560-50-P


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