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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. T.C.A. § 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) 532-0545

Email: Lacey.Hardin@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
SS-7039 (October 2011) 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 14 of subparagraph (b) of paragraph (4) of Rule 1200-03-09-.01 Construction Permits is amended by

deleting the current part 14 and replacing it with a new part 14 so that, as amended, the new part shall read as 

follows:

14. “Baseline area” means any intrastate area (and every part thereof) not designated as a 

nonattainment area in which the major source or major modification establishing the 

minor source baseline date would construct or would have an air quality impact for the 

pollutant for which the baseline date is established, as follows: equal Equal to or greater 

than 1 μg/m3(annual average) of the pollutant for which the minor source baseline date is 

established for SO2, NO2, or PM10; or equal to or greater than 0.3 μg/m3(annual average) 

for PM2.5.

(i) Area redesignations under this Division, 1200-03, cannot intersect or be smaller 

than the area of impact of any major stationary source or major modification 

which establishes a minor source baseline date or is subject to the regulations in 

this paragraph.

Part 15 of subparagraph (b) of paragraph (4) of Rule 1200-03-09-.01 Construction Permits is amended by

deleting the current part 15 and replacing it with a new part 15 so that, as amended, the new part shall read as 

follows:

15. “Baseline date”:

(i) “Major source baseline date” means in the case of particulate matterPM10 and 

sulfur dioxide, January 6, 1975; and in the case of nitrogen dioxide, February 8, 

1988; and in the case of PM2.5, October 20, 2010.

(ii) “Minor source baseline date” means the earliest date after the trigger date on 

which a major stationary source or a major modification submits a complete 

application to the Technical Secretary or to the EPA administrator. The trigger 

date is:

(I) In the case of particulate matterPM10 and sulfur dioxide, August 7, 1977;

and

(II) In the case of nitrogen dioxide, February 8, 1988; and

(III) In the case of PM2.5, October 20, 2011.

(iii) The baseline date is established for each pollutant for which increments or other 

equivalent measures have been established if:

(I) The area in which the proposed source or modification would construct is 

not designated as a nonattainment area for the pollutant on the date of 

its complete application.

(II) In the case of a major stationary source, the pollutant would be emitted 

in significant amounts, or, in the case of a major modification, there 

would be a significant net emissions increase of the pollutant.
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Item (III) of subpart (i) of part 6 of subparagraph (d) of paragraph (4) of Rule 1200-03-09-.01 Construction Permits 

is amended by deleting the current item (III) and replacing it with a new item (III) so that, as amended, the new 

item shall read as follows:

(III) Particulate matter:

10 μg/m3of TSP, 24-hour average

10 μg/m3of PM10, 24-hour average

4 μg/m3of PM2.5, 24-hour average;

Subparagraph (f) of paragraph (4) of Rule 1200-03-09-.01 Construction Permits is amended by deleting the 

current subparagraph (f) and replacing it with a new subparagraph (f) so that, as amended, the new subparagraph 

shall read as follows:

(f) Ambient Air Increments. In areas designated as class I, II, or III, increases in pollutant concentration over 

the baseline concentration shall be limited to the following:

MAXIMUM ALLOWABLE INCREASE

(Micrograms per cubic meter)

Class I

Pollutant μg/m3

PM2.5:

Annual arithmetic mean 1

24-hour maximum 2

PM10:

PM-10, Annual arithmetic mean 4

PM-10, 24-hour maximum 8

Sulfur dioxide:

Annual arithmetic mean 2

24-hour maximum 5

3-hour maximum 25

Nitrogen dioxide:

Annual arithmetic mean 2.5

Class II

PM2.5:

Annual arithmetic mean 4

24-hour maximum 9

PM10:

Annual arithmetic mean 17
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24-hour maximum 30

Sulfur dioxide:

Annual arithmetic mean 20

24-hour maximum 91

3-hour maximum 512

Nitrogen dioxide:

Annual arithmetic mean 25

Class III

PM2.5:

Annual arithmetic mean 8

24-hour maximum 18

PM10:

Annual arithmetic mean 34

24-hour maximum 60

Sulfur dioxide:

Annual arithmetic mean 40

24-hour maximum 182

3-hour maximum 700

Nitrogen dioxide:

Annual arithmetic mean 50

For any period other than an annual period, the applicable maximum allowable increase may be 

exceeded during one such period per year at any one location.

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

current part 3 and replacing it with a new part 3 so that, as amended, the new part shall read as follows:

3. Class I Variances

The owner or operator of a proposed source or modification may demonstrate to the Federal Land 

Manager that the emissions from such source or modification would have no adverse impact on the air 

quality related values of any such lands (including visibility), notwithstanding that the change in air quality 

resulting from emissions from such source or modification would cause or contribute to concentrations 

which would exceed the maximum allowable increases for a Class I area. If the Federal Land Manager 

concurs with such demonstration and he so certifies, the Technical Secretary, provided that the 

applicable requirements of this paragraph are otherwise met, may issue the permit with such emission 

limitations as may be necessary as approved by the Tennessee Air Pollution Control Board to assure that 

emissions of sulfur dioxide, particulate matterPM2.5, PM10, and nitrogen oxides would not exceed the 

following maximum allowable increases over baseline concentration for such pollutants:
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Pollutant Maximum Allowable 

Increase ug/m3

PM2.5:

Annual arithmetic mean 4

24-hr maximum 9

PM10:

Annual arithmetic mean 17

24-hr maximum 30

Sulfur dioxide:

Annual arithmetic mean 20

24-hr maximum 91

3-hr maximum 325

Nitrogen dioxide:

Annual arithmetic mean 25

Subpart (xix) of part 1 of subparagraph (b) of paragraph (5) of rule 1200-03-09-.01 Construction Permits is 

amended by deleting the current subpart (xix) and replacing it with a new subpart (xix) so that, as amended, the 

new subpart shall read as follows:

(xix) “Significantly impact” means the contribution by a new stationary source or 

modification to the air quality in a nonattainment area in concentrations equal to 

or greater than the amount as follows:

Pollutant Annual Averaging Time (hours)

24 8 3 1

SO2 1.0 μg/m35 μg/m325 μg/m3

PM10 1.0 μg/m35 μg/m3

PM2.5 0.3 μg/m31.2 μg/m3

NO2 1.0 μg/m3

CO 500 μg/m3

0.5 mg/m3

2000 μg/m3

2 mg/m3

Authority: T.C.A. §§ 68-201-101 et seq. and 4-5-201 et seq.
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* 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)

Dr. J. Ronald Bailey

Elaine Boyd

Dr. Brian 

W.Christman

Karen Cisler

Dr. Wayne T. Davis

Stephen R. Gossett

Mayor Tommy 

Green

Dr. Shawn A. 

Hawkins

Helen Hennon

Richard M. Holland

John Roberts

Mayor Larry Waters

Jimmy West

Alicia M. Wilson

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

by the Air Pollution Control Board on 12/12/2012, and is in compliance with the provisions of T.C.A. § 4-5-222.
SS-7039 (October 2011) 7 RDA 1693

I further certify the following: 

Notice of Rulemaking Hearing filed with the Department of State on: 10/03/12

Rulemaking Hearing(s) Conducted on: (add more dates). 12/04/12

Date:

Signature:

Name of Officer: Barry R. Stephens

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

Rm09-.01c10_redline.doc
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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.

There were no official comments received during the public comment period, but Twunjala Bradley with EPA 

Region 4 made some verbal comments. We received a letter from Scott Davis, Chief of the Air Planning Branch at 

EPA Region 4, containing those comments formally after the close of the comment period, although it was 

postmarked the last day of the comment period. Because the comments were relevant, the proposed rule was 

revised prior to the hearing and the changes were read into the official record. The comments are summarized 

below.

Comment 1: The Class I variance provision at 1200-03-09-.01(4)(n)3 does not include the PM2.5 increments 

pursuant to the provisions at 51.166(p)(4) regarding Class I variances. The EPA recommends that Tennessee 

revise the Class I variance regulations to include the PM2.5 maximum allowable increases to be consistent 

with the federal regulations. In addition, the Term “particulate matter” should be revised to read “PM2.5, 

PM10.”

Response: These changes were made.

Comment 2: Regarding the definition of baseline date at 1200-03-09-.01(4)(b)15(i) and (ii)(I), the EPA 

recommends that Tennessee revise the phrase “...in the case of particulate matter...” to “...in the case of 

PM10...”

Response: These changes were made.

Comment 3: Regarding the revision at 1200-03-09-.01(4)(d)6(i)(III) to adopt the SMC of 4 micrograms per 

cubic meter into the Tennessee SIP, TDEC explains that they are deleting the current item (III) and replacing 

it with a new item (III); however, the new item is incorrectly labeled as item (I).

Response: This correction has been made.

Comment 4: Regarding the proposed state implementation plan (SIP) revision at 1200-03-09-.01(5)(b)1(xix) 

– Significantly Impact to adopt PM2.5 SILs, the EPA’s authority to implement the PM2.5 SILS and SMC for 

PSD purposes as promulgated in the October 20, 2010 (Federal Register, sic), has been challenged by the 

Sierra Club, Sierra Club v. EPA, Case No 10-1413 United States Court of Appeals for the District of 

Columbia. Due to the litigation, the EPA is not taking action to approve the PM2.5 SILs into the SIP at this time.

Response: The Department has chosen to retain this provision in our state regulations with the understanding 

that EPA Region 4 will not take action to approve them into the SIP unless the referenced case is resolved in 

EPA’s favor.
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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. 

The foregoing amendments to Rule 1200-03-09-.01 are to comply with § 110 and 172(c) of the federal Clean Air 

Act. These amendments relate to the New Source Review Program, which is a mandatory element of the 

required State Implementation Plan under the Clean Air Act, therefore, this rulemaking is exempt from the 

requirements of T.C.A. § 4-5-401 et seq. 

 
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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) 

These proposed rule revisions will not have a projected impact on local governments. 
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Additional Information Required by Joint Government Operations Committee

All agencies, upon filing a rule, must also submit the following pursuant to T.C.A. § 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;

These revisions add fine particulate matter (PM2.5) increments to the requirements for New Source Review. 

They also add maximum allowable increases of PM2.5 over baseline concentrations for Class I variances and 

revise the current baseline dates for particulate matter to those for PM10. These changes are being made to 

make Tennessee’s New Source Review regulations consistent with the federal and other state regulations.

(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;

Changes to Rule 1200-3-9-.01 Construction Permits are mandated by 40 CFR Part 51.165(a)(2)(i) and (ii) and 

40 CFR Part 51.166(a)(7)(iv).

(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;

Owners and operators of major sources of air pollution are affected by changes to Rule 1200-3-9-.01 

Construction Permits. 

(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 Tennessee Air Pollution Control Board is not aware of any.

(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

(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, Office of General Counsel

Tennessee Department of Environment and Conservation

20th Floor, L & C Tower

Nashville, TN 37243-1548

(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
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Legal Services Director, Office of General Counsel

Tennessee Department of Environment and Conservation

20th Floor, L & C Tower

Nashville, TN 37243-1548

(615) 532-0131

Alan.Leiserson@tn.gov

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

 

The Board is not aware of any.