[Federal Register Volume 89, Number 177 (Thursday, September 12, 2024)]
[Proposed Rules]
[Pages 74165-74171]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20669]



[[Page 74165]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R4-OAR-2023-0361; FRL-12238-01-R4]


Air Plan Approval; Shelby County, Tennessee; Revisions To 
Startup, Shutdown, and Malfunction Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a portion of a State Implementation Plan (SIP) revision 
submitted by the Tennessee Department of Environment and Conservation 
(TDEC) on behalf of Shelby County Health Department (SCHD) Pollution 
Control Section on March 2, 2022, in response to a finding of 
substantial inadequacy and SIP call published on June 12, 2015, 
regarding provisions in the Shelby County portion of the Tennessee SIP 
related to excess emissions during startup, shutdown, and malfunction 
(SSM) events. The revision contains amended air codes of Shelby County 
and the following municipalities within Shelby County: Town of 
Arlington, City of Bartlett, Town of Collierville, City of Germantown, 
City of Lakeland, City of Memphis, and Town of Millington (referred to 
hereinafter as the ``included municipalities''). The SIP revision also 
contains other changes to the affected Chapter that are unrelated to 
the SIP call but of which Shelby County and the included municipalities 
are also requesting incorporation into the Shelby County portion of the 
Tennessee SIP. EPA is proposing to approve the portions of the SIP 
revision that correct certain deficiencies identified in the June 12, 
2015, SSM SIP call and that are in accordance with the requirements for 
SIP provisions under the Clean Air Act (CAA or Act).

DATES: Comments must be received on or before October 3, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R4-
OAR-2023-0361 at 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 https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Estelle Bae, Air Permits Section, Air 
Planning and Implementation Branch, Air and Radiation Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW, 
Atlanta, Georgia 30303-8960. Ms. Bae can be reached by telephone at 
(404) 562-9143 or via electronic mail at <a href="/cdn-cgi/l/email-protection#5b393a3e753e282f3e37373e1b3e2b3a753c342d"><span class="__cf_email__" data-cfemail="0c6e6d6922697f78696060694c697c6d226b637a">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 
    Table of Contents
I. Background
    A. EPA's 2015 SSM SIP Action
    B. Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir. 
2024)
    C. Shelby County SIP Provisions Related to Excess Emissions
II. Analysis of SCHD's Revisions to City of Memphis Air Code Section 
9-12-24, ``Malfunctions, Startups, and Shutdowns''
    A. TAPCR Section 1200-3-20-.01, ``Purpose''
    B. TAPCR Section 1200-3-20-.02, ``Reasonable Measures Required''
    C. TAPCR Section 1200-3-20-.04, ``Logs and Reports''
    D. TAPCR Section 1200-3-20-.06, ``Scheduled Maintenance''
    E. New TAPCR Section 1200-3-20-.06, ``Report Required Upon the 
Issuance of Notice of Violation''
    F. New TAPCR Section 1200-3-20-.07, ``Special Reports 
Required''; New TAPCR Section 1200-3-20-.08, ``Rights Reserved''; 
and New TAPCR Section 1200-3-20-.09, ``Additional Sources Covered''
III. Proposed Actions
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background

    On May 31, 1972, EPA issued a rulemaking which initially recognized 
SCHD's Air Pollution Control Section as a local agency for air 
pollution control and originally approved the Memphis and Shelby County 
Code into the Tennessee SIP. On June 15, 1989, EPA approved portions of 
SCHD's July 7, 1986, SIP revision to revise and update several 
provisions in the Shelby County portion of the Tennessee SIP, which 
includes the incorporation by reference of Tennessee's June 18, 1980, 
state-effective version of Tennessee Air Pollution Control Regulations 
(TAPCR) Chapter 1200-3-20, titled ``Limits on Emissions due to 
Malfunctions, Startups, and Shutdowns,'' into City of Memphis Air Code 
Section 9-12-24 (formerly Section 16-87).<SUP>1 2</SUP>
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    \1\ See 54 FR 25456 (June 15, 1989). EPA had initially approved 
the City of Memphis Code into the Tennessee SIP under ``Memphis and 
Shelby County.'' See id. Included in ``Memphis and Shelby County'' 
are Shelby County and the following municipalities: Town of 
Arlington, City of Bartlett, Town of Collierville, City of 
Germantown, City of Lakeland, City of Memphis, and Town of 
Millington. Shelby County Health Department's Air Pollution Control 
Branch recommends to the aforementioned municipalities regulatory 
revisions, which, if approved, are adopted by Shelby County and 
these included municipalities, which implement and enforce the 
regulations within their respective jurisdictions. As the air 
pollution control regulations/ordinances adopted by those 
jurisdictions are substantively identical, EPA had selected just one 
to represent the SIP compilations for Shelby County and the included 
municipalities: the City of Memphis Air Code. Thus, the SIP-called 
provision from the Shelby County portion of the Tennessee SIP that 
was identified in the 2015 SSM SIP Action was City of Memphis Air 
Code (although it was referred to as ``Shelby County Code'') Section 
16-87. For simplicity and brevity in this NPRM, and since the 
jurisdictions' regulations/ordinances remain substantively 
identical, EPA will continue to refer to the City of Memphis Air 
Code throughout this NPRM to represent the regulations/ordinances of 
Shelby County and the included municipalities.
    \2\ One of the intervening changes that EPA is proposing to 
approve as part of this proposed rulemaking is changing the relevant 
City of Memphis Air Code reference in the SIP from Section 16-87 to 
Section 9-12-24. The title of this section remains ``Malfunctions, 
Startups and Shutdowns.''

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    In this notice of proposed rulemaking (NPRM), EPA is proposing to 
approve a portion of the SIP revision dated March 1, 2022, which was 
transmitted by TDEC to EPA on March 2, 2022, to revise the Shelby 
County portion of the Tennessee SIP. See below for more details on the 
portions of the March 2, 2022, SIP revision that EPA is not acting on 
in this NPRM. SCHD is requesting that EPA incorporate into the Shelby 
County portion of the Tennessee SIP portions of the version of TAPCR 
Chapter 1200-3-20, titled ``Limits on Emissions Due to Malfunctions, 
Startups, and Shutdowns'' as effective on December 5, 
2018.<SUP>3 4</SUP>
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    \3\ In this proposed action, EPA is proposing to incorporate by 
reference--with certain exceptions noted in this NPRM--into the 
Shelby County portion of the Tennessee SIP, the City of Memphis Air 
Code Section 9-12-24 (formerly Section 16-87), locally effective on 
February 22, 2022, which adopts by reference the December 5, 2018, 
state-effective version of TAPCR Chapter 1200-3-20, ``Limits on 
Emissions Due to Malfunctions, Startups, and Shutdowns.'' EPA is 
also proposing to incorporate by reference the following sections 
that contain substantively identical changes: Shelby County--Section 
3-9 (locally effective on January 13, 2020); Town of Arlington--
Section 20-101 (locally effective on November 2, 2020); City of 
Bartlett--Section 20-101 (locally effective on December 8, 2020); 
Town of Collierville--Section 96.02 (locally effective on November 
23, 2020); City of Germantown--Section 9-21(24) (locally effective 
on July 12, 2021); City of Lakeland--Section 20-101 (locally 
effective on February 10, 2022); Town of Millington--Section 20-101 
(locally effective on October 12, 2020). See the cover letter of the 
SIP revision dated March 1, 2022, with the subject line ``Request to 
Incorporate Revisions into the Shelby County and Included 
Municipalities Ordinance into the SIP for Tennessee as Response to 
EPA's SIP Call'' in the docket for this proposed rulemaking for 
evidence of adoption into the air codes of Shelby County and the 
included municipalities.
    \4\ The state-effective dates for the rules within TAPCR Chapter 
1200-3-20 that were in effect on December 5, 2018, are: 1200-3-
20-.01, ``Purpose''--September 26, 1994; 1200-3-20-.02, ``Reasonable 
Measures Required''--November 11, 1997; 1200-3-20-.04, ``Logs and 
Reports''--June 19, 2013; 1200-3-20-.05, ``Copies of Log 
Required''--September 26, 1994; 1200-3-20-.06, ``Report Required 
Upon The Issuance of a Notice of Violation''--November 16, 2016; 
1200-3-20-.07, ``Special Reports Required''--September 26, 1994; 
1200-3-20-.08, ``Rights Reserved''--September 26, 1994; and 1200-3-
20-.09, ``Additional Sources Covered''--September 26, 1994. As noted 
above, 1200-3-20-.03 was withdrawn from Shelby County's submission. 
There were no substantive changes to 1200-3-20-.05; therefore, it is 
not further addressed in this NPRM.
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    The revisions to City of Memphis Air Code Section 9-12-24 
incorporate the changes that are responsive to the 2015 SSM SIP Action 
and correspond to changes approved by EPA into the Tennessee SIP on 
June 23, 2023.\5\ The revisions include other changes unrelated to the 
2015 SSM SIP Action that are consistent with Tennessee SIP revisions 
that EPA has approved since the last version of TAPCR Chapter 1200-3-20 
was formally adopted into the Shelby County portion of the Tennessee 
SIP on June 15, 1989.
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    \5\ See 88 FR 41031.
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    To be consistent with Tennessee's approach with respect to its SIP-
called provisions, SCHD withdrew certain portions of its March 2, 2022, 
SIP revision--specifically, the SCHD provisions with respect to which 
(1) EPA had determined the corresponding Tennessee provisions did not 
correct the deficiencies, (2) EPA had proposed to disapprove the 
corresponding Tennessee provisions in the April 6, 2023, NPRM, or (3) 
EPA's proposed approval of the corresponding Tennessee provisions had 
received adverse comments during the public comment period for the 
April 6, 2023, NPRM. In particular, the changes to the March 2, 2022, 
SIP revision that SCHD has withdrawn include the changes to TAPCR 
Section 1200-3-20-.03, titled ``Notice Required When Malfunction 
Occurs,'' and TAPCR Section 1200-3-20-.06, ``Report Required Upon the 
Issuance of a Notice of Violation,'' paragraph (1) and paragraph (4). 
The letter withdrawing these provisions is provided in the docket for 
this NPRM.

A. EPA's 2015 SSM SIP Action

    On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings 
of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying 
to Excess Emissions During Periods of Startup, Shutdown and 
Malfunction,'' hereinafter referred to as the ``2015 SSM SIP Action.'' 
See 80 FR 33839 (June 12, 2015). The 2015 SSM SIP Action clarified, 
restated, and updated EPA's interpretation that SSM exemption and 
affirmative defense SIP provisions are inconsistent with CAA 
requirements. The 2015 SSM SIP Action found that certain SIP provisions 
in 45 State and local jurisdictions, including Shelby County, were 
substantially inadequate to meet CAA requirements and issued a SIP call 
to those State and local jurisdictions to submit SIP revisions to 
address the inadequacies. EPA established a deadline of November 22, 
2016 (18 months after the effective date of the action) by which the 
affected State and local jurisdictions had to submit such SIP 
revisions.
    On March 2, 2022, SCHD submitted a SIP revision in response to the 
2015 SIP call requesting EPA approval of the adoption by reference of 
TAPCR Chapter 1200-3-20, as effective on December 5, 2018, into City of 
Memphis Air Code Section 9-12-24. The version of TAPCR Chapter 1200-3-
20 of which SCHD is requesting incorporation into the SIP includes 
revisions that were submitted by the State in response to the 2015 SSM 
SIP Action along with other revisions that were not subject to the SIP 
call but had been approved into the Tennessee SIP in prior rulemakings. 
The March 2, 2022, SIP revision was deemed complete on July 21, 2023. A 
copy of the letter containing this completeness determination is 
provided in the docket for this NPRM.

B. Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir. 2024)

    On March 1, 2024, the United States Court of Appeals for the 
District of Columbia Circuit (D.C. Circuit) issued a decision in 
Environ. Comm. Fl. Elec. Power v. EPA, No. 15-1239 (``D.C. Circuit 
decision''). The case is a consolidated set of petitions for review of 
the 2015 SSM SIP Action. The Court granted the petitions in part, 
vacating the SIP call with respect to SIP provisions that EPA 
identified as automatic exemptions, director's discretion provisions, 
and affirmative defenses that are functionally exemptions; and denied 
the petitions as to other provisions that EPA identified as overbroad 
enforcement discretion provisions, or affirmative defense provisions 
that would preclude or limit a court from imposing relief in the case 
of violations. EPA has assessed the impact of the decision with respect 
to the removal of overbroad defense provisions at issue in the Shelby 
County portion of the Tennessee SIP.\6\ We have concluded that the 
previously stated reasons for the proposed removal of these provisions, 
as articulated in the 2015 SSM SIP Action, are consistent with the 
recent D.C. Circuit decision, as these are overbroad enforcement 
discretion provisions. The Court upheld \7\ the EPA's 2015 SSM SIP 
Action with regard to provisions that grant States overbroad 
enforcement discretion, which EPA found to be ``inconsistent with the 
enforcement structure of the CAA as they could be interpreted to allow 
the State to make the final decision whether such emissions are 
violations, thus impeding the ability of the EPA and citizens to 
enforce the emission limitations of the SIP.'' \8\
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    \6\ Those provisions are TAPCR Section 1200-3-20-.06(2) and (4) 
(formerly Sections 1200-3-20-.07(1) and 1200-3-20-.07(3)).
    \7\ See Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 114 
(D.C. Cir. 2024).
    \8\ See 80 FR 33935.

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[[Page 74167]]

C. Shelby County SIP Provisions Related to Excess Emissions

    In the 2015 SSM SIP Action, with regard to the Shelby County 
portion of the Tennessee SIP, EPA determined that City of Memphis Air 
Code Section 9-12-24 \9\ was substantially inadequate to meet the 
fundamental requirements of the CAA and issued a SIP call for this 
provision. In the March 2, 2022, SIP revision, SCHD requests approval 
of a revised version of City of Memphis Air Code Section 9-12-24, which 
adopts by reference portions of TAPCR Chapter 1200-3-20 as state-
effective on December 5, 2018. City of Memphis Air Code Section 16-87 
(since renumbered to Section 9-12-24) comprises, through the adoption 
by reference of the June 30, 2003, state-effective version of TAPCR 
Chapter 1200-3-20, certain provisions of which were SIP-called as part 
of the same action.\10\ Consequently, certain provisions of City of 
Memphis Air Code Section 16-87 (since renumbered to Section 9-12-24) 
were SIP-called for the same reasons that the corresponding provisions 
of TAPCR Chapter 1200-3-20 were SIP-called.
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    \9\ In the 2015 SSM SIP Action, City of Memphis Air Code 
(although it was referred to as ``Shelby County Code'') Section 16-
87 was SIP-called. Since the last (1989) SIP-approved version of the 
adoption by reference of this Section, City of Memphis Air Code 
Section 16-87 has been renumbered to Section 9-12-24. See supra 
notes 1 and 2.
    \10\ See 80 FR 33839, 33965 (June 12, 2015).
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    With regard to the State portion of the Tennessee SIP, EPA 
determined in the 2015 SSM SIP Action that two provisions in TAPCR 
Chapter 1200-3-20--Sections 1200-3-20-.07(1) and 1200-3-20-.07(3)--were 
substantially inadequate to satisfy CAA requirements and issued a SIP 
call for these provisions.\11\ Paragraph (1) of Section 1200-3-20-.07, 
``Report Required Upon the Issuance of Notice of Violation,'' provides 
the Technical Director with the discretion, upon review of a source's 
excess emissions report, to determine if an event is a violation and 
whether to pursue an enforcement action. Paragraph (3) of Section 1200-
03-20-.07 provides reporting requirements in the event of excess 
emissions and specifies that failure to submit the required report 
precludes the admissibility of the report data as an excuse for causing 
excess emissions during malfunctions, startups, and shutdowns. The 
rationale underlying EPA's determination that these provisions are 
substantially inadequate to meet CAA requirements and therefore require 
revisions is detailed in the 2015 SSM SIP Action and the corresponding 
proposals.
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    \11\ In the 2015 SSM SIP Action, with respect to Tennessee, EPA 
also identified TAPCR Section 1200-3-5-.02(1), under the Chapter 
titled ``Visible Emissions,'' as substantially inadequate on the 
basis that it contains an impermissible unbounded director's 
discretion provision, and this provision was SIP-called. The Shelby 
County portion of the Tennessee SIP, under Shelby County Air Code 
Section 3-17 (the equivalent of SIP-approved City of Memphis Air 
Code Section 16-83, which has since been revised to Section 9-12-
20), incorporates by reference Chapter 1200-3-5 of the TAPCR. This 
provision is likewise substantially inadequate to satisfy the 
requirements of the CAA for the same reason. While this provision 
was not included in the 2015 SSM SIP Action, EPA issued a NPRM on 
February 24, 2023, proposing to SIP-call this provision from the 
Shelby County portion of the Tennessee SIP. The proposed SIP call 
has not yet been finalized, and SCHD has not yet submitted a SIP 
submission addressing the relevant provision. See 88 FR 11842 
(February 24, 2023).
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    On March 2, 2022, TDEC submitted a SIP revision on behalf of SCHD 
in response to the SIP call issued in the 2015 SSM SIP Action and 
requested that EPA replace the existing City of Memphis Air Code 
Section 16-87 (since renumbered to Section 9-12-24) in the Shelby 
County portion of the Tennessee SIP with the version of Section 9-12-24 
that adopts by reference TAPCR Chapter 1200-3-20, as effective December 
5, 2018. The March 2, 2022, revision contains changes that are 
responsive to the 2015 SSM SIP Action and other revisions approved into 
TAPCR Chapter 1200-3-20 of the Tennessee SIP since its last adoption 
into the City of Memphis Air Code. EPA's rationale for proposing to 
approve each revision is described in more detail in section II of this 
document.

II. Analysis of SCHD's Revisions to City of Memphis Air Code Section 9-
12-24, ``Malfunctions, Startups, and Shutdowns''

    EPA's last approval into the Shelby County portion of the Tennessee 
SIP of the adoption of TAPCR Chapter 1200-3-20 into the City of Memphis 
Air Code Section 16-87 (since renumbered to Section 9-12-24) was 
completed on June 15, 1989, with a local effective date of June 18, 
1986. See 54 FR 25456 (June 15, 1989).\12\ EPA now proposes to act on 
the changes adopted between the 1989 SIP-approved version and the 
version transmitted in response to the 2015 SSM SIP Action with a local 
effective date of February 22, 2022. These changes include, among other 
things, the removal of the adoption by reference of TAPCR Section 1200-
3-20-.06, ``Scheduled Maintenance,'' and the associated renumbering of 
the subsequent sections. SCHD requests to incorporate by reference the 
newly renumbered sections (Sections 1200-3-20-.07 through .10 are 
renumbered to 1200-3-20-.06 through .09) and the other sections that 
contain changes addressed in the SIP revision.
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    \12\ The ``State effective date'' identified in 40 CFR 
52.2220(c) for Memphis Air Code Section 16-87 is incorrect; instead 
of August 14, 1989, it should be June 18, 1986.
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    SCHD has excluded certain parts of the adoption by reference of 
TAPCR Chapter 1200-3-20 from its request for EPA approval of City of 
Memphis Air Code Section 9-12-24 into the SIP. The February 22, 2022, 
version of City of Memphis Air Code Section 9-12-24, through which the 
City of Memphis adopts by reference TAPCR Chapter 1200-3-20, does not 
exclude Section 1200-3-20-.06(5), which lists various types of sources 
and corresponding ``de minimis'' emission levels below which no notice 
of violation(s) of certain pollutant limits will be automatically 
issued and SSM exemptions may apply. However, in the March 2, 2022, SIP 
revision, SCHD requests that Section 1200-3-20-.06(5) not be 
incorporated into the Shelby County portion of the Tennessee SIP. In 
addition, on June 30, 2023, EPA received a request submitted by TDEC, 
on behalf of SCHD, to withdraw the portion of its submission making 
changes to TAPCR Section 1200-3-20-.03, new TAPCR Section 1200-3-
20-.06(1), and new TAPCR Section 1200-3-20-.06(4), as submitted in the 
March 2, 2022, SIP revision.\13\ Therefore, EPA is proposing to approve 
SCHD's changes to its adoption by reference of TAPCR Sections 1200-3-
20-.01, 1200-3-20-.02, 1200-3-20-.04, 1200-3-20-.05, 1200-3-20-.06 
(renumbered from 1200-3-20-.07) except for 1200-3-20-.06(1), 1200-3-
20-.06(4), and 1200-3-20-.06(5), 1200-3-20-.07 (renumbered from 1200-3-
20-.08), 1200-3-20-.08 (renumbered from 1200-3-20-.09), and 1200-3-
20-.09 (renumbered from 1200-3-20-.10). EPA is also proposing to 
approve the removal of existing Section 1200-3-20-.06, ``Scheduled 
Maintenance.'' The changes EPA proposes to approve are described in 
more detail below.
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    \13\ The June 30, 2023, letter from TDEC is included in the 
docket for this NPRM, as is SCHD's June 29, 2023, letter regarding 
withdrawal of certain provisions.
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A. TAPCR Section 1200-3-20-.01, ``Purpose''

    SCHD's March 2, 2022, SIP revision adopts by reference portions of 
the December 5, 2018, state-effective version of TAPCR Chapter 1200-3-
20, which includes TAPCR Section 1200-3-20-01. Changes to City of 
Memphis Air Code Section 9-12-24 with respect to TAPCR Section 1200-3-
20-01 are consistent with TDEC's January 20, 2023, SIP revision, which 
EPA approved

[[Page 74168]]

on June 23, 2023.\14\ These changes are minor, are not responsive to 
the 2015 SIP call, and are otherwise consistent with the CAA. 
Specifically, they include removing the list of examples of sources 
that are considered to be an ``air contaminant source.'' The definition 
of ``air contaminant source'' is also included elsewhere in the Shelby 
County portion of the SIP--specifically, under City of Memphis Air Code 
Section 9-12-1, ``Definitions,'' which adopts by reference TAPCR 
Chapter 1200-3-2, ``Definitions,'' as approved on June 15, 1989.\15\ 
This revision would remove the redundancy of this term in the Shelby 
County portion of the Tennessee SIP and would not relax the 
applicability of the regulations in City of Memphis Air Code Section 9-
12-24. Accordingly, EPA is proposing to approve the requested change to 
this regulation.
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    \14\ See 88 FR 41031 (June 23, 2023).
    \15\ See 54 FR 25456 (June 15, 1989).
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B. TAPCR Section 1200-3-20-02, ``Reasonable Measures Required''

    The March 2, 2022, SIP revision to the adoption by reference under 
City of Memphis Air Code Section 9-12-24 of TAPCR Section 1200-3-20-02 
contains substantive changes that are not responsive to the 2015 SIP 
call but that either strengthen or do not alter the stringency of the 
Shelby County portion of the Tennessee SIP and are otherwise consistent 
with the CAA. Existing paragraph (1) of the SIP-approved version of the 
adoption by reference of TAPCR Section 1200-3-20-02 under City of 
Memphis Air Code Section 9-12-24, ``Reasonable Measures Required,'' 
provides, in part, that for sources that are in or are significantly 
affecting a nonattainment area, ``failures that are caused by poor 
maintenance, careless operation or any other preventable upset 
condition or preventable equipment breakdown shall not be considered 
malfunctions, and shall be considered in violation of the emission 
standard exceeded and this rule.'' The revision removes the statement 
that such equipment failures ``shall be considered in violation of the 
emission standard exceeded and this rule.'' This revision simply 
eliminates unnecessary language indicating that a source which 
experiences an equipment failure is automatically in violation of 
applicable emission standards and the City of Memphis Air Code 
provision. This change is appropriate because an instance of equipment 
failure does not always result in an exceedance of an emission 
standard.
    In addition, SCHD is requesting removal of a portion of this 
provision that limits the regulation to ``sources identified in 
Tennessee Rule 1200-3-19, or by a permit condition or an order issued 
by the Board or by the Technical Secretary as being in or significantly 
affecting a nonattainment area.'' The effect of removing this language 
would be to expand the applicability of the adoption by reference of 
TAPCR Section 1200-3-20-02 under City of Memphis Air Code Section 9-12-
24 so that the regulation would now apply to all air contaminant 
sources instead of sources that are in or significantly affecting a 
nonattainment area only.
    These changes do not provide an exemption for any applicable 
emission standards, nor do they modify any applicable requirements for 
air contaminant sources. With these changes, all applicable emission 
standards will continue to apply during all times. EPA is proposing to 
approve these changes to the adoption by reference of TAPCR Section 
1200-3-20-02 under City of Memphis Air Code Section 9-12-24 in the 
Shelby County portion of the Tennessee SIP because they are consistent 
with the CAA.

C. TAPCR Section 1200-3-20-04, ``Logs and Reports''

    The changes that SCHD is requesting to this provision through the 
adoption of TAPCR Section 1200-3-20-04, ``Logs and Reports,'' as 
effective December 5, 2018, are not responsive to the 2015 SSM SIP 
Action. They include the removal of the existing text of paragraph (2) 
from the original March 21, 1979, SIP-approved version of the adoption 
by reference of TAPCR Section 1200-3-20-04 under City of Memphis Air 
Code Section 9-12-24 and replacement of the removed paragraph with the 
word ``Reserved.'' EPA approved Tennessee's revision to this regulation 
in 2016.\16\ Existing paragraph (2) provides that all sources located 
in or having a significant impact on a nonattainment area must submit a 
quarterly report that (1) identifies periods of exceedance of an 
applicable emission limitation, (2) estimates the excess emissions 
released during such SSM events, and (3) provides total source 
emissions where such emissions are not otherwise required to be 
reported under SCHD's adoption by reference of TAPCR Section 1200-3-10-
02 or Chapter 1200-3-16. EPA is proposing to approve this SIP revision 
as it is consistent with the CAA.
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    \16\ See 81 FR 66826 (September 29, 2016). In the NPRM for that 
rulemaking, EPA included an evaluation of the impact of this removal 
on the reporting obligations for major sources, minor sources, and 
on TDEC's ability to determine whether sources are operating in 
compliance with the SIP. See 81 FR 49201 (July 27, 2016). The NPRM 
also further evaluated the removal of this language with the 
requirements of section 110(l) and section 193 of the CAA. The 
effect of this corresponding revision in the Shelby County Air Code 
is consistent with the effect as evaluated by EPA with respect to 
Tennessee.
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D. TAPCR Section 1200-3-20-06, ``Scheduled Maintenance''

    In its March 2, 2022, SIP revision, SCHD requests the removal of 
the adoption by reference of TAPCR Section 1200-3-20-06, ``Scheduled 
Maintenance,'' from City of Memphis Air Code Section 9-12-24, as 
approved in the Shelby County portion of the Tennessee SIP. Although 
this provision was not SIP-called in the 2015 SSM SIP Action, TAPCR 
Section 1200-3-20-06 specifies reporting requirements for any shutdown 
of air pollution control equipment for necessary scheduled maintenance 
that will result in excess emissions. Specifically, this regulation 
requires notification within 24 hours of planned maintenance of air 
pollution control equipment unless the maintenance is routine, in which 
case the notifications may be made on an annual basis.
    Section 110(l) of the CAA provides that EPA shall not approve a 
revision to a plan if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress, or 
any other applicable requirement of the CAA. EPA proposes to approve 
the removal of this regulation in its entirety because the removal is 
not expected to cause any increase in emissions. This revision does not 
remove a prohibition on excess emissions or any specific requirements 
to minimize those emissions and thus is not a relaxation of a control 
requirement. Furthermore, as Tennessee noted in its corresponding SIP 
revision,\17\ the routine shutdown of air pollution control equipment 
described in Section 1200-3-20-06 is inappropriate.
---------------------------------------------------------------------------

    \17\ See 88 FR 20443, 20446 (April 6, 2023).
---------------------------------------------------------------------------

    EPA also notes that a requirement for sources to identify and 
report any anticipated excess emissions event resulting from control 
equipment undergoing scheduled maintenance is not a CAA-required 
element of SIPs. The Shelby County portion of the Tennessee SIP 
contains other reporting requirements that include the reporting of 
actual excess emissions events once such events have occurred.\18\ 
Thus, the

[[Page 74169]]

removal from City of Memphis Air Code Section 9-12-24 of the adoption 
by reference of Section 1200-3-20-06 would not prevent the receipt of 
reports of actual excess emissions. EPA proposes to find that removing 
the adoption by reference of TAPCR Section 1200-3-20-06 would not 
interfere with any applicable requirement concerning attainment and 
reasonable further progress, or any other applicable requirement of the 
CAA. Furthermore, this removal would be consistent with EPA's approval 
of Tennessee's removal of this regulation from the SIP.\19\ 
Accordingly, EPA is proposing to approve Shelby County's request to 
remove the adoption by reference of TAPCR Section 1200-3-20-06, 
``Scheduled Maintenance,'' from City of Memphis Air Code Section 9-12-
24 in the Shelby County portion of the Tennessee SIP.
---------------------------------------------------------------------------

    \18\ For example, Shelby County Air Code adopts by reference 
TAPCR Chapter 1200-3-10. Under TAPCR Section 1200-3-10-02, sources 
are required to report any actual excess emissions if the source has 
a continuous emissions monitoring system.
    \19\ See 88 FR 41031, 41033 (June 23, 2023).
---------------------------------------------------------------------------

E. New TAPCR Section 1200-3-20-06, ``Report Required Upon the Issuance 
of a Notice of Violation''

    Due to the requested deletion of the adoption by reference of TAPCR 
Section 1200-3-20-06, ``Scheduled Maintenance,'' as discussed above, 
SCHD is requesting the renumbering of the existing adoption by 
reference of TAPCR Section 1200-3-20-07, ``Report Required Upon The 
Issuance of a Notice of Violation,'' to TAPCR Section 1200-3-20-06 
under City of Memphis Air Code Section 3-9 in the Shelby County portion 
of the Tennessee SIP. Shelby County's March 2, 2022, SIP revision also 
requests that EPA approve the adoption by reference of Tennessee's 
changes to several paragraphs within this regulation, some of which are 
responsive to the 2015 SIP call. Some of the other changes include 
regulatory revisions that became state-effective prior to the changes 
made in response to the 2015 SSM SIP Action.
    The changes to this section that are not in response to the 2015 
SSM SIP Action include the renumbering of the adoption by reference of 
TAPCR Section 1200-3-20-07, ``Report Required Upon the Issuance of a 
Notice of Violation,'' to 1200-3-20-06, consistent with the removal of 
the current SIP-approved version of the adoption by reference of 
Section 1200-3-20-06, ``Scheduled Maintenance,'' under City of Memphis 
Air Code Section 3-9. Shelby County also revises the regulation by 
splitting the requirements of paragraph .07(1) into two paragraphs, now 
renumbered as .06(1) and .06(2). The text from current SIP-approved 
paragraph .07(1) that has been moved to new paragraph .06(1) has been 
revised to, among other things, improve clarity and ensure consistency 
with other Tennessee regulations that have been adopted by reference 
into the City of Memphis Air Code and with the terms defined in City of 
Memphis Air Code Section 9-12-1 which adopts by reference TAPCR Chapter 
1200-3-2, ``Definitions.'' The revised text also updates internal 
references to the regulations.
    The text from current SIP-approved paragraph .07(1) that has been 
moved to new paragraph .06(2) has been revised to, among other things, 
update the citation in the provision to reflect the renumbering of the 
adoption by reference of TAPCR Section 1200-3-20-.07(2) to 1200-3-
20-.06(3).
    In a letter dated June 29, 2023, SCHD withdrew several changes 
submitted in the March 2, 2022, SIP revision that SCHD had determined 
may not be approvable into the Shelby County portion of the Tennessee 
SIP based on EPA's proposed partial disapproval of Tennessee's SIP call 
response,\20\ including the revisions to the adoption by reference of 
TAPCR Section 1200-3-20-.06(1). The version of TAPCR Section 1200-3-
20-.06(1) adopted by reference under City of Memphis Air Code Section 
9-12-24 and submitted in the March 2, 2022, SIP revision contains a 
cross-reference to TAPCR Section 1200-3-5-.02(1), which EPA proposed to 
disapprove.\21\ Although Tennessee submitted a SIP revision to revise 
TAPCR Section 1200-3-5-.02(1), EPA determined that the State's changes 
to this regulation did not adequately correct the deficiencies and 
proposed to disapprove this portion of Tennessee's SIP revision.\22\ 
The D.C. Circuit upheld the EPA's SIP call for former TAPCR Sections 
1200-3-20-.07(1) and 1200-3-20-.07(3) (now Sections 1200-3-20-.06(1), 
1200-3-20-.06(2), and 1200-3-20-.06(4)) in Environ. Comm. Fl. Elec. 
Power v. EPA on the basis that they are impermissible ``overbroad 
enforcement discretion'' provisions.\23\ In light of the D.C. Circuit 
decision, SCHD intends to resubmit the language in those provisions to 
remove the remaining ``overbroad enforcement discretion'' language 
therein. SCHD will be in a position to do that after Tennessee has made 
a determination about how to revise those provisions and the updated 
regulations have been adopted into the air codes for Shelby County and 
the included municipalities.
---------------------------------------------------------------------------

    \20\ See 88 FR 20443.
    \21\ See id. at 20446.
    \22\ TDEC ultimately withdrew its changes to 1200-3-5-.02(1). 
See 88 FR 20443 (April 6, 2023) and 88 FR 41031 (June 23, 2023).
    \23\ See Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 114 
(D.C. Cir. 2024). Sections 1200-3-20-.06(1) and (2) were formerly 
part of 1200-3-20-.07(1), and Section 1200-3-20-.06(4) was formerly 
1200-3-20-.07(3).
---------------------------------------------------------------------------

    EPA is proposing to approve SCHD's revisions to the adoption by 
reference of new TAPCR Section 1200-3-20-.06(2) (former TAPCR Section 
1200-3-20-.07(1), now renumbered to .06(2)), which include removing the 
language which States that the report detailing the circumstances of 
the excess emissions will be used ``to assist the Technical Secretary 
in deciding whether to excuse or proceed upon the violation.'' By 
removing this phrase, the provision will no longer appear to provide an 
impermissible discretionary exemption from SIP emission limits. In 
addition, the adoption by reference of new TAPCR Section 1200-3-
20-.06(2) includes minor updates to the wording for clarification 
purposes. By removing the ambiguous language in TAPCR Section 1200-3-
20-.06(2) that EPA SIP-called as an impermissible discretionary 
exemption, SCHD has addressed the specific deficiencies that EPA 
identified in the 2015 SSM SIP Action with respect to the adoption by 
reference of TAPCR Section 1200-3-20-.06(2).
    EPA is also proposing to approve SCHD's revisions to the adoption 
by reference of new TAPCR Section 1200-3-20-.06(3) (former Section 
1200-3-20-.07(2), now renumbered to .06(3)), which describes the 
contents of the report required to be submitted to the State when a 
notice of violation is issued. The only changes made to this paragraph 
are minor wording and punctuation changes.
    Next, SCHD submitted revisions to the adoption by reference of new 
TAPCR Section 1200-3-20-.06(4) (former Section 1200-3-20-.07(3)), 
including wording changes, in the March 2, 2022, SIP revision. However, 
due to an adverse comment EPA received during the public comment period 
for the April 6, 2023, NPRM, regarding Tennessee's revisions to this 
provision, SCHD withdrew from EPA's consideration the adoption by 
reference of TAPCR Section 1200-3-20-.06(4).
    The March 2, 2022, SIP revision also includes the adoption by 
reference of TAPCR Section 1200-3-20-.06(5), which lists various types 
of sources and ``de minimis'' emission levels, below which no notice of 
violation(s) of certain pollutant limits will be automatically issued 
and SSM exemptions may apply. However, as part of the March 2, 2022, 
SIP revision, SCHD requested that paragraph (5) not be incorporated 
into the Shelby County

[[Page 74170]]

portion of the Tennessee SIP at this time.
    In paragraph .06(6), which was not SIP-called, the following 
statement has been added: ``No emission during periods of malfunction, 
start-up, or shutdown that is in excess of the standards in Division 
1200-03 or any permit issued thereto shall be allowed which can be 
proved to cause or contribute to any violations of the Ambient Air 
Quality Standards contained in TAPCR Chapter 1200-3-3 or the National 
Ambient Air Quality Standards.'' As revised, this paragraph simply 
notes that excess emissions during periods of SSM which are known to 
cause or contribute to violations of ambient air quality standards are 
not allowed. EPA notes that, while this provision does not convey an 
inaccurate concept, in light of the D.C. Circuit decision, EPA is 
continuing its longstanding interpretation that emission limits in the 
SIP, whether intended to provide for attainment and maintenance of the 
national ambient air quality standards (NAAQS) or otherwise, must be 
continuous. Any excess emissions that would violate an applicable SIP 
emission limitation are not allowed, regardless of whether they can be 
proved to cause or contribute to violations of any ambient air quality 
standards, and regardless of whether they occur during periods of SSM. 
With Shelby County's changes to the adoption by reference of TAPCR 
Chapter 1200-3-20, there are no specific exemptions from applicable SIP 
emission limitations in this Chapter.
    For the reasons described in this Section II.E, EPA is proposing to 
approve SCHD's March 2, 2022, SIP revision to City of Memphis Air Code 
Section 9-12-24, which incorporates by reference the portions of TAPCR 
Section 1200-3-20-.06, as renumbered from 1200-3-20-.07, that have not 
been withdrawn in the letter dated June 29, 2023. Specifically, with 
respect to the adoption by reference of new TAPCR Section 1200-3-
20-.06, EPA is proposing to approve: the re-numbering of this provision 
from TAPCR Section 1200-3-20-.07 to TAPCR Section 1200-3-20-.06, 
splitting former TAPCR Section 1200-3-20-.07, paragraph (1), into 
paragraphs (1) and (2); and the textual revisions to new TAPCR Section 
1200-3-20-.06, paragraphs (2), (3), and (6). The portions of the March 
2, 2022, SIP revision that SCHD has withdrawn from EPA's consideration 
as a SIP revision include the adoption by reference of TAPCR Section 
1200-3-20-.06, paragraphs (1) and (4) (SCHD's June 29, 2023, letter 
withdrawing these provisions is included in the docket for this 
proposed rulemaking.) and (5) (SCHD requests in its March 2, 2022, SIP 
revision that this provision not be incorporated into the Shelby County 
portion of the Tennessee SIP). As noted above in this Section II.E, 
SCHD plans to reevaluate and resubmit at a later date a revised version 
of these provisions. The withdrawal of these provisions from EPA's 
consideration is relevant to EPA's previous finding of failure to 
submit for those SIP-called provisions. The finding of failure to 
submit for Shelby County will continue to remain in effect and will be 
considered in a separate action.

F. New TAPCR Section 1200-3-20-.07, ``Special Reports Required''; New 
TAPCR Section 1200-3-20-.08, ``Rights Reserved''; and New TAPCR Section 
1200-3-20-.09, ``Additional Sources Covered''

    EPA is proposing to approve Shelby County's request to incorporate 
the non-substantive changes to the code that adopt by reference TAPCR 
Sections 1200-3-20-.07 and 1200-3-20-.08. Additionally, EPA is 
proposing to approve Shelby County's request to incorporate the 
adoption by reference of TAPCR Section 1200-3-20-.09, as renumbered 
from 1200-3-20-.10, which includes other minor edits to assign a number 
to the provision now included as paragraph .09(1) and to include 
parentheses around existing text in this provision. EPA is proposing to 
approve these revisions.

III. Proposed Action

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Based on 
the analysis in section II of this NPRM, EPA is proposing to approve 
the portion of Tennessee's March 2, 2022, SIP revision that makes 
changes to the Shelby County portion of the Tennessee SIP under City of 
Memphis Air Code Section 9-12-24 (formerly Section 16-87), which adopts 
by reference portions of TAPCR Chapter 1200-3-20 as effective on 
December 5, 2018. Specifically, EPA is proposing to approve the changes 
to the adoption by reference of Section 1200-3-20-.01, ``Purpose''; 
Section 1200-3-20-.02, ``Reasonable Measures Required''; Section 1200-
3-20-.04, ``Logs and Reports''; Section 1200-3-20-.06, ``Report 
Required Upon the Issuance of Notice of Violation,'' renumbered from 
1200-3-20-.07, except for 1200-3-20-.06(1), 1200-3-20-.06(4), and 1200-
3-20-.06(5); Section 1200-3-20-.07, ``Special Reports Required,'' 
renumbered from 1200-3-20-.08; and Section 1200-3-20-.09, ``Additional 
Source Covered,'' renumbered from 1200-3-20-10. EPA is also proposing 
to approve the addition of Section 1200-3-20-.08, ``Rights Reserved.'' 
EPA is also proposing to approve the removal of Section 1200-3-20-.06, 
``Scheduled Maintenance.''
    EPA is not reopening the 2015 SSM SIP Action nor soliciting comment 
on the rationale for issuing the 2015 SIP call to Shelby County or the 
2022 finding of failure to submit in response to the 2015 SIP call for 
Shelby County. EPA is taking comment on whether the proposed revisions 
to the Shelby County portion of the Tennessee SIP are consistent with 
CAA requirements and whether these changes remedy the substantial 
inadequacies in the specific Tennessee SIP provisions identified in the 
2015 SSM SIP Action.

IV. Incorporation by Reference

    In this document, EPA is proposing to include in a final rule 
regulatory text that includes incorporation by reference.\24\ In 
accordance with the requirements of 1 CFR 51.5, and as discussed in 
sections I through III of this preamble, EPA is proposing to 
incorporate by reference, with certain exceptions, City of Memphis Air 
Code Section 9-12-24, locally effective on February 22, 2022, which 
itself adopts by reference TAPCR Chapter 1200-3-20, as State effective 
on December 5, 2018.\25\ These revisions are intended, in part, to 
conform Shelby County's regulations with the State of Tennessee's SIP-
approved regulations. EPA has made and will continue to make these 
materials generally available through https://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).
---------------------------------------------------------------------------

    \24\ EPA's proposed approval of the changes to and incorporation 
by reference of City of Memphis Air Code Section 9-12-24 also 
includes the approval of substantively identical changes to 
regulations/ordinances submitted for Shelby County and the other 
included municipalities and the incorporation by reference of those 
impacted sections in these jurisdictions. See footnote 3, above.
    \25\ EPA is not proposing to incorporate by reference into the 
Shelby County portion of the Tennessee SIP the adoption by reference 
of TAPCR Section 1200-3-20-.03, 1200-.03-20-.06(1), 1200-3-
20-.06(4), and 1200-.03-20-.06(5). If EPA finalizes this action as 
proposed, it will revise the entry for Section 16-87 in Table 2 of 
40 CFR 52.2220(c) to reflect the retention of TAPCR Section 1200-3-
20-.03 as State-effective March 21, 1979, and the first sentence of 
TAPCR Section 1200-3-20-.07(1) as State-effective December 14, 1981, 
and add an entry for Section 9-12-24 with the exceptions noted in 
the prior sentence.

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[[Page 74171]]

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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. Accordingly, this 
action merely approves 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 14094 (88 FR 21879, April 11, 2023);
    <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 subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a State program;
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
    <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.
    In addition, 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 and will not impose 
substantial direct costs on Tribal governments or preempt Tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    The air agency did not evaluate EJ considerations as part of its 
SIP submittal; the CAA and applicable implementing regulations neither 
prohibit nor require such an evaluation. EPA did not perform an EJ 
analysis and did not consider EJ in this proposed action. Due to the 
nature of the action being proposed here, this proposed action is 
expected to have a neutral to positive impact on the air quality of the 
affected area. Consideration of EJ is not required as part of this 
proposed action, and there is no information in the record inconsistent 
with the stated goal of E.O. 12898 of achieving EJ for communities with 
EJ concerns.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: September 6, 2024.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.
[FR Doc. 2024-20669 Filed 9-11-24; 8:45 am]
BILLING CODE 6560-50-P


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