[Federal Register Volume 77, Number 41 (Thursday, March 1, 2012)]
[Rules and Regulations]
[Pages 12484-12487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4892]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2010-0696-201202(a); FRL-9636-8]
Approval and Promulgation of Implementation Plans; Tennessee:
Prevention of Significant Deterioration; Greenhouse Gases--Automatic
Rescission Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to approve the State
Implementation Plan (SIP) revision submitted by the State of Tennessee,
through the Tennessee Department of Environmental Conservation (TDEC),
Air Pollution Control Division, to EPA on January 11, 2012, for the
purpose of amending the State's New Source Review (NSR) Prevention of
Significant Deterioration (PSD) regulations as they relate to
greenhouse gases (GHGs). Specifically, Tennessee amended its PSD
regulations to add automatic rescission provisions. These provisions
provide that in the event that the U.S. Court of Appeals for the DC
Circuit or the U.S. Supreme Court issues an order which would render
GHGs not subject to regulation under the Clean Air Act's PSD permitting
program, then GHGs shall not be subject to regulation under Tennessee's
PSD regulations as of the effective date of EPA's Federal Register
notice of vacatur. Further, the provisions provide that in the event
that there is a change to Federal law that supersedes regulation of
GHGs under the Clean Air Act's PSD permitting program, then GHGs shall
not be subject to regulation under Tennessee's PSD regulations as of
the effective date of the change in federal law. EPA took action to
approve the GHG Tailoring Rule PSD provisions into the Tennessee SIP in
a separate rulemaking. EPA is approving Tennessee's January 11, 2012,
SIP revision because the Agency has made the determination that this
SIP revision is not contrary to section 110 and part C of the Clean Air
Act (CAA or Act) or EPA regulations regarding PSD permitting for GHGs.
DATES: This direct final rule is effective April 30, 2012 without
further notice, unless EPA receives adverse comment by April 2, 2012.
If EPA receives such comments, it will publish a timely withdrawal of
the direct final rule in the Federal Register and inform the public
that the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID Number, ``EPA-
R04-OAR-2010-0696,'' by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: [email protected].
3. Fax: 404-562-9019.
4. Mail: ``EPA-R04-OAR-2010-0696,'' Regulatory Development Section,
Air Planning Branch, Air, Pesticides and Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960.
5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief,
Regulatory Development Section, Air Planning Branch, Air, Pesticides
and Toxics Management Division, U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Such
deliveries are only accepted during the Regional Office's normal hours
of operation. The Regional Office's official hours of business are
Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal
holidays.
Instructions: Direct your comments to Docket ID Number, ``EPA-R04-
OAR-2010-0696.'' EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit through
www.regulations.gov or email, information that you consider to be CBI
or otherwise protected. The www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties
[[Page 12485]]
and cannot contact you for clarification, EPA may not be able to
consider your comment. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses. For additional information about EPA's public docket visit the
EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy at the Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Twunjala Bradley, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number
is (404) 562-9352. Ms. Bradley can be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. EPA's Analysis of the Approvability of Tennessee's Automatic
Rescission Provisions
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background
On January 11, 2012, in response to EPA's GHG Tailoring Rule \1\
and earlier GHG-related EPA rules,\2\ TDEC submitted a final revision
to EPA for approval into the Tennessee SIP to establish appropriate
emission thresholds for determining which new or modified stationary
sources become subject to Tennessee's PSD permitting requirements for
GHG emissions.\3\ Specifically, Tennessee's January 11, 2012, SIP
revision included changes to TDEC's Air Quality Regulations, Chapter
1200-03-09-.01(4)--Construction and Operating Permits, Prevention of
Significant Deterioration, which became state-effective February 8,
2011. The changes to Chapter 1200-03-09-.01(4) addressed the thresholds
for GHG permitting applicability. In a rulemaking separate from today's
rulemaking, EPA took final action to approve TDEC's air quality
regulations impacting the regulation of GHG under Tennessee's PSD
program. Detailed background information and EPA's rationale for the
proposed approval of Tennessee's GHG regulations under the State's PSD
program are provided in EPA's November 5, 2010, Federal Register
notice. See 75 FR 68265.
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\1\ ``Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3,
2010).
\2\ ``Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66496 (December 15, 2009); ``Interpretation of Regulations that
Determine Pollutants Covered by Clean Air Act Permitting Programs.''
75 FR 17004 (April 2, 2010); and ``Light-Duty Vehicle Greenhouse Gas
Emission Standards and Corporate Average Fuel Economy Standards;
Final Rule.'' 75 FR 25324 (May 7, 2010).
\3\ Tennessee's submittal also amends the State's title V
regulations at Chapter 1200-03-09-.02, to add rescission provisions,
however, title V regulations are not part of a state's federally
approved SIP. EPA is not taking action to approve Tennessee's title
V regulations at this time.
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Also on January 11, 2012, TDEC submitted a SIP revision (the
subject of today's rulemaking) to include changes to TDEC's air quality
regulations at Chapter 1200-03-09-.01(4)(b)46(i) to add automatic
rescission provisions related to EPA's GHG permitting requirements
(state effective November 27, 2011). EPA's analysis of the
approvability of Tennessee's automatic rescission provisions is
provided in section II of this rulemaking.
II. EPA's Analysis of the Approvability of Tennessee's Automatic
Rescission Provisions
Tennessee's January 11, 2012, SIP submittal adds automatic
rescission provisions to the State's PSD regulations at Chapter 1200-
03-09. The automatic rescission provisions at Chapter 1200-03-
09-.01(4)(b)46(i) provide that in the event that the D.C. Circuit or
the U.S. Supreme Court issues an order which would render GHG emissions
not subject to regulation under the Clean Air Act's PSD permitting
program, then GHGs shall not be subject to regulation under Tennessee's
PSD regulations as of the effective date of the Federal Register notice
of vacatur. Further, the provisions provide that in the event that
there is a change to federal law that supersedes regulation of GHGs
under the Clean Air Act's PSD permitting program, then GHGs shall not
be subject to regulation under Tennessee's PSD regulations as of the
effective date of the change in Federal law.
EPA has determined that Tennessee's automatic rescission provisions
are approvable. In assessing the approvability of these provisions, EPA
considered two key factors: (1) Whether the public will be given
reasonable notice of any change to the SIP that occurs as a result of
the automatic rescission provisions, and (2) whether any future change
to the SIP that occurs as a result of the automatic rescission
provisions would be consistent with EPA's interpretation of the effect
of the triggering action on Federal GHG permitting requirements. These
criteria are derived from the SIP revision procedures set forth in the
CAA and Federal regulations.
Regarding public notice, CAA section 110(l) provides that any
revision to a SIP submitted by a State to EPA for approval ``shall be
adopted by such State after reasonable notice and public hearing.'' In
accordance with CAA section 110(l), TDEC followed applicable notice-
and-comment procedures prior to adopting the automatic rescission
provisions. Thus, the public is on notice that the automatic rescission
provisions approved into Tennessee's SIP by today's action will enable
the SIP to update automatically to reflect any order by the D.C.
Circuit or the U.S. Supreme Court or any change in federal law that
renders GHGs not subject to regulation under the Clean Air Act's PSD
permitting program. In addition, the automatic rescission provisions
provide that no change to the SIP as a result of an order by the D.C.
Circuit or the U.S. Supreme Court will occur until EPA publishes a
Federal Register notice of vacatur. Likewise, a change to federal law
that supersedes regulation of GHGs under the federal PSD program would
not affect Tennessee's SIP until the effective date of the federal law
change. Thus, the timing and extent of any future SIP change resulting
from Tennessee's automatic rescission provisions will be clear to both
the regulated community and the general public.
EPA's consideration of whether any SIP change resulting from
Tennessee's automatic rescission provisions would be consistent with
EPA's interpretation of the effect of the triggering action on federal
GHG permitting requirements is based on 40 CFR 51.105. Under 40 CFR
[[Page 12486]]
51.105, ``[r]evisions of a plan, or any portion thereof, will not be
considered part of an applicable plan until such revisions have been
approved by the Administrator in accordance with this part.'' 40 CFR
51.105. To be consistent with 40 CFR 51.105, any automatic SIP change
resulting from a court order or federal law change must be consistent
with EPA's interpretation of the effect of such order or Federal law
change on GHG permitting requirements. EPA concludes that Tennessee's
rescission provisions include sufficient safeguards to ensure that any
resulting SIP change will be consistent with EPA's interpretation of
the effect of the triggering action on federal GHG permitting
requirements. Specifically, any automatic SIP change resulting from a
court order pursuant to Chapter 1200-03-09-.01(4)(b)46(i)(I) would
occur only after EPA's publication of a Federal Register notice of
vacatur. Likewise, with respect to the revocation of GHG permitting
requirements pursuant to Chapter 1200-03-09-.01(4)(b)46(i)(II)
following ``a change to Federal law that supersedes regulation of
GHGs'' under the CAA, EPA reads this provision to mean that Tennessee
will wait for and follow EPA's interpretation as to the impact of any
federal law change on Federal GHG permitting requirements before
changing its own application of Tennessee's SIP. In the event of a
court decision or Federal law change that triggers (or likely triggers)
application of Tennessee's automatic rescission provisions, EPA intends
to promptly describe the impact of the court decision or Federal law
change on the enforceability of its GHG permitting regulations.
III. Final Action
EPA is taking direct final action to approve Tennessee's January
11, 2012, SIP revision to amend Tennessee's SIP-approved regulations to
adopt automatic rescission provisions at Chapter 1200-03-
09-.01(4)(b)46(i). Specifically, the provisions establish that GHGs
would not be subject to regulation under TDEC's PSD program in the
event that an order by the D.C. Circuit or the U.S. Supreme Court or a
change in Federal law renders GHGs not subject to regulation under the
CAA's PSD permitting program. EPA has made the determination that
Tennessee's January 11, 2012, SIP revision is approvable because it is
not contrary to section 110 and part C of the CAA or EPA regulations
regarding PSD permitting for GHGs.
EPA is publishing this rule without prior proposal because the
Agency views this as a non-controversial amendment and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision should
adverse comment be filed. This rule will be effective on April 30, 2012
without further notice unless the Agency receives adverse comment by
April 2, 2012.
If EPA receives such comments, then EPA will publish a document
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. EPA will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time. If no such comments
are received, the public is advised this rule will be effective on
April 30, 2012 and no further action will be taken on the proposed
rule.
IV. 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. 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 action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
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.);
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);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
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
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).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country, and EPA
notes that it will not impose substantial direct costs on tribal
governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 30, 2012. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the
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proposed rulemaking. This action may not be challenged later in
proceedings to enforce its requirements. See CAA section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Greenhouse gases,
Incorporation by reference, Intergovernmental relations, Reporting and
recordkeeping requirements.
Dated: February 10, 2012.
A. Stanley Meiburg,
Acting Regional Administrator; Region 4.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401 et seq.
Subpart RR--Tennessee
0
2. Section 52.2220 (c) is amended under Table 1, Chapter 1200-3-9 by
revising the entry for ``Section 1200-3-9-.01'' to read as follows:
Sec. 52.2220 Identification of plan.
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(c) * * *
Table 1--EPA-Approved Tennessee Regulations
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State
State citation Title/subject effective date EPA approval date Explanation
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Chapter 1200-3-9 Construction and Operating Permits
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Section 1200-3-9-.01........... Construction 11/27/2011 3/1/2012 [Insert EPA is approving
Permits. citation of Tennessee's May 28,
publication]. 2009 SIP revisions to
Chapter 1200-3-9-.01
with the exception of
the ``baseline actual
emissions''
calculation revision
found at 1200-3-9-.01
(4)(b)45(i)(III),
(4)(b)45(ii)(IV),
(5)(b)1(xlvii)(I)(III)
and
(5)(b)1(xlvii)(II)(IV)
of the submittal.
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[FR Doc. 2012-4892 Filed 2-29-12; 8:45 am]
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