[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 [email protected].
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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[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 (SO2) 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 SO2
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 SO2 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 SO2 nonattainment area,
the proposed change would not impact SO2 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:
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);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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).
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]
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