Proposed Rule2023-07107
Air Plan Partial Disapproval and Partial Approval; Tennessee; Revisions to Startup, Shutdown, and Malfunction Rules
Primary source
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Published
April 6, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to partially approve and partially disapprove a State Implementation Plan (SIP) revision submitted by the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC), on November 19, 2016, as supplemented on January 20, 2023, in response to a finding of substantial inadequacy and SIP call published on June 12, 2015, regarding provisions in the Tennessee SIP related to excess emissions during startup, shutdown, and malfunction (SSM) events. Tennessee's January 20, 2023, supplemental SIP revision includes some additional changes related to the 2015 SIP call, plus other changes unrelated to the SIP call, in the affected chapter of Tennessee's regulations. EPA is proposing to approve portions of the November 19, 2016, SIP revision, as supplemented by the January 20, 2023, SIP revision, that the Agency has preliminarily determined correct certain deficiencies identified in the June 12, 2015, SIP SSM call. In addition, EPA is proposing to disapprove portions of the SIP revision that the Agency has preliminarily determined fail to correct other deficiencies identified in the 2015 SIP call.
Full Text
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<title>Federal Register, Volume 88 Issue 66 (Thursday, April 6, 2023)</title>
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[Federal Register Volume 88, Number 66 (Thursday, April 6, 2023)]
[Proposed Rules]
[Pages 20443-20449]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-07107]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R4-OAR-2022-0783; FRL-10523-01-R4]
Air Plan Partial Disapproval and Partial Approval; 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
partially approve and partially disapprove a State Implementation Plan
(SIP) revision submitted by the State of Tennessee, through the
Tennessee Department of Environment and Conservation (TDEC), on
November 19, 2016, as supplemented on January 20, 2023, in response to
a finding of substantial inadequacy and SIP call published on June 12,
2015, regarding provisions in the Tennessee SIP related to excess
emissions during startup, shutdown, and malfunction (SSM) events.
Tennessee's January 20, 2023, supplemental SIP revision includes some
additional changes related to the 2015 SIP call, plus other changes
unrelated to the SIP call, in the affected chapter of Tennessee's
regulations. EPA is proposing to approve portions of the November 19,
2016, SIP revision, as supplemented by the January 20, 2023, SIP
revision, that the Agency has preliminarily determined correct certain
deficiencies identified in the June 12, 2015, SIP SSM call. In
addition, EPA is proposing to disapprove portions of the SIP revision
that the Agency has preliminarily determined fail to correct other
deficiencies identified in the 2015 SIP call.
DATES: Comments must be received on or before May 8, 2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R4-
OAR-2022-0783 at <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow the online instructions
for submitting comments. Once submitted, comments cannot be edited or
removed from <a href="http://regulations.gov">regulations.gov</a>. EPA may publish any comment received to
its public docket. Do not electronically submit any information you
consider to be Confidential Business Information (CBI) or other
information, the disclosure of which 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 <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
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#8ceeede9a2e9fff8e9e0e0e9cce9fceda2ebe3fa"><span class="__cf_email__" data-cfemail="600201054e051314050c0c05200510014e070f16">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. EPA's 2015 SSM SIP Action
B. Tennessee's SIP Provisions Related to Excess Emissions
II. Analysis of SIP Submissions
A. Tennessee Chapter 1200-3-5, ``Visible Emission Regulations''
B. Tennessee Chapter 1200-3-20, ``Limits on Emissions Due to
Malfunctions, Startups, and Shutdowns''
1. Rule 1200-3-20-.01, ``Purpose''
2. Rule 1200-3-20-.02, ``Reasonable Measures Required''
3. Rule 1200-3-20-.06, ``Scheduled Maintenance''
4. New Rule 1200-3-20-.06, ``Report Required Upon the Issuance
of Notice of Violation''
i. January 20, 2023, Supplemental SIP Revision
ii. November 19, 2016, SIP Revision
5. New Rule 1200-3-20-.07, ``Special Reports Required''; New
Rule 1200-3-20-.08, ``Rights Reserved''; and New Rule 1200-3-20-.09,
``Additional Sources Covered''
III. Proposed Actions
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Background
A. EPA's 2015 SSM SIP Action
On February 22, 2013, EPA issued a Federal Register notice of
proposed rulemaking (NPRM) outlining EPA's policy at the time with
respect to SIP provisions related to periods of SSM. EPA analyzed
specific SSM SIP provisions and explained how each one either did or
did not comply with the Clean Air Act (CAA or Act) with regard
[[Page 20444]]
to excess emission events.\1\ For each SIP provision that EPA
determined to be inconsistent with the CAA, EPA proposed to find that
the existing SIP provision was substantially inadequate to meet CAA
requirements and thus proposed to issue a SIP call under CAA section
110(k)(5). On September 17, 2014, EPA issued a document supplementing
and revising what the Agency had previously proposed in the 2013 NPRM
in light of a United States Court of Appeals for the District of
Columbia Circuit decision in which the Court found that the CAA
precludes authority of EPA to create affirmative defense provisions
applicable to private civil suits. EPA outlined its updated policy that
affirmative defense SIP provisions are not consistent with CAA
requirements. EPA proposed in the supplemental proposal document to
apply its revised interpretation of the CAA to specific affirmative
defense SIP provisions and proposed SIP calls for those provisions
where appropriate. See 79 FR 55920 (September 17, 2014).
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\1\ State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
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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 36 states, including Tennessee, were substantially inadequate to
meet CAA requirements and issued a SIP call to those states to submit
SIP revisions to address the inadequacies. EPA established an 18-month
deadline by which the affected states had to submit such SIP revisions.
States were required to submit corrective revisions to their SIPs in
response to the SIP calls by November 22, 2016.
EPA issued a memorandum in October 2020 (2020 Memorandum), which
stated that certain provisions governing SSM periods in SIPs could be
viewed as consistent with CAA requirements.\2\ Importantly, the 2020
Memorandum stated that it ``did not alter in any way the determinations
made in the 2015 SSM SIP Action that identified specific state SIP
provisions that were substantially inadequate to meet the requirements
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on
the SIP call issued to Tennessee in 2015. The 2020 Memorandum did,
however, indicate EPA's intent at the time to review SIP calls that
were issued in the 2015 SSM SIP Action to determine whether EPA should
maintain, modify, or withdraw particular SIP calls through future
agency actions.
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\2\ October 9, 2020, memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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On September 30, 2021, EPA's Deputy Administrator withdrew the 2020
Memorandum and announced EPA's return to the policy set forth in the
2015 SSM SIP Action (2021 Memorandum).\3\ As articulated in the 2021
Memorandum, SIP provisions that contain exemptions or affirmative
defense provisions are not consistent with CAA requirements and,
therefore, generally are not approvable if contained in a SIP
submission. This policy approach is intended to ensure that all
communities and populations, including overburdened communities,
receive the full health and environmental protections provided by the
CAA.\4\ The 2021 Memorandum also retracted the prior statement from the
2020 Memorandum regarding EPA's plans to review and potentially modify
or withdraw particular SIP calls. That statement no longer reflects
EPA's intent. EPA intends to implement the principles laid out in the
2015 SSM SIP Action as the Agency takes action on SIP submissions,
including Tennessee's November 19, 2016, SIP submittal, as supplemented
on January 20, 2023, provided in response to the 2015 SIP call.
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\3\ September 30, 2021, memorandum ``Withdrawal of the October
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions
in State Implementation Plans and Implementation of the Prior
Policy,'' from Janet McCabe, Deputy Administrator.
\4\ See 80 FR at 33985.
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B. Tennessee's SIP Provisions Related to Excess Emissions
With regard to the Tennessee SIP, in the 2015 SSM SIP Action, EPA
determined that three provisions, Tenn. Comp. R. & Regs. (hereinafter,
Rule) 1200-3-5-.02(1), 1200-03-20-.07(1), and 1200-03-20-.07(3), were
substantially inadequate to satisfy CAA requirements and issued a SIP
call for these provisions. See 80 FR 33839, 33965 (June 12, 2015). Rule
1200-3-5-.02, ``Exceptions,'' paragraph (1), provides that ``due
allowance may be made for visible emissions in excess of that permitted
in this chapter which are necessary or unavoidable due to routine
startup and shutdown conditions.'' Rule 1200-03-20-.07, ``Report
Required Upon the Issuance of Notice of Violation,'' paragraph (1),
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 enforcement action. Paragraph (3) of
Rule 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 to remedy the provisions is detailed in the 2015 SSM
SIP Action and the accompanying proposals.
On November 19, 2016, Tennessee submitted a SIP revision in
response to the SIP call issued in the 2015 SSM SIP Action and
requested approval of changes to provisions in Chapter 1200-3-5
(``Visible Emissions Regulations'') and Chapter 1200-3-20 (``Limits On
Emissions Due To Malfunctions, Startups, And Shutdowns''). With regard
to the Chapter 1200-3-20 provisions, the State requested approval of
revisions to Rules 1200-3-20-.06(2), 1200-3-20-.06(4), and 1200-3-
20-.06(6) (as numbered in the current state code of regulations) to
address deficiencies that EPA identified in the 2015 SSM Action in SIP-
approved Rules 1200-03-20-.07(1) and 1200-03-20-.07(3).
On January 20, 2023, Tennessee supplemented its 2016 SIP submission
to request removal of Rule 1200-3-20-.06, ``Scheduled Maintenance,''
resulting in the renumbering of Rules 1200-3-20-.07 through .10 to
1200-3-20-.06 through .09 (i.e., .07 is renumbered to .06, and so on),
and other changes to Chapter 1200-3-20.\5\
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\5\ Tennessee requested that Rule 1200-3-20-.03 and 1200-3-
20-.06(5) not be incorporated into the Tennessee SIP. See the
document titled ``Transmittal_Letter_SSM SIP Call Chapter 20
Supplemental.doc'' in the docket for this proposed action.
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[[Page 20445]]
II. Analysis of SIP Submissions
A. Tennessee Chapter 1200-3-5, ``Visible Emission Regulations''
In the 2015 SSM SIP Action, EPA determined that Rule 1200-3-
5-.02(1) is substantially inadequate to meet the fundamental
requirements of the CAA, as it operates as an impermissible
discretionary exemption because it allows a state official to excuse
excess visible emissions after giving ``due allowance'' to the fact
that they were emitted during startup or shutdown events.\6\
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\6\ See 80 FR 33839, 33965 (June 12, 2015); 78 FR 12460, 12512-
13 (February 22, 2013) (explaining that ``this provision is
impermissible because it creates unbounded discretion that purports
to make a state official the unilateral arbiter of whether the
excess emissions in a given event constitute a violation of
otherwise applicable SIP emission limitations'' and because ``the
provision purports to authorize the state official to create
exemptions from applicable SIP emission limitations when such
exemptions are impermissible in the first instance'').
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In the November 19, 2016, submission, Tennessee's only revision to
Rule 1200-3-5-.02(1) is the addition of a sentence that states,
``However, no visible emission in excess of that permitted in this
chapter shall be allowed which can be proved to cause or contribute to
any violations of the Ambient Air Quality Standards contained in
Chapter 1200-03-03 and the National Ambient Air Quality Standards.'' In
its November 19, 2016, SIP revision, TDEC asserts that ``[e]nforcement
of the NAAQS fulfills the responsibility of the State of Tennessee to
protect and maintain air quality standards.'' Although one possible
basis for a SIP call is a finding that a SIP is substantially
inadequate to attain or maintain a NAAQS, CAA section 110(k)(5) also
authorizes a SIP call when a SIP is substantially inadequate to comply
with any other CAA requirement(s), such as the requirement that
emission limitations must apply continuously. Rule 1200-3-5-.02(1) was
SIP-called because EPA found in the 2015 SSM Action that it was
inconsistent with that requirement--specifically, with sections
110(a)(2)(A), 110(a)(2)(C), and 302(k).\7\ Thus, since the lone
revision to Rule 1200-3-5-.02(1) is the new language prohibiting excess
visible emissions which can be proved to cause or contribute to any
violations of ambient air quality standards, the specific deficiencies
EPA identified in the 2015 SSM SIP Action with respect to Rule 1200-3-
5-02(1) have not been corrected.
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\7\ See 80 FR 33839, 33965 (June 12, 2015); 78 FR 12460, 12512-
13 (February 22, 2013).
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The revised version of Rule 1200-3-5-.02(1) still operates as an
impermissible discretionary exemption from compliance with applicable
emission limits in the SIP because it continues to allow a state
official to give ``due allowance'' for excess emissions that occur
during startup and shutdown events. Though the term ``due allowance''
is not defined in Tennessee's rules, the reference in the next sentence
to circumstances under which no excess visible emission ``shall be
allowed'' suggests that giving ``due allowance'' to startup and
shutdown conditions means that Tennessee is authorized to allow excess
emissions during such events.
Pursuant to EPA's SSM policy, emission limitations must apply at
all times. Rule 1200-3-5-.02(1) effectively creates an exemption from
the SIP-approved opacity requirements of Chapter 1200-3-5 for periods
of startup and shutdown at the discretion of the Technical Secretary.
As explained in the 2015 SSM SIP Action and corresponding proposal,
this provision is impermissible not just because it creates unbounded
discretion for a state official to decide whether the excess emissions
in a given event constitute a violation of otherwise applicable SIP
emission limitations but also because it purports to authorize the
state official to create exemptions from applicable emission
limitations when such exemptions are not permissible in the first
instance. See 78 FR 12460, 12513 (February 22, 2013). EPA approval of
such broad and unbounded discretion to alter the existing legal
requirements of the SIP would be tantamount to allowing a revision of
the SIP without meeting the applicable procedural and substantive
requirements for such a SIP revision. See 80 FR 33839, 33928 (June 12,
2015). This type of director's discretion provision undermines the
purpose of emission limitations and the reductions they are intended to
achieve, thereby rendering them less enforceable by the EPA or through
a citizen suit. For these reasons, EPA is proposing to disapprove the
changes to Rule 1200-3-5-.02(1) transmitted in Tennessee's November 19,
2016, SIP revision, as they are not consistent with CAA requirements,
specifically CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k), and
therefore do not adequately address the specific deficiencies EPA
identified in the 2015 SSM SIP Action with respect to the Tennessee
SIP.
B. Tennessee Chapter 1200-3-20, ``Limits on Emissions Due to
Malfunctions, Startups, and Shutdowns''
1. Rule 1200-3-20-.01, ``Purpose''
The January 20, 2023, supplemental SIP revision makes minor changes
to Rule 1200-3-20-.01 that are not responsive to the 2015 SIP call.
Specifically, Tennessee seeks to remove the portion of this rule that
lists examples of sources that are considered to be an ``air
contaminant source.'' The definition of ``air contaminant source'' is
also included in the Tennessee SIP under Rule 1200-03-.02,
``Definitions,'' and examples of sources that are within the scope of
this definition are listed within the definition. This revision would
remove the redundancy of this term in the Tennessee SIP and does not
relax the applicability of the rules in Chapter 1200-3-20. Accordingly,
EPA is proposing to approve the requested change to this Rule.
2. Rule 1200-3-20-02, ``Reasonable Measures Required''
The January 20, 2023, supplemental SIP revision contains
substantive changes that are not responsive to the 2015 SIP call but
that strengthen the Tennessee SIP by expanding the applicability of
Rule 1200-3-20-02 by removing a portion of text that limits the Rule 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 is that this Rule would now apply to
all air contaminant sources in the State instead of sources that are in
or significantly affecting a nonattainment area. Therefore, EPA is
proposing to approve this change to the SIP.
3. Rule 1200-3-20-.06, ``Scheduled Maintenance''
In its January 20, 2023, SIP revision, Tennessee is requesting
removal of Rule 1200-3-20-.06, ``Scheduled Maintenance,'' although it
was not SIP-called in the 2015 SSM SIP Action. Rule 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 rule requires notification to
the Technical Secretary 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.
[[Page 20446]]
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. Section 193 of the CAA
provides that no control requirement in effect, or required to be
adopted by an order, settlement agreement, or plan in effect before the
CAA amendments of 1990 in a nonattainment area may be modified unless
the modification ensures greater or equivalent emission reductions of
such air pollutant. EPA proposes to approve the removal of this rule 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 notes in its submittal, the routine shutdown of air pollution
control equipment described in Rule 1200-3-20-.06 is inappropriate.
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 required element of
SIPs. The Tennessee SIP contains other reporting requirements that
include the reporting of actual excess emissions events to the State
once such events have occurred.\8\ Thus, the removal of Rule 1200-3-
20-.06 would not prevent TDEC from receiving reports of actual excess
emissions. EPA preliminarily finds that removing Rule 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 and would not constitute modification of a
control requirement in effect, or required to be adopted by an order,
settlement agreement, or plan in effect before the CAA amendments of
1990 in a nonattainment area. Accordingly, EPA is proposing to approve
Tennessee's request to remove Rule 1200-3-20-.06, ``Scheduled
Maintenance,'' from the Tennessee SIP.
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\8\ For example, Rule 1200-3-10-.02 requires a source to report
any actual excess emissions if the source has a continuous emissions
monitoring system.
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4. New Rule 1200-3-20-.06, ``Report Required Upon The Issuance of
Notice of Violation''
Due to the deletion of Rule 1200-3-20-.06, ``Scheduled
Maintenance,'' as discussed above, Tennessee has renumbered existing
Rule 1200-3-20-.07, ``Report Required Upon The Issuance of Notice of
Violation,'' as Rule 1200-3-20-.06 and is requesting approval of a new
version of Rule 1200-3-20-.06 in the Tennessee SIP. The State's SIP
revisions submitted on November 19, 2016, and January 20, 2023, make
various changes to several paragraphs within this rule, some of which
are responsive to the 2015 SIP call. Although the January 20, 2023, SIP
revision was transmitted to EPA after the November 19, 2016, SIP
revision, it includes regulatory changes that became state-effective
prior to the changes made in response to the 2015 SSM SIP Action.
Because Tennessee's November 19, 2016, submission relies in part on
revisions submitted to EPA in the January 20, 2023, submission,\9\ EPA
addresses the State's January 20, 2023, SIP revision first.
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\9\ Tennessee had previously submitted the revisions contained
in the January 20, 2023, submission on October 10, 1994, however,
EPA never acted on that submission and Tennesse withdrew it from EPA
review on July 20, 2016.
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i. January 20, 2023, Supplemental SIP Revision
Tennessee's January 20, 2023, SIP submission renumbers Rule 1200-3-
20-.07, ``Report Required Upon the Issuance of a Notice of Violation,''
to 1200-3-20-.06, consistent with the removal of current SIP-approved
Rule 1200-3-20-.06, ``Scheduled Maintenance.'' Tennessee also revises
the rule 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 paragraphs
.06(1) and (2) includes minor updates to the wording for clarity,
consistency with other Tennessee Rules and with the terms defined in
Chapter 1200-3-2, ``Definitions,'' and updates internal references to
the rules.\10\ However, EPA is proposing to disapprove new Rule 1200-3-
20-.06(1), as submitted in the January 20, 2023, supplemental SIP
revision, because this provision contains a cross-reference to Rule
1200-3-5-.02(1), which EPA is proposing to disapprove, as explained in
Section II.A, above. Specifically, Rule 1200-3-20-.06(1) requires
automatic issuance of a notice of violation (NOV) for excess emissions
except for ``visible emissions levels included as a startup and/or
shutdown permit condition under'' 1200-3-5-.02(1). Because EPA SIP-
called and is herein proposing to disapprove Rule 1200-3-5-.02(1), the
cross-reference to Rule 1200-3-5-.02(1), in itself, warrants
disapproval of Rule 1200-3-20-.06(1).
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\10\ The state effective version of Rule 1200-3-20-.06(1)
includes the phrase ``or determined to be de minimis under Rule
1200-3-20-.06.'' Tennessee requested that this revision not be
incorporated into the Tennessee SIP. Therefore, EPA is proposing to
act on only the remainder of Rule 1200-3-20-.06(1) in this NPRM.
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Furthermore, although Rule 1200-3-20-.06(1)'s exception from
automatic NOV issuance could be interpreted as a provision of state-
only enforcement discretion, it could also be interpreted to constrain,
or at least create uncertainty with respect to, EPA and citizen
enforcement. Even if interpreted to apply strictly to state enforcement
of emission limit exceedances, such provisions of state-only
enforcement discretion, because they do not apply to EPA or citizens,
are not appropriate for inclusion in the SIP. Thus, whether interpreted
as a provision of state-only enforcement discretion or as a
constriction of EPA or citizen enforcement, EPA proposes to disapprove
new Rule 1200-3-20-.06(1).\11\
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\11\ EPA considers new Rule 1200-3-20-.06(1) to be separable
from the remainder of Rule 1200-3-20-.06 and believes that its
disapproval of new paragraph (1) will not result in the portions of
Rule 1200-3-20-.06 that EPA proposes to approve being more stringent
than Tennessee anticipated or intended. See Bethlehem Steel Corp. v.
Gorsuch, 742 F.2d 1028, 1036-37 (7th Cir. 1984). Although
disapproval of (1) would eliminate an exception from automatic NOV
issuance, it also would eliminate the requirement for automatic NOV
issuance, resulting in no increase in stringency with respect to
Tennessee's authority and discretion to issue NOVs.
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EPA is proposing to approve Tennessee's January 20, 2023, revisions
to new Rule 1200-3-20-.06(2), (3), and (4). The revisions to new Rule
1200-3-20.06(2) consist of minor updates to the wording for
clarification purposes. New Rule 1200-3-20-.06(3) (former Rule 1200-3-
20-.07(2), now renumbered to .06(3)) 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, the revisions to new Rule 1200-3-
20-.06(4) (former Rule 1200-3-20-.07(3), now renumbered to .06(4)),
include only minor wording changes via the January 20, 2023,
supplemental SIP revision. These revisions are not substantive in
nature and do not change any underlying requirements.
The January 20, 2023, supplemental SIP submission includes the
addition of Rule 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
[[Page 20447]]
pollutant limits will be automatically issued and SSM exemptions may
apply. However, Tennessee is not requesting that paragraph (5) be
incorporated into the SIP.\12\
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\12\ See the document titled ``Transmittal_Letter_SSM SIP Call
Chapter 20 Supplemental.doc'' in the docket for this proposed
action. Therefore, EPA is not proposing to act on the new Rule 1200-
3-20-.06(5) in this NPRM.
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ii. November 19, 2016, SIP Revision
Regarding former Rule 1200-3-20-.07 paragraph (1) and paragraph
(3), EPA determined in the 2015 SSM SIP Action that these paragraphs
were substantially inadequate to meet CAA requirements. In response to
the 2015 SSM SIP Action, Tennessee's November 19, 2016, SIP revision
requests EPA approval of changes to Rules 1200-3-20-.06(2) and .06(4),
as renumbered from .07(1) and .07(3), respectively. First, Tennessee's
submittal removes the language in former 1200-3-20-.07(1), renumbered
in the January 20, 2023, supplemental SIP revision as 1200-3-20-.06(2),
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 a discretionary
exemption from SIP emission limits. In addition, Tennessee includes
other minor changes to the language in paragraph .06(2) to clarify the
requirements and to replace the term ``Technical Secretary'' with
``Technical Secretary or the Technical Secretary's representative.''
Next, regarding former paragraph .07(3), renumbered in the January
20, 2023, supplemental SIP revision as 1200-3-20-.06(4), Tennessee
requests removal of the excusal language in this paragraph which states
that failure to submit the report required by paragraph .06(3) within
the 20-day period following a notice of violation precludes the
admissibility of the information ``as an excuse for malfunctions,
startups, and shutdowns in causing the excessive emissions'' and
replacement with ``for determination of potential enforcement action.''
EPA notes that the term ``potential enforcement action'' in this
provision refers specifically to what is considered in Tennessee's
determination of a state enforcement action.
The revisions to paragraphs .06(2) and .06(4), as renumbered from
.07(1) and .07(3), remove the ambiguous language that EPA SIP-called as
functionally an impermissible discretionary exemption. Therefore, TDEC
has addressed the specific deficiencies that EPA identified in the 2015
SSM SIP Action with respect to Chapter 1200-3-20.
In the November 19, 2016, SIP revision to paragraph .06(6),
Tennessee adds, ``No emission during periods of malfunction, startup,
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 Chapter 1200-03-03 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,
the SIP must specify emission limitations (which must be continuous) to
provide for attainment and maintenance of the NAAQS and not merely
general prohibitions against emissions that would violate the NAAQS.
Any excess emissions that would violate an applicable SIP emission
limit 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
Tennessee's November 19, 2016, changes to Chapter 1200-3-20, there are
no specific exemptions from applicable SIP emission limits in this
Chapter.\13\
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\13\ As identified in Section II.A of this NPRM, EPA is
proposing to disapprove the revision to Chapter 1200-3-5, which
still includes an exemption from applicable SIP visible emissions
requirements during periods of startup and shutdown.
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For the reasons described in this Section II.B.4, EPA is proposing
to partially approve and partially disapprove Tennessee's January 20,
2023, and November 19, 2016, SIP revisions to Rule 1200-3-20-.07, as
renumbered to 1200-3-20-.06, which were submitted for incorporation
into the SIP. Specifically, EPA is proposing to approve Tennessee's SIP
revision with respect to Rule 1200-3-20-.06(2), (3), (4), and (6), and
EPA is proposing to disapprove the revision with respect to Rule 1200-
3-20-.06(1) and (5).
5. New Rule 1200-3-20-.07, ``Special Reports Required''; New Rule 1200-
3-20-.08, ``Rights Reserved''; and New Rule 1200-3-20-.09, ``Additional
Sources Covered''
Approving Tennessee's request to remove 1200-3-20-.06, ``Scheduled
Maintenance,'' from the Tennessee SIP would necessitate the renumbering
of Rules 1200-3-20-.08, 1200-3-20-.09, and 1200-3-20-.10 in the
Tennessee SIP to Rules 1200-3-20-.07, 1200-3-20-.08, and 1200-3-20-.09,
respectively. Additionally, Rule 1200-3-20-.09, as renumbered from
1200-3-20-.10, includes other minor edits to assign a number to the
provision included as paragraph .09(1) and to include a parenthetical
around existing text in this provision. EPA is proposing to approve
these revisions.
III. Proposed Actions
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 partially
approve and partially disapprove revisions to Chapters 1200-3-5 and
1200-3-20 of the Tennessee SIP, as submitted on November 19, 2016, and
supplemented on January 20, 2023. Specifically, EPA is proposing to
disapprove the changes to Rule 1200-3-5-.02, ``Exceptions,'' and Rule
1200-3-20-.06, ``Report Required Upon the Issuance of Notice of
Violation,'' paragraph (1), renumbered from 1200-3-20-.07; and
proposing to approve the changes to Rule 1200-3-20-.01, ``Purpose'';
Rule 1200-3-20-.02, ``Reasonable Measured Required''; Rule 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) and 1200-3-
20-.06(5); Rule 1200-3-20-.07, ``Special Reports Required,'' renumbered
from 1200-3-20-.08; Rule 1200-3-20-.08, ``Rights Reserved,'' renumbered
from 1200-3-20-.09; and Rule 1200-3-20-.09, ``Additional Source
Covered,'' renumbered from 1200-3-20-.10. EPA is also proposing to
approve the removal of Rule 1200-3-20-.06, ``Scheduled Maintenance.''
EPA is further proposing to find that these SIP revisions only
partially correct the deficiencies that were identified in the June 12,
2015, SIP SSM SIP Action. If the Agency finalizes this partial
disapproval, CAA section 110(c) would require EPA to promulgate a
federal implementation plan (FIP) within 24 months after the effective
date of the partial disapproval, unless EPA first approves a SIP
revision that corrects the deficiencies identified in the 2015 SSM SIP
Action or the deficiencies identified in Section II of this NPRM within
such time. In addition, final partial disapproval would trigger
mandatory sanctions under CAA section 179 and 40 CFR 52.31 unless the
State submits, and EPA approves, a SIP revision that corrects the
identified deficiencies
[[Page 20448]]
within 18 months of the effective date of the final partial disapproval
action.\14\
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\14\ The offset sanction in CAA section 179(b)(2) would be
triggered 18 months after the effective date of a final disapproval,
and the highway funding sanction in CAA section 179(b)(1) would be
triggered 24 months after the effective date of a final disapproval.
Although the sanctions clock would begin to run from the effective
date of a final disapproval, mandatory sanctions under CAA section
179 generally apply only in designated nonattainment areas. This
includes areas designated as nonattainment after the effective date
of a final disapproval. As discussed in the 2015 SSM SIP Action, EPA
will evaluate the geographic scope of potential sanctions at the
time it makes a determination that the air agency has failed to make
a complete SIP submission in response to the 2015 SIP call, or at
the time it disapproves such a SIP submission. The appropriate
geographic scope for sanctions may vary depending upon the SIP
provisions at issue. See 80 FR 33839, 33930.
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EPA is not reopening the 2015 SSM SIP Action nor soliciting comment
on the rationale for issuing the 2015 SIP call to Tennessee. EPA is
taking comment on whether the proposed revisions to 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. EPA is also soliciting public
comments on the proposed partial disapproval, as explained herein.
IV. Incorporation by Reference
In this document, EPA is proposing to include in a final rule
regulatory text that includes incorporation by reference. 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 into the Tennessee SIP Rules 1200-3-20-.01, ``Purpose,''
State effective on September 26, 2016; 1200-3-20-.02, ``Reasonable
Measured Required,'' State effective on November 11, 1997; \15\ 1200-3-
20-.06, ``Report Required Upon The Issuance of a Notice of Violation,''
State effective on November 16, 2016, except for 1200-3-20-.06(1) and
1200-3-20-.06(5); <SUP>16 17 </SUP> 1200-3-20-.07, ``Special Reports
Required,'' State effective on September 26, 1994; \18\ 1200-3-20-.08,
``Rights Reserved,'' State effective on September 26, 1994; \19\ and
1200-3-20-.09, ``Additional Sources Covered,'' State effective on
September 26, 1994.\20\ Also in this document, EPA is proposing to
remove Rule 1200-3-20-.06, ``Scheduled Maintenance,'' \21\ which is
incorporated by reference in accordance with the requirements of 1 CFR
part 51. EPA has made, and will continue to make, these materials
generally available through <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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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\15\ The effective date of the change to Rule 1200-3-20-.02,
``Reasonable Measures Required,'' is September 26, 1994. However,
for purposes of the state effective date included at 40 CFR
52.570(c), that change to Tennessee's rule is captured and
superseded by changes which were state effective on November 11,
1997, and which EPA previously approved on April 7, 2017. See 82 FR
16927.
\16\ As explained in Section II.B of this NPRM, with the removal
of 1200-3-20-.06, 1200-3-20-.07 is being renumbered to 1200-3-
20-.06.
\17\ EPA is not proposing to incorporate into the Tennessee SIP
the following elements of Rule 1200-03-20-.06: 1200-03-20-.06(1) and
1200-03-20-.06(5). If EPA finalizes this proposed action, the Agency
will update the SIP table at 40 CFR 52.2220(c) to reflect these
exceptions.
\18\ As explained in Section II.B of this NPRM, with the removal
of 1200-3-20-.06, 1200-3-20-.08 is being renumbered to 1200-3-
20-.07.
\19\ As explained in Section II.B of this NPRM, with the removal
of 1200-3-20-.06, 1200-3-20-.09 is being renumbered to 1200-3-
20-.08.
\20\ As explained in Section II.B of this NPRM, with the removal
of 1200-3-20-.06, 1200-3-20-.10 is being renumbered to 1200-3-
20-.09.
\21\ As explained in Section II.B of this NPRM, while 1200-3-
20-.06, ``Scheduled Maintenance,'' is proposed for removal from the
SIP, other rules codified as 1200-3-20-.07 through .10 are proposed
to be renumbered as 1200-3-20-.06 through .09.
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V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
The proposed action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget for
review.
B. Paperwork Reduction Act (PRA)
The proposed action does not impose an information collection
burden under the PRA because it does not contain any information
collection activities.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA (5
U.S.C. 601 et seq.). This action merely proposes to partially approve
and partially disapprove a SIP submission from Tennessee as meeting and
not meeting the requirements of the CAA, respectively.
D. Unfunded Mandates Reform Act (UMRA)
The proposed action does not contain any unfunded mandate as
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or
uniquely affect small governments. This proposed action imposes no
enforceable duty on any State, local, or tribal governments or the
private sector.
E. Executive Order 13132: Federalism
The proposed action does not have federalism implications. It will
not have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
The proposed action does not have tribal implications as specified
in Executive Order 13175. The proposed action does not apply on any
Indian reservation land, any other area where EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction, or non-reservation
areas of Indian country. Thus, Executive Order 13175 does not apply in
this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definitions of ``covered regulatory action'' in section 2-202
of the Executive Order.
Therefore, this proposed action is not subject to Executive Order
13045 because it merely proposes to partially approve and partially
disapprove a state action implementing a federal standard.
Furthermore, EPA's Policy on Children's Health does not apply to
this action. Information about the applicability of the Policy is
available under ``Children's Environmental Health'' in the
Supplementary information section of this preamble.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution and Use
The proposed action is not subject to Executive Order 13211,
because it is not a significant regulatory action under Executive Order
12866.
I. National Technology Transfer and Advancement Act
This proposed rulemaking does not involve technical standards.
[[Page 20449]]
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 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.''
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, the EPA's role is to review state choices
and approve those choices if they meet the minimum criteria of the Act.
Accordingly, this proposed action partially approves and partially
disapproves state law as meeting federal requirements and does not
impose additional requirements beyond those imposed by state law.
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 action. Due to the nature of
the action being taken here, this 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 action, and there
is no information in the record inconsistent with the stated goal of
E.O. 12898 of achieving EJ for people of color, low-income populations,
and Indigenous peoples.
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: March 30, 2023.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2023-07107 Filed 4-5-23; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on April 6, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.