Proposed Rule2024-20669
Air Plan Approval; Shelby County, Tennessee; Revisions To Startup, Shutdown, and Malfunction Rules
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 12, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve a portion of a State Implementation Plan (SIP) revision submitted by the Tennessee Department of Environment and Conservation (TDEC) on behalf of Shelby County Health Department (SCHD) Pollution Control Section on March 2, 2022, in response to a finding of substantial inadequacy and SIP call published on June 12, 2015, regarding provisions in the Shelby County portion of the Tennessee SIP related to excess emissions during startup, shutdown, and malfunction (SSM) events. The revision contains amended air codes of Shelby County and the following municipalities within Shelby County: Town of Arlington, City of Bartlett, Town of Collierville, City of Germantown, City of Lakeland, City of Memphis, and Town of Millington (referred to hereinafter as the "included municipalities"). The SIP revision also contains other changes to the affected Chapter that are unrelated to the SIP call but of which Shelby County and the included municipalities are also requesting incorporation into the Shelby County portion of the Tennessee SIP. EPA is proposing to approve the portions of the SIP revision that correct certain deficiencies identified in the June 12, 2015, SSM SIP call and that are in accordance with the requirements for SIP provisions under the Clean Air Act (CAA or Act).
Full Text
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<title>Federal Register, Volume 89 Issue 177 (Thursday, September 12, 2024)</title>
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[Federal Register Volume 89, Number 177 (Thursday, September 12, 2024)]
[Proposed Rules]
[Pages 74165-74171]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-20669]
[[Page 74165]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R4-OAR-2023-0361; FRL-12238-01-R4]
Air Plan Approval; Shelby County, Tennessee; Revisions To
Startup, Shutdown, and Malfunction Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a portion of a State Implementation Plan (SIP) revision
submitted by the Tennessee Department of Environment and Conservation
(TDEC) on behalf of Shelby County Health Department (SCHD) Pollution
Control Section on March 2, 2022, in response to a finding of
substantial inadequacy and SIP call published on June 12, 2015,
regarding provisions in the Shelby County portion of the Tennessee SIP
related to excess emissions during startup, shutdown, and malfunction
(SSM) events. The revision contains amended air codes of Shelby County
and the following municipalities within Shelby County: Town of
Arlington, City of Bartlett, Town of Collierville, City of Germantown,
City of Lakeland, City of Memphis, and Town of Millington (referred to
hereinafter as the ``included municipalities''). The SIP revision also
contains other changes to the affected Chapter that are unrelated to
the SIP call but of which Shelby County and the included municipalities
are also requesting incorporation into the Shelby County portion of the
Tennessee SIP. EPA is proposing to approve the portions of the SIP
revision that correct certain deficiencies identified in the June 12,
2015, SSM SIP call and that are in accordance with the requirements for
SIP provisions under the Clean Air Act (CAA or Act).
DATES: Comments must be received on or before October 3, 2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R4-
OAR-2023-0361 at <a href="http://regulations.gov">regulations.gov</a>. 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 <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#5b393a3e753e282f3e37373e1b3e2b3a753c342d"><span class="__cf_email__" data-cfemail="0c6e6d6922697f78696060694c697c6d226b637a">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. EPA's 2015 SSM SIP Action
B. Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir.
2024)
C. Shelby County SIP Provisions Related to Excess Emissions
II. Analysis of SCHD's Revisions to City of Memphis Air Code Section
9-12-24, ``Malfunctions, Startups, and Shutdowns''
A. TAPCR Section 1200-3-20-.01, ``Purpose''
B. TAPCR Section 1200-3-20-.02, ``Reasonable Measures Required''
C. TAPCR Section 1200-3-20-.04, ``Logs and Reports''
D. TAPCR Section 1200-3-20-.06, ``Scheduled Maintenance''
E. New TAPCR Section 1200-3-20-.06, ``Report Required Upon the
Issuance of Notice of Violation''
F. New TAPCR Section 1200-3-20-.07, ``Special Reports
Required''; New TAPCR Section 1200-3-20-.08, ``Rights Reserved'';
and New TAPCR Section 1200-3-20-.09, ``Additional Sources Covered''
III. Proposed Actions
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Background
On May 31, 1972, EPA issued a rulemaking which initially recognized
SCHD's Air Pollution Control Section as a local agency for air
pollution control and originally approved the Memphis and Shelby County
Code into the Tennessee SIP. On June 15, 1989, EPA approved portions of
SCHD's July 7, 1986, SIP revision to revise and update several
provisions in the Shelby County portion of the Tennessee SIP, which
includes the incorporation by reference of Tennessee's June 18, 1980,
state-effective version of Tennessee Air Pollution Control Regulations
(TAPCR) Chapter 1200-3-20, titled ``Limits on Emissions due to
Malfunctions, Startups, and Shutdowns,'' into City of Memphis Air Code
Section 9-12-24 (formerly Section 16-87).<SUP>1 2</SUP>
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\1\ See 54 FR 25456 (June 15, 1989). EPA had initially approved
the City of Memphis Code into the Tennessee SIP under ``Memphis and
Shelby County.'' See id. Included in ``Memphis and Shelby County''
are Shelby County and the following municipalities: Town of
Arlington, City of Bartlett, Town of Collierville, City of
Germantown, City of Lakeland, City of Memphis, and Town of
Millington. Shelby County Health Department's Air Pollution Control
Branch recommends to the aforementioned municipalities regulatory
revisions, which, if approved, are adopted by Shelby County and
these included municipalities, which implement and enforce the
regulations within their respective jurisdictions. As the air
pollution control regulations/ordinances adopted by those
jurisdictions are substantively identical, EPA had selected just one
to represent the SIP compilations for Shelby County and the included
municipalities: the City of Memphis Air Code. Thus, the SIP-called
provision from the Shelby County portion of the Tennessee SIP that
was identified in the 2015 SSM SIP Action was City of Memphis Air
Code (although it was referred to as ``Shelby County Code'') Section
16-87. For simplicity and brevity in this NPRM, and since the
jurisdictions' regulations/ordinances remain substantively
identical, EPA will continue to refer to the City of Memphis Air
Code throughout this NPRM to represent the regulations/ordinances of
Shelby County and the included municipalities.
\2\ One of the intervening changes that EPA is proposing to
approve as part of this proposed rulemaking is changing the relevant
City of Memphis Air Code reference in the SIP from Section 16-87 to
Section 9-12-24. The title of this section remains ``Malfunctions,
Startups and Shutdowns.''
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[[Page 74166]]
In this notice of proposed rulemaking (NPRM), EPA is proposing to
approve a portion of the SIP revision dated March 1, 2022, which was
transmitted by TDEC to EPA on March 2, 2022, to revise the Shelby
County portion of the Tennessee SIP. See below for more details on the
portions of the March 2, 2022, SIP revision that EPA is not acting on
in this NPRM. SCHD is requesting that EPA incorporate into the Shelby
County portion of the Tennessee SIP portions of the version of TAPCR
Chapter 1200-3-20, titled ``Limits on Emissions Due to Malfunctions,
Startups, and Shutdowns'' as effective on December 5,
2018.<SUP>3 4</SUP>
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\3\ In this proposed action, EPA is proposing to incorporate by
reference--with certain exceptions noted in this NPRM--into the
Shelby County portion of the Tennessee SIP, the City of Memphis Air
Code Section 9-12-24 (formerly Section 16-87), locally effective on
February 22, 2022, which adopts by reference the December 5, 2018,
state-effective version of TAPCR Chapter 1200-3-20, ``Limits on
Emissions Due to Malfunctions, Startups, and Shutdowns.'' EPA is
also proposing to incorporate by reference the following sections
that contain substantively identical changes: Shelby County--Section
3-9 (locally effective on January 13, 2020); Town of Arlington--
Section 20-101 (locally effective on November 2, 2020); City of
Bartlett--Section 20-101 (locally effective on December 8, 2020);
Town of Collierville--Section 96.02 (locally effective on November
23, 2020); City of Germantown--Section 9-21(24) (locally effective
on July 12, 2021); City of Lakeland--Section 20-101 (locally
effective on February 10, 2022); Town of Millington--Section 20-101
(locally effective on October 12, 2020). See the cover letter of the
SIP revision dated March 1, 2022, with the subject line ``Request to
Incorporate Revisions into the Shelby County and Included
Municipalities Ordinance into the SIP for Tennessee as Response to
EPA's SIP Call'' in the docket for this proposed rulemaking for
evidence of adoption into the air codes of Shelby County and the
included municipalities.
\4\ The state-effective dates for the rules within TAPCR Chapter
1200-3-20 that were in effect on December 5, 2018, are: 1200-3-
20-.01, ``Purpose''--September 26, 1994; 1200-3-20-.02, ``Reasonable
Measures Required''--November 11, 1997; 1200-3-20-.04, ``Logs and
Reports''--June 19, 2013; 1200-3-20-.05, ``Copies of Log
Required''--September 26, 1994; 1200-3-20-.06, ``Report Required
Upon The Issuance of a Notice of Violation''--November 16, 2016;
1200-3-20-.07, ``Special Reports Required''--September 26, 1994;
1200-3-20-.08, ``Rights Reserved''--September 26, 1994; and 1200-3-
20-.09, ``Additional Sources Covered''--September 26, 1994. As noted
above, 1200-3-20-.03 was withdrawn from Shelby County's submission.
There were no substantive changes to 1200-3-20-.05; therefore, it is
not further addressed in this NPRM.
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The revisions to City of Memphis Air Code Section 9-12-24
incorporate the changes that are responsive to the 2015 SSM SIP Action
and correspond to changes approved by EPA into the Tennessee SIP on
June 23, 2023.\5\ The revisions include other changes unrelated to the
2015 SSM SIP Action that are consistent with Tennessee SIP revisions
that EPA has approved since the last version of TAPCR Chapter 1200-3-20
was formally adopted into the Shelby County portion of the Tennessee
SIP on June 15, 1989.
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\5\ See 88 FR 41031.
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To be consistent with Tennessee's approach with respect to its SIP-
called provisions, SCHD withdrew certain portions of its March 2, 2022,
SIP revision--specifically, the SCHD provisions with respect to which
(1) EPA had determined the corresponding Tennessee provisions did not
correct the deficiencies, (2) EPA had proposed to disapprove the
corresponding Tennessee provisions in the April 6, 2023, NPRM, or (3)
EPA's proposed approval of the corresponding Tennessee provisions had
received adverse comments during the public comment period for the
April 6, 2023, NPRM. In particular, the changes to the March 2, 2022,
SIP revision that SCHD has withdrawn include the changes to TAPCR
Section 1200-3-20-.03, titled ``Notice Required When Malfunction
Occurs,'' and TAPCR Section 1200-3-20-.06, ``Report Required Upon the
Issuance of a Notice of Violation,'' paragraph (1) and paragraph (4).
The letter withdrawing these provisions is provided in the docket for
this NPRM.
A. EPA's 2015 SSM SIP Action
On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings
of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying
to Excess Emissions During Periods of Startup, Shutdown and
Malfunction,'' hereinafter referred to as the ``2015 SSM SIP Action.''
See 80 FR 33839 (June 12, 2015). The 2015 SSM SIP Action clarified,
restated, and updated EPA's interpretation that SSM exemption and
affirmative defense SIP provisions are inconsistent with CAA
requirements. The 2015 SSM SIP Action found that certain SIP provisions
in 45 State and local jurisdictions, including Shelby County, were
substantially inadequate to meet CAA requirements and issued a SIP call
to those State and local jurisdictions to submit SIP revisions to
address the inadequacies. EPA established a deadline of November 22,
2016 (18 months after the effective date of the action) by which the
affected State and local jurisdictions had to submit such SIP
revisions.
On March 2, 2022, SCHD submitted a SIP revision in response to the
2015 SIP call requesting EPA approval of the adoption by reference of
TAPCR Chapter 1200-3-20, as effective on December 5, 2018, into City of
Memphis Air Code Section 9-12-24. The version of TAPCR Chapter 1200-3-
20 of which SCHD is requesting incorporation into the SIP includes
revisions that were submitted by the State in response to the 2015 SSM
SIP Action along with other revisions that were not subject to the SIP
call but had been approved into the Tennessee SIP in prior rulemakings.
The March 2, 2022, SIP revision was deemed complete on July 21, 2023. A
copy of the letter containing this completeness determination is
provided in the docket for this NPRM.
B. Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir. 2024)
On March 1, 2024, the United States Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) issued a decision in
Environ. Comm. Fl. Elec. Power v. EPA, No. 15-1239 (``D.C. Circuit
decision''). The case is a consolidated set of petitions for review of
the 2015 SSM SIP Action. The Court granted the petitions in part,
vacating the SIP call with respect to SIP provisions that EPA
identified as automatic exemptions, director's discretion provisions,
and affirmative defenses that are functionally exemptions; and denied
the petitions as to other provisions that EPA identified as overbroad
enforcement discretion provisions, or affirmative defense provisions
that would preclude or limit a court from imposing relief in the case
of violations. EPA has assessed the impact of the decision with respect
to the removal of overbroad defense provisions at issue in the Shelby
County portion of the Tennessee SIP.\6\ We have concluded that the
previously stated reasons for the proposed removal of these provisions,
as articulated in the 2015 SSM SIP Action, are consistent with the
recent D.C. Circuit decision, as these are overbroad enforcement
discretion provisions. The Court upheld \7\ the EPA's 2015 SSM SIP
Action with regard to provisions that grant States overbroad
enforcement discretion, which EPA found to be ``inconsistent with the
enforcement structure of the CAA as they could be interpreted to allow
the State to make the final decision whether such emissions are
violations, thus impeding the ability of the EPA and citizens to
enforce the emission limitations of the SIP.'' \8\
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\6\ Those provisions are TAPCR Section 1200-3-20-.06(2) and (4)
(formerly Sections 1200-3-20-.07(1) and 1200-3-20-.07(3)).
\7\ See Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 114
(D.C. Cir. 2024).
\8\ See 80 FR 33935.
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[[Page 74167]]
C. Shelby County SIP Provisions Related to Excess Emissions
In the 2015 SSM SIP Action, with regard to the Shelby County
portion of the Tennessee SIP, EPA determined that City of Memphis Air
Code Section 9-12-24 \9\ was substantially inadequate to meet the
fundamental requirements of the CAA and issued a SIP call for this
provision. In the March 2, 2022, SIP revision, SCHD requests approval
of a revised version of City of Memphis Air Code Section 9-12-24, which
adopts by reference portions of TAPCR Chapter 1200-3-20 as state-
effective on December 5, 2018. City of Memphis Air Code Section 16-87
(since renumbered to Section 9-12-24) comprises, through the adoption
by reference of the June 30, 2003, state-effective version of TAPCR
Chapter 1200-3-20, certain provisions of which were SIP-called as part
of the same action.\10\ Consequently, certain provisions of City of
Memphis Air Code Section 16-87 (since renumbered to Section 9-12-24)
were SIP-called for the same reasons that the corresponding provisions
of TAPCR Chapter 1200-3-20 were SIP-called.
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\9\ In the 2015 SSM SIP Action, City of Memphis Air Code
(although it was referred to as ``Shelby County Code'') Section 16-
87 was SIP-called. Since the last (1989) SIP-approved version of the
adoption by reference of this Section, City of Memphis Air Code
Section 16-87 has been renumbered to Section 9-12-24. See supra
notes 1 and 2.
\10\ See 80 FR 33839, 33965 (June 12, 2015).
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With regard to the State portion of the Tennessee SIP, EPA
determined in the 2015 SSM SIP Action that two provisions in TAPCR
Chapter 1200-3-20--Sections 1200-3-20-.07(1) and 1200-3-20-.07(3)--were
substantially inadequate to satisfy CAA requirements and issued a SIP
call for these provisions.\11\ Paragraph (1) of Section 1200-3-20-.07,
``Report Required Upon the Issuance of Notice of Violation,'' provides
the Technical Director with the discretion, upon review of a source's
excess emissions report, to determine if an event is a violation and
whether to pursue an enforcement action. Paragraph (3) of Section 1200-
03-20-.07 provides reporting requirements in the event of excess
emissions and specifies that failure to submit the required report
precludes the admissibility of the report data as an excuse for causing
excess emissions during malfunctions, startups, and shutdowns. The
rationale underlying EPA's determination that these provisions are
substantially inadequate to meet CAA requirements and therefore require
revisions is detailed in the 2015 SSM SIP Action and the corresponding
proposals.
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\11\ In the 2015 SSM SIP Action, with respect to Tennessee, EPA
also identified TAPCR Section 1200-3-5-.02(1), under the Chapter
titled ``Visible Emissions,'' as substantially inadequate on the
basis that it contains an impermissible unbounded director's
discretion provision, and this provision was SIP-called. The Shelby
County portion of the Tennessee SIP, under Shelby County Air Code
Section 3-17 (the equivalent of SIP-approved City of Memphis Air
Code Section 16-83, which has since been revised to Section 9-12-
20), incorporates by reference Chapter 1200-3-5 of the TAPCR. This
provision is likewise substantially inadequate to satisfy the
requirements of the CAA for the same reason. While this provision
was not included in the 2015 SSM SIP Action, EPA issued a NPRM on
February 24, 2023, proposing to SIP-call this provision from the
Shelby County portion of the Tennessee SIP. The proposed SIP call
has not yet been finalized, and SCHD has not yet submitted a SIP
submission addressing the relevant provision. See 88 FR 11842
(February 24, 2023).
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On March 2, 2022, TDEC submitted a SIP revision on behalf of SCHD
in response to the SIP call issued in the 2015 SSM SIP Action and
requested that EPA replace the existing City of Memphis Air Code
Section 16-87 (since renumbered to Section 9-12-24) in the Shelby
County portion of the Tennessee SIP with the version of Section 9-12-24
that adopts by reference TAPCR Chapter 1200-3-20, as effective December
5, 2018. The March 2, 2022, revision contains changes that are
responsive to the 2015 SSM SIP Action and other revisions approved into
TAPCR Chapter 1200-3-20 of the Tennessee SIP since its last adoption
into the City of Memphis Air Code. EPA's rationale for proposing to
approve each revision is described in more detail in section II of this
document.
II. Analysis of SCHD's Revisions to City of Memphis Air Code Section 9-
12-24, ``Malfunctions, Startups, and Shutdowns''
EPA's last approval into the Shelby County portion of the Tennessee
SIP of the adoption of TAPCR Chapter 1200-3-20 into the City of Memphis
Air Code Section 16-87 (since renumbered to Section 9-12-24) was
completed on June 15, 1989, with a local effective date of June 18,
1986. See 54 FR 25456 (June 15, 1989).\12\ EPA now proposes to act on
the changes adopted between the 1989 SIP-approved version and the
version transmitted in response to the 2015 SSM SIP Action with a local
effective date of February 22, 2022. These changes include, among other
things, the removal of the adoption by reference of TAPCR Section 1200-
3-20-.06, ``Scheduled Maintenance,'' and the associated renumbering of
the subsequent sections. SCHD requests to incorporate by reference the
newly renumbered sections (Sections 1200-3-20-.07 through .10 are
renumbered to 1200-3-20-.06 through .09) and the other sections that
contain changes addressed in the SIP revision.
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\12\ The ``State effective date'' identified in 40 CFR
52.2220(c) for Memphis Air Code Section 16-87 is incorrect; instead
of August 14, 1989, it should be June 18, 1986.
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SCHD has excluded certain parts of the adoption by reference of
TAPCR Chapter 1200-3-20 from its request for EPA approval of City of
Memphis Air Code Section 9-12-24 into the SIP. The February 22, 2022,
version of City of Memphis Air Code Section 9-12-24, through which the
City of Memphis adopts by reference TAPCR Chapter 1200-3-20, does not
exclude Section 1200-3-20-.06(5), which lists various types of sources
and corresponding ``de minimis'' emission levels below which no notice
of violation(s) of certain pollutant limits will be automatically
issued and SSM exemptions may apply. However, in the March 2, 2022, SIP
revision, SCHD requests that Section 1200-3-20-.06(5) not be
incorporated into the Shelby County portion of the Tennessee SIP. In
addition, on June 30, 2023, EPA received a request submitted by TDEC,
on behalf of SCHD, to withdraw the portion of its submission making
changes to TAPCR Section 1200-3-20-.03, new TAPCR Section 1200-3-
20-.06(1), and new TAPCR Section 1200-3-20-.06(4), as submitted in the
March 2, 2022, SIP revision.\13\ Therefore, EPA is proposing to approve
SCHD's changes to its adoption by reference of TAPCR Sections 1200-3-
20-.01, 1200-3-20-.02, 1200-3-20-.04, 1200-3-20-.05, 1200-3-20-.06
(renumbered from 1200-3-20-.07) except for 1200-3-20-.06(1), 1200-3-
20-.06(4), and 1200-3-20-.06(5), 1200-3-20-.07 (renumbered from 1200-3-
20-.08), 1200-3-20-.08 (renumbered from 1200-3-20-.09), and 1200-3-
20-.09 (renumbered from 1200-3-20-.10). EPA is also proposing to
approve the removal of existing Section 1200-3-20-.06, ``Scheduled
Maintenance.'' The changes EPA proposes to approve are described in
more detail below.
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\13\ The June 30, 2023, letter from TDEC is included in the
docket for this NPRM, as is SCHD's June 29, 2023, letter regarding
withdrawal of certain provisions.
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A. TAPCR Section 1200-3-20-.01, ``Purpose''
SCHD's March 2, 2022, SIP revision adopts by reference portions of
the December 5, 2018, state-effective version of TAPCR Chapter 1200-3-
20, which includes TAPCR Section 1200-3-20-01. Changes to City of
Memphis Air Code Section 9-12-24 with respect to TAPCR Section 1200-3-
20-01 are consistent with TDEC's January 20, 2023, SIP revision, which
EPA approved
[[Page 74168]]
on June 23, 2023.\14\ These changes are minor, are not responsive to
the 2015 SIP call, and are otherwise consistent with the CAA.
Specifically, they include removing the list of examples of sources
that are considered to be an ``air contaminant source.'' The definition
of ``air contaminant source'' is also included elsewhere in the Shelby
County portion of the SIP--specifically, under City of Memphis Air Code
Section 9-12-1, ``Definitions,'' which adopts by reference TAPCR
Chapter 1200-3-2, ``Definitions,'' as approved on June 15, 1989.\15\
This revision would remove the redundancy of this term in the Shelby
County portion of the Tennessee SIP and would not relax the
applicability of the regulations in City of Memphis Air Code Section 9-
12-24. Accordingly, EPA is proposing to approve the requested change to
this regulation.
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\14\ See 88 FR 41031 (June 23, 2023).
\15\ See 54 FR 25456 (June 15, 1989).
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B. TAPCR Section 1200-3-20-02, ``Reasonable Measures Required''
The March 2, 2022, SIP revision to the adoption by reference under
City of Memphis Air Code Section 9-12-24 of TAPCR Section 1200-3-20-02
contains substantive changes that are not responsive to the 2015 SIP
call but that either strengthen or do not alter the stringency of the
Shelby County portion of the Tennessee SIP and are otherwise consistent
with the CAA. Existing paragraph (1) of the SIP-approved version of the
adoption by reference of TAPCR Section 1200-3-20-02 under City of
Memphis Air Code Section 9-12-24, ``Reasonable Measures Required,''
provides, in part, that for sources that are in or are significantly
affecting a nonattainment area, ``failures that are caused by poor
maintenance, careless operation or any other preventable upset
condition or preventable equipment breakdown shall not be considered
malfunctions, and shall be considered in violation of the emission
standard exceeded and this rule.'' The revision removes the statement
that such equipment failures ``shall be considered in violation of the
emission standard exceeded and this rule.'' This revision simply
eliminates unnecessary language indicating that a source which
experiences an equipment failure is automatically in violation of
applicable emission standards and the City of Memphis Air Code
provision. This change is appropriate because an instance of equipment
failure does not always result in an exceedance of an emission
standard.
In addition, SCHD is requesting removal of a portion of this
provision that limits the regulation to ``sources identified in
Tennessee Rule 1200-3-19, or by a permit condition or an order issued
by the Board or by the Technical Secretary as being in or significantly
affecting a nonattainment area.'' The effect of removing this language
would be to expand the applicability of the adoption by reference of
TAPCR Section 1200-3-20-02 under City of Memphis Air Code Section 9-12-
24 so that the regulation would now apply to all air contaminant
sources instead of sources that are in or significantly affecting a
nonattainment area only.
These changes do not provide an exemption for any applicable
emission standards, nor do they modify any applicable requirements for
air contaminant sources. With these changes, all applicable emission
standards will continue to apply during all times. EPA is proposing to
approve these changes to the adoption by reference of TAPCR Section
1200-3-20-02 under City of Memphis Air Code Section 9-12-24 in the
Shelby County portion of the Tennessee SIP because they are consistent
with the CAA.
C. TAPCR Section 1200-3-20-04, ``Logs and Reports''
The changes that SCHD is requesting to this provision through the
adoption of TAPCR Section 1200-3-20-04, ``Logs and Reports,'' as
effective December 5, 2018, are not responsive to the 2015 SSM SIP
Action. They include the removal of the existing text of paragraph (2)
from the original March 21, 1979, SIP-approved version of the adoption
by reference of TAPCR Section 1200-3-20-04 under City of Memphis Air
Code Section 9-12-24 and replacement of the removed paragraph with the
word ``Reserved.'' EPA approved Tennessee's revision to this regulation
in 2016.\16\ Existing paragraph (2) provides that all sources located
in or having a significant impact on a nonattainment area must submit a
quarterly report that (1) identifies periods of exceedance of an
applicable emission limitation, (2) estimates the excess emissions
released during such SSM events, and (3) provides total source
emissions where such emissions are not otherwise required to be
reported under SCHD's adoption by reference of TAPCR Section 1200-3-10-
02 or Chapter 1200-3-16. EPA is proposing to approve this SIP revision
as it is consistent with the CAA.
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\16\ See 81 FR 66826 (September 29, 2016). In the NPRM for that
rulemaking, EPA included an evaluation of the impact of this removal
on the reporting obligations for major sources, minor sources, and
on TDEC's ability to determine whether sources are operating in
compliance with the SIP. See 81 FR 49201 (July 27, 2016). The NPRM
also further evaluated the removal of this language with the
requirements of section 110(l) and section 193 of the CAA. The
effect of this corresponding revision in the Shelby County Air Code
is consistent with the effect as evaluated by EPA with respect to
Tennessee.
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D. TAPCR Section 1200-3-20-06, ``Scheduled Maintenance''
In its March 2, 2022, SIP revision, SCHD requests the removal of
the adoption by reference of TAPCR Section 1200-3-20-06, ``Scheduled
Maintenance,'' from City of Memphis Air Code Section 9-12-24, as
approved in the Shelby County portion of the Tennessee SIP. Although
this provision was not SIP-called in the 2015 SSM SIP Action, TAPCR
Section 1200-3-20-06 specifies reporting requirements for any shutdown
of air pollution control equipment for necessary scheduled maintenance
that will result in excess emissions. Specifically, this regulation
requires notification within 24 hours of planned maintenance of air
pollution control equipment unless the maintenance is routine, in which
case the notifications may be made on an annual basis.
Section 110(l) of the CAA provides that EPA shall not approve a
revision to a plan if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress, or
any other applicable requirement of the CAA. EPA proposes to approve
the removal of this regulation in its entirety because the removal is
not expected to cause any increase in emissions. This revision does not
remove a prohibition on excess emissions or any specific requirements
to minimize those emissions and thus is not a relaxation of a control
requirement. Furthermore, as Tennessee noted in its corresponding SIP
revision,\17\ the routine shutdown of air pollution control equipment
described in Section 1200-3-20-06 is inappropriate.
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\17\ See 88 FR 20443, 20446 (April 6, 2023).
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EPA also notes that a requirement for sources to identify and
report any anticipated excess emissions event resulting from control
equipment undergoing scheduled maintenance is not a CAA-required
element of SIPs. The Shelby County portion of the Tennessee SIP
contains other reporting requirements that include the reporting of
actual excess emissions events once such events have occurred.\18\
Thus, the
[[Page 74169]]
removal from City of Memphis Air Code Section 9-12-24 of the adoption
by reference of Section 1200-3-20-06 would not prevent the receipt of
reports of actual excess emissions. EPA proposes to find that removing
the adoption by reference of TAPCR Section 1200-3-20-06 would not
interfere with any applicable requirement concerning attainment and
reasonable further progress, or any other applicable requirement of the
CAA. Furthermore, this removal would be consistent with EPA's approval
of Tennessee's removal of this regulation from the SIP.\19\
Accordingly, EPA is proposing to approve Shelby County's request to
remove the adoption by reference of TAPCR Section 1200-3-20-06,
``Scheduled Maintenance,'' from City of Memphis Air Code Section 9-12-
24 in the Shelby County portion of the Tennessee SIP.
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\18\ For example, Shelby County Air Code adopts by reference
TAPCR Chapter 1200-3-10. Under TAPCR Section 1200-3-10-02, sources
are required to report any actual excess emissions if the source has
a continuous emissions monitoring system.
\19\ See 88 FR 41031, 41033 (June 23, 2023).
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E. New TAPCR Section 1200-3-20-06, ``Report Required Upon the Issuance
of a Notice of Violation''
Due to the requested deletion of the adoption by reference of TAPCR
Section 1200-3-20-06, ``Scheduled Maintenance,'' as discussed above,
SCHD is requesting the renumbering of the existing adoption by
reference of TAPCR Section 1200-3-20-07, ``Report Required Upon The
Issuance of a Notice of Violation,'' to TAPCR Section 1200-3-20-06
under City of Memphis Air Code Section 3-9 in the Shelby County portion
of the Tennessee SIP. Shelby County's March 2, 2022, SIP revision also
requests that EPA approve the adoption by reference of Tennessee's
changes to several paragraphs within this regulation, some of which are
responsive to the 2015 SIP call. Some of the other changes include
regulatory revisions that became state-effective prior to the changes
made in response to the 2015 SSM SIP Action.
The changes to this section that are not in response to the 2015
SSM SIP Action include the renumbering of the adoption by reference of
TAPCR Section 1200-3-20-07, ``Report Required Upon the Issuance of a
Notice of Violation,'' to 1200-3-20-06, consistent with the removal of
the current SIP-approved version of the adoption by reference of
Section 1200-3-20-06, ``Scheduled Maintenance,'' under City of Memphis
Air Code Section 3-9. Shelby County also revises the regulation by
splitting the requirements of paragraph .07(1) into two paragraphs, now
renumbered as .06(1) and .06(2). The text from current SIP-approved
paragraph .07(1) that has been moved to new paragraph .06(1) has been
revised to, among other things, improve clarity and ensure consistency
with other Tennessee regulations that have been adopted by reference
into the City of Memphis Air Code and with the terms defined in City of
Memphis Air Code Section 9-12-1 which adopts by reference TAPCR Chapter
1200-3-2, ``Definitions.'' The revised text also updates internal
references to the regulations.
The text from current SIP-approved paragraph .07(1) that has been
moved to new paragraph .06(2) has been revised to, among other things,
update the citation in the provision to reflect the renumbering of the
adoption by reference of TAPCR Section 1200-3-20-.07(2) to 1200-3-
20-.06(3).
In a letter dated June 29, 2023, SCHD withdrew several changes
submitted in the March 2, 2022, SIP revision that SCHD had determined
may not be approvable into the Shelby County portion of the Tennessee
SIP based on EPA's proposed partial disapproval of Tennessee's SIP call
response,\20\ including the revisions to the adoption by reference of
TAPCR Section 1200-3-20-.06(1). The version of TAPCR Section 1200-3-
20-.06(1) adopted by reference under City of Memphis Air Code Section
9-12-24 and submitted in the March 2, 2022, SIP revision contains a
cross-reference to TAPCR Section 1200-3-5-.02(1), which EPA proposed to
disapprove.\21\ Although Tennessee submitted a SIP revision to revise
TAPCR Section 1200-3-5-.02(1), EPA determined that the State's changes
to this regulation did not adequately correct the deficiencies and
proposed to disapprove this portion of Tennessee's SIP revision.\22\
The D.C. Circuit upheld the EPA's SIP call for former TAPCR Sections
1200-3-20-.07(1) and 1200-3-20-.07(3) (now Sections 1200-3-20-.06(1),
1200-3-20-.06(2), and 1200-3-20-.06(4)) in Environ. Comm. Fl. Elec.
Power v. EPA on the basis that they are impermissible ``overbroad
enforcement discretion'' provisions.\23\ In light of the D.C. Circuit
decision, SCHD intends to resubmit the language in those provisions to
remove the remaining ``overbroad enforcement discretion'' language
therein. SCHD will be in a position to do that after Tennessee has made
a determination about how to revise those provisions and the updated
regulations have been adopted into the air codes for Shelby County and
the included municipalities.
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\20\ See 88 FR 20443.
\21\ See id. at 20446.
\22\ TDEC ultimately withdrew its changes to 1200-3-5-.02(1).
See 88 FR 20443 (April 6, 2023) and 88 FR 41031 (June 23, 2023).
\23\ See Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77, 114
(D.C. Cir. 2024). Sections 1200-3-20-.06(1) and (2) were formerly
part of 1200-3-20-.07(1), and Section 1200-3-20-.06(4) was formerly
1200-3-20-.07(3).
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EPA is proposing to approve SCHD's revisions to the adoption by
reference of new TAPCR Section 1200-3-20-.06(2) (former TAPCR Section
1200-3-20-.07(1), now renumbered to .06(2)), which include removing the
language which States that the report detailing the circumstances of
the excess emissions will be used ``to assist the Technical Secretary
in deciding whether to excuse or proceed upon the violation.'' By
removing this phrase, the provision will no longer appear to provide an
impermissible discretionary exemption from SIP emission limits. In
addition, the adoption by reference of new TAPCR Section 1200-3-
20-.06(2) includes minor updates to the wording for clarification
purposes. By removing the ambiguous language in TAPCR Section 1200-3-
20-.06(2) that EPA SIP-called as an impermissible discretionary
exemption, SCHD has addressed the specific deficiencies that EPA
identified in the 2015 SSM SIP Action with respect to the adoption by
reference of TAPCR Section 1200-3-20-.06(2).
EPA is also proposing to approve SCHD's revisions to the adoption
by reference of new TAPCR Section 1200-3-20-.06(3) (former Section
1200-3-20-.07(2), now renumbered to .06(3)), which describes the
contents of the report required to be submitted to the State when a
notice of violation is issued. The only changes made to this paragraph
are minor wording and punctuation changes.
Next, SCHD submitted revisions to the adoption by reference of new
TAPCR Section 1200-3-20-.06(4) (former Section 1200-3-20-.07(3)),
including wording changes, in the March 2, 2022, SIP revision. However,
due to an adverse comment EPA received during the public comment period
for the April 6, 2023, NPRM, regarding Tennessee's revisions to this
provision, SCHD withdrew from EPA's consideration the adoption by
reference of TAPCR Section 1200-3-20-.06(4).
The March 2, 2022, SIP revision also includes the adoption by
reference of TAPCR Section 1200-3-20-.06(5), which lists various types
of sources and ``de minimis'' emission levels, below which no notice of
violation(s) of certain pollutant limits will be automatically issued
and SSM exemptions may apply. However, as part of the March 2, 2022,
SIP revision, SCHD requested that paragraph (5) not be incorporated
into the Shelby County
[[Page 74170]]
portion of the Tennessee SIP at this time.
In paragraph .06(6), which was not SIP-called, the following
statement has been added: ``No emission during periods of malfunction,
start-up, or shutdown that is in excess of the standards in Division
1200-03 or any permit issued thereto shall be allowed which can be
proved to cause or contribute to any violations of the Ambient Air
Quality Standards contained in TAPCR Chapter 1200-3-3 or the National
Ambient Air Quality Standards.'' As revised, this paragraph simply
notes that excess emissions during periods of SSM which are known to
cause or contribute to violations of ambient air quality standards are
not allowed. EPA notes that, while this provision does not convey an
inaccurate concept, in light of the D.C. Circuit decision, EPA is
continuing its longstanding interpretation that emission limits in the
SIP, whether intended to provide for attainment and maintenance of the
national ambient air quality standards (NAAQS) or otherwise, must be
continuous. Any excess emissions that would violate an applicable SIP
emission limitation are not allowed, regardless of whether they can be
proved to cause or contribute to violations of any ambient air quality
standards, and regardless of whether they occur during periods of SSM.
With Shelby County's changes to the adoption by reference of TAPCR
Chapter 1200-3-20, there are no specific exemptions from applicable SIP
emission limitations in this Chapter.
For the reasons described in this Section II.E, EPA is proposing to
approve SCHD's March 2, 2022, SIP revision to City of Memphis Air Code
Section 9-12-24, which incorporates by reference the portions of TAPCR
Section 1200-3-20-.06, as renumbered from 1200-3-20-.07, that have not
been withdrawn in the letter dated June 29, 2023. Specifically, with
respect to the adoption by reference of new TAPCR Section 1200-3-
20-.06, EPA is proposing to approve: the re-numbering of this provision
from TAPCR Section 1200-3-20-.07 to TAPCR Section 1200-3-20-.06,
splitting former TAPCR Section 1200-3-20-.07, paragraph (1), into
paragraphs (1) and (2); and the textual revisions to new TAPCR Section
1200-3-20-.06, paragraphs (2), (3), and (6). The portions of the March
2, 2022, SIP revision that SCHD has withdrawn from EPA's consideration
as a SIP revision include the adoption by reference of TAPCR Section
1200-3-20-.06, paragraphs (1) and (4) (SCHD's June 29, 2023, letter
withdrawing these provisions is included in the docket for this
proposed rulemaking.) and (5) (SCHD requests in its March 2, 2022, SIP
revision that this provision not be incorporated into the Shelby County
portion of the Tennessee SIP). As noted above in this Section II.E,
SCHD plans to reevaluate and resubmit at a later date a revised version
of these provisions. The withdrawal of these provisions from EPA's
consideration is relevant to EPA's previous finding of failure to
submit for those SIP-called provisions. The finding of failure to
submit for Shelby County will continue to remain in effect and will be
considered in a separate action.
F. New TAPCR Section 1200-3-20-.07, ``Special Reports Required''; New
TAPCR Section 1200-3-20-.08, ``Rights Reserved''; and New TAPCR Section
1200-3-20-.09, ``Additional Sources Covered''
EPA is proposing to approve Shelby County's request to incorporate
the non-substantive changes to the code that adopt by reference TAPCR
Sections 1200-3-20-.07 and 1200-3-20-.08. Additionally, EPA is
proposing to approve Shelby County's request to incorporate the
adoption by reference of TAPCR Section 1200-3-20-.09, as renumbered
from 1200-3-20-.10, which includes other minor edits to assign a number
to the provision now included as paragraph .09(1) and to include
parentheses around existing text in this provision. EPA is proposing to
approve these revisions.
III. Proposed Action
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Based on
the analysis in section II of this NPRM, EPA is proposing to approve
the portion of Tennessee's March 2, 2022, SIP revision that makes
changes to the Shelby County portion of the Tennessee SIP under City of
Memphis Air Code Section 9-12-24 (formerly Section 16-87), which adopts
by reference portions of TAPCR Chapter 1200-3-20 as effective on
December 5, 2018. Specifically, EPA is proposing to approve the changes
to the adoption by reference of Section 1200-3-20-.01, ``Purpose'';
Section 1200-3-20-.02, ``Reasonable Measures Required''; Section 1200-
3-20-.04, ``Logs and Reports''; Section 1200-3-20-.06, ``Report
Required Upon the Issuance of Notice of Violation,'' renumbered from
1200-3-20-.07, except for 1200-3-20-.06(1), 1200-3-20-.06(4), and 1200-
3-20-.06(5); Section 1200-3-20-.07, ``Special Reports Required,''
renumbered from 1200-3-20-.08; and Section 1200-3-20-.09, ``Additional
Source Covered,'' renumbered from 1200-3-20-10. EPA is also proposing
to approve the addition of Section 1200-3-20-.08, ``Rights Reserved.''
EPA is also proposing to approve the removal of Section 1200-3-20-.06,
``Scheduled Maintenance.''
EPA is not reopening the 2015 SSM SIP Action nor soliciting comment
on the rationale for issuing the 2015 SIP call to Shelby County or the
2022 finding of failure to submit in response to the 2015 SIP call for
Shelby County. EPA is taking comment on whether the proposed revisions
to the Shelby County portion of the Tennessee SIP are consistent with
CAA requirements and whether these changes remedy the substantial
inadequacies in the specific Tennessee SIP provisions identified in the
2015 SSM SIP Action.
IV. Incorporation by Reference
In this document, EPA is proposing to include in a final rule
regulatory text that includes incorporation by reference.\24\ In
accordance with the requirements of 1 CFR 51.5, and as discussed in
sections I through III of this preamble, EPA is proposing to
incorporate by reference, with certain exceptions, City of Memphis Air
Code Section 9-12-24, locally effective on February 22, 2022, which
itself adopts by reference TAPCR Chapter 1200-3-20, as State effective
on December 5, 2018.\25\ These revisions are intended, in part, to
conform Shelby County's regulations with the State of Tennessee's SIP-
approved regulations. EPA has made and will continue to make these
materials generally available through <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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\24\ EPA's proposed approval of the changes to and incorporation
by reference of City of Memphis Air Code Section 9-12-24 also
includes the approval of substantively identical changes to
regulations/ordinances submitted for Shelby County and the other
included municipalities and the incorporation by reference of those
impacted sections in these jurisdictions. See footnote 3, above.
\25\ EPA is not proposing to incorporate by reference into the
Shelby County portion of the Tennessee SIP the adoption by reference
of TAPCR Section 1200-3-20-.03, 1200-.03-20-.06(1), 1200-3-
20-.06(4), and 1200-.03-20-.06(5). If EPA finalizes this action as
proposed, it will revise the entry for Section 16-87 in Table 2 of
40 CFR 52.2220(c) to reflect the retention of TAPCR Section 1200-3-
20-.03 as State-effective March 21, 1979, and the first sentence of
TAPCR Section 1200-3-20-.07(1) as State-effective December 14, 1981,
and add an entry for Section 9-12-24 with the exceptions noted in
the prior sentence.
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[[Page 74171]]
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve State choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves State law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by State
law. For that reason, this proposed action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a State program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA.
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian Tribe has
demonstrated that a Tribe has jurisdiction. In those areas of Indian
country, the rule does not have Tribal implications and will not impose
substantial direct costs on Tribal governments or preempt Tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
The air agency did not evaluate EJ considerations as part of its
SIP submittal; the CAA and applicable implementing regulations neither
prohibit nor require such an evaluation. EPA did not perform an EJ
analysis and did not consider EJ in this proposed action. Due to the
nature of the action being proposed here, this proposed action is
expected to have a neutral to positive impact on the air quality of the
affected area. Consideration of EJ is not required as part of this
proposed action, and there is no information in the record inconsistent
with the stated goal of E.O. 12898 of achieving EJ for communities with
EJ concerns.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 6, 2024.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.
[FR Doc. 2024-20669 Filed 9-11-24; 8:45 am]
BILLING CODE 6560-50-P
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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.