Approval and Promulgation of Implementation Plans; Tennessee; Nitrogen Oxides Budget and Allowance Trading Program, Phase II, 76408-76411 [05-24415]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 247 (Tuesday, December 27, 2005)]
[Rules and Regulations]
[Pages 76408-76411]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-24415]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R04-OAR-2005-TN-0005-200522(a); FRL-8015-2]


Approval and Promulgation of Implementation Plans; Tennessee; 
Nitrogen Oxides Budget and Allowance Trading Program, Phase II

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving State Implementation Plan (SIP) revisions 
submitted by the State of Tennessee on May 6, 2005. The revision 
responds to the EPA's regulation entitled, ``Interstate Ozone 
Transport: Response to Court Decisions on the NOX SIP Call, 
NOX SIP Call Technical Amendments, and Section 126 Rules,'' 
otherwise known as the ``NOX SIP Call Phase II.'' This 
revision satisfies EPA's rule that requires Tennessee to submit 
NOX SIP Call Phase II revisions needed to achieve the 
necessary incremental reductions of nitrogen oxides (NOX). 
The intended effect of this SIP revision is to reduce emissions of 
NOX in order to help attain the national ambient air quality 
standard (NAAQS) for ozone. Specifically, this revision addresses 
compliance plans for NOX emissions from stationary internal 
combustion engines.

DATES: This direct final rule is effective February 27, 2006, without 
further notice, unless EPA receives adverse comment by January 26, 
2006. If adverse comment is received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID No. R04-OAR-2005-TN-0005, by one of the following 
methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. Agency Web site: https://docket.epa.gov/rmepub/ RME, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Once in the system, select ``quick search,'' 
then key in the appropriate RME Docket identification number. Follow 
the on-line instructions for submitting comments.
    3. E-mail: hou.james@epa.gov.
    4. Fax: (404) 562-9019.
    5. Mail: ``R04-OAR-2005-TN-0005'' Regulatory Development Section, 
Air Planning Branch, Air, Pesticides and Toxics Management Division, 
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960.
    6. Hand Delivery or Courier. Deliver your comments to: James Hou, 
Regulatory Development Section, Air Planning Branch, Air, Pesticides 
and Toxics Management Division 12th floor, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 
30303-8960. Such deliveries are only accepted during the Regional 
Office's normal hours of operation. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
federal holidays.
    Instructions: Direct your comments to RME ID No. R04-OAR-2005-TN-
0005. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
https://docket.epa.gov/rmepub/, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through RME, regulations.gov, 
or e-mail. The EPA RME Web site and the federal regulations.gov Web 
site are ``anonymous access'' systems, which means EPA will not know 
your identity or contact information unless you provide it in the body 
of your comment. If you send an e-mail comment directly to EPA without 
going through RME or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be

[[Page 76409]]

able to consider your comment. Electronic files should avoid the use of 
special characters, any form of encryption, and be free of any defects 
or viruses.
    Docket: All documents in the electronic docket are listed in the 
RME index at https://docket.epa.gov/rmepub/. Although listed in the 
index, some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in RME 
or in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: James Hou, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 
562-9043. Mr. James Hou can also be reached via electronic mail at 
hou.james@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On October 27, 1998, EPA published a final rule known as the 
``NOX SIP Call'' (See 63 FR 57356). The NOX SIP 
Call originally required 22 states, including the State of Tennessee, 
and the District of Columbia (DC) to meet statewide NOX 
emission budgets during the ozone season in order to reduce the amount 
of ground level ozone that is transported across the eastern United 
States (Phase I). EPA identified NOX emission reductions by 
source category that could be achieved by using cost-effective 
measures. The source categories include electric generating units 
(EGUs), non-electric generating units (non-EGUs), internal combustion 
(IC) engines and cement kilns. EPA determined that state-wide 
NOX emission budgets based on the implementation of these 
cost effective controls for each affected jurisdiction are to be met by 
the year 2007. The Phase I NOX SIP Call gave states the 
flexibility to decide which source categories to regulate in order to 
meet the statewide budgets. IC engines were not addressed by Tennessee 
in response to Phase I, but are addressed in Phase II. For more 
information regarding the specifics of these Phase I source categories 
and budgets, see 69 FR 3015, January 22, 2004.
    A number of parties, including certain states as well as industry 
and labor groups, challenged the NOX SIP Call rule. On March 
2, 2000 (65 FR 11222), EPA published additional technical amendments to 
the NOX SIP Call in the Federal Register. On March 3, 2000, 
the D.C. Circuit issued its decision on the NOX SIP Call, 
ruling in favor of EPA on all the major issues. Michigan v. EPA, 213 
F.3d 663 (D.C. Cir. 2000). The DC Circuit Court denied petitioners' 
requests for rehearing or rehearing en banc on July 22, 2000. However, 
the Circuit Court remanded four specific elements to EPA for further 
action: (1) The definition of EGU, (2) the level of control for 
stationary IC engines, (3) the geographic extent of the NOX 
SIP Call for Georgia and Missouri, and (4) the inclusion of Wisconsin. 
On March 5, 2001, the U.S. Supreme Court declined to hear an appeal by 
various utilities, industry groups and a number of upwind states from 
the DC Circuit's ruling on EPA's NOX SIP Call rule.
    On November 7, 2000, the Tennessee Department of Environment and 
Conservation (TDEC) submitted a draft NOX emission control 
rule to the EPA. Subsequently, TDEC submitted additional materials on 
July 11, 2001 and October 4, 2001. EPA published a conditional approval 
of the SIP revision on August 14, 2002, and later published a final 
approval of the SIP revision on January 22, 2004 (69 FR 3015) after 
making a determination that the final revisions to the Tennessee SIP 
met the requirements of the NOX SIP Call Phase I.
    EPA published a final rule, dated April 21, 2004 (69 FR 21604), 
that addresses the remanded portion of the NOX SIP Call 
Rule. This rule is entitled, ``Interstate Ozone Transport: Response to 
Court Decisions on the NOX SIP Call, NOX SIP Call 
Technical Amendments, and Section 126 Rules,'' otherwise known as the 
``NOX SIP Rule Phase II.'' This action finalizes specific 
changes in response to the Court's rulings on the NOX SIP 
Call. Specifically, it finalizes certain aspects of the definitions of 
EGU and non-EGU, the control level assumed for large stationary IC 
engines in the NOX SIP Call, partial state budgets for 
Georgia, Missouri, Alabama, and Michigan in the NOX SIP 
Call, changes to the statewide NOX budgets, the SIP 
submittal dates for the required states to address the Phase II portion 
of the budget, and for Georgia and Missouri to submit full SIPs meeting 
the NOX SIP Call, the compliance date for all covered 
sources to meet Phase II of the NOX SIP Call and the 
exclusion of Wisconsin from the NOX SIP Call (See 69 FR 
21604, April 21, 2004). This final rule also requires states that 
submitted NOX SIP Call Phase I revisions to submit Phase II 
SIP revisions as needed to achieve the necessary incremental reductions 
of NOX.

II. Analysis of State's Submittal

    The State of Tennessee submitted a revision to its SIP on May 6, 
2005. The revision responds to the NOX SIP Call Phase II (69 
FR 21604, April 21, 2004). TDEC is revising its regulations to remain 
consistent with EPA requirements. Under Rule 1200-3-27-.09, 
``Compliance Plans for NOX Emissions From Stationary 
Internal Combustion Engines,'' after May 1, 2007, all owners or 
operators of ``Large NOX SIP Call Engines'' must submit a 
compliance plan to the Technical Secretary, demonstrating enforceable 
NOX emission reductions. ``Large NOX SIP Call 
Engines'' are defined as any stationary reciprocating IC engine, which 
is used at a facility for more than 12 consecutive months, and emits 
more than one ton of NOX per average ozone season day. The 
compliance plan must include a list of engines subject to the plan, the 
projected hours of operation, a description of the NOX 
emission controls used on affected engines, past and projected 
NOX emission rates, and provisions for monitoring, 
reporting, and record keeping on each affected engine. Additionally, 
these large gas-fired IC engines, orignially identified by EPA as part 
of the NOX SIP Call Rule, are required to have a 
NOX control efficiency of 82 percent. As a result, EPA has 
made the determination that Rule 1200-3-27-.09 will achieve the 
required NOX reductions of 2,877 tons for Tennessee.

III. Final Action

    EPA is approving the aforementioned changes to the SIP. EPA is 
publishing this rule without prior proposal because the Agency views 
this as a non-controversial submittal and anticipates no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, EPA is publishing a separate document that will 
serve as the proposal to approve the SIP revision should adverse 
comments be filed. This rule will be effective February 27, 2006, 
without further notice unless the

[[Page 76410]]

Agency receives adverse comments by January 26, 2006.
    If the EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on February 27, 2006, and 
no further action will be taken on the proposed rule. Please note that 
if we receive adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, we may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

IV. Statutory and Executive Order Reviews:

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it 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).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by February 27, 2006. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: December 9, 2005.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart RR--Tennessee

0
2. Section 52.2220(c) is amended in table 1 by adding an entry for 
``Section 1200-3-27-.09 '' to read as follows:


Sec.  52.2220  Identification of plan.

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    (c) * * *

                                                      Table 1.--EPA Approved Tennessee Regulations
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                                                                                                     State         EPA
              State citation                                   Title/subject                       effective     approval      Federal Register Notice
                                                                                                      date         date
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                                                            Chapter 1200-3-27 Nitrogen Oxides
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[[Page 76411]]

 
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Section 1200-3-27-.09....................  Compliance plans for NOX Emissions From Stationary        11/14/05     12/27/05  [Insert citation of
                                            Internal Combustion Engines.                                                     publication]
 
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[FR Doc. 05-24415 Filed 12-23-05; 8:45 am]
BILLING CODE 6560-50-P