Air Plan Approval; Tennessee; Nitrogen Oxides SIP Call Plan, 12092-12095 [2021-04061]
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Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Rules and Regulations
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explains the Commission’s decision to
retain the Rule in its current form.
ESUS recommends the Commission
rescind the Rule partly because the
Commodity Futures Trading
Commission (‘‘CFTC’’) has the legal
authority and the ability to regulate
market manipulation of wholesale
petroleum markets.3 This overlap in
regulatory authority is by design.4 It is
intended to facilitate cooperation and
ensure comprehensive enforcement that
enhances regulatory certainty for
businesses and consumers, a point the
CFTC made in 2011 in response to a
similar comment during the CFTC’s
rulemaking process.5 The Commission
stated its intent to cooperate with other
agencies, including the CFTC, when
adopting the Rule in 2009,6 and
memorialized that commitment in a
2011 Memorandum of Understanding
with the CFTC. Under the Memorandum
of Understanding, the Commission and
the CFTC continue to cooperate on
‘‘issues of common regulatory interest,
particularly as such interest relates to
market manipulation, [to] foster fair
competition and promote the integrity
of the markets, including petroleum
markets.’’ 7
3 Comment of Eversheds Sutherland (US) LLP at
3–5 (Sep. 3, 2020), available at https://
beta.regulations.gov/comment/FTC-2020-00470003.
4 Federal Trade Commission: Prohibitions on
Market Manipulation; Final Rule, 74 FR at 40690,
n.58 (Aug. 12, 2009) (citing Comment of Senator
Maria Cantwell at 2); see also Comment of Senator
Cantwell at 2 (‘‘Congress, however, specifically
intended for the Commission to exercise this new
authority by working cooperatively and in tandem
with the CFTC to prevent and deter any
manipulative activity, including in the futures
markets, which would affect wholesale petroleum
markets.’’). ESUS identifies the Dodd-Frank Wall
Street Reform and Consumer Protection Act of 2010
(‘‘Dodd-Frank’’) as a source of legal authority for the
CFTC to regulate market manipulation of wholesale
petroleum markets. The Commission notes that
Senator Cantwell, who sponsored the EISA
provision authorizing the Rule, also helped lead the
effort to pass the Dodd-Frank provision to which
ESUS refers. Federal Trade Commission:
Prohibitions on Market Manipulation; Final Rule,
74 FR at 40704 (Aug. 12, 2009); Commodity Futures
Trading Commission: Prohibition on the
Employment, or Attempted Employment, of
Manipulative and Deceptive Devices and
Prohibition on Price Manipulation; Final Rule, 76
FR at 41410 (July 14, 2011).
5 Commodity Futures Trading Commission:
Prohibition on the Employment, or Attempted
Employment, of Manipulative and Deceptive
Devices and Prohibition on Price Manipulation;
Final Rule, 76 FR at 41409 (July 14, 2011).
6 Federal Trade Commission: Prohibitions on
Market Manipulation; Final Rule, 74 FR at 40691
(Aug. 12, 2009).
7 Federal Trade Commission, Memorandum of
Understanding Between the Commodity Futures
Trading Commission and the Federal Trade
Commission Regarding Information Sharing in
Areas of Common Regulatory Interest, at 1 ¶ 3 (Apr.
12, 2011), available at https://www.ftc.gov/policy/
cooperation-agreements/commodity-futurestrading-commission-federal-trade-commission.
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ESUS also asserts that rescinding the
Rule eliminates the risk market
participants will incur penalties from
both the Commission and the CFTC for
the same act of market manipulation.8
This risk has never materialized.
ESUS also asserts the Rule imposes
compliance costs on market participants
and diverts Commission resources away
from enforcement of consumer
protection and antitrust laws.9 With
respect to compliance costs on market
participants, the Commission notes the
Rule does not require any affirmative
compliance efforts such as
recordkeeping or disclosure of
information; rather, the Rule requires
only that market participants refrain
from fraudulent and deceptive
statements or behavior.10 As ESUS
points out, the CFTC’s broader authority
to regulate market manipulation
includes prohibiting the conduct the
Commission’s Rule prohibits.11
Maintaining compliance programs to
avoid violating these substantially
similar requirements does not lead to
additive compliance costs. As a result,
and given the absence of any additional
substantiation of compliance costs
associated with the Rule, the
Commission concludes the Rule
continues to impose minimal costs on
businesses.
Finally, after consideration, and given
the benefits to consumers relative to the
costs associated with Rule enforcement,
the Commission declines to adopt
ESUS’ position that rescinding the Rule
‘‘would allow the FTC to rededicate
limited internal resources to its core
consumer protection and antitrust
missions.’’ 12
After considering the comment and
the evidence, the Commission
concludes (1) there is a continuing need
for the Rule; (2) the Rule benefits
consumers and businesses; (3) the Rule
does not impose substantial economic
burdens; and (4) the benefits outweigh
the minimal costs the Rule imposes.
Accordingly, the Commission has
determined to retain the current Rule
and is terminating this review.
8 Comment of Eversheds Sutherland (US) LLP at
8 (Sep. 3, 2020), available at https://
beta.regulations.gov/comment/FTC-2020-00470003.
9 Id. at 9.
10 Federal Trade Commission: Prohibitions on
Market Manipulation; Final Rule, 74 FR at 40701
(Aug. 12, 2009).
11 Comment of Eversheds Sutherland (US) LLP at
6, 9 (Sep. 3, 2020), available at https://
beta.regulations.gov/comment/FTC-2020-00470003.
12 Id.
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[FR Doc. 2021–04196 Filed 3–1–21; 8:45 am]
BILLING CODE 6750–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2018–0631; FRL–10018–
05–Region 4]
Air Plan Approval; Tennessee;
Nitrogen Oxides SIP Call Plan
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving a State
Implementation Plan (SIP) revision
concerning nitrogen oxides (NOX)
emissions submitted by the State of
Tennessee, through the Tennessee
Department of Environment and
Conservation (TDEC), through a letter
dated December 19, 2019, which revises
the Tennessee Air Pollution Control
Rule (TAPCR) titled ‘‘NOX SIP Call
Requirements for Stationary Boilers and
Combustion Turbines’’ (TN 2017 NOX
SIP Call Rule) to correct the definition
of ‘‘affected unit’’ and to clarify
requirements related to stationary
boilers and combustion turbines. EPA is
also converting the conditional approval
of the TN 2017 NOX SIP Call Rule to a
full approval.
DATES: This rule is effective April 1,
2021.
SUMMARY:
EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2018–0631. All documents in the docket
are listed on the www.regulations.gov
website. Although listed in the index,
some information may not be publicly
available, i.e., Confidential Business
Information 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 can
either be retrieved electronically via
www.regulations.gov or in hard copy at
the Air Regulatory Management 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. EPA requests that
if at all possible, you contact the person
listed in the FOR FURTHER INFORMATION
ADDRESSES:
IV. Conclusion
PO 00000
By direction of the Commission.
April J. Tabor,
Secretary.
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Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Rules and Regulations
CONTACT section to schedule your
inspection. The Regional Office’s
official hours of business are Monday
through Friday 8:30 a.m. to 4:30 p.m.,
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Steven Scofield, Air Regulatory
Management 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.
The telephone number is (404) 562–
9034. Mr. Scofield can also be reached
via electronic mail at scofield.steve@
epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
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Under Clean Air Act (CAA or Act)
section 110(a)(2)(D)(i)(I), which EPA has
traditionally termed the good neighbor
provision, states are required to address
the interstate transport of air pollution.
Specifically, the good neighbor
provision requires that each state’s
implementation plan contain adequate
provisions to prohibit air pollutant
emissions from within the state that will
significantly contribute to
nonattainment of the national ambient
air quality standards (NAAQS), or that
will interfere with maintenance of the
NAAQS, in any other state.
In October 1998 (63 FR 57356), EPA
finalized the ‘‘Finding of Significant
Contribution and Rulemaking for
Certain States in the Ozone Transport
Assessment Group Region for Purposes
of Reducing Regional Transport of
Ozone’’ (‘‘NOX SIP Call’’). The NOX SIP
Call required eastern states, including
Tennessee, to submit SIPs that prohibit
excessive emissions of ozone season
NOX by implementing statewide
emissions budgets.1 The NOX SIP Call
addressed the good neighbor provision
for the 1979 ozone NAAQS and was
designed to mitigate the impact of
transported NOX emissions, one of the
precursors of ozone. EPA developed the
NOX Budget Trading Program, an
allowance trading program that states
could adopt to meet their obligations
under the NOX SIP Call. This trading
program allowed the following sources
to participate in a regional cap and trade
program: Generally electric generating
units (EGUs) with capacity greater than
25 megawatts (MW); and large industrial
non-EGUs, such as boilers and
1 See 63 FR 57356 (October 27, 1998). As
originally promulgated, the NOX SIP Call also
addressed good neighbor obligations under the 1997
8-hour ozone NAAQS, but EPA subsequently stayed
and later rescinded the rule’s provisions with
respect to that standard. See 65 FR 56245
(September 18, 2000); 84 FR 8422 (March 8, 2019).
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combustion turbines, with a rated heat
input greater than 250 million British
thermal units per hour. The NOX SIP
Call also identified potential reductions
from cement kilns and stationary
internal combustion engines.
On January 22, 2004, EPA approved
into the Tennessee SIP the State’s NOX
Budget Trading Program rule.2 The NOX
Budget Trading Program was
implemented from 2003 to 2008. The
provisions required EGUs and large
non-EGUs in the state to participate in
the NOX Budget Trading Program.
In 2005, EPA published the Clean Air
Interstate Rule (CAIR), which required
eastern states, including Tennessee, to
submit SIPs that prohibited emissions
consistent with ozone season (and
annual) NOX budgets. See 70 FR 25162
(May 12, 2005). CAIR addressed the
good neighbor provision for the 1997
ozone NAAQS and 1997 fine particulate
matter (PM2.5) NAAQS and was
designed to mitigate the impact of
transported NOX emissions with respect
to not only ozone but also PM2.5. CAIR
established several trading programs
that EPA implemented through federal
implementation plans (FIPs) for EGUs
greater than 25 MW in each affected
state, but not large non-EGUs; states
could submit SIPs to replace the FIPs
that achieved the required emission
reductions from EGUs and, at their
discretion, could include other types of
sources as well.3 When the CAIR trading
program for ozone season NOX was
implemented beginning in 2009, EPA
discontinued administration of the NOX
Budget Trading Program; however, the
requirements of the NOX SIP Call
continued to apply.
On August 20, 2007, EPA approved
into the Tennessee SIP an abbreviated
CAIR SIP revision with allowance
allocations and opt-in provisions.4 On
November 25, 2009, EPA approved into
the Tennessee SIP a further abbreviated
CAIR SIP revision expanding
applicability of the CAIR ozone season
NOX trading program to NOX SIP Call
non-EGUs.5
In 2011, EPA published the CrossState Air Pollution Rule (CSAPR) to
replace CAIR and address the good
neighbor provisions for the 1997 ozone
NAAQS, the 1997 PM2.5 NAAQS, and
the 2006 PM2.5 NAAQS. See 76 FR
48208 (August 8, 2011). Through FIPs,
CSAPR required EGUs in eastern states,
including Tennessee, to meet annual
2 See
69 FR 3015 (January 22, 2004).
had separate trading programs for annual
sulfur dioxide emissions, seasonal NOX emissions
and annual NOX emissions.
4 See 72 FR 46388.
5 See 74 FR 61535.
3 CAIR
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and ozone season NOX emission budgets
and annual SO2 emission budgets
implemented through new trading
programs. Implementation of CSAPR
began on January 1, 2015.6 CSAPR also
contained provisions that would sunset
CAIR-related obligations on a schedule
coordinated with the implementation of
the CSAPR compliance requirements.
In 2016, EPA published the CSAPR
Update to address the good neighbor
provision for the 2008 ozone NAAQS.
See 81 FR 74504 (October 26, 2016).
Although for most covered states, EPA
found the CSAPR Update may only
partially address the states’ good
neighbor obligations for this NAAQS,
EPA found the rule fully addresses
Tennessee’s good neighbor obligation
for this NAAQS.7 The CSAPR Update
trading program replaced the original
CSAPR trading program for ozone
season NOX for most covered states.
Tennessee’s EGUs participate in the
CSAPR Update trading program,
generally also addressing the state’s
obligations under the NOX SIP Call for
EGUs. However, Tennessee has not
chosen to expand applicability of the
CSAPR Update trading program to its
large non-EGUs.
Through a letter to EPA dated
February 27, 2017,8 Tennessee provided
a SIP revision to incorporate a new
provision—TACPR 1200–03–27–.12,
‘‘NOX SIP Call Requirements for
Stationary Boilers and Combustion
Turbines’’ (TN 2017 NOX SIP Call
Rule)—into the SIP. The TN 2017 NOX
SIP Call Rule established a state control
program for sources that are subject to
the NOX SIP Call, but not covered under
CSAPR or the CSAPR Update. The TN
2017 NOX SIP Call Rule contains several
subsections that together comprise a
non-EGU control program under which
Tennessee will allocate a specified
budget of allowances to affected
sources. Subsequently, on May 11, 2018,
and October 11, 2018, Tennessee
submitted letters requesting conditional
approval of the TN 2017 NOX SIP Call
Rule and committing to provide a SIP
revision to EPA by December 31, 2019,
to address a deficiency by revising the
definition of ‘‘affected unit’’ to remove
the unqualified exclusion for any unit
that serves a generator that produces
power for sale. Based on the State’s
commitment to submit a SIP revision
6 See 79 FR 71663 (December 3, 2014) and 81 FR
13275 (March 14, 2016).
7 See 81 FR at 74540. EPA notes that the aspects
of the CSAPR Update affecting Tennessee were not
challenged in the litigation over the rule and are not
affected by the remand of the rule in Wisconsin v.
EPA, 983 F.3d 303 (D.C. Cir. 2019).
8 EPA notes that it received the submittal on
February 28, 2017.
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addressing the identified deficiency,
EPA conditionally approved the
February 27, 2017, submission. In the
same action, EPA approved removal of
the State’s NOX Budget Trading Program
and CAIR rules from Tennessee’s SIP.
See 84 FR 7998 (March 6, 2019).
Tennessee submitted a SIP revision
on December 19, 2019, which revised
TAPCR 1200–03–27–.12, ‘‘NOX SIP Call
Requirements for Stationary Boilers and
Combustion Turbines’’ to correct the
definition of ‘‘affected unit’’ and to
clarify requirements related to
stationary boilers and combustion
turbines. On June 8, 2020 (85 FR 35046),
EPA published a notice of proposed
rulemaking (NPRM) proposing to correct
the definition of ‘‘affected unit’’ and to
clarify requirements related to
stationary boilers and combustion
turbines. EPA also proposed to convert
the conditional approval of the TN 2017
NOX SIP Call Rule to a full approval.
See EPA’s June 8, 2020 (85 FR 35046),
NPRM for further detail on these
changes and EPA’s rationale for
approving them.
II. Response To Comment
EPA received one public comment on
the June 8, 2020, NPRM. The comment
is provided in the docket for this final
rulemaking. EPA’s response to this
comment is below.
Comment: The commenter asserts that
EPA should not approve this rule and
that EPA should rescind its prior
conditional approval of the TN 2017
NOX SIP Call Rule. The commenter
asserts that court rulings have found
that EPA’s reliance on modeling for the
year 2023 was improper, and EPA must
fully address upwind state’s significant
contribution by the applicable
attainment date. The commenter further
asserts that the CSAPR Update does not
fully address downwind contributions
under the Wisconsin and New York
court decisions. The commenter also
asserts that EPA cannot approve this
action until it addresses the court
decisions, including Wisconsin, New
York, and Maryland.
Response: EPA disagrees with the
comment that EPA should not approve
this rule and should rescind its prior
approval of the TN 2017 NOX SIP Call
Rule. As discussed above, EPA has
already approved the TN 2017 NOX SIP
Call Rule, which addressed Tennessee’s
ongoing NOX SIP Call obligations for
existing and new large non-EGUs and
which EPA conditionally approved due
to a deficiency in the definition of
affected unit. See 84 FR 7998 (March 6,
2019). In this action, EPA is approving
into the Tennessee SIP changes to the
TN 2017 NOX SIP Call Rule that correct
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the definition of ‘‘affected unit,’’ clarify
requirements related to stationary
boilers and combustion turbines, and
convert the conditional approval to a
full approval. See NPRM. EPA has
evaluated these changes, has
determined that the changes correct the
deficiency and provide clarifying edits
that are consistent with the NOX SIP
Call and the CAA, and is approving
those changes into the SIP. See id. In
this action, EPA is not approving any
changes to the NOX SIP Call or to
Tennessee’s obligations under the NOX
SIP Call, and did not approve any such
changes through its prior approval of
the TN 2017 NOX SIP Call Rule.9
With respect to the commenter’s
assertions regarding Wisconsin, New
York, Maryland, and 2023 modeling,
EPA believes these comments to be
beyond the scope of this rulemaking.
Nevertheless, EPA is providing the
following explanation. The NOX SIP
Call fully addressed obligations under
the good neighbor provision for the
1979 1-hour ozone NAAQS. In contrast,
the CSAPR Update, which was at issue
in Wisconsin v. EPA, 938 F.3d 303, 308–
37 (D.C. Cir. 2019), and the CSAPR
Close-out, which was at issue in New
York v. EPA, 781 F. App’x 4 (D.C. Cir.
2019), involved obligations under the
good neighbor provision for the 2008
ozone NAAQS. Further, Maryland v.
EPA, 958 F.3d 1185 (D.C. Cir. 2020),
which applied the Wisconsin decision
in the context of EPA’s denial of a
petition under CAA section 126(b),
included a discussion with regard to
obligations for the 2015 ozone NAAQS.
None of these cases bear on the approval
action here, which has nothing to do
with the selection of an analytic year or
developing a full remedy for addressing
good neighbor obligations.
III. Incorporation by Reference
In this document, EPA is finalizing
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation
by reference of TAPCR 1200–03–27–.12,
‘‘NOX SIP Call Requirements for
Stationary Boilers and Combustion
Turbines,’’ state effective December 12,
2019, which revises Tennessee’s state
control program to comply with the
obligations of the NOX SIP Call. EPA has
made, and will continue to make the SIP
generally available through
www.regulations.gov and at the EPA
Region 4 Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
9 EPA is not reopening its prior rulemaking
actions in this action.
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preamble for more information).
Therefore, the revised materials as
stated above, have been approved by
EPA for inclusion in the SIP, have been
incorporated by reference by EPA into
that plan, are fully federally enforceable
under sections 110 and 113 of the CAA
as of the effective date of the final
rulemaking of EPA’s approval, and will
be incorporated by reference in the next
update to the SIP compilation.
IV. Final Action
EPA is approving Tennessee’s
December 19, 2019, submission, which
revises TAPCR 1200–03–27–.12, ‘‘NOX
SIP Call Requirements for Stationary
Boilers and Combustion Turbines,’’ to
correct the definition of ‘‘affected unit’’
and to clarify requirements related to
stationary boilers and combustion
turbines. In addition, EPA is converting
the March 6, 2019, conditional approval
of TAPCR 1200–03–27–.12 to a full
approval. EPA has concluded that these
changes will not interfere with
attainment and maintenance of the
NAAQS, reasonable further progress, or
any other applicable requirement of the
CAA.
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 action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
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Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, 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).
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by May 3, 2021. Filing a petition
for reconsideration by the Administrator
of this final rule does not affect the
finality of this action for the purposes of
judicial review nor does it extend the
time within which a petition for judicial
review may be filed, and shall not
postpone the effectiveness of such rule
or action. 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, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides.
Dated: February 23, 2021.
John Blevins,
Acting Regional Administrator, Region 4.
For the reasons stated in the
preamble, the EPA amends 40 CFR part
52 as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart RR—Tennessee
§ 52.2219
[Amended]
2. Amend § 52.2219 by removing and
reserving paragraph (a).
■ 3. In § 52.2220 amend Table 1 in
paragraph (c) by revising the entry for
‘‘Section 1200–3–27–.12’’ to read as
follows:
■
§ 52.2220
*
Identification of plan.
*
*
(c) * * *
*
*
TABLE 1—EPA APPROVED TENNESSEE REGULATIONS
State citation
State effective
date
Title/subject
*
*
*
*
EPA approval date
*
*
Explanation
*
CHAPTER 1200–3–27 NITROGEN OXIDES
*
Section 1200–3–27–.12
*
*
*
*
*
*
*
NOX SIP Call Requirements for Stationary Boilers and Combustion Turbines.
*
[FR Doc. 2021–04061 Filed 3–1–21; 8:45 am]
*
12/12/2019
*
3/2/2021, [Insert citation
of publication].
ENVIRONMENTAL PROTECTION
AGENCY
BILLING CODE 6560–50–P
40 CFR Part 52
[EPA–R05–OAR–2010–0037; FRL–10019–
32–Region 5]
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Air Plan Approval; Minnesota;
Revision to Taconite Federal
Implementation Plan
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is revising a Federal
SUMMARY:
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*
implementation plan (FIP) addressing
the requirement for best available
retrofit technology (BART) for the
United States Steel Corporation’s (U.S.
Steel) taconite plant located in Mt. Iron,
Minnesota (Minntac or Minntac
facility). We are revising the nitrogen
oxides (NOX) limits for U.S. Steel’s
taconite furnaces at its Minntac facility
because new information has come to
light that was not available when we
originally promulgated the FIP on
February 6, 2013. The EPA is finalizing
this action pursuant to sections 110 and
169A of the Clean Air Act (CAA or the
Act).
E:\FR\FM\02MRR1.SGM
02MRR1
Agencies
[Federal Register Volume 86, Number 39 (Tuesday, March 2, 2021)]
[Rules and Regulations]
[Pages 12092-12095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04061]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2018-0631; FRL-10018-05-Region 4]
Air Plan Approval; Tennessee; Nitrogen Oxides SIP Call Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving a State
Implementation Plan (SIP) revision concerning nitrogen oxides
(NOX) emissions submitted by the State of Tennessee, through
the Tennessee Department of Environment and Conservation (TDEC),
through a letter dated December 19, 2019, which revises the Tennessee
Air Pollution Control Rule (TAPCR) titled ``NOX SIP Call
Requirements for Stationary Boilers and Combustion Turbines'' (TN 2017
NOX SIP Call Rule) to correct the definition of ``affected
unit'' and to clarify requirements related to stationary boilers and
combustion turbines. EPA is also converting the conditional approval of
the TN 2017 NOX SIP Call Rule to a full approval.
DATES: This rule is effective April 1, 2021.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2018-0631. All documents in the docket
are listed on the www.regulations.gov website. Although listed in the
index, some information may not be publicly available, i.e.,
Confidential Business Information 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 can either
be retrieved electronically via www.regulations.gov or in hard copy at
the Air Regulatory Management 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.
EPA requests that if at all possible, you contact the person listed in
the FOR FURTHER INFORMATION
[[Page 12093]]
CONTACT section to schedule your inspection. The Regional Office's
official hours of business are Monday through Friday 8:30 a.m. to 4:30
p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Steven Scofield, Air Regulatory
Management 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. The telephone number is
(404) 562-9034. Mr. Scofield can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Under Clean Air Act (CAA or Act) section 110(a)(2)(D)(i)(I), which
EPA has traditionally termed the good neighbor provision, states are
required to address the interstate transport of air pollution.
Specifically, the good neighbor provision requires that each state's
implementation plan contain adequate provisions to prohibit air
pollutant emissions from within the state that will significantly
contribute to nonattainment of the national ambient air quality
standards (NAAQS), or that will interfere with maintenance of the
NAAQS, in any other state.
In October 1998 (63 FR 57356), EPA finalized the ``Finding of
Significant Contribution and Rulemaking for Certain States in the Ozone
Transport Assessment Group Region for Purposes of Reducing Regional
Transport of Ozone'' (``NOX SIP Call''). The NOX
SIP Call required eastern states, including Tennessee, to submit SIPs
that prohibit excessive emissions of ozone season NOX by
implementing statewide emissions budgets.\1\ The NOX SIP
Call addressed the good neighbor provision for the 1979 ozone NAAQS and
was designed to mitigate the impact of transported NOX
emissions, one of the precursors of ozone. EPA developed the
NOX Budget Trading Program, an allowance trading program
that states could adopt to meet their obligations under the
NOX SIP Call. This trading program allowed the following
sources to participate in a regional cap and trade program: Generally
electric generating units (EGUs) with capacity greater than 25
megawatts (MW); and large industrial non-EGUs, such as boilers and
combustion turbines, with a rated heat input greater than 250 million
British thermal units per hour. The NOX SIP Call also
identified potential reductions from cement kilns and stationary
internal combustion engines.
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\1\ See 63 FR 57356 (October 27, 1998). As originally
promulgated, the NOX SIP Call also addressed good
neighbor obligations under the 1997 8-hour ozone NAAQS, but EPA
subsequently stayed and later rescinded the rule's provisions with
respect to that standard. See 65 FR 56245 (September 18, 2000); 84
FR 8422 (March 8, 2019).
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On January 22, 2004, EPA approved into the Tennessee SIP the
State's NOX Budget Trading Program rule.\2\ The
NOX Budget Trading Program was implemented from 2003 to
2008. The provisions required EGUs and large non-EGUs in the state to
participate in the NOX Budget Trading Program.
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\2\ See 69 FR 3015 (January 22, 2004).
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In 2005, EPA published the Clean Air Interstate Rule (CAIR), which
required eastern states, including Tennessee, to submit SIPs that
prohibited emissions consistent with ozone season (and annual)
NOX budgets. See 70 FR 25162 (May 12, 2005). CAIR addressed
the good neighbor provision for the 1997 ozone NAAQS and 1997 fine
particulate matter (PM2.5) NAAQS and was designed to
mitigate the impact of transported NOX emissions with
respect to not only ozone but also PM2.5. CAIR established
several trading programs that EPA implemented through federal
implementation plans (FIPs) for EGUs greater than 25 MW in each
affected state, but not large non-EGUs; states could submit SIPs to
replace the FIPs that achieved the required emission reductions from
EGUs and, at their discretion, could include other types of sources as
well.\3\ When the CAIR trading program for ozone season NOX
was implemented beginning in 2009, EPA discontinued administration of
the NOX Budget Trading Program; however, the requirements of
the NOX SIP Call continued to apply.
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\3\ CAIR had separate trading programs for annual sulfur dioxide
emissions, seasonal NOX emissions and annual
NOX emissions.
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On August 20, 2007, EPA approved into the Tennessee SIP an
abbreviated CAIR SIP revision with allowance allocations and opt-in
provisions.\4\ On November 25, 2009, EPA approved into the Tennessee
SIP a further abbreviated CAIR SIP revision expanding applicability of
the CAIR ozone season NOX trading program to NOX
SIP Call non-EGUs.\5\
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\4\ See 72 FR 46388.
\5\ See 74 FR 61535.
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In 2011, EPA published the Cross-State Air Pollution Rule (CSAPR)
to replace CAIR and address the good neighbor provisions for the 1997
ozone NAAQS, the 1997 PM2.5 NAAQS, and the 2006
PM2.5 NAAQS. See 76 FR 48208 (August 8, 2011). Through FIPs,
CSAPR required EGUs in eastern states, including Tennessee, to meet
annual and ozone season NOX emission budgets and annual
SO2 emission budgets implemented through new trading
programs. Implementation of CSAPR began on January 1, 2015.\6\ CSAPR
also contained provisions that would sunset CAIR-related obligations on
a schedule coordinated with the implementation of the CSAPR compliance
requirements.
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\6\ See 79 FR 71663 (December 3, 2014) and 81 FR 13275 (March
14, 2016).
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In 2016, EPA published the CSAPR Update to address the good
neighbor provision for the 2008 ozone NAAQS. See 81 FR 74504 (October
26, 2016). Although for most covered states, EPA found the CSAPR Update
may only partially address the states' good neighbor obligations for
this NAAQS, EPA found the rule fully addresses Tennessee's good
neighbor obligation for this NAAQS.\7\ The CSAPR Update trading program
replaced the original CSAPR trading program for ozone season
NOX for most covered states. Tennessee's EGUs participate in
the CSAPR Update trading program, generally also addressing the state's
obligations under the NOX SIP Call for EGUs. However,
Tennessee has not chosen to expand applicability of the CSAPR Update
trading program to its large non-EGUs.
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\7\ See 81 FR at 74540. EPA notes that the aspects of the CSAPR
Update affecting Tennessee were not challenged in the litigation
over the rule and are not affected by the remand of the rule in
Wisconsin v. EPA, 983 F.3d 303 (D.C. Cir. 2019).
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Through a letter to EPA dated February 27, 2017,\8\ Tennessee
provided a SIP revision to incorporate a new provision--TACPR 1200-03-
27-.12, ``NOX SIP Call Requirements for Stationary Boilers
and Combustion Turbines'' (TN 2017 NOX SIP Call Rule)--into
the SIP. The TN 2017 NOX SIP Call Rule established a state
control program for sources that are subject to the NOX SIP
Call, but not covered under CSAPR or the CSAPR Update. The TN 2017
NOX SIP Call Rule contains several subsections that together
comprise a non-EGU control program under which Tennessee will allocate
a specified budget of allowances to affected sources. Subsequently, on
May 11, 2018, and October 11, 2018, Tennessee submitted letters
requesting conditional approval of the TN 2017 NOX SIP Call
Rule and committing to provide a SIP revision to EPA by December 31,
2019, to address a deficiency by revising the definition of ``affected
unit'' to remove the unqualified exclusion for any unit that serves a
generator that produces power for sale. Based on the State's commitment
to submit a SIP revision
[[Page 12094]]
addressing the identified deficiency, EPA conditionally approved the
February 27, 2017, submission. In the same action, EPA approved removal
of the State's NOX Budget Trading Program and CAIR rules
from Tennessee's SIP. See 84 FR 7998 (March 6, 2019).
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\8\ EPA notes that it received the submittal on February 28,
2017.
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Tennessee submitted a SIP revision on December 19, 2019, which
revised TAPCR 1200-03-27-.12, ``NOX SIP Call Requirements
for Stationary Boilers and Combustion Turbines'' to correct the
definition of ``affected unit'' and to clarify requirements related to
stationary boilers and combustion turbines. On June 8, 2020 (85 FR
35046), EPA published a notice of proposed rulemaking (NPRM) proposing
to correct the definition of ``affected unit'' and to clarify
requirements related to stationary boilers and combustion turbines. EPA
also proposed to convert the conditional approval of the TN 2017
NOX SIP Call Rule to a full approval. See EPA's June 8, 2020
(85 FR 35046), NPRM for further detail on these changes and EPA's
rationale for approving them.
II. Response To Comment
EPA received one public comment on the June 8, 2020, NPRM. The
comment is provided in the docket for this final rulemaking. EPA's
response to this comment is below.
Comment: The commenter asserts that EPA should not approve this
rule and that EPA should rescind its prior conditional approval of the
TN 2017 NOX SIP Call Rule. The commenter asserts that court
rulings have found that EPA's reliance on modeling for the year 2023
was improper, and EPA must fully address upwind state's significant
contribution by the applicable attainment date. The commenter further
asserts that the CSAPR Update does not fully address downwind
contributions under the Wisconsin and New York court decisions. The
commenter also asserts that EPA cannot approve this action until it
addresses the court decisions, including Wisconsin, New York, and
Maryland.
Response: EPA disagrees with the comment that EPA should not
approve this rule and should rescind its prior approval of the TN 2017
NOX SIP Call Rule. As discussed above, EPA has already
approved the TN 2017 NOX SIP Call Rule, which addressed
Tennessee's ongoing NOX SIP Call obligations for existing
and new large non-EGUs and which EPA conditionally approved due to a
deficiency in the definition of affected unit. See 84 FR 7998 (March 6,
2019). In this action, EPA is approving into the Tennessee SIP changes
to the TN 2017 NOX SIP Call Rule that correct the definition
of ``affected unit,'' clarify requirements related to stationary
boilers and combustion turbines, and convert the conditional approval
to a full approval. See NPRM. EPA has evaluated these changes, has
determined that the changes correct the deficiency and provide
clarifying edits that are consistent with the NOX SIP Call
and the CAA, and is approving those changes into the SIP. See id. In
this action, EPA is not approving any changes to the NOX SIP
Call or to Tennessee's obligations under the NOX SIP Call,
and did not approve any such changes through its prior approval of the
TN 2017 NOX SIP Call Rule.\9\
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\9\ EPA is not reopening its prior rulemaking actions in this
action.
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With respect to the commenter's assertions regarding Wisconsin, New
York, Maryland, and 2023 modeling, EPA believes these comments to be
beyond the scope of this rulemaking. Nevertheless, EPA is providing the
following explanation. The NOX SIP Call fully addressed
obligations under the good neighbor provision for the 1979 1-hour ozone
NAAQS. In contrast, the CSAPR Update, which was at issue in Wisconsin
v. EPA, 938 F.3d 303, 308-37 (D.C. Cir. 2019), and the CSAPR Close-out,
which was at issue in New York v. EPA, 781 F. App'x 4 (D.C. Cir. 2019),
involved obligations under the good neighbor provision for the 2008
ozone NAAQS. Further, Maryland v. EPA, 958 F.3d 1185 (D.C. Cir. 2020),
which applied the Wisconsin decision in the context of EPA's denial of
a petition under CAA section 126(b), included a discussion with regard
to obligations for the 2015 ozone NAAQS. None of these cases bear on
the approval action here, which has nothing to do with the selection of
an analytic year or developing a full remedy for addressing good
neighbor obligations.
III. Incorporation by Reference
In this document, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of TAPCR 1200-
03-27-.12, ``NOX SIP Call Requirements for Stationary
Boilers and Combustion Turbines,'' state effective December 12, 2019,
which revises Tennessee's state control program to comply with the
obligations of the NOX SIP Call. EPA has made, and will
continue to make the SIP generally available through
www.regulations.gov and at the EPA Region 4 Office (please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information). Therefore, the revised materials
as stated above, have been approved by EPA for inclusion in the SIP,
have been incorporated by reference by EPA into that plan, are fully
federally enforceable under sections 110 and 113 of the CAA as of the
effective date of the final rulemaking of EPA's approval, and will be
incorporated by reference in the next update to the SIP compilation.
IV. Final Action
EPA is approving Tennessee's December 19, 2019, submission, which
revises TAPCR 1200-03-27-.12, ``NOX SIP Call Requirements
for Stationary Boilers and Combustion Turbines,'' to correct the
definition of ``affected unit'' and to clarify requirements related to
stationary boilers and combustion turbines. In addition, EPA is
converting the March 6, 2019, conditional approval of TAPCR 1200-03-
27-.12 to a full approval. EPA has concluded that these changes will
not interfere with attainment and maintenance of the NAAQS, reasonable
further progress, or any other applicable requirement of the CAA.
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 action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive
[[Page 12095]]
Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, 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).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 3, 2021. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. 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, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides.
Dated: February 23, 2021.
John Blevins,
Acting Regional Administrator, Region 4.
For the reasons stated in the preamble, the EPA amends 40 CFR part
52 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart RR--Tennessee
Sec. 52.2219 [Amended]
0
2. Amend Sec. 52.2219 by removing and reserving paragraph (a).
0
3. In Sec. 52.2220 amend Table 1 in paragraph (c) by revising the
entry for ``Section 1200-3-27-.12'' to read as follows:
Sec. 52.2220 Identification of plan.
* * * * *
(c) * * *
Table 1--EPA Approved Tennessee Regulations
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State
State citation Title/subject effective date EPA approval date Explanation
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* * * * * * *
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CHAPTER 1200-3-27 NITROGEN OXIDES
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* * * * * * *
Section 1200-3-27-.12.......... NOX SIP Call 12/12/2019 3/2/2021, [Insert ..................
Requirements for citation of
Stationary Boilers and publication].
Combustion Turbines.
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* * * * *
[FR Doc. 2021-04061 Filed 3-1-21; 8:45 am]
BILLING CODE 6560-50-P