Air Plan Approval; Shelby County, Tennessee; Revisions To Startup, Shutdown, and Malfunction Rules, 74165-74171 [2024-20669]
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Federal Register / Vol. 89, No. 177 / Thursday, September 12, 2024 / Proposed Rules
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
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
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 regulations.gov.
Follow the online instructions for
submitting comments. Once submitted,
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SUMMARY:
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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 https://
www.epa.gov/dockets/commenting-epadockets.
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 bae.estelle@
epa.gov.
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
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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, stateeffective 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).1 2
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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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, 2018.3 4
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.
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.
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, stateeffective 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.
5 See 88 FR 41031.
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
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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
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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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.
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
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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).
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 SIPcall 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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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.
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
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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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.
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.
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
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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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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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.
14 See
15 See
88 FR 41031 (June 23, 2023).
54 FR 25456 (June 15, 1989).
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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)
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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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.
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.
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
17 See
88 FR 20443, 20446 (April 6, 2023).
example, Shelby County Air Code adopts
by reference TAPCR Chapter 1200–3–10. Under
TAPCR Section 1200–3–10–02, sources are required
18 For
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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.
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
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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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
20 See
88 FR 20443.
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).
21 See
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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.
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 SIPcalled 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
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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
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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 nonsubstantive 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,’’
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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 https://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).
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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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:
• 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);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not subject to Executive Order
13045 (62 FR 19885, April 23, 1997)
because it approves a State program;
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001); and
• 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
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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]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2023–0466; FRL–12179–
01–R4]
Air Plan Approval; Forsyth County,
North Carolina; Removal of Excess
Emissions Provisions
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve a
State Implementation Plan (SIP)
revision submitted by the North
Carolina Division of Air Quality
(NCDAQ) on behalf of the Forsyth
County Office of Environmental
Assistance and Protection (FCEAP or
Forsyth County) on November 28, 2022.
The revision was submitted in response
to a finding of substantial inadequacy
and SIP call published on June 12, 2015,
concerning excess emissions during
startup, shutdown, and malfunction
(SSM) events, and is intended to correct
deficiencies in the Forsyth County
portion of the North Carolina SIP
identified by EPA in the SIP call. EPA
is proposing to approve the SIP revision
in accordance with requirements for SIP
provisions under the Clean Air Act
(CAA or Act). In addition, EPA is
proposing to approve minor and
administrative changes to certain
regulatory provisions that have been
revised by the local agency since EPA’s
last approval of those provisions.
DATES: Comments must be received on
or before October 3, 2024.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2023–0466 at regulations.gov.
Follow the online instructions for
submitting comments. Once submitted,
comments cannot be edited or removed
from Regulations.gov. EPA may publish
any comment received to its public
docket. Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. EPA will generally not consider
comments or comment contents located
outside of the primary submission (i.e.,
on the web, cloud, or other file sharing
system). For additional submission
methods, the full EPA public comment
policy, information about CBI or
SUMMARY:
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]]>Agencies
[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 [www.gpo.gov]
[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 regulations.gov. Follow the online instructions for
submitting comments. Once submitted, comments cannot be edited or
removed from Regulations.gov. EPA may publish any comment received to
its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
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 [email protected].
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).1 2
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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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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,
2018.3 4
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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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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
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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 https://www.regulations.gov and
at the EPA Region 4 Office (please contact the person identified in the
For Further Information Contact section of this preamble for more
information).
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\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:
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);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a State program;
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
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
