Federal Register / Vol. 77, No. 73 / Monday, April 16, 2012 / Proposed Rules 22533 

(c) Effective Period. This rule will be 

effective from 9:30 p.m. to 10:45 p.m. on 

June 23, 2012. 

(d) Regulations. (1) The general 

regulations contained in 33 CFR 165.23, 

as well as the following regulations, 

apply. 

(2) No vessels, except for fireworks 

barge and accompanying vessels, will be 

allowed to transit the safety zone 

without the permission of the COTP or 

the designated representative. 

(3) All persons and vessels shall 

comply with the instructions of the 

COTP or the designated representative. 

Upon being hailed by a U.S. Coast 

Guard vessel by siren, radio, flashing 

light, or other means, the operator of a 

vessel shall proceed as directed. 

(4) Vessel operators desiring to enter 

or operate within the regulated area 

shall contact the COTP or the 

designated representative via VHF 

channel 16 or 718–354–4353 (Sector 

New York command center) to obtain 

permission to do so. 

Dated: March 23, 2012. 

L.L. Fagan, 

Rear Admiral, U.S. Coast Guard, Captain of 

the Port New York. 

[FR Doc. 2012–9007 Filed 4–13–12; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2011–0353; FRL–9659–2] 

Approval and Promulgation of 

Implementation Plans; Tennessee; 

110(a)(1) and (2) Infrastructure 

Requirements for the 1997 8–Hour 

Ozone National Ambient Air Quality 

Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

in part, and conditionally approve in 

part, the State Implementation Plan 

(SIP) submission, submitted by the State 

of Tennessee, through the Tennessee 

Department of Environment and 

Conservation (TDEC), to demonstrate 

that the State meets the requirements of 

sections 110(a)(1) and (2) of the Clean 

Air Act (CAA or Act) for the 1997 8- 

hour ozone national ambient air quality 

standards (NAAQS). Section 110(a) of 

the CAA requires that each state adopt 

and submit a SIP for the 

implementation, maintenance, and 

enforcement of each NAAQS 

promulgated by the EPA, which is 

commonly referred to as an 

‘‘infrastructure’’ SIP. TDEC certified that 

the Tennessee SIP contains provisions 

that ensure the 1997 8-hour ozone 

NAAQS are implemented, enforced, and 

maintained in Tennessee (hereafter 

referred to as ‘‘infrastructure 

submission’’). EPA is proposing to 

conditionally approve sub-element 

110(a)(2)(E)(ii) of Tennessee’s December 

14, 2007, submission because the 

current Tennessee SIP does not include 

provisions to comply with the 

requirements of this sub-element. With 

the exception of sub-element 

110(a)(2)(E)(ii), EPA is proposing to 

determine that Tennessee’s 

infrastructure submission, provided to 

EPA on December 14, 2007, addressed 

all the required infrastructure elements 

for the 1997 8-hour ozone NAAQS. 

DATES: Written comments must be 

received on or before May 16, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2011–0353, by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: benjamin.lynorae@epa.gov. 

3. Fax: (404) 562–9019. 

4. Mail: ‘‘EPA–R04–OAR–2011– 

0353,’’ Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. 

5. Hand Delivery or Courier: Lynorae 

Benjamin, Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, U.S. Environmental Protection 

Agency, Region 4, 61 Forsyth Street 

SW., Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 to 4:30, excluding federal 

holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R04–OAR–2011– 

0353. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through 

www.regulations.gov or email, 

information that you consider to be CBI 

or otherwise protected. The 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy at the Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Nacosta C. Ward, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–9140. 

Ms. Ward can be reached via electronic 

mail at ward.nacosta@epa.gov. 

SUPPLEMENTARY INFORMATION: 


emcdonald on DSK29S0YB1PROD with PROPOSALS
22534 Federal Register / Vol. 77, No. 73 / Monday, April 16, 2012 / Proposed Rules 

1Two elements identified in section 110(a)(2) are 

not governed by the three year submission deadline 

of section 110(a)(1) because SIPs incorporating 

necessary local nonattainment area controls are not 

due within three years after promulgation of a new 

or revised NAAQS, but rather due at the time the 

nonattainment area plan requirements are due 

pursuant to section 172. These requirements are: (1) 

Submissions required by section 110(a)(2)(C) to the 

extent that subsection refers to a permit program as 

required in part D Title I of the CAA; and (2) 

submissions required by section 110(a)(2)(I) which 

pertain to the nonattainment planning requirements 

of part D, Title I of the CAA. Today’s proposed 

rulemaking does not address infrastructure 

elements related to section 110(a)(2)(I) or the 

nonattainment planning requirements of 

110(a)(2)(C). 

2This rulemaking only addresses requirements 

for this element as they relate to attainment areas. 

3Today’s proposed rule does not address element 

110(a)(2)(D)(i) (Interstate Transport) for the 1997 8- 

hour ozone NAAQS. Interstate transport 

Table of Contents 

I. Background 

II. What elements are required under sections 

110(a)(1) and (2)? 

III. Scope of Infrastructure SIPs 

IV. What is EPA’s analysis of how Tennessee 

addressed the elements of sections 

110(a)(1) and (2) ‘‘infrastructure’’ 

provisions? 

V. Proposed Action 

VI. Statutory and Executive Order Reviews 

I. Background 

On July 18, 1997, EPA promulgated a 

new NAAQS for ozone based on 8-hour 

average concentrations. The 8-hour 

averaging period replaced the previous 

1-hour averaging period, and the level of 

the NAAQS was changed from 0.12 

parts per million (ppm) to 0.08 ppm. 

See 62 FR 38856. Pursuant to section 

110(a)(1) of the CAA, states are required 

to submit SIPs meeting the requirements 

of section 110(a)(2) within three years 

after promulgation of a new or revised 

NAAQS. Section 110(a)(2) requires 

states to address basic SIP requirements, 

including emissions inventories, 

monitoring, and modeling to assure 

attainment and maintenance of the 

NAAQS. States were required to submit 

such SIPs for the 1997 8-hour ozone 

NAAQS to EPA no later than June 2000. 

However, intervening litigation over the 

1997 8-hour ozone NAAQS created 

uncertainty about how to proceed and 

many states did not provide the 

required ‘‘infrastructure’’ SIP 

submission for these newly promulgated 

NAAQS. 

On March 4, 2004, Earthjustice 

submitted a notice of intent to sue 

related to EPA’s failure to issue findings 

of failure to submit related to the 

‘‘infrastructure’’ requirements for the 

1997 8-hour ozone NAAQS. EPA 

entered into a consent decree with 

Earthjustice which required EPA, among 

other things, to complete a Federal 

Register notice announcing EPA’s 

determinations pursuant to section 

110(k)(1)(B) as to whether each state had 

made complete submissions to meet the 

requirements of section 110(a)(2) for the 

1997 8-hour ozone NAAQS by 

December 15, 2007. Subsequently, EPA 

received an extension of the date to 

complete this Federal Register notice 

until March 17, 2008, based upon 

agreement to make the findings with 

respect to submissions made by January 

7, 2008. In accordance with the consent 

decree, EPA made completeness 

findings for each state based upon what 

the Agency received from each state as 

of January 7, 2008. 

On March 27, 2008, EPA published a 

final rulemaking entitled, 

‘‘Completeness Findings for Section 

110(a) State Implementation Plans; 8– 

Hour Ozone NAAQS,’’ making a finding 

that each state had submitted or failed 

to submit a complete SIP that provided 

the basic program elements of section 

110(a)(2) necessary to implement the 

1997 8-hour ozone NAAQS. See 73 FR 

16205. For those states that did receive 

findings, such as Tennessee, the 

findings of failure to submit for all or a 

portion of a state’s implementation plan 

established a 24-month deadline for 

EPA to promulgate a Federal 

Implementation Plan (FIP) to address 

the outstanding SIP elements unless, 

prior to that time, the affected states 

submitted, and EPA approved, the 

required SIPs. However, the findings of 

failure to submit did not impose 

sanctions or set deadlines for imposing 

sanctions as described in section 179 of 

the CAA, because these findings do not 

pertain to the elements contained in the 

Title I part D plan for nonattainment 

areas as required under section 

110(a)(2)(I). Additionally, the findings 

of failure to submit for the infrastructure 

submittals are not a SIP call pursuant to 

section 110(k)(5). 

The findings that all or portions of a 

state’s submission are complete 

established a 12-month deadline for 

EPA to take action upon the complete 

SIP elements in accordance with section 

110(k). Tennessee’s infrastructure 

submission was received by EPA on 

December 14, 2007, and was determined 

to be complete on March 27, 2008, for 

all elements with the exception of 

110(a)(2)(C) and (J). Tennessee was 

among other states that received a 

finding of failure to submit because its 

infrastructure submission was not 

complete for elements (C) and (J) for the 

1997 8-hour ozone NAAQS by March 1, 

2008. Tennessee has since met the 

completeness requirements for 

110(a)(2)(C) and (J) and these 

infrastructure elements were federally 

approved on March 14, 2012. See 77 FR 

14976. 

Today’s action is proposing to 

approve in part, and conditionally 

approve in part, Tennessee’s 

infrastructure submission for which 

EPA made the completeness 

determination on March 27, 2008. This 

action is not approving any specific 

rule, but rather proposing that 

Tennessee’s already approved SIP meets 

certain CAA requirements. 

II. What elements are required under 

sections 110(a)(1) and (2)? 

Section 110(a) of the CAA requires 

states to submit SIPs to provide for the 

implementation, maintenance, and 

enforcement of a new or revised 

NAAQS within three years following 

the promulgation of such NAAQS, or 

within such shorter period as EPA may 

prescribe. Section 110(a) imposes the 

obligation upon states to make a SIP 

submission to EPA for a new or revised 

NAAQS, but the contents of that 

submission may vary depending upon 

the facts and circumstances. In 

particular, the data and analytical tools 

available at the time the state develops 

and submits the SIP for a new or revised 

NAAQS affects the content of the 

submission. The contents of such SIP 

submissions may also vary depending 

upon what provisions the state’s 

existing SIP already contains. In the 

case of the 1997 8-hour ozone NAAQS, 

states typically have met the basic 

program elements required in section 

110(a)(2) through earlier SIP 

submissions in connection with 

previous ozone NAAQS. 

More specifically, section 110(a)(1) 

provides the procedural and timing 

requirements for SIPs. Section 110(a)(2) 

lists specific elements that states must 

meet for ‘‘infrastructure’’ SIP 

requirements related to a newly 

established or revised NAAQS. As 

mentioned above, these requirements 

include SIP infrastructure elements 

such as modeling, monitoring, and 

emissions inventories that are designed 

to assure attainment and maintenance of 

the NAAQS. The requirements that are 

the subject of this proposed rulemaking 

are listed below 1 and in EPA’s October 

2, 2007, memorandum entitled 

‘‘Guidance on SIP Elements Required 

Under Section 110(a)(1) and (2) for the 

1997 8-Hour Ozone and PM2.5 National 

Ambient Air Quality Standards.’’ 

• 110(a)(2)(A): Emission limits and 

other control measures. 

• 110(a)(2)(B): Ambient air quality 

monitoring/data system. 

• 110(a)(2)(C): Program for 

enforcement of control measures.2

• 110(a)(2)(D): Interstate transport.3


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requirements were formerly addressed by 

Tennessee consistent with the Clean Air Interstate 

Rule (CAIR). On December 23, 2008, CAIR was 

remanded by the D.C. Circuit Court of Appeals, 

without vacatur, back to EPA. See North Carolina 

v. EPA, 531 F.3d 896 (D.C. Cir. 2008). Prior to this 

remand, EPA took final action to approve 

Tennessee’s SIP revision, which was submitted to 

comply with CAIR. See 72 FR 46388 (August 20, 

2007). In so doing, Tennessee’s CAIR SIP revision 

addressed the interstate transport provisions in 

section 110(a)(2)(D)(i) for the 1997 8-hour ozone 

NAAQS. In response to the remand of CAIR, EPA 

has promulgated a new rule to address interstate 

transport. See 76 FR 48208 (August 8, 2011) (‘‘the 

Transport Rule’’). That rule was recently stayed by 

the D.C. Circuit Court of Appeals. EPA’s action on 

element 110(a)(2)(D)(i) will be addressed in a 

separate action. 

4This requirement was inadvertently omitted 

from EPA’s October 2, 2007, memorandum entitled 

‘‘Guidance on SIP Elements Required Under 

Section 110(a)(1) and (2) for the 1997 8-Hour Ozone 

and PM2.5 National Ambient Air Quality 

Standards,’’ but as mentioned above is not relevant 

to today’s proposed rulemaking. 

5See Comments of Midwest Environmental 

Defense Center, dated May 31, 2011. Docket #EPA– 

R05–OAR–2007–1179 (adverse comments on 

proposals for three states in Region 5). EPA notes 

that these public comments on another proposal are 

not relevant to this rulemaking and do not have to 

be directly addressed in this rulemaking. EPA will 

respond to these comments in the appropriate 

rulemaking action to which they apply. 

• 110(a)(2)(E): Adequate resources. 

• 110(a)(2)(F): Stationary source 

monitoring system. 

• 110(a)(2)(G): Emergency power. 

• 110(a)(2)(H): Future SIP revisions. 

• 110(a)(2)(I): Areas designated 

nonattainment and meet the applicable 

requirements of part D.4

• 110(a)(2)(J): Consultation with 

government officials; public 

notification; and PSD and visibility 

protection. 

• 110(a)(2)(K): Air quality modeling/ 

data. 

• 110(a)(2)(L): Permitting fees. 

• 110(a)(2)(M): Consultation/ 

participation by affected local entities. 

III. Scope of Infrastructure SIPs 

EPA is currently acting upon SIPs that 

address the infrastructure requirements 

of CAA section 110(a)(1) and (2) for 

ozone and fine particulate matter (PM2.5) 

NAAQS for various states across the 

country. Commenters on EPA’s recent 

proposals for some states raised 

concerns about EPA statements that it 

was not addressing certain substantive 

issues in the context of acting on those 

infrastructure SIP submissions.5 Those 

Commenters specifically raised 

concerns involving provisions in 

existing SIPs and with EPA’s statements 

in other proposals that it would address 

two issues separately and not as part of 

actions on the infrastructure SIP 

submissions: (i) Existing provisions 

related to excess emissions during 

periods of start-up, shutdown, or 

malfunction (SSM) at sources, that may 

be contrary to the CAA and EPA’s 

policies addressing such excess 

emissions; and (ii) existing provisions 

related to ‘‘director’s variance’’ or 

‘‘director’s discretion’’ that purport to 

permit revisions to SIP approved 

emissions limits with limited public 

process or without requiring further 

approval by EPA, that may be contrary 

to the CAA (director’s discretion). EPA 

notes that there are two other 

substantive issues for which EPA 

likewise stated in other proposals that it 

would address the issues separately: (i) 

Existing provisions for minor source 

new source review programs that may 

be inconsistent with the requirements of 

the CAA and EPA’s regulations that 

pertain to such programs (minor source 

NSR); and (ii) existing provisions for 

PSD programs that may be inconsistent 

with current requirements of EPA’s 

‘‘Final NSR Improvement Rule,’’ 67 FR 

80186 (December 31, 2002), as amended 

by 72 FR 32526 (June 13, 2007) (NSR 

Reform). In light of the comments, EPA 

believes that its statements in various 

proposed actions on infrastructure SIPs 

with respect to these four individual 

issues should be explained in greater 

depth. It is important to emphasize that 

EPA is taking the same position with 

respect to these four substantive issues 

in this action on the infrastructure SIPs 

for the 1997 8-hour ozone NAAQS from 

Tennessee. 

EPA intended the statements in the 

other proposals concerning these four 

issues merely to be informational, and 

to provide general notice of the 

potential existence of provisions within 

the existing SIPs of some states that 

might require future corrective action. 

EPA did not want states, regulated 

entities, or members of the public to be 

under the misconception that the 

Agency’s approval of the infrastructure 

SIP submission of a given state should 

be interpreted as a re-approval of certain 

types of provisions that might exist 

buried in the larger existing SIP for such 

state. Thus, for example, EPA explicitly 

noted that the Agency believes that 

some states may have existing SIP 

approved SSM provisions that are 

contrary to the CAA and EPA policy, 

but that ‘‘in this rulemaking, EPA is not 

proposing to approve or disapprove any 

existing state provisions with regard to 

excess emissions during SSM of 

operations at facilities.’’ EPA further 

explained, for informational purposes, 

that ‘‘EPA plans to address such State 

regulations in the future.’’ EPA made 

similar statements, for similar reasons, 

with respect to the director’s discretion, 

minor source NSR, and NSR Reform 

issues. EPA’s objective was to make 

clear that approval of an infrastructure 

SIP for these ozone and PM2.5 NAAQS 

should not be construed as explicit or 

implicit re-approval of any existing 

provisions that relate to these four 

substantive issues. EPA is reiterating 

that position in this action on the 

infrastructure SIP for Tennessee. 

Unfortunately, the Commenters and 

others evidently interpreted these 

statements to mean that EPA considered 

action upon the SSM provisions and the 

other three substantive issues to be 

integral parts of acting on an 

infrastructure SIP submission, and 

therefore that EPA was merely 

postponing taking final action on the 

issues in the context of the 

infrastructure SIPs. This was not EPA’s 

intention. To the contrary, EPA only 

meant to convey its awareness of the 

potential for certain types of 

deficiencies in existing SIPs, and to 

prevent any misunderstanding that it 

was reapproving any such existing 

provisions. EPA’s intention was to 

convey its position that the statute does 

not require that infrastructure SIPs 

address these specific substantive issues 

in existing SIPs and that these issues 

may be dealt with separately, outside 

the context of acting on the 

infrastructure SIP submission of a state. 

To be clear, EPA did not mean to imply 

that it was not taking a full final agency 

action on the infrastructure SIP 

submission with respect to any 

substantive issue that EPA considers to 

be a required part of acting on such 

submissions under section 110(k) or 

under section 110(c). Given the 

confusion evidently resulting from 

EPA’s statements in those other 

proposals, however, we want to explain 

more fully the Agency’s reasons for 

concluding that these four potential 

substantive issues in existing SIPs may 

be addressed separately from actions on 

infrastructure SIP submissions. 

The requirement for the SIP 

submissions at issue arises out of CAA 

section 110(a)(1). That provision 

requires that states must make a SIP 

submission ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof)’’ and 

that these SIPs are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. Section 

110(a)(2) includes a list of specific 

elements that ‘‘[e]ach such plan’’ 

submission must meet. EPA has 

historically referred to these particular 

submissions that states must make after 

the promulgation of a new or revised 

NAAQS as ‘‘infrastructure SIPs.’’ This 


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22536 Federal Register / Vol. 77, No. 73 / Monday, April 16, 2012 / Proposed Rules 

6For example, section 110(a)(2)(E) provides that 

states must provide assurances that they have 

adequate legal authority under state and local law 

to carry out the SIP; section 110(a)(2)(C) provides 

that states must have a substantive program to 

address certain sources as required by part C of the 

CAA; section 110(a)(2)(G) provides that states must 

have both legal authority to address emergencies 

and substantive contingency plans in the event of 

such an emergency. 

7For example, section 110(a)(2)(D)(i) requires 

EPA to be sure that each state’s SIP contains 

adequate provisions to prevent significant 

contribution to nonattainment of the NAAQS in 

other states. This provision contains numerous 

terms that require substantial rulemaking by EPA in 

order to determine such basic points as what 

constitutes significant contribution. See ‘‘Rule To 

Reduce Interstate Transport of Fine Particulate 

Matter and Ozone (Clean Air Interstate Rule); 

Revisions to Acid Rain Program; Revisions to the 

NOX SIP Call; Final Rule,’’ 70 FR 25162 (May 12, 

2005) (defining, among other things, the phrase 

‘‘contribute significantly to nonattainment’’). 

8See Id., 70 FR 25162, at 63–65 (May 12, 2005) 

(explaining relationship between timing 

requirement of section 110(a)(2)(D) versus section 

110(a)(2)(I)). 

9EPA issued separate guidance to states with 

respect to SIP submissions to meet section 

110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5

NAAQS. See ‘‘Guidance for State Implementation 

Plan (SIP) Submissions to Meet Current 

Outstanding Obligations Under Section 

110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5

National Ambient Air Quality Standards,’’ from 

William T. Harnett, Director Air Quality Policy 

Division OAQPS, to Regional Air Division Director, 

Regions I–X, dated August 15, 2006. 

10For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of 

new monitors to measure ambient levels of that new 

indicator species for the new NAAQS. 

11See ‘‘Guidance on SIP Elements Required 

Under Section 110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 National Ambient Air Quality 

Standards,’’ from William T. Harnett, Director Air 

Quality Policy Division, to Air Division Directors, 

Regions I–X, dated October 2, 2007 (the ‘‘2007 

Guidance’’). 

12 Id., at page 2. 

specific term does not appear in the 

statute, but EPA uses the term to 

distinguish this particular type of SIP 

submission designed to address basic 

structural requirements of a SIP from 

other types of SIP submissions designed 

to address other different requirements, 

such as ‘‘nonattainment SIP’’ 

submissions required to address the 

nonattainment planning requirements of 

part D, ‘‘regional haze SIP’’ submissions 

required to address the visibility 

protection requirements of CAA section 

169A, NSR permitting program 

submissions required to address the 

requirements of part D, and a host of 

other specific types of SIP submissions 

that address other specific matters. 

Although section 110(a)(1) addresses 

the timing and general requirements for 

these infrastructure SIPs, and section 

110(a)(2) provides more details 

concerning the required contents of 

these infrastructure SIPs, EPA believes 

that many of the specific statutory 

provisions are facially ambiguous. In 

particular, the list of required elements 

provided in section 110(a)(2) contains a 

wide variety of disparate provisions, 

some of which pertain to required legal 

authority, some of which pertain to 

required substantive provisions, and 

some of which pertain to requirements 

for both authority and substantive 

provisions.6 Some of the elements of 

section 110(a)(2) are relatively 

straightforward, but others clearly 

require interpretation by EPA through 

rulemaking, or recommendations 

through guidance, in order to give 

specific meaning for a particular 

NAAQS.7

Notwithstanding that section 110(a)(2) 

provides that ‘‘each’’ SIP submission 

must meet the list of requirements 

therein, EPA has long noted that this 

literal reading of the statute is internally 

inconsistent, insofar as section 

110(a)(2)(I) pertains to nonattainment 

SIP requirements that could not be met 

on the schedule provided for these SIP 

submissions in section 110(a)(1).8 This 

illustrates that EPA must determine 

which provisions of section 110(a)(2) 

may be applicable for a given 

infrastructure SIP submission. 

Similarly, EPA has previously decided 

that it could take action on different 

parts of the larger, general 

‘‘infrastructure SIP’’ for a given NAAQS 

without concurrent action on all 

subsections, such as section 

110(a)(2)(D)(i), because the Agency 

bifurcated the action on these latter 

‘‘interstate transport’’ provisions within 

section 110(a)(2) and worked with states 

to address each of the four prongs of 

section 110(a)(2)(D)(i) with substantive 

administrative actions proceeding on 

different tracks with different 

schedules.9 This illustrates that EPA 

may conclude that subdividing the 

applicable requirements of section 

110(a)(2) into separate SIP actions may 

sometimes be appropriate for a given 

NAAQS where a specific substantive 

action is necessitated, beyond a mere 

submission addressing basic structural 

aspects of the state’s implementation 

plans. Finally, EPA notes that not every 

element of section 110(a)(2) would be 

relevant, or as relevant, or relevant in 

the same way, for each new or revised 

NAAQS and the attendant infrastructure 

SIP submission for that NAAQS. For 

example, the monitoring requirements 

that might be necessary for purposes of 

section 110(a)(2)(B) for one NAAQS 

could be very different than what might 

be necessary for a different pollutant. 

Thus, the content of an infrastructure 

SIP submission to meet this element 

from a state might be very different for 

an entirely new NAAQS, versus a minor 

revision to an existing NAAQS.10

Similarly, EPA notes that other types 

of SIP submissions required under the 

statute also must meet the requirements 

of section 110(a)(2), and this also 

demonstrates the need to identify the 

applicable elements for other SIP 

submissions. For example, 

nonattainment SIPs required by part D 

likewise have to meet the relevant 

subsections of section 110(a)(2) such as 

section 110(a)(2)(A) or (E). By contrast, 

it is clear that nonattainment SIPs 

would not need to meet the portion of 

section 110(a)(2)(C) that pertains to part 

C, i.e., the PSD requirements applicable 

in attainment areas. Nonattainment SIPs 

required by part D also would not need 

to address the requirements of section 

110(a)(2)(G) with respect to emergency 

episodes, as such requirements would 

not be limited to nonattainment areas. 

As this example illustrates, each type of 

SIP submission may implicate some 

subsections of section 110(a)(2) and not 

others. 

Given the potential for ambiguity of 

the statutory language of section 

110(a)(1) and (2), EPA believes that it is 

appropriate for EPA to interpret that 

language in the context of acting on the 

infrastructure SIPs for a given NAAQS. 

Because of the inherent ambiguity of the 

list of requirements in section 110(a)(2), 

EPA has adopted an approach in which 

it reviews infrastructure SIPs against 

this list of elements ‘‘as applicable.’’ In 

other words, EPA assumes that Congress 

could not have intended that each and 

every SIP submission, regardless of the 

purpose of the submission or the 

NAAQS in question, would meet each 

of the requirements, or meet each of 

them in the same way. EPA elected to 

use guidance to make recommendations 

for infrastructure SIPs for these ozone 

and PM2.5 NAAQS. 

On October 2, 2007, EPA issued 

guidance making recommendations for 

the infrastructure SIP submissions for 

both the 1997 8-hour ozone NAAQS and 

the 1997 PM2.5 NAAQS.11 Within this 

guidance document, EPA described the 

duty of states to make these submissions 

to meet what the Agency characterized 

as the ‘‘infrastructure’’ elements for 

SIPs, which it further described as the 

‘‘basic SIP requirements, including 

emissions inventories, monitoring, and 

modeling to assure attainment and 

maintenance of the standards.’’ 12 As 

further identification of these basic 

structural SIP requirements, 

‘‘attachment A’’ to the guidance 

document included a short description 

of the various elements of section 

110(a)(2) and additional information 


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13 Id., at attachment A, page 1. 

14 Id., at page 4. In retrospect, the concerns raised 

by the Commenters with respect to EPA’s approach 

to some substantive issues indicates that the statute 

is not so ‘‘self explanatory,’’ and indeed is 

sufficiently ambiguous that EPA needs to interpret 

it in order to explain why these substantive issues 

do not need to be addressed in the context of 

infrastructure SIPs and may be addressed at other 

times and by other means. 

15See ‘‘Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 2006 24- 

Hour Fine Particle (PM2.5) National Ambient Air 

Quality Standards (NAAQS),’’ from William T, 

Harnett, Director Air Quality Policy Division, to 

Regional Air Division Directors, Regions I–X, dated 

September 25, 2009 (the ‘‘2009 Guidance’’). 

16EPA has recently issued a SIP call to rectify a 

specific SIP deficiency related to the SSM issue. See 

‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 76 FR 21639 (April 

18, 2011). 

17EPA has recently utilized this authority to 

correct errors in past actions on SIP submissions 

related to PSD programs. See ‘‘Limitation of 

Approval of Prevention of Significant Deterioration 

Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule,’’ 

75 FR 82536 (December 30, 2010). EPA has 

previously used its authority under CAA 110(k)(6) 

to remove numerous other SIP provisions that the 

Agency determined it had approved in error. See 61 

FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 

1997) (corrections to American Samoa, Arizona, 

California, Hawaii, and Nevada SIPs); 69 FR 67062 

(November 16, 2004) (corrections to California SIP); 

and 74 FR 57051 (November 3, 2009) (corrections 

to Arizona and Nevada SIPs). 

18EPA has recently disapproved a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See 75 FR 42342, 42344 (July 

Continued 

about the types of issues that EPA 

considered germane in the context of 

such infrastructure SIPs. EPA 

emphasized that the description of the 

basic requirements listed on attachment 

A was not intended ‘‘to constitute an 

interpretation of’’ the requirements, and 

was merely a ‘‘brief description of the 

required elements.’’ 13 EPA also stated 

its belief that with one exception, these 

requirements were ‘‘relatively self 

explanatory, and past experience with 

SIPs for other NAAQS should enable 

States to meet these requirements with 

assistance from EPA Regions.’’ 14

However, for the one exception to that 

general assumption (i.e., how states 

should proceed with respect to the 

requirements of section 110(a)(2)(G) for 

the 1997 PM2.5 NAAQS), EPA gave 

much more specific recommendations. 

But for other infrastructure SIP 

submittals, and for certain elements of 

the submittals for the 1997 PM2.5

NAAQS, EPA assumed that each State 

would work with its corresponding EPA 

regional office to refine the scope of a 

State’s submittal based on an 

assessment of how the requirements of 

section 110(a)(2) should reasonably 

apply to the basic structure of the State’s 

implementation plans for the NAAQS in 

question. 

On September 25, 2009, EPA issued 

guidance to make recommendations to 

states with respect to the infrastructure 

SIPs for the 2006 PM2.5 NAAQS.15 In the 

2009 Guidance, EPA addressed a 

number of additional issues that were 

not germane to the infrastructure SIPs 

for the 1997 8-hour ozone and 1997 

PM2.5 NAAQS, but were germane to 

these SIP submissions for the 2006 

PM2.5 NAAQS (e.g., the requirements of 

section 110(a)(2)(D)(i) that EPA had 

bifurcated from the other infrastructure 

elements for those specific 1997 ozone 

and PM2.5 NAAQS). Significantly, 

neither the 2007 Guidance nor the 2009 

Guidance explicitly referred to the SSM, 

director’s discretion, minor source NSR, 

or NSR Reform issues as among specific 

substantive issues EPA expected states 

to address in the context of the 

infrastructure SIPs, nor did EPA give 

any more specific recommendations 

with respect to how states might address 

such issues even if they elected to do so. 

The SSM and director’s discretion 

issues implicate section 110(a)(2)(A), 

and the minor source NSR and NSR 

Reform issues implicate section 

110(a)(2)(C). In the 2007 Guidance and 

the 2009 Guidance, however, EPA did 

not indicate to states that it intended to 

interpret these provisions as requiring a 

substantive submission to address these 

specific issues in existing SIP provisions 

in the context of the infrastructure SIPs 

for these NAAQS. Instead, EPA’s 2007 

Guidance merely indicated its belief 

that the states should make submissions 

in which they established that they have 

the basic SIP structure necessary to 

implement, maintain, and enforce the 

NAAQS. EPA believes that states can 

establish that they have the basic SIP 

structure, notwithstanding that there 

may be potential deficiencies within the 

existing SIP. Thus, EPA’s proposals for 

other states mentioned these issues not 

because the Agency considers them 

issues that must be addressed in the 

context of an infrastructure SIP as 

required by section 110(a)(1) and (2), 

but rather because EPA wanted to be 

clear that it considers these potential 

existing SIP problems as separate from 

the pending infrastructure SIP actions. 

The same holds true for this action on 

the infrastructure SIPs for Tennessee. 

EPA believes that this approach to the 

infrastructure SIP requirement is 

reasonable because it would not be 

feasible to read section 110(a)(1) and (2) 

to require a top to bottom, stem to stern, 

review of each and every provision of an 

existing SIP merely for purposes of 

assuring that the state in question has 

the basic structural elements for a 

functioning SIP for a new or revised 

NAAQS. Because SIPs have grown by 

accretion over the decades as statutory 

and regulatory requirements under the 

CAA have evolved, they may include 

some outmoded provisions and 

historical artifacts that, while not fully 

up to date, nevertheless may not pose a 

significant problem for the purposes of 

‘‘implementation, maintenance, and 

enforcement’’ of a new or revised 

NAAQS when EPA considers the overall 

effectiveness of the SIP. To the contrary, 

EPA believes that a better approach is 

for EPA to determine which specific SIP 

elements from section 110(a)(2) are 

applicable to an infrastructure SIP for a 

given NAAQS, and to focus attention on 

those elements that are most likely to 

need a specific SIP revision in light of 

the new or revised NAAQS. Thus, for 

example, EPA’s 2007 Guidance 

specifically directed states to focus on 

the requirements of section 110(a)(2)(G) 

for the 1997 PM2.5 NAAQS because of 

the absence of underlying EPA 

regulations for emergency episodes for 

this NAAQS and an anticipated absence 

of relevant provisions in existing SIPs. 

Finally, EPA believes that its 

approach is a reasonable reading of 

section 110(a)(1) and (2) because the 

statute provides other avenues and 

mechanisms to address specific 

substantive deficiencies in existing SIPs. 

These other statutory tools allow the 

Agency to take appropriate tailored 

action, depending upon the nature and 

severity of the alleged SIP deficiency. 

Section 110(k)(5) authorizes EPA to 

issue a ‘‘SIP call’’ whenever the Agency 

determines that a state’s SIP is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or otherwise to 

comply with the CAA.16 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.17

Significantly, EPA’s determination that 

an action on the infrastructure SIP is not 

the appropriate time and place to 

address all potential existing SIP 

problems does not preclude the 

Agency’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action at a later time. For 

example, although it may not be 

appropriate to require a state to 

eliminate all existing inappropriate 

director’s discretion provisions in the 

course of acting on the infrastructure 

SIP, EPA believes that section 

110(a)(2)(A) may be among the statutory 

bases that the Agency cites in the course 

of addressing the issue in a subsequent 

action.18


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21, 2010) (proposed disapproval of director’s 

discretion provisions); 76 FR 4540 (January 26, 

2011) (final disapproval of such provisions). 

IV. What is EPA’s analysis of how 

Tennessee addressed the elements of 

sections 110(a)(1) and (2) 

‘‘infrastructure’’ provisions? 

The Tennessee infrastructure 

submission addresses the provisions of 

sections 110(a)(1) and (2) as described 

below. 

1. 110(a)(2)(A): Emission limits and 

other control measures: Several 

regulations within Tennessee’s SIP 

provide Tennessee Air Pollution Control 

Regulations relevant to air quality 

control regulations. The regulations 

described below have been federally 

approved in the Tennessee SIP and 

include enforceable emission 

limitations and other control measures. 

Chapters 1200–3–1, General Provisions; 

1200–3–3, Air Quality Standards; 1200– 

3–4, Open Burning; 1200–3–18, Volatile 

Organic Compounds; and 1200–3–27, 

Nitrogen Oxides, of the Tennessee SIP 

establish emission limits for ozone and 

address the required control measures, 

means, and techniques for compliance 

with the ozone NAAQS. EPA has made 

the preliminary determination that the 

provisions contained in these chapters 

and Tennessee’s practices are adequate 

to protect the 1997 8-hour ozone 

NAAQS in the State. 

In this action, EPA is not proposing to 

approve or disapprove any existing 

State provisions with regard to excess 

emissions during SSM of operations at 

a facility. EPA believes that a number of 

states have SSM provisions which are 

contrary to the CAA and existing EPA 

guidance, ‘‘State Implementation Plans: 

Policy Regarding Excess Emissions 

During Malfunctions, Startup, and 

Shutdown’’ (September 20, 1999), and 

the Agency plans to address such state 

regulations in the future. In the 

meantime, EPA encourages any state 

having a deficient SSM provision to take 

steps to correct it as soon as possible. 

Additionally, in this action, EPA is 

not proposing to approve or disapprove 

any existing State rules with regard to 

director’s discretion or variance 

provisions. EPA believes that a number 

of states have such provisions which are 

contrary to the CAA and existing EPA 

guidance (52 FR 45109 (November 24, 

1987)), and the Agency plans to take 

action in the future to address such state 

regulations. In the meantime, EPA 

encourages any state having a director’s 

discretion or variance provision which 

is contrary to the CAA and EPA 

guidance to take steps to correct the 

deficiency as soon as possible. 

2. 110(a)(2)(B) Ambient air quality 

monitoring/data system: Tennessee’s 

Air Pollution Control Requirements, 

Chapter 1200–3–12, Procedures for 

Ambient Sampling and Analysis, of the 

Tennessee SIP, along with the 

Tennessee Network Description and 

Ambient Air Monitoring Network Plan, 

provide for an ambient air quality 

monitoring system in the State. 

Annually, EPA approves the ambient air 

monitoring network plan for the state 

agencies. On July 1, 2011, Tennessee 

submitted its plan to EPA. On October 

24, 2011, EPA approved Tennessee’s 

monitoring network plan. Tennessee’s 

approved monitoring network plan can 

be accessed at www.regulations.gov 

using Docket ID No. EPA–R04–OAR– 

2011–0353. EPA has made the 

preliminary determination that 

Tennessee’s SIP and practices are 

adequate for the ambient air quality 

monitoring and data system related to 

the 1997 8-hour ozone NAAQS. 

3. 110(a)(2)(D)(ii) Interstate and 

International transport provisions: 

Chapter 1200–9–.01(5) Growth Policy, of 

the Tennessee SIP outlines how the 

State will notify neighboring states of 

potential impacts from new or modified 

sources. Tennessee does not have any 

pending obligation under sections 115 

and 126 of the CAA. Additionally, 

Tennessee has federally approved 

regulations in its SIP that satisfy the 

requirements for the NOX SIP Call. See 

70 FR 76408 (December 27, 2005). EPA 

has made the preliminary determination 

that Tennessee’s SIP and practices are 

adequate for insuring compliance with 

the applicable requirements relating to 

interstate and international pollution 

abatement for the 1997 8-hour ozone 

NAAQS. 

4. 110(a)(2)(E) Adequate resources: 

EPA is proposing two separate actions 

with respect to the sub-elements 

required pursuant to section 

110(a)(2)(E). Section 110(a)(2)(E) 

requires that each implementation plan 

provide (i) necessary assurances that the 

State will have adequate personnel, 

funding, and authority under state law 

to carry out its implementation plan, (ii) 

that the State comply with the 

requirements respecting State Boards 

pursuant to section 128 of the Act, and 

(iii) necessary assurances that, where 

the State has relied on a local or 

regional government, agency, or 

instrumentality for the implementation 

of any plan provision, the State has 

responsibility for ensuring adequate 

implementation of such plan provisions. 

As with the remainder of the 

infrastructure elements addressed by 

this notice, EPA is proposing to approve 

Tennessee’s SIP as meeting the 

requirements of sub-elements 

110(a)(2)(E)(i) and (iii). With respect to 

sub-element 110(a)(2)(E)(ii) (regarding 

state boards), EPA is proposing to 

approve in part, and conditionally 

approve in part, this sub-element. EPA’s 

rationale for today’s proposals 

respecting each sub-element is 

described in turn below. 

In support of EPA’s proposal to 

approve sub-elements 110(a)(2)(E)(i) and 

(iii), EPA notes that TDEC, through the 

Tennessee Air Pollution Control Board, 

is responsible for promulgating rules 

and regulations for the NAAQS, 

emissions standards general policies, a 

system of permits, fee schedules for the 

review of plans, and other planning 

needs. As evidence of the adequacy of 

TDEC’s resources with respect to subelements (i) and (iii), EPA submitted a 

letter to Tennessee on March 11, 2011, 

outlining 105 grant commitments and 

current status of these commitments for 

fiscal year 2010. The letter EPA 

submitted to Tennessee can be accessed 

at www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2011–0353. 

Annually, states update these grant 

commitments based on current SIP 

requirements, air quality planning, and 

applicable requirements related to the 

NAAQS. There were no outstanding 

issues for fiscal year 2009, therefore, 

Tennessee’s grants were finalized and 

closed out. EPA has made the 

preliminary determination that 

Tennessee has adequate resources for 

implementation of the 1997 8-hour 

ozone NAAQS. 

With respect to sub-element 

110(a)(2)(E)(ii), EPA is proposing to 

approve in part, and to conditionally 

approve in part, Tennessee’s 

infrastructure SIP as to this requirement. 

Section 110(a)(2)(E)(ii) provides that 

infrastructure SIPs must require 

compliance with section 128 of CAA 

requirements respecting State boards. 

Section 128, in turn, provides at 

subsection (a)(1) that each SIP shall 

require that any board or body which 

approves permits or enforcement orders 

shall be subject to the described public 

interest and income restrictions therein. 

Subsection 128(a)(2) requires that any 

board or body, or the head of an 

executive agency with similar power to 

approve permits or enforcement orders 

under the CAA, shall also be subject to 

conflict of interest disclosure 

requirements. In this action, EPA is 

proposing to conditionally approve 

Tennessee’s infrastructure SIP for 

element 110(a)(2)(E)(ii) with respect to 

the applicable section 128(a)(1) 

requirements, and to approve 

Tennessee’s infrastructure SIP for 

element 110(a)(2)(E)(ii) with respect the 


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19The composition of Tennessee’s Air Pollution 

Control Board is statutorily prescribed at Tennessee 

Code Annotated 68–201–104. 

20EPA notes that pursuant to section 110(k)(4), a 

conditional approval is treated as a disapproval in 

the event that a State fails to comply with its 

commitment. Notification of this disapproval action 

in the Federal Register is not subject to public 

notice and comment. 

applicable section 128(a)(2) 

requirements. 

EPA’s proposed conditional approval 

of this sub-element 110(a)(2)(E)(ii) 

respecting the 128(a)(1) requirements is 

based upon a TDEC letter to EPA, dated 

March 28, 2012, which outlined TDEC’s 

commitment to adopt specific 

enforceable measures into its SIP within 

one year to address the applicable 

portions of section 128(a)(1). The March 

28, 2012, letter from TDEC to EPA can 

be accessed at www.regulations.gov 

using docket ID No. EPA–R04–OAR– 

2011–0353. 

In Tennessee’s March 28, 2012, 

commitment letter, TDEC committed to 

bring its SIP into conformity with 

section 128(a)(1) of the CAA by 

submitting SIP revisions that designate 

at least a majority of the positions on the 

State’s Air Pollution Control Board 19 as 

being subject to the ‘‘public interest’’ 

requirement. In addition, TDEC has 

committed to submitting SIP revisions 

establishing requirements to ensure that 

at least a majority of the members on the 

State’s Air Pollution Control Board do 

not derive any significant portion of 

their income from persons subject to 

permits or enforcement orders. In the 

March 28, 2012 commitment letter, 

TDEC describes that its planned 

restrictions related to the ‘‘significant 

portion of income’’ requirements of 

section 128 will include an exclusion 

for the official salaries of mayors of 

counties and municipalities, and for 

faculty members at institutions of higher 

learning. 

In accordance with section 110(k)(4) 

of the CAA, the commitment from 

Tennessee must provide that the State 

will adopt the specified enforceable 

provisions and submit a revision to EPA 

for approval within one year from EPA’s 

final conditional approval action. In its 

March 28, 2012, letter, TDEC committed 

to adopt the above-specified enforceable 

provisions and submit them to EPA for 

incorporation into the SIP by no later 

than one year from the effective date of 

EPA’s final conditional approval action 

for this requirement. Failure by the State 

to adopt these provisions and submit 

them to EPA for incorporation into the 

SIP within one year from the effective 

date of EPA’s final conditional approval 

action would result in this proposed 

conditional approval being treated as a 

disapproval. Should that occur, EPA 

would provide the public with notice of 

such a disapproval in the Federal 

Register.20

As a result of Tennessee’s formal 

commitment to correct deficiencies 

contained in the Tennessee SIP 

pertaining to section 128, EPA intends 

to move forward with finalizing the 

conditional approval of 110(a)(2)(E)(ii) 

with respect to the section 128(a)(1) 

requirements consistent with section 

110(k)(4) of the Act. With respect to the 

remaining sub-elements of 110(a)(2)(E), 

EPA is proposing to approve these 

portions of Tennessee’s infrastructure 

SIP. As such, EPA has made the 

preliminary determination that 

Tennessee has adequate resources for 

implementation of the 1997 8-hour 

ozone NAAQS. 

5. 110(a)(2)(F) Stationary source 

monitoring system: Tennessee’s 

infrastructure submission describes how 

to establish requirements for 

compliance testing by emissions 

sampling and analysis, and for 

emissions and operation monitoring to 

ensure the quality of data in the State. 

TDEC uses these data to track progress 

towards maintaining the NAAQS, 

develop control and maintenance 

strategies, identify sources and general 

emission levels, and determine 

compliance with emission regulations 

and additional EPA requirements. These 

requirements are provided in Chapter 

1200–3–10, Required Sampling, 

Recording and Reporting, of the 

Tennessee SIP. 

Additionally, Tennessee is required to 

submit emissions data to EPA for 

purposes of the National Emissions 

Inventory (NEI). The NEI is EPA’s 

central repository for air emissions data. 

EPA published the Air Emissions 

Reporting Rule (AERR) on December 5, 

2008, which modified the requirements 

for collecting and reporting air 

emissions data (73 FR 76539). The 

AERR shortened the time states had to 

report emissions data from 17 to 12 

months, giving states one calendar year 

to submit emissions data. All states are 

required to submit a comprehensive 

emissions inventory every three years 

and report emissions for certain larger 

sources annually through EPA’s online 

Emissions Inventory System (EIS). 

States report emissions data for the six 

criteria pollutants and their associated 

precursors—NOX, sulfur dioxide, 

ammonia, lead, carbon monoxide, 

particulate matter, and volatile organic 

compounds (VOCs). Many states also 

voluntarily report emissions of 

hazardous air pollutants. Tennessee 

made its latest update to the NEI on 

December 31, 2011. EPA compiles the 

emissions data, supplementing it where 

necessary, and releases it to the general 

public through the Web site http:// 

www.epa.gov/ttn/chief/ 

eiinformation.html. EPA has made the 

preliminary determination that 

Tennessee’s SIP and practices are 

adequate for the stationary source 

monitoring systems related to the 1997 

8-hour ozone NAAQS. 

6. 110(a)(2)(G) Emergency power: 

Chapter 1200–3–15, Emergency Episode 

Requirements, of the Tennessee SIP 

identifies air pollution emergency 

episodes and preplanned abatement 

strategies. These criteria have 

previously been approved by EPA. EPA 

has made the preliminary determination 

that Tennessee’s SIP and practices are 

adequate for emergency powers related 

to the 1997 8-hour ozone NAAQS. 

7. 110(a)(2)(H) Future SIP revisions: 

As previously discussed, TDEC is 

responsible for adopting air quality 

rules and revising SIPs as needed to 

attain or maintain the NAAQS. 

Tennessee has the ability and authority 

to respond to calls for SIP revisions, and 

has provided a number of SIP revisions 

over the years for implementation of the 

NAAQS. Specific to the 1997 8-hour 

ozone NAAQS, Tennessee has provided 

the following submissions, including: 

• August 10, 2005, SIP Revision— 

(EPA approval, 70 FR 55559, September 

22, 2005) Redesignation of the 

Montgomery County portion of the 

Clarksville-Hopkinsville, TN-KY 8-hour 

Ozone Area; 

• February 26, 2009, SIP Revision— 

(EPA approval, 75 FR 56, January 4, 

2010) Redesignation of the Memphis, 

TN 8-hour Ozone Area; 

• July 14, 2010, SIP Revision—(EPA 

approval, 76 FR 12587, March 8, 2011) 

Redesignation of the Knoxville, TN 

8-hour Ozone Area; and, 

• October 13, 2010, SIP Revision 

(EPA approval, 76 FR 5078, January 28, 

2011) Nashville 110(a)(1) Maintenance 

Plan. 

Tennessee has no areas designated as 

nonattainment for the 1997 8-hour 

ozone NAAQS. EPA has made the 

preliminary determination that 

Tennessee’s SIP and practices 

adequately demonstrate a commitment 

to provide future SIP revisions related to 

the 1997 8-hour ozone NAAQS when 

necessary. 

8. 110(a)(2)(K) Air quality and 

modeling/data: Chapter 1200–3–9– 

.01(4)(k), Air Quality Models, of the 

Tennessee SIP specify that required air 

modeling be conducted in accordance 


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with 40 CFR Part 51, Appendix W 

‘‘Guideline on Air Quality Models,’’ as 

incorporated into the Tennessee SIP. 

These standards demonstrate that 

Tennessee has the authority to provide 

relevant data for the purpose of 

predicting the effect on ambient air 

quality of the 8-hour ozone NAAQS. 

Additionally, Tennessee supports a 

regional effort to coordinate the 

development of emissions inventories 

and conduct regional modeling for 

several NAAQS, including the 1997 

8-hour ozone NAAQS, for the 

Southeastern states. Taken as a whole, 

Tennessee’s air quality regulations and 

practices demonstrate that TDEC has the 

authority to provide relevant data for 

the purpose of predicting the effect on 

ambient air quality of the 8-hour ozone 

NAAQS. EPA has made the preliminary 

determination that Tennessee’s SIP and 

practices adequately demonstrate the 

State’s ability to provide for air quality 

and modeling, along with analysis of the 

associated data, related to the 1997 8- 

hour ozone NAAQS when necessary. 

9. 110(a)(2)(L) Permitting fees: As 

discussed above, Tennessee’s SIP 

provides for the review of construction 

permits. Permitting fees in Tennessee 

are collected through the State’s 

federally-approved title V fees program 

and consistent with Chapter 1200–03– 

26–.02, Permit-Related Fees, of the 

Tennessee Code. EPA has made the 

preliminary determination that 

Tennessee’s SIP and practices 

adequately provide for permitting fees 

related to the 1997 8-hour ozone 

NAAQS when necessary. 

10. 110(a)(2)(M) Consultation/ 

participation by affected local entities: 

Chapter 1200–3–9–.01(4)(k), Public 

Participation, of the Tennessee SIP 

requires that TDEC notify the public of 

an application, preliminary 

determination, the activity or activities 

involved in the permit action, any 

emissions change associated with any 

permit modification, and the 

opportunity for comment prior to 

making a final permitting decision. By 

way of example, TDEC has recently 

worked closely with local political 

subdivisions during the development of 

its Transportation Conformity SIP, 

Regional Haze Implementation Plan, 

and Early Action Compacts. EPA has 

made the preliminary determination 

that Tennessee’s SIP and practices 

adequately demonstrate consultation 

with affected local entities related to the 

1997 8-hour ozone NAAQS when 

necessary. 

V. Proposed Action 

As described above, with the 

exception of sub-element 

110(a)(2)(E)(ii), EPA is proposing to 

determine that Tennessee’s 

infrastructure submission, provided to 

EPA on December 14, 2007, addressed 

the required infrastructure elements for 

the 1997 8-hour ozone NAAQS. EPA is 

proposing to approve in part and 

conditionally approve in part, 

Tennessee’s SIP submission consistent 

with section 110(k)(3) of the CAA. 

As described above, with the 

exception of sub-element 

110(a)(2)(E)(ii), TDEC has addressed the 

elements of the CAA 110(a)(1) and (2) 

SIP requirements pursuant to EPA’s 

October 2, 2007, guidance to ensure that 

the 1997 8-hour ozone NAAQS are 

implemented, enforced, and maintained 

in Tennessee. With respect to 

110(a)(2)(E)(ii) (referencing section 128 

of the CAA), EPA is proposing to 

conditionally approve Tennessee’s 

infrastructure SIP. On March 28, 2012, 

Tennessee submitted a letter requesting 

conditional approval of 110(a)(2)(E)(ii). 

In this letter, TDEC committed to adopt 

specific enforceable measures into its 

SIP and submit these revisions to EPA 

within one year of EPA’s final 

rulemaking to address the applicable 

portions of section 128. EPA is also 

proposing to approve Tennessee’s 

infrastructure submission for the 1997 

8-hour ozone NAAQS, with the 

exception of sub-element 110(a)(2)(E)(ii) 

because its December 14, 2007, 

submission is consistent with section 

110 of the CAA. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act 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 proposed 

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 Order 12866 (58 FR 51735, 

October 4, 1993); 

• 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 an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed rule does not 

have tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

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

Dated: March 29, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2012–9073 Filed 4–13–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2010–0300; FRL–9659–3] 

Approval and Promulgation of State 

Implementation Plan Revisions; 

Infrastructure Requirements for the 

1997 8-Hour Ozone National Ambient 

Air Quality Standards; North Dakota 

AGENCY: Environmental Protection 

Agency (EPA). 


emcdonald on DSK29S0YB1PROD with PROPOSALS