24392 Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations 

[FR Doc. 2012–9719 Filed 4–23–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2009–0786; FRL–9663–6] 

Approval and Promulgation of 

Implementation Plans; Tennessee; 

Regional Haze State Implementation 

Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing a limited 

approval and a limited disapproval of a 

revision to the Tennessee State 

Implementation Plan (SIP) submitted by 

the State of Tennessee, through the 

Tennessee Department Environment 

and Conservation (TDEC), on April 4, 

2008. EPA is taking final action on the 

entire SIP revision except for the Best 

Available Retrofit Technology (BART) 

determination for Eastman Chemical 

Company (Eastman). EPA is not taking 

any action on the Eastman BART 

determination at this time. Tennessee’s 

April 4, 2008, SIP revision addresses 

regional haze for the first 

implementation period. Specifically, 

this SIP revision addresses the 

requirements of the Clean Air Act (CAA 

or Act) and EPA’s rules that require 

states to prevent any future and remedy 

any existing anthropogenic impairment 

of visibility in mandatory Class I areas 

(national parks and wilderness areas) 

caused by emissions of air pollutants 

from numerous sources located over a 

wide geographic area (also referred to as 

the ‘‘regional haze program’’). States are 

required to assure reasonable progress 

toward the national goal of achieving 

natural visibility conditions in Class I 

areas. EPA is finalizing a limited 

approval of Tennessee’s April 4, 2008, 

SIP revision, except for the Eastman 

BART determination, to implement the 

regional haze requirements for 

Tennessee on the basis that this SIP 

revision, as a whole, strengthens the 

Tennessee SIP. Also in this action, EPA 

is finalizing a limited disapproval of 

this same SIP revision because of the 

deficiencies in the State’s regional haze 

SIP revision arising from the remand by 

the U.S. Court of Appeals for the District 

of Columbia Circuit (D.C. Circuit) to 

EPA of the Clean Air Interstate Rule 

(CAIR). 

DATES: Effective Date: This rule will be 

effective May 24, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2009–0786. All documents in the docket 

are listed on the www.regulations.gov 

web site. Although listed in the index, 

some information is not publicly 

available, i.e., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

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 

for further information. The Regional 

Office’s official hours of business are 

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

excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Michele Notarianni, 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. Michele 

Notarianni can be reached at telephone 

number (404) 562–9031 and by 

electronic mail at 

notarianni.michele@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What is the background for this final 

action? 

II. What is EPA’s response to comments 

received on this action? 

III. What is the effect of this final action? 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. What is the background for this final 

action? 

Regional haze is visibility impairment 

that is produced by a multitude of 

sources and activities which are located 

across a broad geographic area and emit 

fine particles (e.g., sulfates, nitrates, 

organic carbon, elemental carbon, and 

soil dust), and their precursors (e.g., 

sulfur dioxide (SO2), nitrogen oxides 

(NOX), and in some cases, ammonia and 

volatile organic compounds. Fine 

particle precursors react in the 

atmosphere to form fine particulate 

matter (PM2.5) which impairs visibility 

by scattering and absorbing light. 

Visibility impairment reduces the 

clarity, color, and visible distance that 

one can see. PM2.5 can also cause 

serious health effects and mortality in 

humans and contributes to 

environmental effects such as acid 

deposition and eutrophication. 

In section 169A of the 1977 

Amendments to the CAA, Congress 

created a program for protecting 

visibility in the nation’s national parks 

and wilderness areas. This section of the 

CAA establishes as a national goal the 

‘‘prevention of any future, and the 

remedying of any existing, impairment 

of visibility in mandatory Class I areas 

which impairment results from 

manmade air pollution.’’ On December 

2, 1980, EPA promulgated regulations to 

address visibility impairment in Class I 

areas that is ‘‘reasonably attributable’’ to 

a single source or small group of 

sources, i.e., ‘‘reasonably attributable 

visibility impairment.’’ See 45 FR 

80084. These regulations represented 

the first phase in addressing visibility 

impairment. EPA deferred action on 

regional haze that emanates from a 

variety of sources until monitoring, 

modeling, and scientific knowledge 

about the relationships between 

pollutants and visibility impairment 

were improved. 

Congress added section 169B to the 

CAA in 1990 to address regional haze 

issues. EPA promulgated a rule to 

address regional haze on July 1, 1999 

(64 FR 35713), the Regional Haze Rule 

(RHR). The RHR revised the existing 

visibility regulations to integrate into 

the regulation provisions addressing 

regional haze impairment and 

established a comprehensive visibility 

protection program for Class I areas. The 

requirements for regional haze, found at 

40 CFR 51.308 and 51.309, are included 

in EPA’s visibility protection 

regulations at 40 CFR 51.300–309. The 

requirement to submit a regional haze 

SIP applies to all 50 states, the District 

of Columbia, and the Virgin Islands. 40 

CFR 51.308(b) requires states to submit 

the first implementation plan 

addressing regional haze visibility 

impairment no later than December 17, 

2007. 

On April 4, 2008, TDEC submitted a 

revision to Tennessee’s SIP to address 

regional haze in the State’s and other 

states’ Class I areas. On June 9, 2011, 

EPA published an action proposing a 

limited approval and a limited 

disapproval of Tennessee’s April 4, 

2008, SIP revision (including the BART 

determination for Eastman) to address 

the first implementation period for 

regional haze. See 76 FR 33662. EPA 

proposed a limited approval of 

Tennessee’s April 4, 2008, SIP revision 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations 24393 

to implement the regional haze 

requirements for Tennessee on the basis 

that this revision, as a whole, 

strengthens the Tennessee SIP. Also in 

that action, EPA proposed a limited 

disapproval of this same SIP revision 

because of the deficiencies in the State’s 

regional haze SIP revision arising from 

the remand of CAIR to EPA by the D.C. 

Circuit. 

On July 26, 2011, EPA reopened the 

comment period for EPA’s proposed 

actions related to Tennessee’s April 4, 

2008, SIP revision. See 76 FR 44534. See 

section II of this rulemaking for a 

summary of the comments received on 

the proposed actions and EPA’s 

responses to these comments. Also, 

detailed background information and 

EPA’s rationale for the proposed actions 

is provided in EPA’s June 9, 2011, 

proposed rulemaking. See 76 FR 33662. 

Following the remand of CAIR, EPA 

recently issued a new rule in 2011 to 

address the interstate transport of NOX

and SO2 in the eastern United States. 

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

Transport Rule,’’ also known as the 

Cross-State Air Pollution Rule 

(CSAPR)). On December 30, 2011, EPA 

proposed to find that the trading 

programs in the Transport Rule would 

achieve greater reasonable progress 

towards the national goal than would 

BART in the states in which the 

Transport Rule applies. See 76 FR 

82219. Based on this proposed finding, 

EPA also proposed to revise the RHR to 

allow states to substitute participation 

in the trading programs under the 

Transport Rule for source-specific 

BART. EPA has not yet taken final 

action on that rule. 

Also on December 30, 2011, the D.C. 

Circuit issued an order addressing the 

status of the Transport Rule and CAIR 

in response to motions filed by 

numerous parties seeking a stay of the 

Transport Rule. In that order, the DC 

Circuit stayed the Transport Rule 

pending the court’s resolutions of the 

petitions for review of that rule in EME 

Homer Generation, L.P. v. EPA (No. 11– 

1302 and consolidated cases). The court 

also indicated that EPA is expected to 

continue to administer CAIR in the 

interim until the court rules on the 

petitions for review of the Transport 

Rule. 

II. What is EPA’s response to comments 

received on this action? 

EPA received six sets of comments on 

the June 9, 2011, rulemaking proposing 

a limited approval and limited 

disapproval of Tennessee’s April 4, 

2008, regional haze SIP revision. 

Specifically, the comments were 

received from the American Coalition 

for Clean Coal Electricity, Eastman, 

TDEC, the National Park Service, and 

the Tennessee Valley Authority. Full 

sets of the comments provided by all of 

the aforementioned entities (hereinafter 

referred to as ‘‘the Commenter’’) are 

provided in the docket for today’s final 

action. A summary of the comments and 

EPA’s responses are provided below. 

Comment 1: The Commenter urges 

EPA to move expeditiously to assess, 

through modeling, whether the 

emissions reductions that will be 

achieved under the Transport Rule will 

be sufficient to satisfy BART 

requirements for electric generating 

units (EGUs) under the regional haze 

program. 

Response 1: This comment does not 

directly address the proposed action in 

the June 9, 2011, proposed rulemaking. 

Rather, the comment urges EPA to act 

more expeditiously in evaluating the 

impacts of the Transport Rule on 

regional haze. EPA appreciates the 

Commenter’s interest in the proposed 

rule and notes that the Agency has 

performed modeling analyses to 

determine the visibility improvement 

expected from the implementation of 

the Transport Rule and compared the 

results to the improvements expected 

from BART. On December 30, 2011 

(76 FR 82219), EPA proposed its 

determination that the Transport Rule 

achieves greater reasonable progress 

toward the national goal of achieving 

natural visibility conditions in Class I 

areas (including Tennessee’s two areas) 

than source-specific BART (i.e., that the 

Transport Rule is ‘‘better than BART’’). 

Based on this proposed action, EPA 

believes that the Transport Rule will 

satisfy BART requirements for SO2 and 

NOX for EGUs in Tennessee. The final 

action in that rulemaking will determine 

whether the Transport Rule may satisfy 

BART requirements for Tennessee’s 

EGUs. 

Comment 2: The Commenter requests 

that EPA delay final action on the June 

9, 2011, proposed rulemaking related to 

Tennessee’s regional SIP revision so that 

the BART requirements are harmonized 

with other pending federal air quality 

regulatory actions that affect Eastman’s 

Tennessee facility (e.g., 1-hour SO2

National Ambient Air Quality Standard 

(NAAQS), the maximum achievable 

control technology (MACT) rule for 

industrial boilers (Industrial Boiler 

MACT), and the Transport Rule). The 

Commenter asserts that this delay will 

provide Eastman with an opportunity to 

meet all of the requirements of these 

programs at one time and will allow the 

Company to comply with all pending 

requirements in an efficient and costeffective manner. 

Response 2: Under section 110(k)(2) 

of the CAA, EPA is required to act 

within specified timeframes to approve 

or disapprove SIP revisions. Tennessee 

submitted its regional haze SIP revision 

for EPA review on April 4, 2008, and 

because EPA did not approve or 

disapprove the SIP within 12 months as 

required by section 110(k)(2), the 

National Parks Conservation 

Association and other interested parties 

(Plaintiffs) sued EPA to take action. As 

a result of that lawsuit, EPA is now 

operating under a consent decree to 

finalize approval or disapproval of 

Tennessee’s regional haze SIP. The 

proposed consent decree originally 

required EPA to finalize an approval or 

disapproval action on Tennessee’s 

entire regional haze SIP by March 15, 

2012. After publication of EPA’s 

proposed limited approval and limited 

disapproval action on Tennessee’s SIP, 

the State and Eastman entered into 

discussions with the Plaintiffs regarding 

the BART determination for Eastman. 

The Eastman facility is considering a 

conversion to natural gas in one or two 

of its powerhouses in lieu of continuing 

to use coal and retrofitting its facility 

pursuant to the facility’s BART 

determination to reduce its SO2

emissions. Based on these discussions 

and a March 14, 2012, agreement 

between Tennessee and Eastman 

regarding possible control options to 

satisfy BART, the Plaintiffs agreed to 

extend the date in the consent decree for 

EPA to take final action on the BART 

determination for Eastman. 

Accordingly, EPA is taking no action on 

this BART determination at this time 

since EPA expects Tennessee to submit 

a revised BART determination for 

Eastman in the near future. EPA will 

take action on Eastman BART in a 

separate rulemaking. A copy of the 

March 14, 2012, agreement between 

Eastman and Tennessee is included in 

the docket for this action. 

Comment 3: The Commenter indicates 

that it is fundamentally inequitable to 

set the BART compliance deadline 

earlier for non-EGUs (in reference to the 

Eastman facility) than for EGUs and to 

require non-EGUs to make necessary 

investments earlier than EGUs. Further, 

the Commenter asserts that this step is 

not required to ensure reasonable 

progress in visibility improvement in 

Class I areas. 

Response 3: It is not clear what 

compliance dates the Commenter is 

referring to. Pursuant to 40 CFR 

51.308(e), Tennessee submitted a 

regional haze SIP containing BART 

determinations for each BART-eligible 

source that may reasonably be 

anticipated to cause or contribute to any 

mstockstill on DSK4VPTVN1PROD with RULES

24394 Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations 

impairment of visibility in any Class I 

area and schedules for compliance with 

BART for each of these sources. 

Tennessee’s April 4, 2008, regional haze 

SIP also contains a requirement, based 

on the provisions of 40 CFR 

51.308(e)(1)(iv), that each source subject 

to BART be required to install and 

operate BART as expeditiously as 

practicable, but in no event later than 

five years after approval of the SIP 

revision. Therefore, the latest BART 

compliance date under the Tennessee 

regional haze SIP for the State’s subjectto-BART sources (excluding Eastman for 

the reasons discussed below and in 

Response 2) is in 2017, five years after 

final action on this rulemaking. Under 

the aforementioned March 14, 2012, 

agreement between Tennessee and 

Eastman, the BART compliance date for 

Eastman is the same compliance date 

that Eastman would have received had 

EPA taken final action on the Eastman 

BART determination on March 15, 2012, 

if Eastman does not convert its BART 

subject unit to natural gas. Additionally, 

under the RHR, states may opt to 

implement an alternative measure to 

source-specific BART that must achieve 

greater reasonable progress than would 

be achieved by implementation of 

BART. 40 CFR 51.308(e)(2). For any 

BART alternative measure, all emissions 

reductions must take place during the 

period of the first long-term strategy 

(LTS). 40 CFR 51.308(e)(2)(iii). 

In addition, the Utility Boiler MACT 

and the Industrial Boiler MACT require 

compliance with their respective 

standards by 2015 as does the Transport 

Rule, a rule that applies only to EGUs. 

It is therefore possible that an EGU 

relying on the Transport Rule to satisfy 

BART will be required to implement 

BART (via the Transport Rule) before a 

non-EGU. The SO2 and ozone NAAQS 

processes have not progressed 

sufficiently to establish any 

independent requirements for industrial 

or utility boilers. 

Comment 4: The Commenter 

questions EPA’s authority to issue a 

limited approval of Tennessee’s SIP 

revision. Further, the Commenter states 

that EPA should reach full resolution of 

the issue of what constitutes BART and 

reasonable progress for EGUs before 

approving any portion of Tennessee’s 

regional haze SIP. 

Response 4: EPA has the authority to 

issue a limited approval and believes 

that it is appropriate and necessary to 

promulgate a limited approval and 

limited disapproval of Tennessee’s 

regional haze SIP at this time. This 

action results in an approval of the 

entire regional haze submission and all 

of its elements, preserving the visibility 

benefits offered by the SIP while 

providing EPA with the opportunity to 

demonstrate that the Transport Rule is 

better than BART. As noted above, EPA 

has already published a proposed rule 

reflecting this demonstration. EPA 

cannot fully approve regional haze SIP 

revisions that rely on CAIR for 

emissions reduction measures for the 

reasons discussed in section IV of the 

June 9, 2011, proposed rulemaking (see 

76 FR 33662) and therefore proposed to 

grant limited approval and limited 

disapproval of the Tennessee regional 

haze SIP. It is not necessary to reach full 

resolution on whether the Transport 

Rule is better than BART for EPA to 

issue a limited approval. Granting full 

approval at a later date would only 

delay realization of the SIP’s visibility 

benefits whereas the SIP is strengthened 

now by acting through the limited 

approval. 

Comment 5: The Commenter asserts 

that the 1-hour SO2 NAAQS is very 

restrictive and may result in fuel 

switching from coal to natural gas. In 

addition, the Commenter mentions that 

sources upgrading their facilities may be 

faced with possible greenhouse gas best 

available control technology 

determinations that would drive 

repowering from coal to natural gas. 

Further, the Commenter mentions that 

sources must also consider what 

controls may be required by the 

Transport Rule and the Industrial Boiler 

MACT. The Commenter concludes with 

a request that EPA time the final 

approval of the Tennessee Regional 

Haze SIP to allow BART sources to have 

a reasonable amount of time to plan for 

the implementation of the four abovelisted regulatory programs, and 

mentions that the burden of meshing all 

of the planning and construction of 

equipment to meet these programs is too 

much to ask of industries that are trying 

to stay competitive and to keep citizens 

employed. 

Response 5: See response to 

Comment 2. 

Comment 6: The Commenter states 

that EPA should have considered 

updated information in evaluating the 

BART determination for Alcoa 

Tennessee’s (Alcoa’s) primary 

aluminum smelter. In the Commenter’s 

opinion, based on this information, 

Alcoa should have: (1) Conducted a full 

five-step analysis of sodium-based 

scrubbing for potline SO2 emissions; (2) 

used EPA’s Air Pollution Control Cost 

Manual (EPA’s ‘‘Cost Manual’’) to 

estimate costs, or better document and 

justify costs that deviate from EPA’s 

Cost Manual approach; (3) justified the 

need for a redundant scrubbing module 

(absorber), or revised the facility’s 

estimates to eliminate it; (4) provided 

modeling results consistent with 

established modeling procedures for all 

Class I areas within 300 kilometers for 

the base case as well as the 95 percent 

potline SO2 removal case; and (5) 

explained how the facility objectively 

evaluated the resulting visibility 

benefits to all Class I areas within 300 

kilometers of the facility. The 

Commenter states that Alcoa also 

appears to have overestimated costs for 

limestone slurry forced oxidation 

scrubbing. The Commenter asserts that 

wet scrubbing of potline emissions is 

BART at Alcoa. 

Response 6: In December 2007, the 

Commenter submitted comments to 

Tennessee on the State’s regional haze 

SIP, based on the information available 

to both EPA and the State at that time, 

and raised no substantive issues 

regarding Tennessee’s BART 

determination for Alcoa. EPA does not 

believe that the Commenter’s expressed 

concerns regarding Alcoa’s BART 

analysis (in response to the June 9, 

2011, proposed rulemaking) justify 

reconsideration of Tennessee’s BART 

determination. 

Tennessee considered the degree of 

improvement in visibility reasonably 

anticipated to result from the 

implementation of the evaluated control 

technologies and determined that, for 

the two Class I areas that modeled an 

impact from Alcoa of greater than 0.5 

deciview, the highest 98th percentile 

visibility improvement from wet 

scrubbing potline emissions at Alcoa’s 

BART-eligible source was 0.72 deciview 

at Great Smoky Mountains National 

Park, the Class I area receiving the 

greatest impact from Alcoa’s SO2

emissions. The visibility improvement 

at the Joyce Kilmer-Slickrock 

Wilderness Area, Tennessee’s other 

Class I area, was 0.27 deciview. While 

the Commenter questioned the modeled 

visibility improvements, the Commenter 

presented no alternative assessment. 

Hence, the best available estimate of 

visibility improvement from the 

Commenter’s suggested BART 

determination remains as it is presented 

in the SIP. EPA also notes that both of 

Tennessee’s Class I areas are projected 

to meet or exceed the uniform rate of 

progress with the State’s BART 

determination for Alcoa. 

The degree of visibility improvement 

reasonably anticipated from each 

evaluated BART control technology is 

one of the five statutory factors that a 

state must consider in making a BART 

determination, and the weight and 

significance to be assigned to each factor 

by a state will vary depending on the 

particular circumstances in each 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations 24395 

determination. See 70 FR 39170. In the 

SIP, the State weighed the projected 

improvements in visibility against the 

cost effectiveness calculation as well as 

the projected capital and annual control 

costs. Tennessee also considered the 

energy and non-air quality 

environmental impacts of compliance 

associated with wet scrubbers in 

evaluating possible BART controls. The 

State determined that the capital costs 

and control costs for the wet scrubbers 

were approximately $200,000,000 and 

$39,000,000, respectively, and that the 

scrubbers would require 180 million 

gallons per year of makeup water, 

generate 17,600 tons per year of solid 

waste requiring off-site disposal, and 

increase PM2.5 emissions by 438 tons 

per year. Considering all of these 

factors, Tennessee determined that wet 

scrubbers were not appropriate as 

BART. The cost effectiveness would 

remain substantially higher than the 

values that Tennessee considered 

reasonable for any other BART source 

even with the Commenter’s suggested 

changes to the cost of compliance factor 

in the BART determination. 

When considering all of the BART 

factors, including the limited visibility 

improvement projected in Tennessee’s 

Class I areas, EPA believes that the 

State’s BART determination is 

reasonable using either the cost 

effectiveness values calculated by 

Tennessee or the values presented by 

the Commenter. EPA reviewed 

Tennessee’s BART analysis for Alcoa 

and concludes it was conducted in a 

manner that is consistent with the 

approach set forth in EPA’s BART 

Guidelines and reflects a reasonable 

application of EPA’s guidance to this 

particular source. 

Comment 7: The Commenter 

recommends that EPA grant full, not 

limited, approval of the Tennessee SIP 

for regional haze, and mentions that 

such full approval should not be 

delayed pending EPA’s analysis to 

confirm that the Transport Rule would 

provide sufficient reductions to satisfy 

BART requirements. Rather, in the 

Commenter’s opinion, EPA must grant 

full approval but reserve the option of 

having the SIP reopened in the unlikely 

event that its analysis indicates that 

emissions reductions beyond the 

Transport Rule are necessary in 

Tennessee to meet the national visibility 

goals. 

Response 7: See response to 

Comment 4. 

Comment 8: The Commenter asserts 

that EPA should give full, not limited, 

approval to Tennessee’s regional haze 

SIP because CAIR and 40 CFR 

51.308(e)(4) remain in effect. Further, 

the Commenter states that EPA could 

not have a basis to propose or 

promulgate disapproval or limited 

disapproval of a regional haze SIP due 

to its reliance on CAIR and on 40 CFR 

51.308(e)(4) unless EPA had first 

determined, based on a thorough and 

defensible analysis, that: (a) The 

emissions reductions and associated 

visibility-improvement benefits that are 

likely to result from the final Transport 

Rule will not be at least comparable to 

those achieved under CAIR; and (b) for 

that reason, the Transport Rule (i) will 

not satisfy the CAA’s BART alternative 

requirements for NOX and SO2

emissions from affected EGUs and (ii) 

cannot be used, in at least the same 

measure as CAIR was used, to help meet 

reasonable progress requirements for 

regional haze. The Commenter opines 

that because the Agency has not made 

and cannot make such a determination 

at this time, there is no basis for EPA to 

do anything other than to give full 

approval to Tennessee’s SIP. The 

Commenter concludes by stating that 

EPA should recognize that full approval 

of the SIP is required because, in the 

Commenter’s opinion, ‘‘the SIP is fully 

compliant with relevant EPA 

regulations—which are as binding on 

EPA as they are on the state and 

sources—as those regulations existed at 

the time of the SIP’s development and 

submission and as they exist today.’’ 

Response 8: See response to 

Comment 4. 

III. What is the effect of this final 

action? 

Under CAA sections 301(a) and 

110(k)(6) and EPA’s long-standing 

guidance, a limited approval results in 

approval of the entire SIP revision, even 

of those parts that are deficient and 

prevent EPA from granting a full 

approval of the SIP revision. Processing 

of State Implementation Plan (SIP) 

Revisions, EPA Memorandum from John 

Calcagni, Director, Air Quality 

Management Division, OAQPS, to Air 

Division Directors, EPA Regional Offices 

I–X, September 7, 1992, (1992 Calcagni 

Memorandum) located at: http:// 

www.epa.gov/ttn/caaa/t1/memoranda/ 

siproc.pdf. Today, EPA is finalizing a 

limited approval of Tennessee’s April 4, 

2008, regional haze SIP revision, except 

for the Eastman BART determination. 

This limited approval results in 

approval of Tennessee’s entire regional 

haze submission and all its elements 

except for the Eastman BART 

determination. EPA is taking this 

approach because Tennessee’s SIP will 

be stronger and more protective of the 

environment with the implementation 

of those measures by the State and 

having federal approval and 

enforceability than it would without 

those measures being included in the 

SIP. 

In this action, EPA is also finalizing 

a limited disapproval of Tennessee’s 

April 4, 2008, regional haze SIP revision 

insofar as this SIP revision relies on 

CAIR to address the impact of emissions 

from the State’s own EGUs. As 

explained in the 1992 Calcagni 

Memorandum, ‘‘[t]hrough a limited 

approval, EPA [will] concurrently, or 

within a reasonable period of time 

thereafter, disapprove the rule * * * for 

not meeting all of the applicable 

requirements of the Act. * * * [T]he 

limited disapproval is a rulemaking 

action, and it is subject to notice and 

comment.’’ Final limited disapproval of 

a SIP submittal does not affect the 

federal enforceability of the measures in 

the subject SIP revision nor prevent 

state implementation of these measures. 

The legal effect of the final limited 

disapproval for Tennessee’s April 4, 

2008, SIP revision is to provide EPA the 

authority to issue a federal 

implementation plan at any time, and to 

obligate the Agency to take such action 

no more than two years after the 

effective date of EPA’s final action. As 

explained in the 1992 Calcagni 

Memorandum, ‘‘[t]hrough a limited 

approval, EPA [will] concurrently, or 

within a reasonable period of time 

thereafter, disapprove the rule * * * for 

not meeting all of the applicable 

requirements of the Act. * * * [T]he 

limited disapproval is a rulemaking 

action, and it is subject to notice and 

comment.’’ 

IV. Final Action 

EPA is finalizing a limited approval 

and a limited disapproval of a revision 

to the Tennessee SIP submitted by the 

State of Tennessee on April 4, 2008, as 

meeting some of the applicable regional 

haze requirements as set forth in 

sections 169A and 169B of the CAA and 

in 40 CFR 51.300–308. As discussed 

above, EPA is not taking final action on 

the BART determination for Eastman at 

this time. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

The Office of Management and Budget 

(OMB) has exempted this regulatory 

action from Executive Order 12866, 

entitled ‘‘Regulatory Planning and 

Review.’’ 

mstockstill on DSK4VPTVN1PROD with RULES

24396 Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations 

B. Paperwork Reduction Act 

Under the Paperwork Reduction Act, 

44 U.S.C. 3501 et seq., OMB must 

approve all ‘‘collections of information’’ 

by EPA. The Act defines ‘‘collection of 

information’’ as a requirement for 

answers to * * * identical reporting or 

recordkeeping requirements imposed on 

ten or more persons * * *. 44 U.S.C. 

3502(3)(A). The Paperwork Reduction 

Act does not apply to this action. 

C. Regulatory Flexibility Act (RFA) 

The RFA generally requires an agency 

to conduct a regulatory flexibility 

analysis of any rule subject to notice 

and comment rulemaking requirements 

unless the agency certifies that the rule 

will not have a significant economic 

impact on a substantial number of small 

entities. Small entities include small 

businesses, small not-for-profit 

enterprises, and small governmental 

jurisdictions. 

This rule will not have a significant 

impact on a substantial number of small 

entities because SIP approvals under 

section 110 and subchapter I, part D of 

the CAA do not create any new 

requirements but simply approve 

requirements that the State is already 

imposing. Therefore, because the federal 

SIP approval does not create any new 

requirements, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. 

Moreover, due to the nature of the 

federal-state relationship under the 

CAA, preparation of flexibility analysis 

would constitute federal inquiry into 

the economic reasonableness of state 

action. The CAA forbids EPA to base its 

actions concerning SIPs on such 

grounds. Union Electric Co., v. EPA, 427 

U.S. 246, 255–66 (1976); 42 U.S.C. 

7410(a)(2). 

D. Unfunded Mandates Reform Act 

(UMRA) 

Under sections 202 of the UMRA of 

1995 (Unfunded Mandates Act), signed 

into law on March 22, 1995, EPA must 

prepare a budgetary impact statement to 

accompany any proposed or final rule 

that includes a federal mandate that 

may result in estimated costs to state, 

local, or tribal governments in the 

aggregate; or to the private sector, of 

$100 million or more. Under section 

205, EPA must select the most costeffective and least burdensome 

alternative that achieves the objectives 

of the rule and is consistent with 

statutory requirements. Section 203 

requires EPA to establish a plan for 

informing and advising any small 

governments that may be significantly 

or uniquely impacted by the rule. 

EPA has determined that today’s 

action does not include a federal 

mandate that may result in estimated 

costs of $100 million or more to either 

state, local, or tribal governments in the 

aggregate, or to the private sector. This 

federal action approves pre-existing 

requirements under state or local law, 

and imposes no new requirements. 

Accordingly, no additional costs to 

state, local, or tribal governments, or to 

the private sector, result from this 

action. 

E. Executive Order 13132, Federalism 

Federalism (64 FR 43255, August 10, 

1999) revokes and replaces Executive 

Orders 12612 (Federalism) and 12875 

(Enhancing the Intergovernmental 

Partnership). Executive Order 13132 

requires EPA to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that have Federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the states, on the relationship 

between the national government and 

the states, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ Under 

Executive Order 13132, EPA may not 

issue a regulation that has Federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by state and local 

governments, or EPA consults with state 

and local officials early in the process 

of developing the proposed regulation. 

EPA also may not issue a regulation that 

has Federalism implications and that 

preempts state law unless the Agency 

consults with state and local officials 

early in the process of developing the 

proposed regulation. 

This rule will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely approves a state rule 

implementing a federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the CAA. 

Thus, the requirements of section 6 of 

the Executive Order do not apply to this 

rule. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This rule does not have 

tribal implications, as specified in 

Executive Order 13175. It will not have 

substantial direct effects on tribal 

governments. Thus, Executive Order 

13175 does not apply to this rule. 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Protection of Children from 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997), 

applies to any rule that: (1) Is 

determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This rule is not subject to Executive 

Order 13045 because it does not involve 

decisions intended to mitigate 

environmental health or safety risks. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

Section 12 of the NTTAA of 1995 

requires federal agencies to evaluate 

existing technical standards when 

developing a new regulation. To comply 

with NTTAA, EPA must consider and 

use ‘‘voluntary consensus standards’’ 

(VCS) if available and applicable when 

developing programs and policies 

unless doing so would be inconsistent 

with applicable law or otherwise 

impractical. 

EPA believes that VCS are 

inapplicable to this action. Today’s 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 77, No. 79 / Tuesday, April 24, 2012 / Rules and Regulations 24397 

action does not require the public to 

perform activities conducive to the use 

of VCS. 

J. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

K. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by June 25, 2012. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. See section 

307(b)(2). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: April 11, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart RR—Tennessee 

■ 2. Section 52.2220, the table in 

paragraph (e) is amended by adding an 

entry for Regional Haze Plan at the end 

of the table to read as follows: 

§ 52.2220 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED TENNESSEE NON-REGULATORY PROVISIONS

Name of nonregulatory SIP 

provision 

Applicable geographic or 

nonattainment area State effective date EPA approval date Explanation 

*******

Regional Haze Plan (excluding Eastman Chemical Company BART determination).Statewide .......................... April 4, 2008 ..................... 4/24/2012 [Insert citation 

of publication].

BART emissions limits are 

listed in Section 7.5.3. 

■ 3. Section 52.2234 is added to read as 

follows: 

§ 52.2234 Visibility protection. 

(a) The requirements of section 169A 

of the Clean Air Act are not met because 

the plan does not include approvable 

measures for meeting the requirements 

of 40 CFR 51.308 for protection of 

visibility in mandatory Class I federal 

areas. 

(b) No action has been taken on the 

BART determination for Eastman 

Chemical Company. 

[FR Doc. 2012–9697 Filed 4–23–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2012–0136–201162; FRL– 

9662–8] 

Approval and Promulgation of 

Implementation Plans: Georgia; 

Approval of Substitution for 

Transportation Control Measures 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; notice of 

administrative change. 

SUMMARY: EPA is making an 

administrative change to update the 

Code of Federal Regulations (CFR) to 

reflect a change made to the Georgia 

State Implementation Plan (SIP) on 

November 5, 2009, as a result of EPA’s 

concurrence on a substitute 

transportation control measure (TCM) 

for the Atlanta portion of the Georgia 

SIP. On February 5, 2010, the State of 

Georgia, through the Environmental 

Protection Division (EPD), submitted a 

revision to the Georgia SIP requesting 

that EPA update its SIP to reflect a 

substitution of a TCM. The substitution 

was made pursuant to the TCM 

substitution provisions contained in 

Clean Air Act (CAA). EPA concurred on 

this substitution on November 5, 2009. 

In this administrative action, EPA is 

updating the non-regulatory provisions 

of the Georgia SIP to reflect the 

substitution. In summary, the 

substitution that EPA concurred on was 

a conversion of high occupancy vehicle 

(HOV) lanes to high occupancy toll 

lanes (HOT). EPA has determined that 

this action falls under the ‘‘good cause’’ 

exemption in the Administrative 

Procedures Act (APA) which, upon 

finding ‘‘good cause,’’ authorizes 

agencies to dispense with public 

participation which allows an agency to 

make an action effective immediately 

(thereby avoiding the 30-day delayed 

effective date otherwise provided for in 

the APA). 

DATES: This action is effective April 24, 

2012. 

ADDRESSES: SIP materials which are 

incorporated by reference into 40 Code 

of Federal Regulations (CFR) part 52 are 

available for inspection at the following 

location: Environmental Protection 

mstockstill on DSK4VPTVN1PROD with RULES