```

[Federal Register Volume 78, Number 77 (Monday, April 22, 2013)]
[Proposed Rules]
[Pages 23704-23708]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-09316]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0894; FRL-9804-9]

Approval and Promulgation of Implementation Plans; Tennessee: New 
Source Review-Prevention of Significant Deterioration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve, through parallel processing, 
portions of a draft revision to the Tennessee State Implementation Plan 
(SIP) submitted by the Tennessee Department of Environment and 
Conservation (TDEC) through the Division of Air Pollution Control, on 
October 4, 2012. The draft SIP revision modifies Tennessee's New Source 
Review (NSR) Prevention of Significant Deterioration (PSD) program to 
adopt, into the Tennessee SIP, federal PSD requirements regarding fine 
particulate matter (PM2.5) increments. EPA is proposing to 
approve portions of Tennessee's October 4, 2012, SIP revision because 
the Agency has preliminarily determined that it is consistent with the 
Clean Air Act (CAA or Act) and EPA regulations regarding NSR 
permitting.

DATES: Comments must be received on or before May 22, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0894 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: R4-RDS@epa.gov.
    3. Fax: (404) 562-9019.
    4. Mail: EPA-R04-OAR-2012-0894, 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: Ms. Lynorae Benjamin, Chief, 
Regulatory Development Section, Air Planning Branch, Air, Pesticides 
and Toxics Management Division, U.S. Environmental Protection Agency, 
Region 4, 61 Forsyth Street SW.,

[[Page 23705]]

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-
2012-0894.'' 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: For information regarding the 
Tennessee SIP, contact Ms. Twunjala Bradley, 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. Ms. Bradley's telephone number 
is (404) 562-9352; email address: bradley.twunjala@epa.gov. For 
information regarding NSR, contact Ms. Yolanda Adams, Air Permits 
Section, at the same address above. Ms. Adams' telephone number is 
(404) 562-9241; email address: adams.yolanda@epa.gov. For information 
regarding the PM2.5 national ambient air quality standards 
(NAAQS), contact Mr. Joel Huey, Regulatory Development Section, at the 
same address above. Mr. Huey's telephone number is (404) 562-9104; 
email address: huey.joel@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is parallel processing?
II. What action is EPA proposing?
III. What is the background for EPA's proposed action?
IV. What is EPA's analysis of Tennessee's SIP revision?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. What is parallel processing?

    Consistent with EPA regulations found at 40 CFR Part 51, Appendix 
V, section 2.3.1, for purposes of expediting review of a SIP submittal, 
parallel processing allows a state to submit a plan to EPA prior to 
actual adoption by the state. Generally, the state submits a copy of 
the proposed regulation or other revisions to EPA before conducting its 
public hearing. EPA reviews this proposed state action and prepares a 
notice of proposed rulemaking. EPA's notice of proposed rulemaking is 
published in the Federal Register during the same time frame that the 
state is holding its public process. The state and EPA then 
concurrently provide public comment periods on both the proposed state 
and federal actions.
    If the revision that is finally adopted and submitted by the state 
is changed in aspects other than those identified in the proposed 
rulemaking on the parallel process submission, EPA will evaluate those 
changes and, if necessary and appropriate, issue another notice of 
proposed rulemaking to provide the public with notice of those changes. 
Any final rulemaking action by EPA will occur only after the SIP 
revision has been adopted by the state and submitted formally to EPA 
for incorporation into the SIP.
    On October 4, 2012, the State of Tennessee, through TDEC, submitted 
a request for parallel processing of a draft SIP revision that the 
State has taken through public comment. TDEC requested parallel 
processing so that EPA could begin to take action on its draft SIP 
revisions in advance of the State's submission of the final SIP 
revisions. As stated above, the final rulemaking action by EPA will 
occur only after the SIP revision has been: (1) Adopted by Tennessee; 
(2) submitted formally to EPA for incorporation into the SIP; and, (3) 
evaluated by EPA, including any changes made by the State after the 
October 4, 2012, draft was submitted to EPA.

II. What action is EPA proposing?

    On October 4, 2012, TDEC submitted a draft SIP revision to EPA for 
approval into the Tennessee SIP to adopt rules equivalent to federal 
requirements for NSR permitting. The SIP submittal changes Tennessee's 
Air Quality Regulations, Chapter 1200-03-09--Construction and Operating 
Permits, Rule Number .01--Construction Permits, to adopt PSD 
requirements related to the implementation of the PM2.5 
NAAQS as promulgated in the rule entitled ``Prevention of Significant 
Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC), Final Rule,'' 75 FR 64864 
(October 20, 2010) (hereafter referred to as the ``PM2.5 PSD 
Increments-SILs-SMC Rule''). However, in this action EPA is not 
proposing to approve Tennessee's adoption of the PM2.5 SIL 
thresholds and provisions, or the SMC promulgated in EPA's 
PM2.5 PSD Increments-SILs-SMC Rule.\1\ EPA is proposing to 
approve the remainder of Tennessee's October 4, 2012, draft SIP 
revision because it is consistent with the CAA and EPA regulations 
regarding NSR permitting.
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    \1\ TDEC has indicated that the final SIP revision related to 
the PM2.5 PSD Increments-SILs-SMC Rule will include a 
request that EPA not take action on the SIL thresholds and 
provisions or the SMC portions of its SIP revision. See Section IV 
below for more details.

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[[Page 23706]]

    In addition on February 26, 2013, Tennessee provided a final 
submission to EPA which corrects the State's definition of regulated 
NSR pollutant at Chapter 1200-03-09-.01(4)(b)47(vi) by removing the 
term ``particulate matter (PM) emissions'' from the condensable PM 
requirements to be consistent with EPA's October 25, 2012, rulemaking 
entitled ``Review (NSR) Program for Particulate Matter Less Than 2.5 
Micrometers (PM2.5): Amendment to the Definition of 
``Regulated NSR Pollutant'' Concerning Condensable Particulate Matter, 
Final Rule,'' (hereafter referred to as the Condensable PM Correction 
Rule). See 77 FR 65107. EPA never took action to include this term into 
Tennessee's SIP. Therefore, this submission is administrative in nature 
to correct Tennessee's state laws and does not require any action by 
EPA--EPA is simply pointing out this issue for clarification purposes. 
Please see section III.B for more information.

III. What is the background for EPA's proposed action?

    Today's proposed action to revise Tennessee's SIP relates to PSD 
provisions promulgated in EPA's PM2.5 PSD Increments-SILs-
SMC Rule. More detail on the PM2.5 PSD Increments-SILs-SMC 
Rule can be found in EPA's October 20, 2010, final rulemaking and is 
summarized below. See 75 FR 64864. For more information on the NSR 
Program and the PM2.5 NAAQS, please refer to the 
PM2.5 PSD Increments-SILs-SMC Rule.

A. PM2.5 PSD Increments-SILs-SMC-Rule

    On October 20, 2010, EPA finalized the PM2.5 PSD 
Increments-SILs-SMC Rule to implement the PM2.5 NAAQS for 
NSR. This included establishing required PM2.5 increments 
pursuant to section 166(a) of the CAA to prevent significant 
deterioration of air quality in areas meeting the NAAQS. Today's action 
pertains only to the PM2.5 increments (and relevant related 
revisions) promulgated in the October 20, 2010, rule.\2\
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    \2\ The October 20, 2010, rule also established PM2.5 
SILs and SMC. See 75 FR 64864, 64900. These two provisions were the 
subject of litigation by the Sierra Club. See section IV of this 
rulemaking for more information on the litigation or in the docket 
for today's proposed action using docket ID: EPA-R04-OAR-2012-0894.
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    Tennessee's October 4, 2012, draft SIP revision adopts NSR changes 
promulgated in the PM2.5 PSD Increments-SILs-SMC Rule to be 
consistent with the federal NSR regulations and to appropriately 
implement the State's NSR program for the PM2.5 NAAQS. For 
the reasons explained below, EPA is not proposing in this rulemaking to 
take action to approve Tennessee's proposed revisions related to the 
SILs (at paragraph (k)(2) of section 51.166 and 52.21) and SMC (at 
paragraph (i)(5) of section 51.166 and 52.21) promulgated in the 
PM2.5 PSD Increments-SILs-SMC Rule into the Tennessee SIP. 
The SILs and SMC portions of the PM2.5 PSD Increments-SILs-
SMC Rule were recently vacated (and in the case of the SILs, also 
remanded to EPA) by the D.C. Circuit Court of Appeals See Sierra Club 
v. EPA, 705 F.3d 458 (D.C. Cir. 2013). More details regarding 
Tennessee's changes to its PSD regulations and SILs-SMC litigation are 
also summarized below.
1. What are PSD increments?
    As established in part C of title I of the CAA, EPA's PSD program 
protects public health from adverse effects of air pollution by 
ensuring that construction of new or modified sources in attainment or 
unclassifiable areas does not lead to significant deterioration of air 
quality while simultaneously ensuring that economic growth will occur 
in a manner consistent with preservation of clean air resources. Under 
section 165(a)(3) of the CAA, a PSD permit applicant must demonstrate 
that emissions from the proposed construction and operation of a 
facility ``will not cause, or contribute to, air pollution in excess of 
any maximum allowable increase or allowable concentration for any 
pollutant.'' In other words, when a source applies for a permit to emit 
a regulated pollutant in an area that is designated as attainment or 
unclassifiable for a NAAQS, the state and EPA must determine if 
emissions of the regulated pollutant from the source will cause 
significant deterioration in air quality. Significant deterioration 
occurs when the amount of the new pollution exceeds the applicable PSD 
increment, which is the ``maximum allowable increase'' of an air 
pollutant allowed to occur above the applicable baseline concentration 
\3\ for that pollutant. PSD increments prevent air quality in clean 
(e.g., attainment) areas from deteriorating to the level set by the 
NAAQS. Therefore, an increment is the mechanism used to estimate 
``significant deterioration'' of air quality for a pollutant in an 
area.
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    \3\ Section 169(4) of the CAA provides that the baseline 
concentration of a pollutant for a particular baseline area is 
generally the air quality at the time of the first application for a 
PSD permit in the area.
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    For PSD baseline purposes, a baseline area for a particular 
pollutant emitted from a source includes the attainment or 
unclassifiable area in which the source is located as well as any other 
attainment or unclassifiable area in which the source's emissions of 
that pollutant are projected (by air quality modeling) to result in an 
ambient pollutant increase of at least 1 microgram per meter cubed 
([mu]g/m\3\) (annual average). See 40 CFR 52.21(b)(15)(i). Under EPA's 
existing regulations, the establishment of a baseline area for any PSD 
increment results from the submission of the first complete PSD permit 
application and is based on the location of the proposed source and its 
emissions impact on the area. Once the baseline area is established, 
subsequent PSD sources locating in that area need to consider that a 
portion of the available increment may have already been consumed by 
previous emissions increases. In general, the submittal date of the 
first complete PSD permit application in a particular area is the 
operative ``baseline date'' after which new sources must evaluate 
increment consumption.\4\ On or before the date of the first complete 
PSD application, emissions generally are considered to be part of the 
baseline concentration, except for certain emissions from major 
stationary sources. Most emissions increases that occur after the 
baseline date will be counted toward the amount of increment consumed. 
Similarly, emissions decreases after the baseline date restore or 
expand the amount of increment that is available. See 75 FR 64864. As 
described in the PM2.5 PSD Increments-SILs-SMC Rule, and 
pursuant to the authority under section 166(a) of the CAA, EPA 
promulgated numerical increments for PM2.5 as a new 
pollutant \5\ for which NAAQS were established after August 7, 1977,\6\ 
and derived 24-hour and annual PM2.5 increments for the 
three area classifications (Class I, II and III) using the ``contingent 
safe harbor'' approach. See 75 FR 64864 at 64869 and the

[[Page 23707]]

ambient air increment table at 40 CFR 51.166(c)(1) and 52.21(c).
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    \4\ Baseline dates are pollutant-specific. That is, a complete 
PSD application establishes the baseline date only for those 
regulated NSR pollutants that are projected to be emitted in 
significant amounts (as defined in the regulations) by the 
applicant's new source or modification. Thus, an area may have 
different baseline dates for different pollutants.
    \5\ EPA generally characterized the PM2.5 NAAQS as a 
NAAQS for a new indicator of PM. EPA did not replace the 
PM10 NAAQS with the NAAQS for PM2.5 when the 
PM2.5 NAAQS were promulgated in 1997. EPA rather retained 
the annual and 24-hour NAAQS for PM2.5 as if 
PM2.5 was a new pollutant even though EPA had already 
developed air quality criteria for PM generally. See 75 FR 64864 
(October 20, 2010).
    \6\ EPA interprets 166(a) to authorize EPA to promulgate 
pollutant-specific PSD regulations meeting the requirements of 
section 166(c) and 166(d) for any pollutant for which EPA 
promulgates a NAAQS after 1977.
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    In addition to PSD increments for the PM2.5 NAAQS, the 
PM2.5 PSD Increments-SILs-SMC Rule amended the definition at 
40 CFR 51.166 and 52.21 for ``major source baseline date'' and ``minor 
source baseline date'' (including trigger dates) to establish the 
PM2.5 NAAQS specific dates associated with the 
implementation of PM2.5 PSD increments. See 75 FR 64864. In 
accordance with section 166(b) of the CAA, EPA required the states to 
submit revised implementation plans to EPA for approval (to adopt the 
PM2.5 PSD increments) within 21 months from promulgation of 
the final rule (by July 20, 2012). Regardless of when a state submits 
its revised SIP, the emissions from major sources subject to PSD for 
PM2.5 for which construction commenced after October 20, 
2010 (major source baseline date), consume PM2.5 increment 
and should be included in the increment analyses occurring after the 
minor source baseline date is established for an area under the state's 
revised PSD program. See 75 FR 64864. As discussed above, Tennessee's 
October 4, 2012, draft SIP revision adopts the PM2.5 PSD 
increment permitting requirements promulgated in the PM2.5 
PSD Increments-SILs-SMC Rule.

B. Condensable PM Correction

    On May 16, 2008, EPA finalized the NSR PM2.5 Rule \7\ to 
implement the PM2.5 NAAQS including a revision to the 
definition of ``regulated NSR pollutant'' for PSD to add a paragraph 
providing that ``particulate matter (PM) emissions,'' 
``PM2.5 emissions'' and ``PM10 emissions'' shall 
include gaseous emissions from a source or activity which condense to 
form particulate matter at ambient temperatures and that on or after 
January 1, 2011, such condensable particulate matter shall be accounted 
for in applicability determinations and in establishing emissions 
limitations for PM, PM2.5 and PM10 in permits. 
See 73 FR 28321, 40 CFR 51.166(b)(49)(vi), 52.21(b)(50)(vi) and 
``Emissions Offset Interpretative Ruling'' (40 CFR part 51, appendix 
S).\8\
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    \7\ The NSR PM2.5 Rule entitled ``Implementation of 
the New Source Review Program for Particulate Matter Less than 2.5 
Micrometers,'' Final Rule, 73 FR 28321 (May 16, 2008) revised the 
federal NSR program requirements at 40 CFR 51.166, 51.165, 52,21 and 
Emissions Offset Interpretative Ruling'' (40 CFR part 51, appendix 
S) to establish the framework for implementing preconstruction 
permit review for the PM2.5 NAAQS in both attainment and 
nonattainment areas.
    \8\ A similar paragraph added to the nonattainment new source 
review (NNSR) rule does not include the term ``particulate matter 
emissions.'' See 40 CFR 51.165(a)(1)(xxxvii)(D).
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    On March 16, 2012, however, EPA proposed the Condensable PM 
Correction Rule \9\ to revise the definition of ``regulated NSR 
pollutant'' to remove the inadvertent requirement (established in the 
NSR PM2.5 Rule) that the measurement of condensable 
``particulate matter emissions'' be included as part of the measurement 
and regulation of particulate matter.\10\ (See 77 FR 15656). At the 
time of EPA's proposal for the Condensable PM Correction rule, EPA was 
also considering approval of Tennessee's July 29, 2011, SIP revision 
adopting the NSR permitting requirements promulgated in the May 16, 
2008, NSR PM2.5 Rule including the term ``particulate matter 
emissions,'' in the definition of ``regulated NSR pollutant.''
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    \9\ The rulemaking proposed to remove the term ``particulate 
matter emissions'' from federal PSD regulations at 40 CFR 
51.166(b)(49)(vi), 52.21(b)(50)(vi) and part 51, appendix S 
(``Emissions Offset Interpretative Ruling'').
    \10\ The term ``particulate matter emissions'' includes 
particles that are larger than PM2.5 and PM10 
and is an indicator measured under various New Source Performance 
Standards (NSPS) (40 CFR part 60). In addition to the NSPS for PM, 
it is noted that states regulated ``particulate matter emissions'' 
for many years in their SIPs for PM, and the same indicator has been 
used as a surrogate for determining compliance with certain 
standards contained in 40 CFR part 63, regarding National Emission 
Standards for Hazardous Air Pollutants.
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    As a result of EPA's March 16, 2012, proposed rulemaking, Tennessee 
submitted a letter to EPA on May 1, 2012, requesting that EPA not 
approve the term ``particulate matter emissions into the Tennessee SIP 
(at rule 1200-03-09-.01(4)(b)47(vi)) as part of the definition for 
``regulated NSR pollutant.'' Consistent with this request, EPA took 
final action to approve Tennessee's July 29, 2011, NSR PM2.5 
Rule SIP revision on July 30, 2012, excluding the term ``particulate 
matter emissions,'' and at the time did not act on the portion of 
Tennessee's revised ``regulated NSR pollutant'' definition as requested 
by the State. See 77 FR 44481. EPA finalized the Condensable PM 
Correction Rule on October 25, 2012. In an effort to be consistent with 
EPA's final Condensable PM Correction Rule, Tennessee's February 23, 
2013, submittal removed the term ``particulate matter emissions'' from 
the Tennessee's state law definition for ``regulated NSR pollutant.'' 
EPA interprets this February 23, 2013, submittal as superceding the 
portion of Tennessee's July 29, 2011, submittal that purported to 
include the term ``particulate matter emissions,'' in the definition of 
``regulated NSR pollutant.'' As such, there is no longer a SIP 
submittal to include the term ``particulate matter emissions'' in the 
definition of ``regulated NSR pollutant'' before the Agency, and thus, 
no further action is required as the provision was never approved into 
the SIP.

IV. What is EPA's analysis of Tennessee's SIP revision?

    Tennessee currently has a SIP-approved NSR program for new and 
modified stationary sources. TDEC's PSD preconstruction rules are found 
at Air Quality Regulations, Chapter 1200-03-09--Construction and 
Operating Permits, Rule Number .01--Construction Permits and apply to 
major stationary sources or modifications constructed in areas 
designated attainment areas or unclassifiable/attainment areas as 
required under part C of title I of the CAA with respect to the NAAQS. 
TDEC's October 4, 2012, draft SIP revision asks EPA to approve the 
following provisions into the Tennessee SIP at Chapter 1200-03-09.01(4) 
as promulgated in the October 20, 2010, PM2.5 PSD 
Increments-SILs-SMC Rule: (1) PSD increments for PM2.5 
annual and 24-hour NAAQS pursuant to section 166(a) of the CAA; (2) 
SILs used as a screening tool (used by a major source subject to PSD) 
to evaluate the impact a proposed major source or modification may have 
on the NAAQS or PSD increment; and, (3) a SMC to determine the level of 
data gathering required of a major source in support of its PSD permit 
application for PM2.5 emissions.
    Specifically, Tennessee's October 4, 2012, draft SIP revision asks 
EPA to approve into the SIP the following PM2.5 PSD 
provisions promulgated October 20, 2010: (1) The PM2.5 PSD 
increments at TDEC's ambient air increments table Rule 1200-.03-
09-.01(4)(f); (2) revisions to the definition of ``baseline date'' at 
Rule 1200-03-09-.01(4)(b)15 to establish the PM2.5 ``major 
source baseline date'' (consistent with 40 CFR 51.166(b)(14)(i)(a) and 
(c)) and to establish the PM2.5 ``trigger date'' used for 
determining the ``minor source baseline date'' (consistent with 40 CFR 
51.166(b)(14)(ii)(c)); and, (3) a revision to the definition of 
``baseline area'' at Rule 1200-03-09-.01(4)(b)14 to specify pollutant 
air quality impact annual averages (consistent with 40 CFR 
51.166(b)(15)(i) and (ii)). These changes provide for the 
implementation of the PM2.5 PSD increments for the 
PM2.5 NAAQS in the State's PSD program. In today's action, 
EPA is proposing to approve Tennessee's October 4, 2012, draft SIP 
revision to address PM2.5 PSD increments.
    On December 4, 2012, EPA submitted an official comment letter to 
TDEC

[[Page 23708]]

regarding the State's October 4, 2012, draft SIP revision, documenting 
the omission of (1) the PM2.5 increments in Tennessee's 
Class I variance provisions at 1200-03-09-.01(4)(n)3, including the 
administrative change to replace the term ``particulate matter'' with 
``PM2.5, PM10'' (consistent with federal rule at 
40 CFR 51.166(c) and (p)(5)); and (2) the administrative changes to the 
definition of ``baseline date'' at 1200-03-09-.01(4)(b)15(i) and 
(ii)(I) to replace the term ``particulate matter'' with 
``PM10.'' TDEC has indicated they intend to address these 
inadvertent omissions in the final SIP submission to be consistent with 
the federal provisions promulgated in the PM2.5 PSD 
Increments-SIL-SMC rule.
    EPA's authority to implement the PM2.5 SILs at paragraph 
(k)(2) of section 51.166 and 52.21 and SMC at paragraph (i)(5) of 
section 51.166 and 52.21 for PSD purposes as promulgated in the October 
20, 2010 PM2.5 PSD Increments-SILs-SMC Rule, was challenged 
by the Sierra Club. Sierra Club v. EPA, 705 F.3d 458 (D.C. Cir. 2013). 
On January 22, 2013, the D.C. Circuit Court issued an order vacating 
and remanding to the EPA for further consideration those portions of 
the October 20, 2010, rule addressing the PM2.5 SILs, except 
for the parts codifying the PM2.5 SILs in the NSR rule at 40 
CFR 51.165(b)(2). In addition the D.C. Circuit Court also vacated parts 
of the October 20, 2010, rule establishing the PM2.5 SMC 
finding that those parts of the rule exceed the EPA's statutory 
authority. Sierra Club v. EPA, 705 F.3d 458, 469. See the docket for 
today's action for more information on the litigation and the court's 
decision using docket ID EPA-R04-OAR-2012-0894. As a result of the 
January 22, 2013, D.C. Circuit order and consultations with EPA Region 
4, TDEC has indicated that in the State's final SIP submission to adopt 
the regulations promulgated in the PM2.5 Increments-SILs-SMC 
Rule, they intend to request EPA not take action to approve into the 
Tennessee SIP the PM2.5 SILs and SMC. Accordingly, EPA is 
not proposing action at this time on any portions of Tennessee's PSD 
SIP submission regarding the PM2.5 SILs and SMC provisions 
described at 40 CFR 51.166 and 52.21, which have now been vacated and 
remanded.

V. Proposed Action

    EPA is proposing to approve portions of Tennessee's October 4, 
2012, draft SIP revision adopting PSD PM2.5 Increments 
promulgated in the October 20, 2010, PM2.5 PSD Increments-
SILs-SMC rule. EPA is not, however, proposing action to approve in this 
rulemaking the portion of Tennessee's October 4, 2012, draft SIP 
revision incorporating the PM2.5 SILs and SMC thresholds and 
provisions promulgated in EPA's PM2.5 PSD Increment-SILs-SMC 
Rule. EPA has reviewed Tennessee's October 4, 2012, draft SIP revision, 
and has made the preliminary determination that this portion of the 
draft SIP revision is approvable because it is consistent with section 
110 of the CAA and EPA regulations regarding NSR permitting.

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. 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 F43255, 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Particulate 
matter, Reporting and recordkeeping requirements.

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

    Dated: April 8, 2013.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2013-09316 Filed 4-19-13; 8:45 am]
BILLING CODE 6560-50-P
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