23704 Federal Register / Vol. 78, No. 77 / Monday, April 22, 2013 / Proposed Rules 

effects, and other advantages; 

distributive impacts; and equity). 

Executive Order 13563 (Improving 

Regulation and Regulatory Review) 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. Executive Order 

12866 (Regulatory Planning and 

Review) defines a ‘‘significant 

regulatory action’’ requiring review by 

the Office of Management and Budget 

(OMB), unless OMB waives such 

review, as ‘‘any regulatory action that is 

likely to result in a rule that may: (1) 

Have an annual effect on the economy 

of $100 million or more or adversely 

affect in a material way the economy, a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

or tribal governments or communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; (3) 

Materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) Raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in this Executive 

Order.’’ 

The economic, interagency, 

budgetary, legal, and policy 

implications of this regulatory action 

have been examined, and it has been 

determined not to be a significant 

regulatory action under Executive Order 

12866. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

one year. This proposed rule would 

have no such effect on State, local, and 

tribal governments, or on the private 

sector. 

Catalog of Federal Domestic Assistance 

The Catalog of Federal Domestic 

Assistance numbers and titles for the 

programs affected by this document are 

64.007, Blind Rehabilitation Centers; 

64.008, Veterans Domiciliary Care; 

64.009, Veterans Medical Care Benefits; 

64.010, Veterans Nursing Home Care; 

64.014, Veterans State Domiciliary Care; 

64.015, Veterans State Nursing Home 

Care; 64.016, Veterans State Hospital 

Care; 64.018, Sharing Specialized 

Medical Resources; 64.019, Veterans 

Rehabilitation Alcohol and Drug 

Dependence; 64.022, Veterans Home 

Based Primary Care; and 64.024, VA 

Homeless Providers Grant and Per Diem 

Program. 

Signing Authority 

The Secretary of Veterans Affairs, or 

designee, approved this document and 

authorized the undersigned to sign and 

submit the document to the Office of the 

Federal Register for publication 

electronically as an official document of 

the Department of Veterans Affairs. Jose 

D. Riojas, Interim Chief of Staff, 

Department of Veterans Affairs, 

approved this document on April 11, 

2013 for publication. 

List of Subjects in 38 CFR Part 17 

Administrative practice and 

procedure, Alcohol abuse, Alcoholism, 

Claims, Day care, Dental health, Drug 

abuse, Government contracts, Grant 

programs—health, Grant programs— 

veterans, Health care, Health facilities, 

Health professions, Health records, 

Homeless, Medical and Dental schools, 

Medical devices, Medical research, 

Mental health programs, Nursing 

homes, Reporting and recordkeeping 

requirements, Travel and transportation 

expenses, Veterans. 

Dated: April 17, 2013 . 

Robert C. McFetridge, 

Director of Regulation Policy and 

Management, Office of General Counsel, 

Department of Veterans Affairs. 

For the reasons stated in the 

preamble, the Department of Veterans 

Affairs proposes to amend 38 CFR part 

17 as set forth below: 

PART 17—MEDICAL 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 38 U.S.C. 501, and as noted in 

specific sections. 

■ 2. Amend § 17.111 by: 

■ a. Revising paragraph (d)(2)(vi). 

■ b. Removing paragraph (g). 

The revision reads as follows: 

§ 17.111 Copayments for extended care 

services. 

* * * * * 

(d) * * * 

(2) * * * 

(vi) Spousal resource protection 

amount means the value of liquid assets 

equal to the Maximum Community 

Spouse Resource Standard published by 

the Centers for Medicare and Medicaid 

Services (CMS) as of January 1 of the 

current calendar year if the spouse is 

residing in the community (not 

institutionalized). 

* * * * * 

[FR Doc. 2013–09396 Filed 4–19–13; 8:45 am] 

BILLING CODE 8320–01–P 

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. 

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., 


tkelley on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 77 / Monday, April 22, 2013 / Proposed Rules 23705 

1TDEC 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. 

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. 


tkelley on DSK3SPTVN1PROD with PROPOSALS
23706 Federal Register / Vol. 78, No. 77 / Monday, April 22, 2013 / Proposed Rules 

2The 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. 

3Section 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. 

4Baseline 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. 

5EPA 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). 6EPA 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. 

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 IncrementsSILs-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-SILsSMC 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

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 IncrementsSILs-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 SILsSMC 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. 

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 (mg/m3) 

(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 


tkelley on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 77 / Monday, April 22, 2013 / Proposed Rules 23707 

7The 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. 

8A 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). 

9The 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’’). 

10The 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. 

ambient air increment table at 40 CFR 

51.166(c)(1) and 52.21(c). 

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

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.’’ 

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 SIPapproved 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-SILsSMC 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 


tkelley on DSK3SPTVN1PROD with PROPOSALS
23708 Federal Register / Vol. 78, No. 77 / Monday, April 22, 2013 / Proposed Rules 

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 IncrementsSILs-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 IncrementsSILs-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-SILsSMC 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-SILsSMC 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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 121024581–3333–01] 

RIN 0648–BC71 

List of Fisheries for 2013 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule. 

SUMMARY: The National Marine 

Fisheries Service (NMFS) publishes its 

proposed List of Fisheries (LOF) for 

2013, as required by the Marine 

Mammal Protection Act (MMPA). The 

proposed LOF for 2013 reflects new 

information on interactions between 

commercial fisheries and marine 

mammals. NMFS must classify each 

commercial fishery on the LOF into one 

of three categories under the MMPA 

based upon the level of serious injury 

and mortality of marine mammals that 

occurs incidental to each fishery. The 

classification of a fishery in the LOF 

determines whether participants in that 

fishery are subject to certain provisions 

of the MMPA, such as registration, 

observer coverage, and take reduction 

plan (TRP) requirements. The fishery 

classifications and list of marine 


tkelley on DSK3SPTVN1PROD with PROPOSALS