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Citation: 77 Fed. Reg. 22533 2012

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-- The search text of this PDF is generated from uncorrected OCR text.Federal Register/Vol. 77, No. 73/Monday, April 16, 2012/Proposed Rules

(c) EffectivePeriod.This rule will be effective from 9:30 p.m. to 10:45 p.m. on June 23, 2012. (d)Regulations.(1)The general regulations contained in 33 CFR 165.23,

as well as the following regulations, apply.

(2)No vessels, except for fireworks barge and accompanying vessels, will be allowed totransit the safety zone without the permission ofthe COTP or the designated representative. (3)Allpersons andvessels shall comply with the instructions ofthe COTP or the designated representative. Upon being hailed by a U.S.Coast Guard vesselby siren, radio, flashing light, or other means, the operator ofa vessel shall proceed as directed. (4) Vessel operators desiring toenter

oroperate within the regulated area shall contact the COTP or the designated representative via VHF channel 16 or 718-354-4353 (Sector New York command center) to obtain permission to do so.

Dated: March 23, 2012. L.L. Fagan, RearAdmiral,

### U.S.CoastGuard,Captain of thePort New York.
[FR Duc. 2012-9007 Filed4-13-12; 8:45 am]

BILLING CODE 9110-04-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [EPA-R04-OAR-2011-0353; FRL-9659-2]
Approval and Promulgation of Implementation Plans; Tennessee; 110(a)(1) and (2) Infrastructure Requirements forthe 1997 8-Hour Ozone National Ambient AirQuality Standards

AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve in part, and conditionally approve in part, the State Implementation Plan (SIP) submission, submitted by the State ofTennessee, through the Tennessee Department ofEnvironment and Conservation (TDEC), to demonstrate that the State meets the requirements of sections 110(a)(1) and (2) ofthe Clean Air Act (CAA orAct) for the 1997 8- hour ozone national ambient air quality standards (NAAQS). Section 110(a) of the CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement ofeach NAAQS promulgated by theEPA, which is commonly referred to as an "infrastructure" SIP. TDEC certified that the Tennessee SIP contains provisions that ensure the 1997 8-hour ozone NAAQS are implemented, enforced, and maintained in Tennessee (hereafter referred to as "infrastructure submission"). EPA isproposing to conditionally approve sub-element 110(a)(2)(E)(ii) ofTennessee's December 14, 2007, submission because the
current Tennessee SIP does not include provisions to comply with the requirements ofthis sub-element. With the exception ofsub-element 110(a)(2)(E)(ii), EPA isproposing to determine thatTennessee's infrastructure submission, provided to EPA on December 14, 2007, addressed all the required infrastructure elements for the 1997 8-hour ozone NAAQS. DATES: Written comments must be received on orbefore May 16, 2012. ADDRESSES: Submit your comments, identified by Docket ID No.EPA-R04- OAR-2011-0353, by one ofthe following methods: 1. www.regulations.gov:Follow the on-line instructions for submitting
comments.

2. Email:benjamin.lynorae@epa.gov. 3.Fax:(404) 562-9019. 4. Mail:"EPA-R04-OAR-2011- 0353," Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960.

5.HandDeliveryorCourier: Lynorae Benjamin, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours ofbusiness are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

Instructions:Direct your comments to Docket ID No. EPA-R04-OAR-2011- 0353. EPA's policy isthat all comments received willbe included in the public docket without change andmay 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.govor email, information thatyou consider tobe CBI

or otherwise protected. The www.regulations.govWeb site is an "anonymous access" system, which

means EPA will not knowyour identity

orcontact information unless you provide itin thebody ofyour comment. Ifyou send an email comment directly
to EPA without going through www.regulations.gov,your email address will be automatically captured andincluded as part ofthe comment that isplaced in the public docket and made available on the Internet. Ifyou submit an electronic comment, EPA recommends thatyou include your

name and other contact information in the body ofyour comment andwith any disk orCD-ROM you submit. IfEPA
cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may notbe able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, andbe free ofany defects or viruses. Foradditional information about EPA's public docketvisit 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.govindex. Although listed in the index, some information is
not publicly available, i.e., CBIor 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.govor 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 thatifat all possible,you contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to scheduleyour inspection. The Regional Office's official hours ofbusiness are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Regulatory Development Section, Air Planning Branch, Air,Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9140. Ms. Ward canbe reached via electronic mail at ward.nacosta@epa.gov.

SUPPLEMENTARY INFORMATION: 

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

Table ofContents

I.Background II. What elements are required under sections 110(a)(1) and (2)? II. Scope ofInfrastructure SIPs IV. What is EPA's analysis of how Tennessee addressed the elements of sections 110(a)(1) and (2) "infrastructure" provisions? V. Proposed Action VI. Statutory and Executive Order Reviews

I. Background

On July 18, 1997, EPA promulgated a

new NAAQS for ozone based on 8-hour average concentrations. The 8-hour averaging period replaced theprevious 1-hour averaging period, and the level of the NAAQS was changed from 0.12 parts per million (ppm)to 0.08 ppm. See62 FR 38856. Pursuant to section 110(a)(1) ofthe CAA, states are required
to submit SIPs meeting the requirements ofsection 110(a)(2) withinthree years afterpromulgation ofa new or revised NAAQS. Section 110(a)(2) requires
states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance ofthe NAAQS. States were required to submit such SIPs for the 1997 8-hour ozone NAAQS to EPA no later than June 2000. However, intervening litigation over the 1997 8-hour ozone NAAQS created uncertainty about howto proceed and
many states did not provide the required "infrastructure" SIP submission for these newly promulgated NAAQS.

On March 4, 2004, Earthjustice submitted anotice ofintent to sue related to EPA's failure to issue findings offailure to submitrelated to the "infrastructure" requirements for the 1997 8-hour ozone NAAQS. EPA entered into a consent decree with Earthjustice which required EPA, among other things, to complete aFederal Register notice announcing EPA's determinations pursuant to section 110(k)(1)(B) as to whether each state had made complete submissions to meet the requirements of section 110(a)(2) for the 1997 8-hour ozone NAAQS by December 15, 2007. Subsequently, EPA received an extension ofthe date to complete this Federal Register notice until March 17, 2008, based upon agreement to make the findings with respect to submissions made byJanuary 7, 2008. In accordance with the consent decree, EPA made completeness findings for each state based upon what the Agency received from each state as ofJanuary 7, 2008.

On March 27, 2008, EPA published a final rulemaking entitled, "Completeness Findings for Section 110(a) State Implementation Plans; 8- Hour Ozone NAAQS," making a finding that each state had submitted orfailed
to submit a complete SIP thatprovided the basic program elements ofsection 110(a)(2) necessary toimplement the 1997 8-hour ozone NAAQS. See 73 FR 16205. For those states that did receive findings, such as Tennessee, the findings offailure to submit for all or a portion ofa state's implementation plan established a 24-month deadline for EPA topromulgate a Federal Implementation Plan (FIP) to address the outstanding SIP elements unless, prior to thattime, the affected states submitted, and EPA approved, the required SIPs. However, the findings of failure to submit did notimpose sanctions or set deadlines for imposing sanctions as described in section 179 of the CAA,because these findings do not pertain to the elements contained in the Title I part D plan fornonattainment

areas as required under section 110(a)(2)(I). Additionally, the findings offailure to submit for the infrastructure submittals are not a SIP call pursuant to section 110(k)(5).

The findings that all or portions ofa state's submission are complete established a 12-month deadline for EPA totake actionupon the complete SIP elements in accordance with section 110(k). Tennessee's infrastructure submission was received by EPA on December 14, 2007, and was determined
to be complete on March 27, 2008, for all elements withthe exception of 110(a)(2)(C) and (J). Tennessee was among other states thatreceived a finding offailure to submit because its infrastructure submission was not complete for elements (C) and (J) for the 1997 8-hour ozone NAAQS by March 1, 2008. Tennessee has since met the completeness requirements for 110(a)(2)(C) and (J)and these infrastructure elements were federally approved on March 14, 2012. See 77 FR 14976.

Today's action is proposing to approve in part, and conditionally
approve in part, Tennessee's infrastructure submission for which EPA made the completeness determination on March 27, 2008. This action is not approving any specific rule, but rather proposingthat Tennessee's already approved SIP meets certain CAA requirements.

II. Whatelements are requiredunder sections 110(a)(1) and(2)?
Section 110(a) ofthe CAA requires
states to submit SIPs to provide for the implementation, maintenance, and enforcement ofa new orrevised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new orrevised NAAQS, but the contents ofthat submission mayvary depending upon the facts and circumstances. In particular, the data and analytical tools available at thetime the state develops and submits the SIP for a new or revised NAAQS affects the content ofthe submission. The contents of such SIP submissions may alsovary depending
upon what provisions the state's existing SIP already contains. Inthe

case ofthe 1997 8-hour ozone NAAQS,
states typically have met thebasic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous ozone NAAQS.

More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for "infrastructure" SIP requirements related to anewly established or revised NAAQS. As mentioned above, these requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed
to assure attainment and maintenance of the NAAQS. The requirements that are the subject ofthisproposed rulemaking

are listedbelow' and inEPA's October 2, 2007, memorandum entitled "Guidance on SIP Elements Required Under Section 110(a)(1) and (2)for the 1997 8-Hour Ozone and PM2
. 5National Ambient Air Quality Standards."

* 110(a)(2)(A): Emission limits and other control measures.

* 110(a)(2)(B): Ambient air quality monitoring/data system.

* 110(a)(2)(C): Program for enforcement ofcontrol measures. 2

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

'Two elements identified insection 110(a)(2) are not governed by the three year submission deadline ofsection 110(a)(1) because SIPs incorporating necessary local nonattainment area controls arenot duewithin three years after promulgation ofa new

or revised NAAQS, butrather dueat the time the nonattainment area plan requirements are due pursuant to section 172. Theserequirements are: (1) Submissions required by section 110(a)(2)(C) to the
extent that subsection refers to a permit program as required in partD Title I ofthe CAA; and (2) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements ofpart D, Title I of the CAA. Today's proposed rulemaking does not address infrastructure elements related to section 110(a)(2)(I) or the nonattainment planning requirements of 110(a)(2)(C).

2This rulemaking only addresses requirements
for this element asthey relate to attainment areas.

3Today's proposedrule does not address element 110(a)(2)(D)(i) (Interstate Transport) for the 1997 8- hour ozone NAAQS. Interstate transport 

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* 110(a)(2)(E): Adequate resources. * 110(a)(2)(F): Stationary source monitoring system.

* 110(a)(2)(G): Emergency power. * 110(a)(2)(H): Future SIP revisions. * 110(a)(2)(I): Areas designated nonattainment and meet the applicable requirements ofpart D.4

* 110(a)(2)(J): Consultation with government officials; public notification; and PSD and visibility protection.

* 110(a)(2)(K): Air quality modeling/ data.

* 110(a)(2)(L): Permitting fees. * 110(a)(2)(M): Consultation/ participation by affected local entities.

III. Scope of InfrastructureSIPs

EPA iscurrently acting upon SIPs that address the infrastructure requirements ofCAA section 110(a)(1) and (2)for

ozone and fine particulate matter (PM2.5) NAAQS for various states across the country. Commenters on EPA's recent proposals for some states raised

concerns about EPA statements that it

was not addressing certain substantive issues in the context ofacting on those infrastructure SIP submissions.5Those Commenters specifically raised

concerns involving provisions in existing SIPs and with EPA's statements in other proposals thatit would address
two issues separately and not as part of actions onthe infrastructure SIP submissions: (i) Existing provisions related to excess emissions during periods ofstart-up, shutdown, or

requirements were formerly addressedby Tennessee consistent with the Clean Air Interstate Rule (CAIR). OnDecember 23, 2008, CAIR was remanded by the D.C. Circuit Court ofAppeals, without vacatur, back to EPA. See North Carolina

v. EPA, 531 F.3d 896 (D.C. Cir. 2008). Priorto this remand, EPA tookfinal action to approve Tennessee's SIPrevision, which was submitted to comply with CAIR. See 72 FR 46388 (August 20, 2007). In so doing, Tennessee's CAIR SIP revision addressed the interstate transport provisions in section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS. In response to the remand ofCAIR, EPA has promulgated a newrule to address interstate transport. See 76 FR 48208 (August 8, 2011) ("the Transport Rule"). That rule was recently stayed by the D.C. Circuit Court ofAppeals. EPA's action on element 110(a)(2)(D)(i) willbe addressed in a separate action.

4This requirement was inadvertently omitted from EPA's October 2, 2007, memorandum entitled "Guidance on SIPElements Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and PM2. 5 NationalAmbient Air Quality Standards," but as mentioned aboveis notrelevant
to today's proposed rulemaking.

5See Comments ofMidwest Environmental Defense Center, dated May 31, 2011. Docket #EPAR05-OAR-2007-1179 (adverse comments on proposals for three states in Region 5). EPA notes that thesepublic comments on another proposal are notrelevant to this rulemaking and donot have to be directly addressed inthis rulemaking. EPA will respond to these comments in the appropriate rulemaking actionto which they apply. malfunction (SSM)at sources, thatmay be contrary to the CAA andEPA's policies addressing such excess emissions; and (ii)existing provisions related to "director's variance" or "director's discretion" thatpurport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, thatmay be contrary to the CAA (director's discretion). EPA
notes thatthere are two other substantive issues for which EPA likewise stated in other proposals thatit would address the issues separately: (i) Existing provisions for minor source

new source review programs thatmay be inconsistent with the requirements of the CAA and EPA's regulations that pertain to such programs (minorsource NSR); and (ii)existing provisions for PSD programs that maybe inconsistent with current requirements ofEPA's "Final NSR Improvement Rule," 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR Reform). In light ofthe comments, EPA believes that its statements invarious proposed actions on infrastructure SIPs with respect to these four individual issues shouldbe explained in greater depth. It is important to emphasize that EPA istaking the same position with respect to these four substantive issues in this action on the infrastructure SIPs for the 1997 8-hour ozone NAAQS from Tennessee.

EPA intended the statements in the other proposals concerning these four issues merely tobe informational, and
to provide general notice ofthe potential existence ofprovisions within the existing SIPs of some states that might require future corrective action. EPA did not want states, regulated entities, or members ofthe public to be under the misconception that the Agency's approval ofthe infrastructure SIP submission of a given state should be interpreted as are-approval ofcertain types ofprovisions that might exist buried in the larger existing SIP for such
state. Thus, for example, EPA explicitly noted that the Agency believes that

some states may have existing SIP approved SSM provisions that are contrary to the CAA andEPA policy, but that "in this rulemaking, EPA isnot proposing to approve or disapprove any existing state provisions with regard to

excess emissions during SSM of operations at facilities." EPA further explained, for informational purposes, that "EPA plans to address such State regulations in the future." EPA made similar statements, for similar reasons, with respect to the director's discretion, minor source NSR, and NSR Reform issues. EPA's objective was to make clear that approval ofan infrastructure SIP for these ozone andPM 2
.5NAAQS should not be construed as explicit or implicit re-approval ofany existing provisions that relate to these four substantive issues. EPA is reiterating that position in this action on the infrastructure SIP for Tennessee.

Unfortunately, the Commenters and others evidently interpreted these
statements to mean thatEPA considered action upon the SSM provisions andthe other three substantive issues to be integral parts of acting on an infrastructure SIP submission, and therefore thatEPA was merely postponing taking final action on the issues in the context ofthe infrastructure SIPs. This was notEPA's intention. To the contrary, EPA only
meant to convey its awareness ofthe potential for certain types of deficiencies in existing SIPs, and to prevent any misunderstanding thatit

was reapproving any such existing provisions. EPA's intention was to convey its position thatthe statute does
not require that infrastructure SIPs address these specific substantive issues in existing SIPs and thatthese issues may be dealt with separately, outside the context ofacting onthe infrastructure SIP submission ofa state. To be clear, EPA did not mean to imply that itwas not taking afull final agency action on the infrastructure SIP submission withrespect to any substantive issue that EPA considers to be a required part ofacting on such submissions under section 110(k) or under section 110(c). Given the confusion evidently resulting from EPA's statements in those other proposals, however, we want to explain

more fully the Agency's reasons for concluding that these fourpotential substantive issues in existing SIPs may be addressed separately from actions on infrastructure SIP submissions.

The requirement for the SIP submissions at issue arises out ofCAA section 110(a)(1). Thatprovision requires that states must make a SIP submission "within 3years (or such shorter period as the Administrator may prescribe) after the promulgation ofa national primary ambient air quality standard (or any revision thereof)" and that these SIPs are to provide for the "implementation, maintenance, and enforcement" of such NAAQS. Section 110(a)(2) includes a list ofspecific elements that "[e]ach suchplan" submission must meet. EPAhas historically referred tothese particular submissions that states must make after the promulgation ofa new or revised NAAQS as "infrastructure SIPs." This 

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specific term does not appear in the statute, but EPAuses the term to distinguish this particular type ofSIP submission designed to address basic structural requirements ofa SIP from other types ofSIP submissions designed
to address other different requirements, such as "nonattainment SIP" submissions required to address the nonattainment planning requirements of part D, "regional haze SIP" submissions required to address the visibility protection requirements ofCAA section 169A, NSR permitting program submissions required to address the requirements ofpart D, and a host of other specific types ofSIP submissions that address other specific matters.

Although section 110(a)(1) addresses the timing and general requirements for these infrastructure SIPs, and section 110(a)(2) provides more details concerning therequired contents of these infrastructure SIPs, EPA believes that many ofthe specific statutory provisions are facially ambiguous. In particular, the list ofrequired elements provided in section 110(a)(2) contains a wide variety ofdisparate provisions,

some ofwhich pertain to required legal authority, some ofwhich pertain to required substantive provisions, and

some ofwhich pertain to requirements for both authority and substantive provisions. 6 Some ofthe elements of section 110(a)(2) are relatively straightforward, but others clearly require interpretation by EPA through rulemaking, or recommendations through guidance, in order to give specific meaning for aparticular NAAQS. 7

Notwithstanding that section 110(a)(2) provides that "each" SIP submission
must meet the list ofrequirements therein, EPAhas longnoted thatthis literal reading ofthe statute is internally inconsistent, insofar as section

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

states must provide assurances that they have adequate legal authority understate and local law
to carry outthe SIP; section 110(a)(2)(C) provides that statesmust have a substantive program to address certain sources asrequired bypart C ofthe CAA; section 110(a)(2)(G) provides that states must have both legal authorityto address emergencies and substantive contingency plans in the event of such an emergency.

7For example, section 110(a)(2)(D)(i) requires EPA to be surethat each state's SIP contains adequate provisions to prevent significant contribution to nonattainment ofthe NAAQS in other states. This provision contains numerous terms that require substantial rulemaking byEPA in order to determine such basicpoints as what constitutes significant contribution. See "Rule To Reduce Interstate Transport ofFine Particulate Matter and Ozone (CleanAir Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule," 70 FR 25162 (May 12, 2005) (defining, among other things, the phrase "contribute significantly to nonattainment"). 110(a)(2)(I) pertains to nonattainment SIP requirements that could not be met

on the schedule provided for these SIP submissions in section 110(a)(1).8 This illustrates thatEPA must determine which provisions ofsection 110(a)(2) may be applicable for a given infrastructure SIP submission. Similarly, EPAhas previously decided that itcould take action on different parts ofthe larger, general "infrastructure SIP" for a given NAAQS without concurrent action on all subsections, such as section 110(a)(2)(D)(i), because the Agency bifurcated the action on these latter "interstate transport" provisions within section 110(a)(2) and worked with states to address each ofthe four prongs of section 110(a)(2)(D)(i) with substantive administrative actions proceeding on different tracks with different schedules. 9This illustrates that EPA may conclude that subdividing the applicable requirements ofsection 110(a)(2) into separate SIP actions may sometimes be appropriate for a given NAAQS where a specific substantive action is necessitated, beyond a mere submission addressingbasic structural aspects ofthe state's implementation plans. Finally, EPA notes that not every element ofsection 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new orrevised NAAQS and the attendant infrastructure SIP submission for that NAAQS. For example, the monitoring requirements that mightbe necessary for purposes of section 110(a)(2)(B) for one NAAQS could be very different than whatmight be necessary for a different pollutant. Thus, the content ofan infrastructure SIP submission to meetthis element from a state mightbe very different for

an entirely new NAAQS, versus a minor revision to an existing NAAQS. 1 0 Similarly, EPA notes that other types ofSIP submissions required under the
statute also must meet the requirements of section 110(a)(2), and this also demonstrates the need toidentify the

8 SeeId., 70 FR 25162, at 63-65 (May 12, 2005) (explainingrelationship between timing requirement ofsection 110(a)(2)(D) versus section 110(a)(2) (1)).

9EPA issued separate guidance to states with respect to SIP submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5 NAAQS. See "Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards," from William T. Harnett, Director AirQuality Policy Division OAQPS, to Regional Air Division Director, Regions I-X, dated August 15, 2006.

10For example, implementation ofthe 1997 PM2.5 NAAQS required the deployment ofa system of

new monitors to measure ambient levels ofthat new indicator species forthe new NAAQS. applicable elements for other SIP submissions. For example, nonattainment SIPs required by part D likewise have to meet the relevant subsections ofsection 110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear thatnonattainment SIPs would not need tomeetthe portion of section 110(a)(2)(C) that pertains to part C, i.e.,the PSD requirements applicable in attainment areas. Nonattainment SIPs required bypart D also would not need
to address the requirements of section 110(a)(2)(G) withrespect to emergency episodes, as such requirements would
not be limited tononattainment areas. As this example illustrates, each type of SIP submission may implicate some subsections ofsection 110(a)(2) and not others.

Given the potential for ambiguity of the statutory language ofsection 110(a)(1) and (2), EPAbelieves that itis appropriate for EPAto interpret that language in the context ofacting onthe infrastructure SIPs for a given NAAQS. Because ofthe inherent ambiguity ofthe list ofrequirements in section 110(a)(2), EPA has adopted an approach inwhich it reviews infrastructure SIPs against this list ofelements "as applicable." In otherwords, EPA assumes thatCongress could not have intended thateach and
every SIP submission, regardless ofthe
purpose ofthe submission or the NAAQS in question, would meet each oftherequirements, or meet each of them in the same way. EPA elected to

use guidance to make recommendations for infrastructure SIPs for these ozone andPM2
. 5 NAAQS. On October 2, 2007, EPA issued guidance making recommendations for the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS and the 1997 PM2. 5 NAAQS."I Within this guidance document, EPA described the duty ofstates to make these submissions
to meet what the Agency characterized

as the "infrastructure" elements for SIPs, which itfurther described asthe "basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance ofthe standards." 12 As further identification ofthese basic structural SIP requirements, "attachment A" to the guidance document included a short description ofthe various elements ofsection 110(a)(2) and additional information

11See "Guidance on SIPElements Required Under Section 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2. 5 National Ambient AirQuality Standards," from William T. Harnett, Director Air Quality Policy Division, to AirDivision Directors, Regions I-X, dated October 2, 2007 (the "2007 Guidance").

12Id., at page2. 

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about the types ofissues thatEPA considered germane in the context of suchinfrastructure SIPs. EPA emphasized that the description ofthe basic requirements listed on attachment A was not intended "to constitute an interpretation of" the requirements, and

was merely a "briefdescription ofthe required elements." 13 EPA also stated itsbeliefthat with one exception, these requirements were "relatively self explanatory, and past experience with SIPs for other NAAQS should enable States to meetthese requirements with assistance from EPA Regions." 14 However, for the one exception to that general assumption (i.e., how states should proceed withrespect to the requirements of section 110(a)(2)(G) for the 1997 PM2. 5NAAQS), EPA gave much more specific recommendations. But for other infrastructure SIP submittals, and for certain elements of the submittals for the 1997 PM2. 5 NAAQS, EPA assumed thateach State would work with its corresponding EPA regional office torefine the scope ofa State's submittal based on an assessment ofhow therequirements of section 110(a)(2) should reasonably applyto thebasic structure ofthe State's implementation plans for the NAAQS in question.

On September 25, 2009, EPA issued guidance to make recommendations to states withrespect to the infrastructure SIPs for the 2006 PM2.5NAAQS.1 5 In the 2009 Guidance, EPA addressed a number ofadditional issues that were not germane tothe infrastructure SIPs for the 1997 8-hour ozone and 1997 PM2.5NAAQS, but were germane to these SIP submissions for the 2006 PM2.5 NAAQS (e.g., the requirements of section 110(a)(2)(D)(i) thatEPA had bifurcated from the other infrastructure elements for those specific 1997 ozone and PM2.5NAAQS). Significantly, neither the 2007 Guidance nor the 2009 Guidance explicitly referred to the SSM, director's discretion, minor source NSR,

orNSR Reform issues as among specific substantive issues EPA expected states to address in the context ofthe

13Id., at attachment A, page 1.
14Id., at page4. Inretrospect, the concerns raised by the Commenters with respect to EPA's approach
to some substantive issues indicates that the statute is not so "self explanatory," and indeed is sufficiently ambiguous that EPA needs to interpret it inorder to explain why these substantive issues do not need to be addressed inthe context of infrastructure SIPs and maybe addressed at other times andby other means.

15See "Guidance on SIPElements Required Under Sections 110(a)(1) and (2) for the 2006 24- Hour Fine Particle (PM2 .5) National Ambient Air Quality Standards (NAAQS)," from William T, Harnett, Director Air Quality Policy Division,to Regional AirDivisionDirectors, Regions I-X, dated September 25, 2009 (the"2009 Guidance"). infrastructure SIPs, nor did EPA give
any more specific recommendations with respect to how states might address such issues even ifthey elected to do so. The SSM and director's discretion issues implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform issues implicate section 110(a)(2)(C). In the 2007Guidance and the 2009 Guidance, however, EPA did
not indicate to states that itintended to interpret these provisions as requiring a substantive submission to address these specific issues in existing SIP provisions in the context ofthe infrastructure SIPs for these NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that the states shouldmake submissions in which they established thatthey have the basic SIP structure necessary to implement, maintain, and enforce the NAAQS. EPAbelieves that states can establish that theyhave the basic SIP structure, notwithstanding thatthere
may be potential deficiencies within the existing SIP. Thus, EPA's proposals for other states mentioned these issues not because the Agency considers them issues thatmust be addressed in the
context ofan infrastructure SIP as required by section 110(a)(1) and (2), butrather because EPA wanted tobe clear thatit considers thesepotential existing SIP problems as separate from the pending infrastructure SIP actions. The same holds true for this action on the infrastructure SIPs for Tennessee.

EPA believes thatthis approach to the infrastructure SIP requirement is reasonable because itwould not be feasible to read section 110(a)(1) and (2)
to require a top tobottom, stem to stern, review ofeach and every provision ofan existing SIP merely forpurposes of assuring that the state in questionhas the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include

some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless maynot pose a significant problem for the purposes of "implementation, maintenance, and enforcement" ofa new or revised NAAQS when EPA considers the overall effectiveness ofthe SIP. To the contrary, EPAbelieves that a better approach is for EPA to determine which specific SIP elements from section 110(a)(2) are applicable to an infrastructure SIP for a given NAAQS, and tofocus attention on those elements that are most likely to need a specific SIP revision inlight of the new or revised NAAQS. Thus, for example, EPA's 2007 Guidance specifically directed states to focus on the requirements ofsection 110(a)(2)(G) for the 1997 PM2. 5NAAQS because of the absence ofunderlying EPA regulations for emergency episodes for this NAAQS and an anticipated absence ofrelevant provisions in existing SIPs.

Finally, EPA believes thatits approach is a reasonable reading of section 110(a)(1) and (2)because the
statute provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow the Agency to take appropriate tailored action, depending upon the nature and severity ofthe alleged SIP deficiency. Section 110(k)(5) authorizes EPAto issue a "SIP call" whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or otherwise to comply with the CAA. 1 6 Section 110(k)(6) authorizes EPA to correct

errors in pastactions, such aspast approvals ofSIP submissions.17 Significantly, EPA's determination that

an action on the infrastructure SIP is not the appropriate time and place to address all potential existing SIP problems does not preclude the Agency's subsequent reliance on provisions in section 110(a)(2) as part of thebasis for action at a latertime. For example, although it may notbe appropriate to require a state to eliminate all existing inappropriate director's discretion provisions inthe

course ofacting on the infrastructure SIP, EPAbelieves that section 110(a)(2)(A) may be among the statutory bases thatthe Agency cites inthe course ofaddressing the issue in a subsequent action. 18

16

EPA has recently issued a SIP callto rectify a specific SIP deficiency related to the SSM issue. See "Finding of Substantial Inadequacy of Implementation Plan; Call forUtah State Implementation Plan Revision," 76 FR 21639 (April 18, 2011).

17

EPA has recently utilized this authorityto correct errors inpast actions on SIPsubmissions related to PSDprograms. See "Limitation of Approval ofPrevention ofSignificant Deterioration Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; FinalRule,"
75 FR 82536 (December 30, 2010). EPA has previously used its authority under CAA 110(k)(6)
to remove numerous other SIP provisions that the Agency determined it had approved in error. See 61
FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).

18

EPA has recently disapproved a SIPsubmission
from Colorado on the grounds that itwould have included a director's discretion provision inconsistent with CAArequirements, including
section 110(a)(2)(A). See 75 FR 42342, 42344 (July
Continued 

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IV. Whatis EPA's analysis ofhow Tennessee addressedthe elements of sections 110(a)(1) and(2) "infrastructure" provisions?

The Tennessee infrastructure submission addresses the provisions of sections 110(a)(1) and (2) as described below. 1. 110(a)(2)(A): Emission limitsand othercontrolmeasures:Several regulations within Tennessee's SIP provide Tennessee Air Pollution Control Regulations relevant to air quality control regulations. The regulations describedbelow have been federally approved in the Tennessee SIP and include enforceable emission limitations and other control measures. Chapters 1200-3-1, GeneralProvisions; 1200-3-3, AirQualityStandards;1200- 3-4, OpenBurning;1200-3-18, Volatile OrganicCompounds;and 1200-3-27, Nitrogen Oxides,ofthe Tennessee SIP establish emission limits for ozone and address the required control measures, means, and techniques for compliance with the ozone NAAQS. EPAhas made the preliminary determination that the provisions contained in these chapters andTennessee's practices are adequate
to protect the 1997 8-hour ozone NAAQS in the State.

In this action, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM ofoperations at

afacility. EPAbelieves that a number of
states have SSM provisions which are contrary to the CAA and existing EPA guidance, "State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown" (September 20, 1999), and the Agency plans to address such state regulations in the future. In the meantime, EPA encourages any state having a deficient SSM provision totake steps tocorrect it as soon aspossible.

Additionally, in this action, EPA is
not proposing to approve or disapprove
any existing State rules withregard to director's discretion orvariance provisions. EPAbelieves that anumber ofstates have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), andthe Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion orvariance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.

21, 2010) (proposed disapproval ofdirector's discretionprovisions); 76 FR 4540 (January26, 2011) (final disapproval ofsuch provisions). 2. 110(a)(2)(B) Ambientairquality monitoring/datasystem:Tennessee's Air Pollution Control Requirements, Chapter 1200-3-12, Procedures for Ambient SamplingandAnalysis,ofthe Tennessee SIP, along withthe Tennessee Network Description and Ambient Air Monitoring Network Plan, provide for an ambient air quality monitoring system in the State. Annually, EPA approves the ambient air monitoring networkplan for the state agencies. OnJuly 1,2011, Tennessee submitted its plan toEPA. On October 24, 2011, EPA approved Tennessee's monitoring networkplan. Tennessee's approved monitoring network plan can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR2011-0353. EPA has made the preliminary determination that Tennessee's SIP and practices are adequate for the ambient air quality monitoring and data system related to the 1997 8-hour ozone NAAQS. 3. 110(a)(2)(D)(ii) Interstate and International transport provisions: Chapter 1200-9-.01(5) GrowthPolicy,of the Tennessee SIP outlines howthe State will notify neighboring states of potential impacts from new ormodified

sources. Tennessee does not have any pending obligation under sections 115 and 126 ofthe CAA. Additionally, Tennessee has federally approved regulations in its SIP that satisfy the requirements for the NOx SIP Call. See 70 FR 76408 (December 27, 2005). EPA has made the preliminary determination that Tennessee's SIP and practices are adequate for insuring compliance with the applicable requirements relating to interstate andinternational pollution abatement for the 1997 8-hour ozone NAAQS.

4. 110(a)(2)(E)Adequate resources: EPA isproposing two separate actions with respect to the sub-elements required pursuant to section 110(a)(2)(E). Section 110(a)(2)(E) requires that each implementation plan provide (i) necessary assurances thatthe State will have adequate personnel, funding, and authority under state law
to carry out its implementation plan, (ii) that the State comply with the requirements respecting State Boards pursuant to section 128 ofthe Act, and (iii)necessary assurances that, where the State hasrelied on a local or regional government, agency, or instrumentality for the implementation ofany plan provision, the State has responsibility for ensuring adequate implementation ofsuch plan provisions. As with the remainder ofthe infrastructure elements addressed by this notice, EPA isproposing to approve Tennessee's SIP as meeting the requirements of sub-elements 110(a)(2)(E)(i) and (iii). With respect to sub-element 110(a)(2)(E)(ii) (regarding
stateboards), EPA isproposing to approve in part, and conditionally
approve in part, this sub-element. EPA's rationale for today's proposals respecting each sub-element is described in turnbelow.

In support ofEPA's proposal to approve sub-elements 110(a)(2)(E)(i) and (iii),EPA notes that TDEC, through the Tennessee Air Pollution Control Board, is responsible for promulgating rules andregulations for theNAAQS, emissions standards general policies, a system ofpermits, fee schedules for the review ofplans, and other planning needs. As evidence ofthe adequacy of TDEC's resources withrespect to subelements (i) and (iii), EPA submitted a letter to Tennessee on March 11, 2011, outlining 105 grant commitments and
current status ofthese commitments for fiscal year 2010. The letter EPA submitted to Tennessee can be accessed
at www.regulations.govusingDocket ID No. EPA-R04-OAR-2011-0353. Annually, states update these grant commitments based on current SIP requirements, airquality planning, and applicable requirements related tothe NAAQS. There were no outstanding issues for fiscal year 2009, therefore, Tennessee's grants were finalized and closed out. EPAhas made the preliminary determination that Tennessee has adequate resources for implementation ofthe 1997 8-hour

ozone NAAQS.

With respect to sub-element 110(a)(2)(E)(ii), EPA isproposing to approve in part, and to conditionally approve in part, Tennessee's infrastructure SIP as tothis requirement. Section 110(a)(2)(E)(ii) provides that infrastructure SIPs must require compliance with section 128 ofCAA requirements respecting State boards. Section 128, in turn,provides at subsection (a)(1) thateach SIP shall require that any board or body which approves permits orenforcement orders shallbe subject to the described public interest and income restrictions therein. Subsection 128(a)(2) requires that any board orbody, or thehead ofan executive agency with similar power to approve permits or enforcement orders under the CAA, shall also be subject to conflict ofinterest disclosure requirements. In this action, EPA is proposing to conditionally approve Tennessee's infrastructure SIP for element 110(a)(2)(E)(ii) with respect to the applicable section 128(a)(1) requirements, and to approve Tennessee's infrastructure SIP for element 110(a)(2)(E)(ii) with respect the 

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applicable section 128(a)(2) requirements.

EPA's proposed conditional approval ofthis sub-element 110(a)(2)(E)(ii) respecting the 128(a)(1) requirements is based upon aTDEC letter to EPA, dated March 28, 2012, which outlined TDEC's commitment to adopt specific enforceable measures into its SIP within

oneyear to address the applicable portions of section 128(a)(1). The March 28, 2012, letter from TDEC to EPA can be accessed at www.regulations.gov using docket ID No. EPA-R04-OAR2011-0353.

In Tennessee's March 28, 2012, commitment letter, TDEC committed to bring its SIP into conformity with section 128(a)(1) ofthe CAA by submitting SIP revisions that designate
atleast a majority ofthe positions on the State's Air Pollution Control Board 19 as being subject to the "public interest" requirement. In addition, TDEC has committed to submitting SIP revisions establishing requirements to ensure that
atleast a majority ofthe members onthe State's Air Pollution Control Board do
not derive any significant portion of their income from persons subject to permits or enforcement orders. In the March 28, 2012 commitment letter, TDEC describes thatits planned restrictions related to the "significant portion ofincome" requirements of section 128 will include an exclusion for the official salaries ofmayors of counties and municipalities, and for faculty members at institutions ofhigher learning.

In accordance with section 110(k)(4) ofthe CAA, the commitment from Tennessee must provide that the State will adopt the specified enforceable provisions and submit a revision to EPA for approval within one year fromEPA's final conditional approval action. In its March 28, 2012, letter, TDEC committed
to adopt the above-specified enforceable provisions and submit them to EPA for incorporation into the SIP by nolater than one year from the effective date of EPA's final conditional approval action for this requirement. Failureby the State
to adopt these provisions and submit them toEPA for incorporation into the SIP within one year from the effective date ofEPA's final conditional approval action would result in this proposed conditional approval being treated as a disapproval. Should that occur, EPA would provide the public with notice of

19

The composition ofTennessee's Air Pollution Control Board is statutorily prescribed at Tennessee Code Annotated 68-201-104. such a disapproval in the Federal Register.20

As a result ofTennessee's formal commitment to correct deficiencies contained in the Tennessee SIP pertaining to section 128, EPA intends
to move forward with finalizing the conditional approval of 110(a)(2)(E)(ii) with respect to the section 128(a)(1) requirements consistent with section 110(k)(4) ofthe Act.With respect tothe remaining sub-elements of 110(a)(2)(E), EPA isproposing to approve these portions ofTennessee's infrastructure SIP. As such, EPA has made the preliminary determination that Tennessee has adequate resources for implementation ofthe 1997 8-hour

ozone NAAQS.

5. 110(a)(2)(F) Stationarysource monitoringsystem:Tennessee's infrastructure submission describes how
to establish requirements for compliance testingby emissions sampling and analysis, and for emissions and operation monitoring to

ensure the quality ofdata in the State. TDEC usesthese data to track progress towards maintaining the NAAQS, develop control and maintenance strategies, identify sources and general emission levels, and determine compliance with emission regulations and additional EPA requirements. These requirements are provided in Chapter 1200-3-10, RequiredSampling, RecordingandReporting,ofthe Tennessee SIP.

Additionally, Tennessee isrequired to submit emissions data toEPA for
purposes ofthe National Emissions Inventory (NEI). The NEI isEPA's central repository for airemissions data. EPA published theAir Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened thetime states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger

sources annually through EPA's online Emissions Inventory System (EIS). States report emissions data for the six criteria pollutants and their associated precursors-NOx, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, andvolatile organic compounds (VOCs). Many states also

20EPA notes that pursuant tosection 110(k)(4), a conditional approval is treated as a disapproval in the event that a State fails to comply with its commitment. Notification of this disapproval action in the Federal Register is not subject to public notice and comment. voluntarily report emissions of hazardous air pollutants. Tennessee made its latestupdate to the NEI on December 31, 2011. EPA compiles the emissions data, supplementing itwhere necessary, and releases it to the general public through the Web site http:// www.epa.gov/ttn/chief/ eiinformation.html.EPA has made the preliminary determination that Tennessee's SIP and practices are adequate for the stationary source monitoring systems related to the 1997 8-hourozone NAAQS.

6. 110(a)(2)(G) Emergencypower: Chapter 1200-3-15, EmergencyEpisode Requirements,ofthe Tennessee SIP identifies air pollution emergency episodes and preplanned abatement strategies. These criteria have previously been approved by EPA. EPA has made the preliminary determination that Tennessee's SIP and practices are adequate for emergency powers related
to the 1997 8-hour ozone NAAQS. 7. 110(a)(2)(H) FutureSIPrevisions: As previously discussed, TDEC is responsible for adopting air quality rules and revising SIPs as needed to attain ormaintain the NAAQS. Tennessee has the ability and authority
to respond to calls for SIP revisions, and has provided a number ofSIP revisions

over the years for implementation ofthe NAAQS. Specific to the 1997 8-hour

ozone NAAQS, Tennessee has provided the following submissions, including:

* August 10, 2005, SIP Revision- (EPA approval, 70 FR 55559, September 22, 2005) Redesignation ofthe Montgomery County portion ofthe Clarksville-Hopkinsville, TN-KY 8-hour Ozone Area;

* February 26, 2009, SIP Revision- (EPA approval, 75 FR 56, January 4, 2010) Redesignation ofthe Memphis, TN 8-hour Ozone Area;



### * July 14, 2010, SIP Revision-(EPA approval, 76 FR 12587, March 8, 2011) Redesignation ofthe Knoxville, TN 8-hourOzone Area; and,



### * October 13, 2010, SIP Revision (EPA approval, 76 FR 5078, January 28, 2011) Nashville 110(a)(1) Maintenance Plan.

Tennessee has no areas designated as nonattainment for the 1997 8-hour

ozone NAAQS. EPAhas made the preliminary determination that Tennessee's SIP and practices adequately demonstrate a commitment
to provide future SIP revisions related to the 1997 8-hourozone NAAQS when necessary.

8. 110(a)(2)(K)Air qualityand modeling/data:Chapter 1200-3-9- .01(4)(k),Air Quality Models, ofthe Tennessee SIP specify thatrequired air modeling be conducted in accordance 

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with 40 CFR Part 51, Appendix W "Guideline on Air Quality Models," as incorporated into the Tennessee SIP. These standards demonstrate that Tennessee hasthe authority to provide relevant data for the purpose of predicting the effect on ambient air quality ofthe 8-hour ozone NAAQS. Additionally, Tennessee supports a regional effort to coordinate the development ofemissions inventories and conduct regional modeling for several NAAQS, including the 1997 8-hourozone NAAQS, for the Southeastern states. Taken as awhole, Tennessee's air quality regulations and practices demonstrate thatTDEC has the authority toprovide relevant datafor the purpose ofpredicting the effect on ambient air quality ofthe 8-hour ozone NAAQS. EPAhas made the preliminary determination that Tennessee's SIP and practices adequately demonstrate the State's ability to provide for air quality andmodeling, along with analysis ofthe associated data, related tothe 1997 8- hour ozone NAAQS when necessary.

9. 110(a)(2)(L) Permitting fees:As discussed above, Tennessee's SIP provides for the review ofconstruction permits. Permitting fees in Tennessee

are collected through the State's federally-approved title V fees program and consistent with Chapter 1200-03- 26-.02, Permit-Related Fees,ofthe Tennessee Code. EPAhas made the preliminary determination that Tennessee's SIP and practices adequately provide for permitting fees related to the 1997 8-hour ozone NAAQS when necessary. 10. 110(a)(2)(M) Consultation! participation byaffectedlocalentities: Chapter 1200-3-9-.01(4)(k), Public Participation, of the Tennessee SIP requires that TDEC notify the public of

an application, preliminary determination, the activity or activities involved in the permit action, any emissions change associated with any permit modification, and the opportunity for comment prior to making a final permitting decision. By way ofexample, TDEC hasrecently worked closely with local political subdivisions during the development of its Transportation Conformity SIP, Regional Haze Implementation Plan, and Early Action Compacts. EPA has made the preliminary determination that Tennessee's SIP and practices adequately demonstrate consultation with affected local entities related tothe 1997 8-hour ozone NAAQS when
necessary.
V. Proposed Action

As described above, with the exception of sub-element 110(a)(2)(E)(ii), EPA isproposing to determine thatTennessee's infrastructure submission, provided to EPA on December 14, 2007, addressed the required infrastructure elements for the 1997 8-hour ozone NAAQS. EPA is proposing to approve in part and conditionally approve in part, Tennessee's SIP submission consistent with section 110(k)(3) ofthe CAA.

As described above, with the exception of sub-element 110(a)(2)(E)(ii), TDEC has addressed the elements ofthe CAA 110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 2007, guidance to ensure that the 1997 8-hour ozone NAAQS are implemented, enforced, and maintained in Tennessee. With respect to 110(a)(2)(E)(ii) (referencing section 128 ofthe CAA), EPA isproposing to conditionally approve Tennessee's infrastructure SIP. On March 28, 2012, Tennessee submitted a letterrequesting conditional approval of 110(a)(2)(E)(ii). In this letter, TDEC committed to adopt specific enforceable measures intoits SIP and submit these revisions to EPA within one year ofEPA's final rulemaking to address the applicable portions of section 128. EPA is also proposing to approve Tennessee's infrastructure submission for the 1997 8-hour ozone NAAQS, withthe exception of sub-element 110(a)(2)(E)(ii) because its December 14, 2007, submission isconsistent with section 110 ofthe CAA.

VI. Statutory andExecutive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies withthe provisions ofthe Act and applicable federal regulations. See42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role isto approve state choices, provided that theymeet the criteria of the CAA. Accordingly, thisproposed action merely approves state law as meeting federal requirements and does
not impose additional requirements beyond those imposedby state law. For that reason, this proposed action: * Is not a "significant regulatory action" subject toreview by the Office ofManagement and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); * Does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act (44 U.S.C. 3501 etseq.); * Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5U.S.C. 601 etseq.); * Does not contain any unfunded mandate orsignificantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of1995 (Pub.L. 104-4);

* Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

* Is not an economically significant regulatory actionbased onhealth 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 (66FR 28355, May 22, 2001);

* Is not subject to requirements of Section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose 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 CFRPart52

Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting andrecordkeeping requirements, Volatile organic compounds.

Authority:42 U.S.C. 7401 etseq.

Dated: March 29, 2012. A. Stanley Meiburg, ActingRegional Administrator, Region4.
[FRDoe. 2012-9073 Filed4-13-12; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [EPA-R08-OAR-2010-0300; FRL-9659-3]
Approval and Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient AirQuality Standards; North Dakota

AGENCY: Environmental Protection Agency (EPA). 

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