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

(c) Effective Period. This rule will be

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

June 23, 2012.

(d) Regulations. (1) The general

regulations contained in 33 CFR 165.23,

as well as the following regulations,

apply.

(2) No vessels, except for fireworks

barge and accompanying vessels, will be

allowed to transit the safety zone

without the permission of the COTP or

the designated representative.

(3) All persons and vessels shall

comply with the instructions of the

COTP or the designated representative.

Upon being hailed by a U.S. Coast

Guard vessel by siren, radio, flashing

light, or other means, the operator of a

vessel shall proceed as directed.

(4) Vessel operators desiring to enter

or operate within the regulated area

shall contact the COTP or the

designated representative via VHF

channel 16 or 718-354-4353 (Sector

New York command center) to obtain

permission to do so.

Dated: March 23, 2012.

L.L. Fagan,

RearAdmiral, U.S. Coast Guard, Captain of

the Port New York.

[FR Duc. 2012-9007 Filed 4-13-12; 8:45 am]

BILLING CODE 9110-04-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-R04-OAR-2011-0353; FRL-9659-2]

Approval and Promulgation of

Implementation Plans; Tennessee;

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

Requirements for the 1997 8-Hour

Ozone National Ambient Air Quality

Standards

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve

in part, and conditionally approve in

part, the State Implementation Plan

(SIP) submission, submitted by the State

of Tennessee, through the Tennessee

Department of Environment and

Conservation (TDEC), to demonstrate

that the State meets the requirements of

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

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

hour ozone national ambient air quality

standards (NAAQS). Section 110(a) of

the CAA requires that each state adopt

and submit a SIP for the

implementation, maintenance, and

enforcement of each NAAQS

promulgated by the EPA, which is

commonly referred to as an

"infrastructure" SIP. TDEC certified that

the Tennessee SIP contains provisions

that ensure the 1997 8-hour ozone

NAAQS are implemented, enforced, and

maintained in Tennessee (hereafter

referred to as "infrastructure

submission"). EPA is proposing to

conditionally approve sub-element

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

14, 2007, submission because the

current Tennessee SIP does not include

provisions to comply with the

requirements of this sub-element. With

the exception of sub-element

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

determine that Tennessee's

infrastructure submission, provided to

EPA on December 14, 2007, addressed

all the required infrastructure elements

for the 1997 8-hour ozone NAAQS.

DATES: Written comments must be

received on or before May 16, 2012.

ADDRESSES: Submit your comments,

identified by Docket ID No. EPA-R04-

OAR-2011-0353, by one of the

following methods:

1. www.regulations.gov: Follow the

on-line instructions for submitting

comments.

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

3. Fax: (404) 562-9019.

4. Mail: "EPA-R04-OAR-2011-

0353," Regulatory Development Section,

Air Planning Branch, Air, Pesticides and

Toxics Management Division, U.S.

Environmental Protection Agency,

Region 4, 61 Forsyth Street SW.,

Atlanta, Georgia 30303-8960.

5. Hand Delivery or Courier: Lynorae

Benjamin, Regulatory Development

Section, Air Planning Branch, Air,

Pesticides and Toxics Management

Division, U.S. Environmental Protection

Agency, Region 4, 61 Forsyth Street

SW., Atlanta, Georgia 30303-8960. Such

deliveries are only accepted during the

Regional Office's normal hours of

operation. The Regional Office's official

hours of business are Monday through

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

holidays.

Instructions: Direct your comments to

Docket ID No. EPA-R04-OAR-2011-

0353. EPA's policy is that all comments

received will be included in the public

docket without change and may be

made available online at

www.regulations.gov, including any

personal information provided, unless

the comment includes information

claimed to be Confidential Business

Information (CBI) or other information

whose disclosure is restricted by statute.

Do not submit through

www.regulations.gov or email,

information that you consider to be CBI

or otherwise protected. The

www.regulations.gov Web site is an "anonymous access" system, which

means EPA will not know your identity

or contact information unless you

provide it in the body of your comment.

If you send an email comment directly

to EPA without going through

www.regulations.gov, your email

address will be automatically captured

and included as part of the comment

that is placed in the public docket and

made available on the Internet. If you

submit an electronic comment, EPA

recommends that you include your

name and other contact information in

the body of your comment and with any

disk or CD-ROM you submit. If EPA

cannot read your comment due to

technical difficulties and cannot contact

you for clarification, EPA may not be

able to consider your comment.

Electronic files should avoid the use of

special characters, any form of

encryption, and be free of any defects or

viruses. For additional information

about EPA's public docket visit the EPA

Docket Center homepage at http://

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

Docket: All documents in the

electronic docket are listed in the

www.regulations.gov index. Although

listed in the index, some information is

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

information whose disclosure is

restricted by statute. Certain other

material, such as copyrighted material,

is not placed on the Internet and will be

publicly available only in hard copy

form. Publicly available docket

materials are available either

electronically in www.regulations.gov or

in hard copy at the Regulatory

Development Section, Air Planning

Branch, Air, Pesticides and Toxics

Management Division, U.S.

Environmental Protection Agency,

Region 4, 61 Forsyth Street SW.,

Atlanta, Georgia 30303-8960. EPA

requests that if at all possible, you

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to

schedule your inspection. The Regional

Office's official hours of business are

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

excluding federal holidays.

FOR FURTHER INFORMATION CONTACT:

Nacosta C. Ward, Regulatory

Development Section, Air Planning

Branch, Air, Pesticides and Toxics

Management Division, U.S.

Environmental Protection Agency,

Region 4, 61 Forsyth Street SW.,

Atlanta, Georgia 30303-8960. The

telephone number is (404) 562-9140.

Ms. Ward can be reached via electronic

mail at ward.nacosta@epa.gov.

SUPPLEMENTARY INFORMATION:

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

Table of Contents

I. Background

II. What elements are required under sections

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

II. Scope of Infrastructure SIPs

IV. What is EPA's analysis of how Tennessee

addressed the elements of sections

110(a)(1) and (2) "infrastructure"

provisions?

V. Proposed Action

VI. Statutory and Executive Order Reviews

I. Background

On July 18, 1997, EPA promulgated a

new NAAQS for ozone based on 8-hour

average concentrations. The 8-hour

averaging period replaced the previous

1-hour averaging period, and the level of

the NAAQS was changed from 0.12

parts per million (ppm) to 0.08 ppm.

See 62 FR 38856. Pursuant to section

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

to submit SIPs meeting the requirements

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

after promulgation of a new or revised

NAAQS. Section 110(a)(2) requires

states to address basic SIP requirements,

including emissions inventories,

monitoring, and modeling to assure

attainment and maintenance of the

NAAQS. States were required to submit

such SIPs for the 1997 8-hour ozone

NAAQS to EPA no later than June 2000.

However, intervening litigation over the

1997 8-hour ozone NAAQS created

uncertainty about how to proceed and

many states did not provide the

required "infrastructure" SIP

submission for these newly promulgated

NAAQS.

On March 4, 2004, Earthjustice

submitted a notice of intent to sue

related to EPA's failure to issue findings

of failure to submit related to the

"infrastructure" requirements for the

1997 8-hour ozone NAAQS. EPA

entered into a consent decree with

Earthjustice which required EPA, among

other things, to complete a Federal

Register notice announcing EPA's

determinations pursuant to section

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

made complete submissions to meet the

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

1997 8-hour ozone NAAQS by

December 15, 2007. Subsequently, EPA

received an extension of the date to

complete this Federal Register notice

until March 17, 2008, based upon

agreement to make the findings with

respect to submissions made by January

7, 2008. In accordance with the consent

decree, EPA made completeness

findings for each state based upon what

the Agency received from each state as

of January 7, 2008.

On March 27, 2008, EPA published a

final rulemaking entitled,

"Completeness Findings for Section

110(a) State Implementation Plans; 8-

Hour Ozone NAAQS," making a finding

that each state had submitted or failed

to submit a complete SIP that provided

the basic program elements of section

110(a)(2) necessary to implement the

1997 8-hour ozone NAAQS. See 73 FR

16205. For those states that did receive

findings, such as Tennessee, the

findings of failure to submit for all or a

portion of a state's implementation plan

established a 24-month deadline for

EPA to promulgate a Federal

Implementation Plan (FIP) to address

the outstanding SIP elements unless,

prior to that time, the affected states

submitted, and EPA approved, the

required SIPs. However, the findings of

failure to submit did not impose

sanctions or set deadlines for imposing

sanctions as described in section 179 of

the CAA, because these findings do not

pertain to the elements contained in the

Title I part D plan for nonattainment

areas as required under section

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

of failure to submit for the infrastructure

submittals are not a SIP call pursuant to

section 110(k)(5).

The findings that all or portions of a

state's submission are complete

established a 12-month deadline for

EPA to take action upon the complete

SIP elements in accordance with section

110(k). Tennessee's infrastructure

submission was received by EPA on

December 14, 2007, and was determined

to be complete on March 27, 2008, for

all elements with the exception of

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

among other states that received a

finding of failure to submit because its

infrastructure submission was not

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

1997 8-hour ozone NAAQS by March 1,

2008. Tennessee has since met the

completeness requirements for

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

infrastructure elements were federally

approved on March 14, 2012. See 77 FR

14976.

Today's action is proposing to

approve in part, and conditionally

approve in part, Tennessee's

infrastructure submission for which

EPA made the completeness

determination on March 27, 2008. This

action is not approving any specific

rule, but rather proposing that

Tennessee's already approved SIP meets

certain CAA requirements.

II. What elements are required under

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

Section 110(a) of the CAA requires

states to submit SIPs to provide for the

implementation, maintenance, and

enforcement of a new or revised

NAAQS within three years following

the promulgation of such NAAQS, or

within such shorter period as EPA may

prescribe. Section 110(a) imposes the

obligation upon states to make a SIP

submission to EPA for a new or revised

NAAQS, but the contents of that

submission may vary depending upon

the facts and circumstances. In

particular, the data and analytical tools

available at the time the state develops

and submits the SIP for a new or revised

NAAQS affects the content of the

submission. The contents of such SIP

submissions may also vary depending

upon what provisions the state's

existing SIP already contains. In the

case of the 1997 8-hour ozone NAAQS,

states typically have met the basic

program elements required in section

110(a)(2) through earlier SIP

submissions in connection with

previous ozone NAAQS.

More specifically, section 110(a)(1)

provides the procedural and timing

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

lists specific elements that states must

meet for "infrastructure" SIP

requirements related to a newly

established or revised NAAQS. As

mentioned above, these requirements

include SIP infrastructure elements

such as modeling, monitoring, and

emissions inventories that are designed

to assure attainment and maintenance of

the NAAQS. The requirements that are

the subject of this proposed rulemaking

are listed below' and in EPA's October

2, 2007, memorandum entitled

"Guidance on SIP Elements Required

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

1997 8-Hour Ozone and PM 2.

5 National

Ambient Air Quality Standards."

* 110(a)(2)(A): Emission limits and

other control measures.

* 110(a)(2)(B): Ambient air quality

monitoring/data system.

* 110(a)(2)(C): Program for

enforcement of control measures. 2

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

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

not governed by the three year submission deadline

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

necessary local nonattainment area controls are not

due within three years after promulgation of a new

or revised NAAQS, but rather due at the time the

nonattainment area plan requirements are due

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

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

extent that subsection refers to a permit program as

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

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

pertain to the nonattainment planning requirements

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

rulemaking does not address infrastructure

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

nonattainment planning requirements of

110(a)(2)(C).

2 This rulemaking only addresses requirements

for this element as they relate to attainment areas.

3 Today's proposed rule does not address element

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

hour ozone NAAQS. Interstate transport

22534
Federal Register/Vol. 77, No. 73/Monday, April 16, 2012/Proposed Rules

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

* 110(a)(2)(F): Stationary source

monitoring system.

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

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

* 110(a)(2)(I): Areas designated

nonattainment and meet the applicable

requirements of part D. 4

* 110(a)(2)(J): Consultation with

government officials; public

notification; and PSD and visibility

protection.

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

data.

* 110(a)(2)(L): Permitting fees.

* 110(a)(2)(M): Consultation/

participation by affected local entities.

III. Scope of Infrastructure SIPs

EPA is currently acting upon SIPs that

address the infrastructure requirements

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

ozone and fine particulate matter (PM 2.5)

NAAQS for various states across the

country. Commenters on EPA's recent

proposals for some states raised

concerns about EPA statements that it

was not addressing certain substantive

issues in the context of acting on those

infrastructure SIP submissions. 5 Those

Commenters specifically raised

concerns involving provisions in

existing SIPs and with EPA's statements

in other proposals that it would address

two issues separately and not as part of

actions on the infrastructure SIP

submissions: (i) Existing provisions

related to excess emissions during

periods of start-up, shutdown, or

requirements were formerly addressed by

Tennessee consistent with the Clean Air Interstate

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

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

without vacatur, back to EPA. See North Carolina

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

remand, EPA took final action to approve

Tennessee's SIP revision, which was submitted to

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

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

addressed the interstate transport provisions in

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

NAAQS. In response to the remand of CAIR, EPA

has promulgated a new rule to address interstate

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

Transport Rule"). That rule was recently stayed by

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

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

separate action.

4 This requirement was inadvertently omitted

from EPA's October 2, 2007, memorandum entitled

"Guidance on SIP Elements Required Under

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

and PM 2.

5 National Ambient Air Quality

Standards," but as mentioned above is not relevant

to today's proposed rulemaking.

5 See Comments of Midwest 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 these public comments on another proposal are

not relevant to this rulemaking and do not have to

be directly addressed in this rulemaking. EPA will

respond to these comments in the appropriate

rulemaking action to which they apply.

malfunction (SSM) at sources, that may

be contrary to the CAA and EPA's

policies addressing such excess

emissions; and (ii) existing provisions

related to "director's variance" or

"director's discretion" that purport to

permit revisions to SIP approved

emissions limits with limited public

process or without requiring further

approval by EPA, that may be contrary

to the CAA (director's discretion). EPA

notes that there are two other

substantive issues for which EPA

likewise stated in other proposals that it

would address the issues separately: (i)

Existing provisions for minor source

new source review programs that may

be inconsistent with the requirements of

the CAA and EPA's regulations that

pertain to such programs (minor source

NSR); and (ii) existing provisions for

PSD programs that may be inconsistent

with current requirements of EPA's

"Final NSR Improvement Rule," 67 FR

80186 (December 31, 2002), as amended

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

Reform). In light of the comments, EPA

believes that its statements in various

proposed actions on infrastructure SIPs

with respect to these four individual

issues should be explained in greater

depth. It is important to emphasize that

EPA is taking the same position with

respect to these four substantive issues

in this action on the infrastructure SIPs

for the 1997 8-hour ozone NAAQS from

Tennessee.

EPA intended the statements in the

other proposals concerning these four

issues merely to be informational, and

to provide general notice of the

potential existence of provisions within

the existing SIPs of some states that

might require future corrective action.

EPA did not want states, regulated

entities, or members of the public to be

under the misconception that the

Agency's approval of the infrastructure

SIP submission of a given state should

be interpreted as a re-approval of certain

types of provisions that might exist

buried in the larger existing SIP for such

state. Thus, for example, EPA explicitly

noted that the Agency believes that

some states may have existing SIP

approved SSM provisions that are

contrary to the CAA and EPA policy,

but that "in this rulemaking, EPA is not

proposing to approve or disapprove any

existing state provisions with regard to

excess emissions during SSM of

operations at facilities." EPA further

explained, for informational purposes,

that "EPA plans to address such State

regulations in the future." EPA made

similar statements, for similar reasons,

with respect to the director's discretion,

minor source NSR, and NSR Reform

issues. EPA's objective was to make

clear that approval of an infrastructure

SIP for these ozone and PM 2.5 NAAQS

should not be construed as explicit or

implicit re-approval of any existing

provisions that relate to these four

substantive issues. EPA is reiterating

that position in this action on the

infrastructure SIP for Tennessee.

Unfortunately, the Commenters and

others evidently interpreted these

statements to mean that EPA considered

action upon the SSM provisions and the

other three substantive issues to be

integral parts of acting on an

infrastructure SIP submission, and

therefore that EPA was merely

postponing taking final action on the

issues in the context of the

infrastructure SIPs. This was not EPA's

intention. To the contrary, EPA only

meant to convey its awareness of the

potential for certain types of

deficiencies in existing SIPs, and to

prevent any misunderstanding that it

was reapproving any such existing

provisions. EPA's intention was to

convey its position that the statute does

not require that infrastructure SIPs

address these specific substantive issues

in existing SIPs and that these issues

may be dealt with separately, outside

the context of acting on the

infrastructure SIP submission of a state.

To be clear, EPA did not mean to imply

that it was not taking a full final agency

action on the infrastructure SIP

submission with respect to any

substantive issue that EPA considers to

be a required part of acting on such

submissions under section 110(k) or

under section 110(c). Given the

confusion evidently resulting from

EPA's statements in those other

proposals, however, we want to explain

more fully the Agency's reasons for

concluding that these four potential

substantive issues in existing SIPs may

be addressed separately from actions on

infrastructure SIP submissions.

The requirement for the SIP

submissions at issue arises out of CAA

section 110(a)(1). That provision

requires that states must make a SIP

submission "within 3 years (or such

shorter period as the Administrator may

prescribe) after the promulgation of a

national primary ambient air quality

standard (or any revision thereof)" and

that these SIPs are to provide for the

"implementation, maintenance, and

enforcement" of such NAAQS. Section

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

elements that "[e]ach such plan"

submission must meet. EPA has

historically referred to these particular

submissions that states must make after

the promulgation of a new or revised

NAAQS as "infrastructure SIPs." This

22535
Federal Register/Vol. 77, No. 73/Monday, April 16, 2012/Proposed Rules

specific term does not appear in the

statute, but EPA uses the term to

distinguish this particular type of SIP

submission designed to address basic

structural requirements of a SIP from

other types of SIP submissions designed

to address other different requirements,

such as "nonattainment SIP"

submissions required to address the

nonattainment planning requirements of

part D, "regional haze SIP" submissions

required to address the visibility

protection requirements of CAA section

169A, NSR permitting program

submissions required to address the

requirements of part D, and a host of

other specific types of SIP submissions

that address other specific matters.

Although section 110(a)(1) addresses

the timing and general requirements for

these infrastructure SIPs, and section

110(a)(2) provides more details

concerning the required contents of

these infrastructure SIPs, EPA believes

that many of the specific statutory

provisions are facially ambiguous. In

particular, the list of required elements

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

wide variety of disparate provisions,

some of which pertain to required legal

authority, some of which pertain to

required substantive provisions, and

some of which pertain to requirements

for both authority and substantive

provisions. 6 Some of the elements of

section 110(a)(2) are relatively

straightforward, but others clearly

require interpretation by EPA through

rulemaking, or recommendations

through guidance, in order to give

specific meaning for a particular

NAAQS. 7

Notwithstanding that section 110(a)(2)

provides that "each" SIP submission

must meet the list of requirements

therein, EPA has long noted that this

literal reading of the statute is internally

inconsistent, insofar as section

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

states must provide assurances that they have

adequate legal authority under state and local law

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

that states must have a substantive program to

address certain sources as required by part C of the

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

have both legal authority to address emergencies

and substantive contingency plans in the event of

such an emergency.

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

EPA to be sure that each state's SIP contains

adequate provisions to prevent significant

contribution to nonattainment of the NAAQS in

other states. This provision contains numerous

terms that require substantial rulemaking by EPA in

order to determine such basic points as what

constitutes significant contribution. See "Rule To

Reduce Interstate Transport of Fine Particulate

Matter and Ozone (Clean Air Interstate Rule);

Revisions to Acid Rain Program; Revisions to the

NOx SIP Call; Final Rule," 70 FR 25162 (May 12,

2005) (defining, among other things, the phrase

"contribute significantly to nonattainment").

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

SIP requirements that could not be met

on the schedule provided for these SIP

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

illustrates that EPA must determine

which provisions of section 110(a)(2)

may be applicable for a given

infrastructure SIP submission.

Similarly, EPA has previously decided

that it could take action on different

parts of the larger, general

"infrastructure SIP" for a given NAAQS

without concurrent action on all

subsections, such as section

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

bifurcated the action on these latter

"interstate transport" provisions within

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

to address each of the four prongs of

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

administrative actions proceeding on

different tracks with different

schedules. 9 This illustrates that EPA

may conclude that subdividing the

applicable requirements of section

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

sometimes be appropriate for a given

NAAQS where a specific substantive

action is necessitated, beyond a mere

submission addressing basic structural

aspects of the state's implementation

plans. Finally, EPA notes that not every

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

relevant, or as relevant, or relevant in

the same way, for each new or revised

NAAQS and the attendant infrastructure

SIP submission for that NAAQS. For

example, the monitoring requirements

that might be necessary for purposes of

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

could be very different than what might

be necessary for a different pollutant.

Thus, the content of an infrastructure

SIP submission to meet this element

from a state might be very different for

an entirely new NAAQS, versus a minor

revision to an existing NAAQS. 10

Similarly, EPA notes that other types

of SIP submissions required under the

statute also must meet the requirements

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

demonstrates the need to identify the

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

(explaining relationship between timing

requirement of section 110(a)(2)(D) versus section 110 (a) (2) (1)).

9 EPA issued separate guidance to states with

respect to SIP submissions to meet section

110(a)(2)(D)(i) for the 1997 ozone and 1997 PM 2.5

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 PM 2.5

National Ambient Air Quality Standards," from

William T. Harnett, Director Air Quality Policy

Division OAQPS, to Regional Air Division Director,

Regions I-X, dated August 15, 2006.

10 For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of

new monitors to measure ambient levels of that new

indicator species for the new NAAQS.

applicable elements for other SIP

submissions. For example,

nonattainment SIPs required by part D

likewise have to meet the relevant

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

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

it is clear that nonattainment SIPs

would not need to meet the portion of

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

C, i.e., the PSD requirements applicable

in attainment areas. Nonattainment SIPs

required by part D also would not need

to address the requirements of section

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

episodes, as such requirements would

not be limited to nonattainment areas.

As this example illustrates, each type of

SIP submission may implicate some

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

others.

Given the potential for ambiguity of

the statutory language of section

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

appropriate for EPA to interpret that

language in the context of acting on the

infrastructure SIPs for a given NAAQS.

Because of the inherent ambiguity of the

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

EPA has adopted an approach in which

it reviews infrastructure SIPs against

this list of elements "as applicable." In

other words, EPA assumes that Congress

could not have intended that each and

every SIP submission, regardless of the

purpose of the submission or the

NAAQS in question, would meet each

of the requirements, or meet each of

them in the same way. EPA elected to

use guidance to make recommendations

for infrastructure SIPs for these ozone

and PM 2.

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 PM 2.

5 NAAQS."I Within this

guidance document, EPA described the

duty of states to make these submissions

to meet what the Agency characterized

as the "infrastructure" elements for

SIPs, which it further described as the

"basic SIP requirements, including

emissions inventories, monitoring, and

modeling to assure attainment and

maintenance of the standards." 12 As

further identification of these basic

structural SIP requirements, "attachment A" to the guidance

document included a short description

of the various elements of section

110(a)(2) and additional information

11 See "Guidance on SIP Elements Required

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

Ozone and PM 2.

5 National Ambient Air Quality

Standards," from William T. Harnett, Director Air

Quality Policy Division, to Air Division Directors,

Regions I-X, dated October 2, 2007 (the "2007

Guidance").

12 Id., at page 2.

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about the types of issues that EPA

considered germane in the context of

such infrastructure SIPs. EPA

emphasized that the description of the

basic requirements listed on attachment

A was not intended "to constitute an

interpretation of" the requirements, and

was merely a "brief description of the

required elements." 13 EPA also stated

its belief that with one exception, these

requirements were "relatively self

explanatory, and past experience with

SIPs for other NAAQS should enable

States to meet these requirements with

assistance from EPA Regions." 14

However, for the one exception to that

general assumption (i.e., how states

should proceed with respect to the

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

the 1997 PM 2.

5 NAAQS), EPA gave

much more specific recommendations.

But for other infrastructure SIP

submittals, and for certain elements of

the submittals for the 1997 PM 2.

5

NAAQS, EPA assumed that each State

would work with its corresponding EPA

regional office to refine the scope of a

State's submittal based on an

assessment of how the requirements of

section 110(a)(2) should reasonably

apply to the basic structure of the State's

implementation plans for the NAAQS in

question.

On September 25, 2009, EPA issued

guidance to make recommendations to

states with respect to the infrastructure

SIPs for the 2006 PM 2.5 NAAQS.15 In the

2009 Guidance, EPA addressed a

number of additional issues that were

not germane to the infrastructure SIPs

for the 1997 8-hour ozone and 1997

PM 2.5 NAAQS, but were germane to

these SIP submissions for the 2006

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

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

bifurcated from the other infrastructure

elements for those specific 1997 ozone

and PM 2.5 NAAQS). Significantly,

neither the 2007 Guidance nor the 2009

Guidance explicitly referred to the SSM,

director's discretion, minor source NSR,

or NSR Reform issues as among specific

substantive issues EPA expected states

to address in the context of the

13 Id., at attachment A, page 1.

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

by the Commenters with respect to EPA's approach

to some substantive issues indicates that the statute

is not so "self explanatory," and indeed is

sufficiently ambiguous that EPA needs to interpret

it in order to explain why these substantive issues

do not need to be addressed in the context of

infrastructure SIPs and may be addressed at other

times and by other means.

15 See "Guidance on SIP Elements Required

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

Hour Fine Particle (PM2.5) National Ambient Air

Quality Standards (NAAQS)," from William T,

Harnett, Director Air Quality Policy Division, to

Regional Air Division Directors, Regions I-X, dated

September 25, 2009 (the "2009 Guidance").

infrastructure SIPs, nor did EPA give

any more specific recommendations

with respect to how states might address

such issues even if they elected to do so.

The SSM and director's discretion

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

and the minor source NSR and NSR

Reform issues implicate section

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

the 2009 Guidance, however, EPA did

not indicate to states that it intended to

interpret these provisions as requiring a

substantive submission to address these

specific issues in existing SIP provisions

in the context of the infrastructure SIPs

for these NAAQS. Instead, EPA's 2007

Guidance merely indicated its belief

that the states should make submissions

in which they established that they have

the basic SIP structure necessary to

implement, maintain, and enforce the

NAAQS. EPA believes that states can

establish that they have the basic SIP

structure, notwithstanding that there

may be potential deficiencies within the

existing SIP. Thus, EPA's proposals for

other states mentioned these issues not

because the Agency considers them

issues that must be addressed in the

context of an infrastructure SIP as

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

but rather because EPA wanted to be

clear that it considers these potential

existing SIP problems as separate from

the pending infrastructure SIP actions.

The same holds true for this action on

the infrastructure SIPs for Tennessee.

EPA believes that this approach to the

infrastructure SIP requirement is

reasonable because it would not be

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

to require a top to bottom, stem to stern,

review of each and every provision of an

existing SIP merely for purposes of

assuring that the state in question has

the basic structural elements for a

functioning SIP for a new or revised

NAAQS. Because SIPs have grown by

accretion over the decades as statutory

and regulatory requirements under the

CAA have evolved, they may include

some outmoded provisions and

historical artifacts that, while not fully

up to date, nevertheless may not pose a

significant problem for the purposes of

"implementation, maintenance, and

enforcement" of a new or revised

NAAQS when EPA considers the overall

effectiveness of the SIP. To the contrary,

EPA believes that a better approach is

for EPA to determine which specific SIP

elements from section 110(a)(2) are

applicable to an infrastructure SIP for a

given NAAQS, and to focus attention on

those elements that are most likely to

need a specific SIP revision in light of

the new or revised NAAQS. Thus, for

example, EPA's 2007 Guidance

specifically directed states to focus on

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

for the 1997 PM 2.

5 NAAQS because of

the absence of underlying EPA

regulations for emergency episodes for

this NAAQS and an anticipated absence

of relevant provisions in existing SIPs.

Finally, EPA believes that its

approach is a reasonable reading of

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

statute provides other avenues and

mechanisms to address specific

substantive deficiencies in existing SIPs.

These other statutory tools allow the

Agency to take appropriate tailored

action, depending upon the nature and

severity of the alleged SIP deficiency.

Section 110(k)(5) authorizes EPA to

issue a "SIP call" whenever the Agency

determines that a state's SIP is

substantially inadequate to attain or

maintain the NAAQS, to mitigate

interstate transport, or otherwise to

comply with the CAA. 16 Section

110(k)(6) authorizes EPA to correct

errors in past actions, such as past

approvals of SIP submissions.17

Significantly, EPA's determination that

an action on the infrastructure SIP is not

the appropriate time and place to

address all potential existing SIP

problems does not preclude the

Agency's subsequent reliance on

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

the basis for action at a later time. For

example, although it may not be

appropriate to require a state to

eliminate all existing inappropriate

director's discretion provisions in the

course of acting on the infrastructure

SIP, EPA believes that section

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

bases that the Agency cites in the course

of addressing the issue in a subsequent

action. 18

16 EPA has recently issued a SIP call to rectify a

specific SIP deficiency related to the SSM issue. See

"Finding of Substantial Inadequacy of

Implementation Plan; Call for Utah State

Implementation Plan Revision," 76 FR 21639 (April

18, 2011).

17 EPA has recently utilized this authority to

correct errors in past actions on SIP submissions

related to PSD programs. See "Limitation of

Approval of Prevention of Significant Deterioration

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

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

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

to remove numerous other SIP provisions that the

Agency determined it had approved in error. See 61

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

1997) (corrections to American Samoa, Arizona,

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

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

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

to Arizona and Nevada SIPs).

18 EPA has recently disapproved a SIP submission

from Colorado on the grounds that it would have

included a director's discretion provision

inconsistent with CAA requirements, including

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

Continued

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IV. What is EPA's analysis of how

Tennessee addressed the elements of

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

"infrastructure" provisions?

The Tennessee infrastructure

submission addresses the provisions of

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

below.

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

other control measures: Several

regulations within Tennessee's SIP

provide Tennessee Air Pollution Control

Regulations relevant to air quality

control regulations. The regulations

described below have been federally

approved in the Tennessee SIP and

include enforceable emission

limitations and other control measures.

Chapters 1200-3-1, General Provisions;

1200-3-3, Air Quality Standards; 1200-

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

Organic Compounds; and 1200-3-27,

Nitrogen Oxides, of the Tennessee SIP

establish emission limits for ozone and

address the required control measures,

means, and techniques for compliance

with the ozone NAAQS. EPA has made

the preliminary determination that the

provisions contained in these chapters

and Tennessee's practices are adequate

to protect the 1997 8-hour ozone

NAAQS in the State.

In this action, EPA is not proposing to

approve or disapprove any existing

State provisions with regard to excess

emissions during SSM of operations at

a facility. EPA believes that a number of

states have SSM provisions which are

contrary to the CAA and existing EPA

guidance, "State Implementation Plans:

Policy Regarding Excess Emissions

During Malfunctions, Startup, and

Shutdown" (September 20, 1999), and

the Agency plans to address such state

regulations in the future. In the

meantime, EPA encourages any state

having a deficient SSM provision to take

steps to correct it as soon as possible.

Additionally, in this action, EPA is

not proposing to approve or disapprove

any existing State rules with regard to

director's discretion or variance

provisions. EPA believes that a number

of states have such provisions which are

contrary to the CAA and existing EPA

guidance (52 FR 45109 (November 24,

1987)), and the Agency plans to take

action in the future to address such state

regulations. In the meantime, EPA

encourages any state having a director's

discretion or variance provision which

is contrary to the CAA and EPA

guidance to take steps to correct the

deficiency as soon as possible.

21, 2010) (proposed disapproval of director's

discretion provisions); 76 FR 4540 (January 26,

2011) (final disapproval of such provisions).

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

monitoring/data system: Tennessee's

Air Pollution Control Requirements,

Chapter 1200-3-12, Procedures for

Ambient Sampling and Analysis, of the

Tennessee SIP, along with the

Tennessee Network Description and

Ambient Air Monitoring Network Plan,

provide for an ambient air quality

monitoring system in the State.

Annually, EPA approves the ambient air

monitoring network plan for the state

agencies. On July 1, 2011, Tennessee

submitted its plan to EPA. On October

24, 2011, EPA approved Tennessee's

monitoring network plan. Tennessee's

approved monitoring network plan can

be accessed at www.regulations.gov

using Docket ID No. EPA-R04-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) Growth Policy, of

the Tennessee SIP outlines how the

State will notify neighboring states of

potential impacts from new or modified

sources. Tennessee does not have any

pending obligation under sections 115

and 126 of the CAA. Additionally,

Tennessee has federally approved

regulations in its SIP that satisfy the

requirements for the NOx SIP Call. See

70 FR 76408 (December 27, 2005). EPA

has made the preliminary determination

that Tennessee's SIP and practices are

adequate for insuring compliance with

the applicable requirements relating to

interstate and international pollution

abatement for the 1997 8-hour ozone

NAAQS.

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

EPA is proposing two separate actions

with respect to the sub-elements

required pursuant to section

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

requires that each implementation plan

provide (i) necessary assurances that the

State will have adequate personnel,

funding, and authority under state law

to carry out its implementation plan, (ii)

that the State comply with the

requirements respecting State Boards

pursuant to section 128 of the Act, and

(iii) necessary assurances that, where

the State has relied on a local or

regional government, agency, or

instrumentality for the implementation

of any plan provision, the State has

responsibility for ensuring adequate

implementation of such plan provisions.

As with the remainder of the

infrastructure elements addressed by

this notice, EPA is proposing to approve

Tennessee's SIP as meeting the

requirements of sub-elements

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

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

state boards), EPA is proposing to

approve in part, and conditionally

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

rationale for today's proposals

respecting each sub-element is

described in turn below.

In support of EPA's proposal to

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

(iii), EPA notes that TDEC, through the

Tennessee Air Pollution Control Board,

is responsible for promulgating rules

and regulations for the NAAQS,

emissions standards general policies, a

system of permits, fee schedules for the

review of plans, and other planning

needs. As evidence of the adequacy of

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

letter to Tennessee on March 11, 2011,

outlining 105 grant commitments and

current status of these commitments for

fiscal year 2010. The letter EPA

submitted to Tennessee can be accessed

at www.regulations.gov using Docket ID

No. EPA-R04-OAR-2011-0353.

Annually, states update these grant

commitments based on current SIP

requirements, air quality planning, and

applicable requirements related to the

NAAQS. There were no outstanding

issues for fiscal year 2009, therefore,

Tennessee's grants were finalized and

closed out. EPA has made the

preliminary determination that

Tennessee has adequate resources for

implementation of the 1997 8-hour

ozone NAAQS.

With respect to sub-element

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

approve in part, and to conditionally

approve in part, Tennessee's

infrastructure SIP as to this requirement.

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

infrastructure SIPs must require

compliance with section 128 of CAA

requirements respecting State boards.

Section 128, in turn, provides at

subsection (a)(1) that each SIP shall

require that any board or body which

approves permits or enforcement orders

shall be subject to the described public

interest and income restrictions therein.

Subsection 128(a)(2) requires that any

board or body, or the head of an

executive agency with similar power to

approve permits or enforcement orders

under the CAA, shall also be subject to

conflict of interest disclosure

requirements. In this action, EPA is

proposing to conditionally approve

Tennessee's infrastructure SIP for

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

the applicable section 128(a)(1)

requirements, and to approve

Tennessee's infrastructure SIP for

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

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applicable section 128(a)(2)

requirements.

EPA's proposed conditional approval

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

respecting the 128(a)(1) requirements is

based upon a TDEC letter to EPA, dated

March 28, 2012, which outlined TDEC's

commitment to adopt specific

enforceable measures into its SIP within

one year to address the applicable

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

28, 2012, letter from TDEC to EPA can

be accessed at www.regulations.gov

using docket ID No. EPA-R04-OAR2011-0353.

In Tennessee's March 28, 2012,

commitment letter, TDEC committed to

bring its SIP into conformity with

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

submitting SIP revisions that designate

at least a majority of the positions on the

State's Air Pollution Control Board 19 as

being subject to the "public interest"

requirement. In addition, TDEC has

committed to submitting SIP revisions

establishing requirements to ensure that

at least a majority of the members on the

State's Air Pollution Control Board do

not derive any significant portion of

their income from persons subject to

permits or enforcement orders. In the

March 28, 2012 commitment letter,

TDEC describes that its planned

restrictions related to the "significant

portion of income" requirements of

section 128 will include an exclusion

for the official salaries of mayors of

counties and municipalities, and for

faculty members at institutions of higher

learning.

In accordance with section 110(k)(4)

of the CAA, the commitment from

Tennessee must provide that the State

will adopt the specified enforceable

provisions and submit a revision to EPA

for approval within one year from EPA's

final conditional approval action. In its

March 28, 2012, letter, TDEC committed

to adopt the above-specified enforceable

provisions and submit them to EPA for

incorporation into the SIP by no later

than one year from the effective date of

EPA's final conditional approval action

for this requirement. Failure by the State

to adopt these provisions and submit

them to EPA for incorporation into the

SIP within one year from the effective

date of EPA's final conditional approval

action would result in this proposed

conditional approval being treated as a

disapproval. Should that occur, EPA

would provide the public with notice of

19 The composition of Tennessee'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 of Tennessee's formal

commitment to correct deficiencies

contained in the Tennessee SIP

pertaining to section 128, EPA intends

to move forward with finalizing the

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

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

requirements consistent with section

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

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

EPA is proposing to approve these

portions of Tennessee's infrastructure

SIP. As such, EPA has made the

preliminary determination that

Tennessee has adequate resources for

implementation of the 1997 8-hour

ozone NAAQS.

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

monitoring system: Tennessee's

infrastructure submission describes how

to establish requirements for

compliance testing by emissions

sampling and analysis, and for

emissions and operation monitoring to

ensure the quality of data in the State.

TDEC uses these data to track progress

towards maintaining the NAAQS,

develop control and maintenance

strategies, identify sources and general

emission levels, and determine

compliance with emission regulations

and additional EPA requirements. These

requirements are provided in Chapter

1200-3-10, Required Sampling,

Recording and Reporting, of the

Tennessee SIP.

Additionally, Tennessee is required to

submit emissions data to EPA for

purposes of the National Emissions

Inventory (NEI). The NEI is EPA's

central repository for air emissions data.

EPA published the Air Emissions

Reporting Rule (AERR) on December 5,

2008, which modified the requirements

for collecting and reporting air

emissions data (73 FR 76539). The

AERR shortened the time states had to

report emissions data from 17 to 12

months, giving states one calendar year

to submit emissions data. All states are

required to submit a comprehensive

emissions inventory every three years

and report emissions for certain larger

sources annually through EPA's online

Emissions Inventory System (EIS).

States report emissions data for the six

criteria pollutants and their associated

precursors-NOx, sulfur dioxide,

ammonia, lead, carbon monoxide,

particulate matter, and volatile organic

compounds (VOCs). Many states also

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

conditional approval is treated as a disapproval in

the event that a State fails to comply with its

commitment. Notification of this disapproval action

in the Federal Register is not subject to public

notice and comment.

voluntarily report emissions of

hazardous air pollutants. Tennessee

made its latest update to the NEI on

December 31, 2011. EPA compiles the

emissions data, supplementing it where

necessary, and releases it to the general

public through the Web site http://

www.epa.gov/ttn/chief/

eiinformation.html. EPA has made the

preliminary determination that

Tennessee's SIP and practices are

adequate for the stationary source

monitoring systems related to the 1997

8-hour ozone NAAQS.

6. 110(a)(2)(G) Emergencypower:

Chapter 1200-3-15, Emergency Episode

Requirements, of the Tennessee SIP

identifies air pollution emergency

episodes and preplanned abatement

strategies. These criteria have

previously been approved by EPA. EPA

has made the preliminary determination

that Tennessee's SIP and practices are

adequate for emergency powers related

to the 1997 8-hour ozone NAAQS.

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

As previously discussed, TDEC is

responsible for adopting air quality

rules and revising SIPs as needed to

attain or maintain the NAAQS.

Tennessee has the ability and authority

to respond to calls for SIP revisions, and

has provided a number of SIP revisions

over the years for implementation of the

NAAQS. Specific to the 1997 8-hour

ozone NAAQS, Tennessee has provided

the following submissions, including:

* August 10, 2005, SIP Revision-

(EPA approval, 70 FR 55559, September

22, 2005) Redesignation of the

Montgomery County portion of the

Clarksville-Hopkinsville, TN-KY 8-hour

Ozone Area;

* February 26, 2009, SIP Revision-

(EPA approval, 75 FR 56, January 4,

2010) Redesignation of the Memphis,

TN 8-hour Ozone Area;

* July 14, 2010, SIP Revision-(EPA

approval, 76 FR 12587, March 8, 2011)

Redesignation of the Knoxville, TN

8-hour Ozone Area; and,

* October 13, 2010, SIP Revision

(EPA approval, 76 FR 5078, January 28,

2011) Nashville 110(a)(1) Maintenance

Plan.

Tennessee has no areas designated as

nonattainment for the 1997 8-hour

ozone NAAQS. EPA has made the

preliminary determination that

Tennessee's SIP and practices

adequately demonstrate a commitment

to provide future SIP revisions related to

the 1997 8-hour ozone NAAQS when

necessary.

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

modeling/data: Chapter 1200-3-9-

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

Tennessee SIP specify that required air

modeling be conducted in accordance

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with 40 CFR Part 51, Appendix W

"Guideline on Air Quality Models," as

incorporated into the Tennessee SIP.

These standards demonstrate that

Tennessee has the authority to provide

relevant data for the purpose of

predicting the effect on ambient air

quality of the 8-hour ozone NAAQS.

Additionally, Tennessee supports a

regional effort to coordinate the

development of emissions inventories

and conduct regional modeling for

several NAAQS, including the 1997

8-hour ozone NAAQS, for the

Southeastern states. Taken as a whole,

Tennessee's air quality regulations and

practices demonstrate that TDEC has the

authority to provide relevant data for

the purpose of predicting the effect on

ambient air quality of the 8-hour ozone

NAAQS. EPA has made the preliminary

determination that Tennessee's SIP and

practices adequately demonstrate the

State's ability to provide for air quality

and modeling, along with analysis of the

associated data, related to the 1997 8-

hour ozone NAAQS when necessary.

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

discussed above, Tennessee's SIP

provides for the review of construction

permits. Permitting fees in Tennessee

are collected through the State's

federally-approved title V fees program

and consistent with Chapter 1200-03-

26-.02, Permit-Related Fees, of the

Tennessee Code. EPA has made the

preliminary determination that

Tennessee's SIP and practices

adequately provide for permitting fees

related to the 1997 8-hour ozone

NAAQS when necessary.

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

participation by affected local entities:

Chapter 1200-3-9-.01(4)(k), Public

Participation, of the Tennessee SIP

requires that TDEC notify the public of

an application, preliminary

determination, the activity or activities

involved in the permit action, any

emissions change associated with any

permit modification, and the

opportunity for comment prior to

making a final permitting decision. By

way of example, TDEC has recently

worked closely with local political

subdivisions during the development of

its Transportation Conformity SIP,

Regional Haze Implementation Plan,

and Early Action Compacts. EPA has

made the preliminary determination

that Tennessee's SIP and practices

adequately demonstrate consultation

with affected local entities related to the

1997 8-hour ozone NAAQS when

necessary.

V. Proposed Action

As described above, with the

exception of sub-element

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

determine that Tennessee's

infrastructure submission, provided to

EPA on December 14, 2007, addressed

the required infrastructure elements for

the 1997 8-hour ozone NAAQS. EPA is

proposing to approve in part and

conditionally approve in part,

Tennessee's SIP submission consistent

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

As described above, with the

exception of sub-element

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

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

SIP requirements pursuant to EPA's

October 2, 2007, guidance to ensure that

the 1997 8-hour ozone NAAQS are

implemented, enforced, and maintained

in Tennessee. With respect to

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

of the CAA), EPA is proposing to

conditionally approve Tennessee's

infrastructure SIP. On March 28, 2012,

Tennessee submitted a letter requesting

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

In this letter, TDEC committed to adopt

specific enforceable measures into its

SIP and submit these revisions to EPA

within one year of EPA's final

rulemaking to address the applicable

portions of section 128. EPA is also

proposing to approve Tennessee's

infrastructure submission for the 1997

8-hour ozone NAAQS, with the

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

because its December 14, 2007,

submission is consistent with section

110 of the CAA.

VI. Statutory and Executive Order

Reviews

Under the CAA, the Administrator is

required to approve a SIP submission

that complies with the provisions of the

Act and applicable federal regulations.

See 42 U.S.C. 7410(k); 40 CFR 52.02(a).

Thus, in reviewing SIP submissions,

EPA's role is to approve state choices,

provided that they meet the criteria of

the CAA. Accordingly, this proposed

action merely approves state law as

meeting federal requirements and does

not impose additional requirements

beyond those imposed by state law. For

that reason, this proposed action:

* Is not a "significant regulatory

action" subject to review by the Office

of Management and Budget under

Executive Order 12866 (58 FR 51735,

October 4, 1993);

* Does not impose an information

collection burden under the provisions

of the Paperwork Reduction Act (44

U.S.C. 3501 et seq.);

* Is certified as not having a

significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act

(5 U.S.C. 601 et seq.);

* Does not contain any unfunded

mandate or significantly or uniquely

affect small governments, as described

in the Unfunded Mandates Reform Act

of 1995 (Pub. L. 104-4);

* Does not have Federalism

implications as specified in Executive

Order 13132 (64 FR 43255, August 10,

1999);

* Is not an economically significant

regulatory action based on health or

safety risks subject to Executive Order

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

* Is not a significant regulatory action

subject to Executive Order 13211 (66 FR

28355, May 22, 2001);

* Is not subject to requirements of

Section 12(d) of the National

Technology Transfer and Advancement

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

application of those requirements would

be inconsistent with the CAA; and

* Does not provide EPA with the

discretionary authority to address, as

appropriate, disproportionate human

health or environmental effects, using

practicable and legally permissible

methods, under Executive Order 12898

(59 FR 7629, February 16, 1994).

In addition, this proposed rule does not

have tribal implications as specified by

Executive Order 13175 (65 FR 67249,

November 9, 2000), because the SIP is

not approved to apply in Indian country

located in the State, and EPA notes that

it will not impose substantial direct

costs on tribal governments or preempt

tribal law.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Intergovernmental

relations, Nitrogen dioxide, Ozone,

Reporting and recordkeeping

requirements, Volatile organic

compounds.

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

Dated: March 29, 2012.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

[FR Doe. 2012-9073 Filed 4-13-12; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-R08-OAR-2010-0300; FRL-9659-3]

Approval and Promulgation of State

Implementation Plan Revisions;

Infrastructure Requirements for the

1997 8-Hour Ozone National Ambient

Air Quality Standards; North Dakota

AGENCY: Environmental Protection

Agency (EPA).

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