45438 Federal Register / Vol. 81, No. 135 / Thursday, July 14, 2016 / Proposed Rules 

1 In these infrastructure SIP submissions States 

generally certify evidence of compliance with 

sections 110(a)(1) and (2) of the CAA through a 

combination of state regulations and statutes, some 

of which have been incorporated into the federallyapproved SIP. In addition, certain federallyapproved, non-SIP regulations may also be 

appropriate for demonstrating compliance with 

sections 110(a)(1) and (2). Throughout this 

rulemaking, unless otherwise indicated, the term 

‘‘Tennessee Air Pollution Control Regulations’’ or 

‘‘Regulation’’ indicates that the cited regulation has 

been approved into Tennessee’s federally-approved 

SIP. The term ‘‘Tennessee Annotated Code’’, or 

‘‘TCA’’, indicates cited Tennessee state statutes, 

which are not a part of the SIP unless otherwise 

indicated. 

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, the SIP is not approved to 

apply on any Indian reservation land or 

in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), nor will it impose 

substantial direct costs on tribal 

governments or preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

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

Dated: June 30, 2016. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

[FR Doc. 2016–16577 Filed 7–13–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2015–0252; FRL–9948–96- 

Region 4] 

Air Plan Approval; Tennessee 

Infrastructure Requirements for the 

2010 Nitrogen Dioxide National 

Ambient Air Quality Standard 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

portions of the State Implementation 

Plan (SIP) submission, submitted by the 

State of Tennessee, through the 

Tennessee Department of Environment 

and Conservation (TDEC), on March 13, 

2014, to demonstrate that the State 

meets the infrastructure requirements of 

the Clean Air Act (CAA or Act) for the 

2010 nitrogen dioxide (NO2) national 

ambient air quality standard (NAAQS). 

The CAA requires that each state adopt 

and submit a SIP for the 

implementation, maintenance and 

enforcement of each NAAQS 

promulgated by EPA, which is 

commonly referred to as an 

‘‘infrastructure’’ SIP submission. TDEC 

certified that the Tennessee SIP contains 

provisions that ensure the 2010 NO2

NAAQS is implemented, enforced, and 

maintained in Tennessee. With the 

exception of provisions pertaining to 

prevention of significant deterioration 

(PSD) permitting, and interstate 

transport provisions pertaining to the 

contribution to nonattainment or 

interference with maintenance, and 

visibility in other states, for which EPA 

is proposing no action through this 

rulemaking, EPA is proposing to find 

that Tennessee’s infrastructure SIP 

submission, provided to EPA on March 

13, 2014, satisfies the required 

infrastructure elements for the 2010 NO2

NAAQS. 

DATES: Written comments must be 

received on or before August 15, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2015–0252 at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

EPA may publish any comment received 

to its public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. EPA will generally 

not consider comments or comment 

contents located outside of the primary 

submission (i.e. on the Web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Richard Wong, Air Regulatory 

Management Section, Air Planning and 

Implementation Branch, Air, Pesticides 

and Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Mr. Wong 

can be reached via electronic mail at 

wong.richard@epa.gov or via telephone 

at (404) 562–8726. 

SUPPLEMENTARY INFORMATION: 

I. Background and Overview 

On February 9, 2010 (75 FR 6474), 

EPA published a new 1-hour primary 

NAAQS for NO2 at a level of 100 parts 

per billion (ppb), based on a 3-year 

average of the 98th percentile of the 

yearly distribution of 1-hour daily 

maximum concentrations. See 75 FR 

6474. 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 or within such shorter period 

as EPA may prescribe. 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 2010 1-hour 

NO2 NAAQS to EPA no later than 

January 22, 2013.1

This action is proposing to approve 

Tennessee’s infrastructure SIP 

submission for the applicable 

requirements of the 2010 1-hour NO2

NAAQS, with the exception of the PSD 

permitting requirements for major 

sources of sections 110(a)(2)(C), prong 3 

of D(i), and (J), and the interstate 

transport provisions of prongs 1, 2, and 

4 of section 110(a)(2)(D)(i). On March 

18, 2015, EPA approved Tennessee’s 

March 13, 2014 infrastructure SIP 

submission regarding the PSD 

permitting requirements for major 

sources of sections 110(a)(2)(C), prong 3 

of D(i), and (J) for the 2010 1-hour NO2

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2Two 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. This proposed 

rulemaking does not address infrastructure 

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

nonattainment planning requirements of 

110(a)(2)(C). 

3This rulemaking only addresses requirements 

for this element as they relate to attainment areas. 

4As mentioned previously, this element is not 

relevant to this proposed rulemaking. 

5For example: Section 110(a)(2)(E)(i) 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 SIP-approved program to 

address certain sources as required by part C of title 

I of the CAA; and section 110(a)(2)(G) provides that 

states must have legal authority to address 

emergencies as well as contingency plans that are 

triggered in the event of such emergencies. 

NAAQS. See 80 FR 14019. Therefore, 

EPA is not proposing any action 

pertaining to these requirements. With 

respect to Tennessee’s infrastructure SIP 

submission related to the interstate 

transport provisions of prongs 1, 2 and 

4 of section 110(a)(2)(D)(i), EPA is not 

proposing any action today. EPA will 

act on these provisions in a separate 

action. For the aspects of Tennessee’s 

submittal proposed for approval today, 

EPA notes that the Agency 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 2010 1-hour NO2 NAAQS, 

states typically have met the basic 

program elements required in section 

110(a)(2) through earlier SIP 

submissions in connection with 

previous 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 previously, 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 September 13, 2013, 

memorandum entitled ‘‘Guidance on 

Infrastructure State Implementation 

Plan (SIP) Elements under Clean Air Act 

Sections 110(a)(1) and (2).’’ 2

• 110(a)(2)(A): Emission Limits and 

Other Control Measures 

• 110(a)(2)(B): Ambient Air Quality 

Monitoring/Data System 

• 110(a)(2)(C): Programs for 

Enforcement of Control Measures and 

for Construction or Modification of 

Stationary Sources 3

• 110(a)(2)(D)(i)(I) and (II): Interstate 

Pollution Transport 

• 110(a)(2)(D)(ii): Interstate Pollution 

Abatement and International Air 

Pollution 

• 110(a)(2)(E): Adequate Resources and 

Authority, Conflict of Interest, and 

Oversight of Local Governments and 

Regional Agencies 

• 110(a)(2)(F): Stationary Source 

Monitoring and Reporting 

• 110(a)(2)(G): Emergency Powers 

• 110(a)(2)(H): SIP revisions 

• 110(a)(2)(I): Plan Revisions for 

Nonattainment Areas 4

• 110(a)(2)(J): Consultation with 

Government Officials, Public 

Notification, and PSD and Visibility 

Protection 

• 110(a)(2)(K): Air Quality Modeling 

and Submission of Modeling Data 

• 110(a)(2)(L): Permitting fees 

• 110(a)(2)(M): Consultation and 

Participation by Affected Local 

Entities 

III. What is EPA’s approach to the 

review of infrastructure SIP 

submissions? 

EPA is acting upon the SIP 

submission from Tennessee that 

addresses the infrastructure 

requirements of CAA sections 110(a)(1) 

and 110(a)(2) for the 2010 NO2 NAAQS. 

The requirement for states to make a SIP 

submission of this type arises out of 

CAA section 110(a)(1). Pursuant to 

section 110(a)(1), states must make SIP 

submissions ‘‘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 

these SIP submissions are to provide for 

the ‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

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

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

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

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of title I of the 

CAA, ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 

visibility protection requirements of 

CAA section 169A, and nonattainment 

new source review permit program 

submissions to address the permit 

requirements of CAA, title I, part D. 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submissions, and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submissions. 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 program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.5 EPA 

therefore believes that while the timing 

requirement in section 110(a)(1) is 

unambiguous, some of the other 

statutory provisions are ambiguous. In 

particular, EPA believes that the list of 

required elements for infrastructure SIP 

submissions provided in section 

110(a)(2) contains ambiguities 

concerning what is required for 

inclusion in an infrastructure SIP 

submission. 

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6See, e.g., ‘‘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, at 25163–65 (May 12, 2005) (explaining 

relationship between timing requirement of section 

110(a)(2)(D) versus section 110(a)(2)(I)). 

7EPA notes that this ambiguity within section 

110(a)(2) is heightened by the fact that various 

subparts of part D set specific dates for submission 

of certain types of SIP submissions in designated 

nonattainment areas for various pollutants. Note, 

e.g., that section 182(a)(1) provides specific dates 

for submission of emissions inventories for the 

ozone NAAQS. Some of these specific dates are 

necessarily later than three years after promulgation 

of the new or revised NAAQS. 

8See, e.g., ‘‘Approval and Promulgation of 

Implementation Plans; New Mexico; Revisions to 

the New Source Review (NSR) State 

Implementation Plan (SIP); Prevention of 

Significant Deterioration (PSD) and Nonattainment 

New Source Review (NNSR) Permitting,’’ 78 FR 

4339 (January 22, 2013) (EPA’s final action 

approving the structural PSD elements of the New 

Mexico SIP submitted by the State separately to 

meet the requirements of EPA’s 2008 PM2.5 NSR 

rule), and ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; New Mexico; 

Infrastructure and Interstate Transport 

Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR 

4337) (January 22, 2013) (EPA’s final action on the 

infrastructure SIP for the 2006 PM2.5 NAAQS). 

9On December 14, 2007, the State of Tennessee, 

through the Tennessee Department of Environment 

and Conservation, made a SIP revision to EPA 

demonstrating that the State meets the requirements 

of sections 110(a)(1) and (2). EPA proposed action 

for infrastructure SIP elements (C) and (J) on 

January 23, 2012 (77 FR 3213) and took final action 

on March 14, 2012 (77 FR 14976). On April 16, 

2012 (77 FR 22533) and July 23, 2012 (77 FR 

42997), EPA took separate proposed and final 

actions on all other section 110(a)(2) infrastructure 

SIP elements of Tennessee’s December 14, 2007 

submittal. 

10For 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. 

11EPA notes, however, that nothing in the CAA 

requires EPA to provide guidance or to promulgate 

regulations for infrastructure SIP submissions. The 

CAA directly applies to states and requires the 

submission of infrastructure SIP submissions, 

regardless of whether or not EPA provides guidance 

or regulations pertaining to such submissions. EPA 

elects to issue such guidance in order to assist 

states, as appropriate. 

12 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean 

The following examples of 

ambiguities illustrate the need for EPA 

to interpret some section 110(a)(1) and 

section 110(a)(2) requirements with 

respect to infrastructure SIP 

submissions for a given new or revised 

NAAQS. One example of ambiguity is 

that section 110(a)(2) requires that 

‘‘each’’ SIP submission must meet the 

list of requirements therein, while EPA 

has long noted that this literal reading 

of the statute is internally inconsistent 

and would create a conflict with the 

nonattainment provisions in part D of 

title I of the Act, which specifically 

address nonattainment SIP 

requirements.6 Section 110(a)(2)(I) 

pertains to nonattainment SIP 

requirements and part D addresses 

when attainment plan SIP submissions 

to address nonattainment area 

requirements are due. For example, 

section 172(b) requires EPA to establish 

a schedule for submission of such plans 

for certain pollutants when the 

Administrator promulgates the 

designation of an area as nonattainment, 

and section 107(d)(1)(B) allows up to 

two years, or in some cases three years, 

for such designations to be 

promulgated.7 This ambiguity illustrates 

that rather than apply all the stated 

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

strict literal sense, EPA must determine 

which provisions of section 110(a)(2) 

are applicable for a particular 

infrastructure SIP submission. 

Another example of ambiguity within 

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

respect to infrastructure SIPs pertains to 

whether states must meet all of the 

infrastructure SIP requirements in a 

single SIP submission, and whether EPA 

must act upon such SIP submission in 

a single action. Although section 

110(a)(1) directs states to submit ‘‘a 

plan’’ to meet these requirements, EPA 

interprets the CAA to allow states to 

make multiple SIP submissions 

separately addressing infrastructure SIP 

elements for the same NAAQS. If states 

elect to make such multiple SIP 

submissions to meet the infrastructure 

SIP requirements, EPA can elect to act 

on such submissions either individually 

or in a larger combined action.8

Similarly, EPA interprets the CAA to 

allow it to take action on the individual 

parts of one larger, comprehensive 

infrastructure SIP submission for a 

given NAAQS without concurrent 

action on the entire submission. For 

example, EPA has sometimes elected to 

act at different times on various 

elements and sub-elements of the same 

infrastructure SIP submission.9

Ambiguities within sections 110(a)(1) 

and 110(a)(2) may also arise with 

respect to infrastructure SIP submission 

requirements for different NAAQS. 

Thus, 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. 

The states’ attendant infrastructure SIP 

submissions for each NAAQS therefore 

could be different. For example, the 

monitoring requirements that a state 

might need to meet in its infrastructure 

SIP submission for purposes of section 

110(a)(2)(B) could be very different for 

different pollutants because the content 

and scope of a state’s infrastructure SIP 

submission to meet this element might 

be very different for an entirely new 

NAAQS than for a minor revision to an 

existing NAAQS.10

EPA notes that interpretation of 

section 110(a)(2) is also necessary when 

EPA reviews other types of SIP 

submissions required under the CAA. 

Therefore, as with infrastructure SIP 

submissions, EPA also has to identify 

and interpret the relevant elements of 

section 110(a)(2) that logically apply to 

these other types of SIP submissions. 

For example, section 172(c)(7) requires 

that attainment plan SIP submissions 

required by part D have to meet the 

‘‘applicable requirements’’ of section 

110(a)(2). Thus, for example, attainment 

plan SIP submissions must meet the 

requirements of section 110(a)(2)(A) 

regarding enforceable emission limits 

and control measures and section 

110(a)(2)(E)(i) regarding air agency 

resources and authority. By contrast, it 

is clear that attainment plan SIP 

submissions required by part D would 

not need to meet the portion of section 

110(a)(2)(C) that pertains to the PSD 

program required in part C of title I of 

the CAA, because PSD does not apply 

to a pollutant for which an area is 

designated nonattainment and thus 

subject to part D planning requirements. 

As this example illustrates, each type of 

SIP submission may implicate some 

elements of section 110(a)(2) but not 

others. 

Given the potential for ambiguity in 

some of the statutory language of section 

110(a)(1) and section 110(a)(2), EPA 

believes that it is appropriate to 

interpret the ambiguous portions of 

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

in the context of acting on a particular 

SIP submission. In other words, EPA 

assumes that Congress could not have 

intended that each and every SIP 

submission, regardless of the NAAQS in 

question or the history of SIP 

development for the relevant pollutant, 

would meet each of the requirements, or 

meet each of them in the same way. 

Therefore, EPA has adopted an 

approach under which it reviews 

infrastructure SIP submissions against 

the list of elements in section 110(a)(2), 

but only to the extent each element 

applies for that particular NAAQS. 

Historically, EPA has elected to use 

guidance documents to make 

recommendations to states for 

infrastructure SIPs, in some cases 

conveying needed interpretations on 

newly arising issues and in some cases 

conveying interpretations that have 

already been developed and applied to 

individual SIP submissions for 

particular elements.11 EPA most 

recently issued guidance for 

infrastructure SIPs on September 13, 

2013 (2013 Guidance).12 EPA developed 

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Air Act Sections 110(a)(1) and 110(a)(2),’’ 

Memorandum from Stephen D. Page, September 13, 

2013. 

13EPA’s September 13, 2013, guidance did not 

make recommendations with respect to 

infrastructure SIP submissions to address section 

110(a)(2)(D)(i)(I). EPA issued the guidance shortly 

after the U.S. Supreme Court agreed to review the 

D.C. Circuit decision in EME Homer City, 696 F.3d7 

(D.C. Cir. 2012) which had interpreted the 

requirements of section 110(a)(2)(D)(i)(I). In light of 

the uncertainty created by ongoing litigation, EPA 

elected not to provide additional guidance on the 

requirements of section 110(a)(2)(D)(i)(I) at that 

time. As the guidance is neither binding nor 

required by statute, whether EPA elects to provide 

guidance on a particular section has no impact on 

a state’s CAA obligations. 

14By contrast, EPA notes that if a state were to 

include a new provision in an infrastructure SIP 

submission that contained a legal deficiency, such 

as a new exemption for excess emissions during 

SSM events, then EPA would need to evaluate that 

provision for compliance against the rubric of 

applicable CAA requirements in the context of the 

action on the infrastructure SIP. 

this document to provide states with upto-date guidance for infrastructure SIPs 

for any new or revised NAAQS. Within 

this guidance, EPA describes the duty of 

states to make infrastructure SIP 

submissions to meet basic structural SIP 

requirements within three years of 

promulgation of a new or revised 

NAAQS. EPA also made 

recommendations about many specific 

subsections of section 110(a)(2) that are 

relevant in the context of infrastructure 

SIP submissions.13 The guidance also 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). 

Significantly, EPA interprets sections 

110(a)(1) and 110(a)(2) such that 

infrastructure SIP submissions need to 

address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submission for compliance with the 

applicable statutory provisions of 

section 110(a)(2), as appropriate. 

As an example, section 110(a)(2)(E)(ii) 

is a required element of section 

110(a)(2) for infrastructure SIP 

submissions. Under this element, a state 

must meet the substantive requirements 

of section 128, which pertain to state 

boards that approve permits or 

enforcement orders and heads of 

executive agencies with similar powers. 

Thus, EPA reviews infrastructure SIP 

submissions to ensure that the state’s 

implementation plan appropriately 

addresses the requirements of section 

110(a)(2)(E)(ii) and section 128. The 

2013 Guidance explains EPA’s 

interpretation that there may be a 

variety of ways by which states can 

appropriately address these substantive 

statutory requirements, depending on 

the structure of an individual state’s 

permitting or enforcement program (e.g., 

whether permits and enforcement 

orders are approved by a multi-member 

board or by a head of an executive 

agency). However they are addressed by 

the state, the substantive requirements 

of section 128 are necessarily included 

in EPA’s evaluation of infrastructure SIP 

submissions because section 

110(a)(2)(E)(ii) explicitly requires that 

the state satisfy the provisions of section 

128. 

As another example, EPA’s review of 

infrastructure SIP submissions with 

respect to the PSD program 

requirements in sections 110(a)(2)(C), 

(D)(i)(II), and (J) focuses upon the 

structural PSD program requirements 

contained in part C and EPA’s PSD 

regulations. Structural PSD program 

requirements include provisions 

necessary for the PSD program to 

address all regulated sources and NSR 

pollutants, including GHGs. By contrast, 

structural PSD program requirements do 

not include provisions that are not 

required under EPA’s regulations at 40 

CFR 51.166 but are merely available as 

an option for the state, such as the 

option to provide grandfathering of 

complete permit applications with 

respect to the 2012 PM2.5 NAAQS. 

Accordingly, the latter optional 

provisions are types of provisions EPA 

considers irrelevant in the context of an 

infrastructure SIP action. 

For other section 110(a)(2) elements, 

however, EPA’s review of a state’s 

infrastructure SIP submission focuses 

on assuring that the state’s 

implementation plan meets basic 

structural requirements. For example, 

section 110(a)(2)(C) includes, inter alia, 

the requirement that states have a 

program to regulate minor new sources. 

Thus, EPA evaluates whether the state 

has an EPA-approved minor new source 

review program and whether the 

program addresses the pollutants 

relevant to that NAAQS. In the context 

of acting on an infrastructure SIP 

submission, however, EPA does not 

think it is necessary to conduct a review 

of each and every provision of a state’s 

existing minor source program (i.e., 

already in the existing SIP) for 

compliance with the requirements of the 

CAA and EPA’s regulations that pertain 

to such programs. 

With respect to certain other issues, 

EPA does not believe that an action on 

a state’s infrastructure SIP submission is 

necessarily the appropriate type of 

action in which to address possible 

deficiencies in a state’s existing SIP. 

These issues include: (i) Existing 

provisions related to excess emissions 

from sources during periods of startup, 

shutdown, or malfunction that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); (ii) existing provisions related 

to ‘‘director’s variance’’ or ‘‘director’s 

discretion’’ that may be contrary to the 

CAA because they purport to allow 

revisions to SIP-approved emissions 

limits while limiting public process or 

not requiring further approval by EPA; 

and (iii) 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’’). Thus, EPA believes it may 

approve an infrastructure SIP 

submission without scrutinizing the 

totality of the existing SIP for such 

potentially deficient provisions and may 

approve the submission even if it is 

aware of such existing provisions. 14 It 

is important to note that EPA’s approval 

of a state’s infrastructure SIP submission 

should not be construed as explicit or 

implicit re-approval of any existing 

potentially deficient provisions that 

relate to the three specific issues just 

described. 

EPA’s approach to review of 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submission is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

110(a)(1) and the list of elements in 

110(a)(2) as requiring review of each 

and every provision of a state’s existing 

SIP against all requirements in the CAA 

and EPA regulations 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. These provisions, 

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 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

section 110(a)(2) of the CAA most likely 

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance 

gives simpler recommendations with 

respect to carbon monoxide than other 

NAAQS pollutants to meet the visibility 

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15For example, EPA issued a SIP call to Utah to 

address specific existing SIP deficiencies related to 

the treatment of excess emissions during SSM 

events. See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revisions,’’ 74 FR 21639 

(April 18, 2011). 

16EPA has used 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 Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82536 (December 30, 2010). EPA has previously 

used its authority under CAA section 110(k)(6) to 

remove numerous other SIP provisions that the 

Agency determined it had approved in error. See, 

e.g., 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). 

17See, e.g., EPA’s disapproval of 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, e.g., 75 FR 42342 at 42344 

(July 21, 2010) (proposed disapproval of director’s 

discretion provisions); 76 FR 4540 (Jan. 26, 2011) 

(final disapproval of such provisions). 

18On June 12, 2015, EPA published a final action 

entitled, ‘‘State Implementation Plans: Response to 

Petition for Rulemaking; Restatement and Update of 

EPA’s SSM Policy Applicable to SIPs; Findings of 

Substantial Inadequacy; and SIP Calls to Amend 

Provisions Applying to Excess Emissions During 

Periods of Startup, Shutdown, and Malfunction.’’ 

See 80 FR 33840. 

19On occasion, proposed changes to the 

monitoring network are evaluated outside of the 

network plan approval process in accordance with 

40 CFR part 58. 

requirements of section 

110(a)(2)(D)(i)(II), because carbon 

monoxide does not affect visibility. As 

a result, an infrastructure SIP 

submission for any future new or 

revised NAAQS for carbon monoxide 

need only state this fact in order to 

address the visibility prong of section 

110(a)(2)(D)(i)(II). 

Finally, EPA believes that its 

approach with respect to infrastructure 

SIP requirements is based on a 

reasonable reading of sections 110(a)(1) 

and 110(a)(2) because the CAA provides 

other avenues and mechanisms to 

address specific substantive deficiencies 

in existing SIPs. These other statutory 

tools allow EPA to take appropriately 

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 

implementation plan is substantially 

inadequate to attain or maintain the 

NAAQS, to mitigate interstate transport, 

or to otherwise comply with the CAA.15

Section 110(k)(6) authorizes EPA to 

correct errors in past actions, such as 

past approvals of SIP submissions.16

Significantly, EPA’s determination that 

an action on a state’s infrastructure SIP 

submission is not the appropriate time 

and place to address all potential 

existing SIP deficiencies does not 

preclude EPA’s subsequent reliance on 

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

the basis for action to correct those 

deficiencies 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 an 

infrastructure SIP submission, EPA 

believes that section 110(a)(2)(A) may be 

among the statutory bases that EPA 

relies upon in the course of addressing 

such deficiency in a subsequent 

action.17

IV. What is EPA’s analysis of how 

Tennessee addressed the elements of 

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

‘‘infrastructure’’ provisions? 

Tennessee’s 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: Section 

110(a)(2)(A) requires that each 

implementation plan include 

enforceable emission limitations and 

other control measures, means, or 

techniques (including economic 

incentives such as fees, marketable 

permits, and auctions of emissions 

rights), as well as schedules and 

timetables for compliance, as may be 

necessary or appropriate to meet the 

applicable requirements. The Tennessee 

Code Annotated section 68–201–105(a) 

provides TDEC authority to establish 

limits and measures as well as 

schedules for compliance to meet the 

applicable requirements of the CAA. 

Emission limits and other control 

measures, means, and techniques as 

well as schedules and timetables for 

activities that contribute to NO2

concentrations in the ambient air are 

found in Regulations 1200–03–03, 

Ambient Air Quality Standards, 1200– 

03–19, Emission Standards and 

Monitoring Requirements for Additional 

Control Areas, and 1200–03–27, 

Nitrogen Oxides. EPA has made the 

preliminary determination that the cited 

provisions adequately address 

110(a)(2)(A) for the 2010 1-hour NO2

NAAQS. 

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 is addressing such state 

regulations in a separate action.18

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. 

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

monitoring/data system: SIPs are 

required to provide for the 

establishment and operation of ambient 

air quality monitors, the compilation 

and analysis of ambient air quality data, 

and the submission of these data to EPA 

upon request. TCA 68–201–105(b)(4) 

provides TDEC with the authority to 

collect and disseminate information 

relating to air quality and pollution and 

the prevention, control, supervision, 

and abatement thereof. Annually, States 

develop and submit to EPA for approval 

statewide ambient monitoring network 

plans consistent with the requirements 

of 40 CFR parts 50, 53, and 58. The 

annual network plan involves an 

evaluation of any proposed changes to 

the monitoring network, includes the 

annual ambient monitoring network 

design plan and a certified evaluation of 

the agency’s ambient monitors and 

auxiliary support equipment.19 On June 

30, 2015, Tennessee submitted its 

monitoring network plan to EPA, and on 

October 26, 2015, EPA approved this 

plan. Tennessee’s approved monitoring 

network plan can be accessed at 

www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2015–0252. 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 2010 1-hour NO2 NAAQS. 

3. 110(a)(2)(C) Program for 

Enforcement of Control Measures and 

for Construction or Modification of 

Stationary Sources: This element 

consists of three sub-elements; 

enforcement, state-wide regulation of 

new and modified minor sources and 

minor modifications of major sources; 

and preconstruction permitting of major 

sources and major modifications in 

areas designated attainment or 

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unclassifiable for the subject NAAQS as 

required by CAA title I part C (i.e., the 

major source PSD program). To satisfy 

the requirements of 110(a)(2)(C), 

Tennessee cites to Regulations 1200– 

03–09, Construction and Operating 

Permits, and 1200–03–13, Violation. 

These provisions of Tennessee’s SIP 

pertain to the construction and 

modification of stationary sources and 

the enforcement of air pollution control 

regulations. As discussed further below, 

in this action EPA is only proposing to 

approve the enforcement, and the 

regulation of minor sources and minor 

modifications aspects of Tennessee’s 

section 110(a)(2)(C) infrastructure SIP 

submission. 

Enforcement: Regulation 1200–03–13, 

Enforcement provides for enforcement 

of emission limits and control measures 

and construction permitting for new or 

modified stationary sources. Also note, 

under TCA 68–201–116, Orders and 

assessments of damages and civil 

penalty—Appeal, the State’s Technical 

Secretary is authorized to issue orders 

requiring correction of violations of any 

part of the Tennessee Air Quality Act, 

or of any regulation promulgated under 

this State statute. Violators are subject to 

civil penalties of up to $25,000 dollars 

per day for each day of violation and for 

any damages to the State resulting from 

the violations. 

Preconstruction PSD Permitting for 

Major Sources: With respect to 

Tennessee’s March 13, 2014, 

infrastructure SIP submission related to 

the PSD permitting requirements for 

major sources of section 110(a)(2)(C), 

EPA took final action to approve these 

provisions for the 2010 1-hour NO2

NAAQS on March 18, 2015 (80 FR 

14019). 

Regulation of minor sources and 

modifications: Section 110(a)(2)(C) also 

requires the SIP to include provisions 

that govern the minor source program 

that regulates emissions of the 2010 

1-hour NO2 NAAQS. Tennessee has a 

SIP-approved minor NSR permitting 

program at Regulations 1200–03–09–.01, 

Construction Permits, and 1200–03–09– 

.03, General Provisions, that regulates 

the preconstruction permitting of minor 

modifications and construction of minor 

stationary sources. 

EPA has made the preliminary 

determination that Tennessee’s SIP and 

practices are adequate for program 

enforcement of control measures and 

regulation of minor sources and 

modifications related to the 2010 1-hour 

NO2 NAAQS. 

4. 110(a)(2)(D)(i) Interstate Pollution 

Transport: Section 110(a)(2)(D)(i) has 

two components; 110(a)(2)(D)(i)(I) and 

110(a)(2)(D)(i)(II). Each of these 

components have two subparts resulting 

in four distinct components, commonly 

referred to as ‘‘prongs,’’ that must be 

addressed in infrastructure SIP 

submissions. The first two prongs, 

which are codified in section 

110(a)(2)(D)(i)(I), are provisions that 

prohibit any source or other type of 

emissions activity in one state from 

contributing significantly to 

nonattainment of the NAAQS in another 

state (‘‘prong 1’’), and interfering with 

maintenance of the NAAQS in another 

state (‘‘prong 2’’). The third and fourth 

prongs, which are codified in section 

110(a)(2)(D)(i)(II), are provisions that 

prohibit emissions activity in one state 

interfering with measures required to 

prevent significant deterioration of air 

quality in another state (‘‘prong 3’’), or 

to protect visibility in another state 

(‘‘prong 4’’). 

110(a)(2)(D)(i)(I)—prongs 1 and 2: 

EPA is not proposing any action in this 

rulemaking related to the interstate 

transport provisions pertaining to the 

contribution to nonattainment or 

interference with maintenance in other 

states of section 110(a)(2)(D)(i)(I) 

(prongs 1 and 2) because Tennessee’s 

2010 1-hour NO2 NAAQS infrastructure 

submission did not address prongs 1 

and 2. 

110(a)(2)(D)(i)(II)—prong 3: With 

respect to Tennessee’s infrastructure SIP 

submission related to the interstate 

transport requirements for PSD of 

section 110(a)(2)(D)(i)(II) (prong 3), EPA 

took final action to approve Tennessee’s 

March 13, 2014, infrastructure SIP 

submission regarding prong 3 of D(i) for 

the 2010 1-hour NO2 NAAQS on March 

18, 2015. See 80 FR 14019. 

110(a)(2)(D)(i)(II)—prong 4: EPA is 

not proposing any action in this 

rulemaking related to the interstate 

transport provisions pertaining to 

visibility protection in other states of 

section 110(a)(2)(D)(i)(II) (prong 4) and 

will consider these requirements in 

relation to Tennessee’s 2010 1-hour NO2

NAAQS infrastructure submission in a 

separate rulemaking. 

5. 110(a)(2)(D)(ii) Interstate Pollution 

Abatement and International Air 

Pollution: Section 110(a)(2)(D)(ii) 

requires SIPs to include provisions 

ensuring compliance with sections 115 

and 126 of the Act, relating to interstate 

and international pollution abatement. 

Regulation 1200–03–09-.03,General 

Provisions, requires the permitting 

authority to notify air agencies whose 

areas may be affected by emissions from 

a source. EPA is unaware of any 

pending obligations for the State of 

Tennessee pursuant to sections 115 or 

126 of the CAA. 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 2010 1-hour NO2

NAAQS. 

6. 110(a)(2)(E) Adequate Resources 

and Authority, Conflict of Interest, and 

Oversight of Local Governments and 

Regional Agencies: 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. 

EPA is proposing to approve 

Tennessee’s SIP as meeting the 

requirements of sections 110(a)(2)(E). 

EPA’s rationale for this proposals 

respecting each section of 110(a)(2)(E) is 

described in turn below. 

In support of EPA’s proposal to 

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

(iii), TCA 68–201–105, Powers and 

duties of board—Notification of 

vacancy—Termination due to vacancy, 

gives the Tennessee Air Pollution 

Control Board the power and duty to 

promulgate rules and regulations to 

implement the Tennessee Air Quality 

Act. The Board may define ambient air 

quality standards, set emission 

standards, set forth general policies or 

plans, establish a system of permits, and 

identify a schedule of fees for review of 

plans and specifications, issuance or 

renewal of permits or inspection of air 

contaminant sources. 

TAPCR 1200–03–26, Administrative 

Fees Schedule, establishes construction 

fees, annual emission fees, and permit 

review fees sufficient to supplement 

existing State and Federal funding and 

to cover reasonable costs associated 

with the administration of Tennessee’s 

air pollution control program. These 

costs include costs associated with the 

review of permit applications and 

reports, issuance of permits, source 

inspections and emission unit 

observations, review and evaluation of 

stack and/or ambient monitoring results, 

modeling, and costs associated with 

enforcement actions. 

TCA 68–201–115, Local pollution 

control programs—Exemption from 

state supervision—Applicability of part 

to air contaminant sources burning 

wood waste—Open burning of wood 

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waste, states that ‘‘Any municipality or 

county in this state may enact, by 

ordinance or resolution respectively, air 

pollution control regulations not less 

stringent than the standards adopted for 

the state pursuant to this part, or any 

such municipality or county may also 

adopt or repeal an ordinance or 

resolution which incorporates by 

reference any or all of the regulations of 

the board, or any federal regulations 

including any changes in such 

regulations, when such regulations are 

properly identified as to date and 

source.’’ Before such ordinances or 

resolutions become effective, the 

municipality or county must receive a 

certificate of exemption from the Board 

to enact local regulations in the State. In 

granting any certificate of exemption, 

the State of Tennessee reserves the right 

to enforce any applicable resolution, 

ordinance, or regulation of the local 

program. 

TCA 68–201–115 also directs TDEC to 

‘‘frequently determine whether or not 

any exempted municipality or county 

meets the terms of the exemption 

granted and continues to comply with 

this section.’’ If TDEC determines that 

the local program does not meet the 

terms of the exemption or does not 

otherwise comply with the law, the 

Board may suspend the exemption in 

whole or in part until the local program 

complies with the State standards. 

As evidence of the adequacy of 

TDEC’s resources, EPA submitted a 

letter to Tennessee on March 9, 2015, 

outlining section 105 grant 

commitments and the current status of 

these commitments for fiscal year 2014. 

The letter EPA submitted to Tennessee 

can be accessed at www.regulations.gov 

using Docket ID No. EPA–R04–OAR– 

2015–0252. Annually, states update 

these grant commitments based on 

current SIP requirements, air quality 

planning, and applicable requirements 

related to the NAAQS. Tennessee 

satisfactorily met all commitments 

agreed to in the Air Planning Agreement 

for fiscal year 2014, therefore 

Tennessee’s grants were finalized. EPA 

has made the preliminary determination 

that Tennessee has adequate authority 

and resources for implementation of the 

2010 1-hour NO2 NAAQS. 

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

the state to comply with section 128 of 

the CAA. Section 128 requires that the 

SIP provide: (a)(1) The majority of 

members of the state board or body 

which approves permits or enforcement 

orders represent the public interest and 

do not derive any significant portion of 

their income from persons subject to 

permitting or enforcement orders under 

the CAA; and (a)(2) any potential 

conflicts of interest by such board or 

body, or the head of an executive agency 

with similar powers be adequately 

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

obligations for the 2010 1-hour NO2

NAAQS and the requirements of CAA 

section 128 are met in Regulation 0400– 

30–17, Conflict of Interest. Under this 

regulation, the Tennessee board with 

authority over air permits and 

enforcement orders is required to 

determine annually and after receiving 

a new member that at least a majority 

of its members represent to public 

interest and do not derive any 

significant portion of income from 

persons subject to such permits and 

enforcement orders. Further, the board 

cannot act to hear contested cases until 

it has determined it can do so consistent 

with CAA section 128. The regulation 

also requires TDEC’s Technical 

Secretary and board members to declare 

any conflict-of-interest in writing prior 

to the issuance of any permit, variance 

or enforcement order that requires 

action on their part. 

EPA has made the preliminary 

determination that the State has 

adequately addressed the requirements 

of section 128, and accordingly has met 

the requirements of section 

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

infrastructure SIP requirements. 

Therefore, EPA is proposing to approve 

Tennessee’s infrastructure SIP 

submission as meeting the requirements 

of sub-elements 110(a)(2)(E)(i), (ii) and 

(iii). 

7. 110(a)(2)(F) Stationary source 

monitoring system: Section 110(a)(2)(F) 

requires SIPs to meet applicable 

requirements addressing (i) the 

installation, maintenance, and 

replacement of equipment, and the 

implementation of other necessary 

steps, by owners or operators of 

stationary sources to monitor emissions 

from such sources, (ii) periodic reports 

on the nature and amounts of emissions 

and emissions related data from such 

sources, and (iii) correlation of such 

reports by the state agency with any 

emission limitations or standards 

established pursuant to this section, 

which reports shall be available at 

reasonable times for public inspection. 

Tennessee’s infrastructure SIP 

submission describes how the State 

establishes requirements for emissions 

compliance testing and utilizes 

emissions sampling and analysis. It 

further describes how the State ensures 

the quality of its data through observing 

emissions and monitoring operations. 

These infrastructure SIP requirements 

are codified at Regulation 1200–03–10, 

Required Sampling, Recording, and 

Reporting. This rule requires owners or 

operators of stationary sources to 

compute emissions, submit periodic 

reports of such emissions and maintain 

records as specified by various 

regulations and permits, and to evaluate 

reports and records for consistency with 

the applicable emission limitation or 

standard on a continuing basis over 

time. The monitoring data collected and 

records of operations serve as the basis 

for a source to certify compliance, and 

can be used by Tennessee as direct 

evidence of an enforceable violation of 

the underlying emission limitation or 

standard. Accordingly, EPA is unaware 

of any provision preventing the use of 

credible evidence in 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. States 

report emissions data for the six criteria 

pollutants and the precursors that form 

them—nitrogen oxides, sulfur dioxide, 

ammonia, lead, carbon monoxide, 

particulate matter, and volatile organic 

compounds. Many states also 

voluntarily report emissions of 

hazardous air pollutants. Tennessee 

made its latest update to the 2011 NEI 

on April 9, 2014. 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 2010 

1-hour NO2 NAAQS. Accordingly, EPA 

is proposing to approve Tennessee’s 

infrastructure SIP submission with 

respect to section 110(a)(2)(F). 

8. 110(a)(2)(G) Emergency Powers: 

Section 110(a)(2)(G) of the Act requires 

that states demonstrate authority 

comparable with section 303 of the CAA 

and adequate contingency plans to 

implement such authority. Tennessee’s 

emergency powers are outlined in 

TAPCR 1200–03–15, Emergency 

Episode Plan, which establishes the 

criteria for declaring an air pollution 

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episode (air pollution alert, air pollution 

warning, or air pollution emergency), 

specific emissions reductions for each 

episode level, and emergency episode 

plan requirements for major sources 

located in or significantly impacting a 

nonattainment area. Additional 

emergency powers are codified in TCA 

68–201–109, Emergency Stop Orders for 

Air Contaminant Sources. Under TCA 

68–201–109, if the Commissioner of 

TDEC finds that emissions from the 

operation of one or more sources are 

causing imminent danger to human 

health and safety, the Commissioner 

may, with the approval of the Governor, 

order the source(s) responsible to reduce 

or discontinue immediately its (their) 

air emissions. Additionally, this State 

law requires a hearing to be held before 

the Commissioner within 24 hours of 

any such order. 

Regarding the public welfare and 

environment, TCA 68–201–106, Matters 

to be considered in exercising powers, 

states that ‘‘In exercising powers to 

prevent, abate and control air pollution, 

the board or department shall give due 

consideration to all pertinent facts, 

including, but not necessarily limited 

to: (1) The character and degree of 

injury to, or interference with, the 

protection of the health, general welfare 

and physical property of the people 

. . .’’ Also, TCA 68–201–116, Orders 

and assessments of damages and civil 

penalty Appeal, provides in subsection 

(a) that if the Tennessee technical 

secretary discovers that any State air 

quality regulation has been violated, the 

Tennessee technical secretary may issue 

an order to correct the violation, and 

this order shall be complied with within 

the time limit specified in the order. 

EPA has made the preliminary 

determination that Tennessee’s SIP and 

practices are adequate for emergency 

powers related to the 2010 1-hour NO2

NAAQS2010 1-hour SO2 NAAQS. 

Accordingly, EPA is proposing to 

approve Tennessee’s infrastructure SIP 

submission with respect to section 

110(a)(2)(G). 

9. 110(a)(2)(H) Future SIP revisions: 

Section 110(a)(2)(H), in summary, 

requires each SIP to provide for 

revisions of such plan (i) as may be 

necessary to take account of revisions of 

such national primary or secondary 

ambient air quality standard or the 

availability of improved or more 

expeditious methods of attaining such 

standard, and (ii) whenever the 

Administrator finds that the plan is 

substantially inadequate to attain the 

NAAQS or to otherwise comply with 

any additional applicable requirements. 

As previously discussed, Tennessee is 

responsible for adopting air quality 

rules and revising SIPs as needed to 

attain or maintain the NAAQS in 

Tennessee. 

Section 68–201–105(a) of the 

Tennessee Air Quality Act authorizes 

the Tennessee Air Pollution Control 

Board to promulgate rules and 

regulations to implement this State 

statute, including setting and 

implementing ambient air quality 

standards, emission standards, general 

policies or plans, a permits system, and 

a schedule of fees for review of plans 

and specifications, issuance or renewal 

of permits, and inspection of sources. 

EPA has made the preliminary 

determination that Tennessee’s SIP and 

practices adequately demonstrate a 

commitment to provide future SIP 

revisions related to the 2010 1-hour NO2

NAAQS when necessary. Accordingly, 

EPA is proposing to approve 

Tennessee’s infrastructure SIP 

submission with respect to section 

110(a)(2)(H). 

10. 110(a)(2)(J) Consultation with 

Government Officials, Public 

Notification, and PSD and Visibility 

Protection: EPA is proposing to approve 

Tennessee’s infrastructure SIP 

submission for the 2010 1-hour NO2

NAAQS with respect to the general 

requirement in section 110(a)(2)(J) to 

include a program in the SIP that 

provides for meeting the applicable 

consultation requirements of section 

121, the public notification 

requirements of section 127; and 

visibility protection requirements of 

part C of the Act. With respect to 

Tennessee’s infrastructure SIP 

submission related to the 

preconstruction PSD permitting 

requirements of section 110(a)(2)(J), EPA 

took final action to approve Tennessee’s 

March 13, 2014, 2010 1-hour NO2

NAAQS infrastructure SIP for these 

requirements on March 18, 2015. See 80 

FR 14019. EPA’s rationale for its 

proposed action regarding applicable 

consultation requirements of section 

121, the public notification 

requirements of section 127, and 

visibility protection requirements is 

described below. 

110(a)(2)(J) (121 consultation)— 

Consultation with government officials: 

Section 110(a)(2)(J) of the CAA requires 

states to provide a process for 

consultation with local governments, 

designated organizations and Federal 

Land Managers carrying out NAAQS 

implementation requirements pursuant 

to section 121 relative to consultation. 

Regulation 1200–03–34, Conformity, as 

well as Tennessee’s Regional Haze 

Implementation Plan (which allows for 

consultation between appropriate state, 

local, and tribal air pollution control 

agencies as well as the corresponding 

Federal Land Managers), provide for 

consultation with government officials 

whose jurisdictions might be affected by 

SIP development activities. TAPCR 

1200–03–34, Conformity, provides for 

interagency consultation on 

transportation and general conformity 

issues. Tennessee adopted state-wide 

consultation procedures for the 

implementation of transportation 

conformity which includes the 

development of mobile inventories for 

SIP development. Required partners 

covered by Tennessee’s consultation 

procedures include Federal, state and 

local transportation and air quality 

agency officials. EPA has made the 

preliminary determination that 

Tennessee’s SIP and practices 

adequately demonstrate consultation 

with government officials related to the 

2010 1-hour NO2 NAAQS when 

necessary. Accordingly, EPA is 

proposing to approve Tennessee’s 

infrastructure SIP submission with 

respect to section 110(a)(2)(J) 

consultation with government officials. 

110(a)(2)(J) (127 public notification)— 

Public notification: These requirements 

are met through Regulation 1200–03–15, 

Emergency Episode Plan, which 

requires that TDEC notify the public of 

any air pollution alert, warning, or 

emergency. The TDEC Web site also 

provides air quality summary data, air 

quality index reports and links to more 

information regarding public awareness 

of measures that can prevent such 

exceedances and of ways in which the 

public can participate in regulatory and 

other efforts to improve air quality. EPA 

has made the preliminary determination 

that Tennessee’s SIP and practices 

adequately demonstrate the State’s 

ability to provide public notification 

related to the 2010 1-hour NO2 NAAQS 

when necessary. Accordingly, EPA is 

proposing to approve Tennessee’s 

infrastructure SIP submissions with 

respect to section 110(a)(2)(J) public 

notification. 

110(a)(2)(J)—Visibility protection: 

EPA’s 2013 Guidance notes that it does 

not treat the visibility protection aspects 

of section 110(a)(2)(J) as applicable for 

purposes of the infrastructure SIP 

approval process. EPA recognizes that 

states are subject to visibility protection 

and regional haze program requirements 

under Part C of the Act (which includes 

sections 169A and 169B). However, 

there are no newly applicable visibility 

protection obligations after the 

promulgation of a new or revised 

NAAQS. Thus, EPA has determined that 

states do not need to address the 

visibility component of 110(a)(2)(J) in 

infrastructure SIP submittals. As such, 

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20Title V program regulations are federallyapproved but not incorporated into the federallyapproved SIP. 

EPA has made the preliminary 

determination that it does not need to 

address the visibility protection element 

of section 110(a)(2)(J) in Tennessee’s 

infrastructure SIP related to the 2010 1- 

hour NO2 NAAQS. 

11. 110(a)(2)(K) Air Quality Modeling 

and Submission of Modeling Data: 

Section 110(a)(2)(K) of the CAA requires 

that SIPs provide for performing air 

quality modeling so that effects on air 

quality of emissions from NAAQS 

pollutants can be predicted and 

submission of such data to the EPA can 

be made. Regulation 1200–03–09-.01(4), 

Prevention of Significant Air Quality 

Deterioration, specifies that air 

modeling be conducted in accordance 

with 40 CFR part 51, Appendix W 

‘‘Guideline on Air Quality Models.’’ 

Tennessee also states that it has 

personnel with training and experience 

to conduct dispersion modeling 

consistent with models approved by 

EPA protocols. Also note that TCA 68– 

201–105(b)(7) grants TDEC the power 

and duty to collect and disseminate 

information relative to air pollution. 

Additionally, Tennessee supports a 

regional effort to coordinate the 

development of emissions inventories 

and conduct regional modeling for NOx, 

which includes NO2. Taken as a whole, 

Tennessee’s regulations, statutes and 

practices demonstrate that Tennessee 

has the authority to collect and provide 

relevant data for the purpose of 

predicting the effect on ambient air 

quality of the 1-hour NO2 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 2010 1- 

hour NO2 NAAQS when necessary. 

12. 110(a)(2)(L) Permitting fees: This 

element necessitates that the SIP require 

the owner or operator of each major 

stationary source to pay to the 

permitting authority, as a condition of 

any permit required under the CAA, a 

fee sufficient to cover (i) the reasonable 

costs of reviewing and acting upon any 

application for such a permit, and (ii) if 

the owner or operator receives a permit 

for such source, the reasonable costs of 

implementing and enforcing the terms 

and conditions of any such permit (not 

including any court costs or other costs 

associated with any enforcement 

action), until such fee requirement is 

superseded with respect to such sources 

by the Administrator’s approval of a fee 

program under title V. 

Funding for the Tennessee air permit 

program comes from a processing fee, 

submitted by permit applicants, 

required by Regulations 1200–03– 

26.02(5), Construction Fee, and 1200– 

03–26.02(9), Annual Emissions Fees for 

Major Sources. Tennessee ensures this 

is sufficient for the reasonable cost of 

reviewing and acting upon PSD and 

NNSR permits. Additionally, Tennessee 

has a fully approved title V operating 

permit program at Regulation 1200–03– 

09 20 that covers the cost of 

implementation and enforcement of 

PSD and NNSR permits after they have 

been issued. EPA has made the 

preliminary determination that 

Tennessee’s SIP and practices 

adequately provide for permitting fees 

related to the 2010 NO2 NAAQS, when 

necessary. Accordingly, EPA is 

proposing to approve Tennessee’s 

infrastructure SIP submission with 

respect to section 110(a)(2)(L). 

13. 110(a)(2)(M) Consultation/

participation by affected local entities: 

Section 110(a)(2)(M) of the Act requires 

states to provide for consultation and 

participation in SIP development by 

local political subdivisions affected by 

the SIP. TCA 68–201–105, Powers and 

duties of board Notification of vacancy 

Termination due to vacancy, authorizes 

and requires the Tennessee Air 

Pollution Control Board to promulgate 

rules and regulations related to 

consultation under the provisions of the 

State’s Uniform Administrative 

Procedures Act. TCA 4–5–202, When 

hearings required, requires agencies to 

precede all rulemaking with a notice 

and public hearing, except for 

exemptions. TCA 4–5–203, Notice of 

hearing, states that whenever an agency 

is required by law to hold a public 

hearing as part of its rulemaking 

process, the agency shall: ‘‘(1) Transmit 

written notice of the hearings to the 

secretary of state for publication in the 

notice section of the administrative 

register Web site . . . and (2) Take such 

other steps as it deems necessary to 

convey effective notice to persons who 

are likely to have an interest in the 

proposed rulemaking.’’ TCA 68–201– 

105(b)(7) authorizes and requires TDEC 

to ‘‘encourage voluntary cooperation of 

affected persons or groups in preserving 

and restoring a reasonable degree of air 

purity; advise, consult and cooperate 

with other agencies, persons or groups 

in matters pertaining to air pollution; 

and encourage authorized air pollution 

agencies of political subdivisions to 

handle air pollution problems within 

their respective jurisdictions to the 

greatest extent possible and to provide 

technical assistance to political 

subdivisions . . .’’. TAPCR 1200–03–34, 

Conformity, requires interagency 

consultation on transportation and 

general conformity issues. Additionally, 

TDEC has, in practice, consulted with 

local entities for the development of its 

transportation conformity SIP and has 

worked with the Federal Land Managers 

as a requirement of EPA’s regional haze 

rule. EPA has made the preliminary 

determination that Tennessee’s SIP and 

practices adequately demonstrate 

consultation with affected local entities 

related to the 2010 1-hour NO2 NAAQS 

when necessary. Accordingly, EPA is 

proposing to approve Tennessee’s 

infrastructure SIP submission with 

respect to section 110(a)(2)(M). 

V. Proposed Action 

With the exception of the 

preconstruction PSD permitting 

requirements for major sources of 

section 110(a)(2)(C), prong 3 of (D)(i), 

and (J) and the interstate transport 

provisions pertaining to the 

contribution to nonattainment or 

interference with maintenance in other 

states and visibility of prongs 1, 2, and 

4 of section 110(a)(2)(D)(i), EPA is 

proposing to approve that Tennessee’s 

March 13, 2014, SIP submission for the 

2010 1-hour NO2 NAAQS has met the 

above-described infrastructure SIP 

requirements. EPA is proposing to 

approve Tennessee’s infrastructure SIP 

submission for the 2010 1-hour SO2

NAAQS because the 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. 

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 Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• 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 

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Federal Register / Vol. 81, No. 135 / Thursday, July 14, 2016 / Proposed Rules 45447 

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). 

The SIP is not approved to apply on 

any Indian reservation land or in any 

other area where EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), nor will it impose substantial 

direct costs on tribal governments or 

preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

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

Dated: June 30, 2016. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

[FR Doc. 2016–16514 Filed 7–13–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2016–0106; FRL–9948–94– 

Region 4] 

Air Plan Approval; NC; Fine Particulate 

Matter National Ambient Air Quality 

Standards Revision 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

State Implementation Plan (SIP) 

revision submitted by the State of North 

Carolina, through the North Carolina 

Department of Environmental Quality’s 

(NCDEQ) Division of Air Quality (DAQ) 

on December 11, 2015, that incorporates 

amendments to the state rules reflecting 

the 2012 national ambient air quality 

standards for fine particulate matter. 

EPA is approving this SIP revision 

because the State has demonstrated that 

it is consistent with the Clean Air Act. 

DATES: Written comments must be 

received on or before August 15, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2016–0106 at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

EPA may publish any comment received 

to its public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. EPA will generally 

not consider comments or comment 

contents located outside of the primary 

submission (i.e. on the web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www.epa.gov/dockets/

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Madolyn Sanchez, Air Regulatory 

Management Section, Air Planning and 

Implementation Branch, Air, Pesticides 

and Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Ms. 

Sanchez can be reached via telephone at 

(404) 562–9644 or via electronic mail at 

sanchez.madolyn@epa.gov. 

SUPPLEMENTARY INFORMATION: In the 

Final Rules Section of this Federal 

Register, EPA is approving the State’s 

implementation plan revision as a direct 

final rule without prior proposal 

because the Agency views this as a 

noncontroversial submittal and 

anticipates no adverse comments. A 

detailed rationale for the approval is set 

forth in the direct final rule. If no 

adverse comments are received in 

response to this rule, no further activity 

is contemplated. If EPA receives adverse 

comments, the direct final rule will be 

withdrawn and all public comments 

received will be addressed in a 

subsequent final rule based on this 

proposed rule. EPA will not institute a 

second comment period on this 

document. Any parties interested in 

commenting on this document should 

do so at this time. 

Dated: June 30, 2016. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

[FR Doc. 2016–16455 Filed 7–13–16; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 54 

[WC Docket Nos. 11–42, 09–197 and 10– 

90; Report No. 3046] 

Petitions for Reconsideration and 

Clarification of Action in Rulemaking 

Proceeding 

AGENCY: Federal Communications 

Commission. 

ACTION: Petitions for reconsideration 

and clarification. 

SUMMARY: Petitions for Reconsideration 

and Clarification (Petitions) have been 

filed in the Commission’s rulemaking 

proceeding by Thomas C. Power on 

behalf of CTIA, Kevin G. Rupy on behalf 

of United States Telecom Association, 

Colin W. Scott on behalf of 

Pennsylvania Public Utility 

Commission, John J. Heitmann on behalf 

of Joint Lifeline ETC Petitioners, John T. 

Nakahata on behalf of General 

Communication, Inc., Michael R. 

Romano on behalf of NTCA & WTA, 

Mitchell F. Brecher on behalf of 

TracFone Wireless, Inc., and David 

Springe on behalf of NASUCA. 

DATES: Oppositions to the Petitions 

must be filed on or before July 29, 2016. 

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