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[Federal Register Volume 77, Number 163 (Wednesday, August 22, 2012)]
[Proposed Rules]
[Pages 50651-50660]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-20668]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0237; FRL- 9718-5]

Approval and Promulgation of Implementation Plans; Tennessee; 
110(a)(1) and (2) Infrastructure Requirements for the 2008 8-Hour Ozone 
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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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 2008 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 EPA, which is commonly referred to as an 
``infrastructure'' SIP. TDEC certified that the Tennessee SIP contains 
provisions that ensure the 2008 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 October 19, 2009, 
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 October 19, 2009, addressed all the required infrastructure elements 
for the 2008 8-hour ozone NAAQS.

DATES: Written comments must be received on or before September 21, 
2012.

[[Page 50652]]

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0237, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: R4-RDS@epa.gov.
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2012-0237,'' 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-
2012-0237. 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.

Table of ContentsI. Background

II. What elements are required under sections 110(a)(1) and (2)?
III. 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 March 27, 2008, EPA promulgated a new NAAQS for ozone based on 
8-hour average concentrations. EPA revised the level of the 8-hour 
standard to 0.075 parts per million (ppm). See 73 FR 16436. 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 2008 8-hour ozone NAAQS to EPA no later than March 2011.
    Midwest Environmental Defense and Sierra Club submitted a complaint 
on November 20, 2011, related to EPA's failure to issue findings of 
failure to submit related to the infrastructure requirements for the 
2008 8-hour ozone NAAQS. On December 13, 2011, and March 6, 2012, 
Midwest Environmental Defense and Sierra Club submitted amended 
complaints for failure to promulgate prevention of significant 
deterioration (PSD) regulations within two years and failure to approve 
or disapprove SIP submittals, and to remove claims regarding states 
that have submitted SIPs for the 2008 8-hour ozone NAAQS, respectively. 
Tennessee was among the states named in the November 2011 complaint, 
and the December 2011 and March 2012 amended complaints. Specifically, 
the plaintiffs claim that EPA has failed to perform its mandatory duty 
by not approving in full, disapproving in full, or approving in part 
and disapproving in part Tennessee's 2008 ozone infrastructure SIP 
addressing section 110(a)(2)(A)-(H) and (J)-(M) by no later than April 
19, 2011.
    Tennessee's infrastructure submission was received by EPA on 
October 19, 2009, for the 2008 8-hour ozone NAAQS. The submission was 
determined to be complete on April 19, 2010. On July 3, 2012, Tennessee 
submitted a letter to EPA withdrawing the portion of its October 19, 
2009, SIP revision purported to address the requirements related to 
section 110(a)(2)(D)(i)(I) interstate transport. Today's action is 
proposing to approve in part, and conditionally approve in part, 
Tennessee's infrastructure submission for the 2008 8-hour ozone NAAQS 
for sections 110(a)(2)(A)-(H) and (J)-(M), except for section 
110(a)(2)(C) nonattainment area requirements and, section 
110(a)(2)(D)(i)(I) interstate transport. 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

[[Page 50653]]

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 2008 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 the 1997 8-hour 
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.\1\
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    \1\ 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).
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     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\
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    \2\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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     110(a)(2)(D): Interstate transport.\3\
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    \3\ Today's proposed rulemaking does not address element 
110(a)(2)(D)(i) (Interstate Transport) for the 2008 8-hour ozone 
NAAQS. Interstate transport requirements were formerly addressed by 
Tennessee consistent with the Clean Air Interstate Rule (CAIR) for 
the 1997 8-hour ozone NAAQS. 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. As a result of both the remand of CAIR and stay of the 
Transport Rule, Tennessee has not yet made a submission to address 
interstate transport. EPA's action on element 110(a)(2)(D)(i) for 
the 2008 8-hour ozone NAAQS will be addressed in a separate action.
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     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the 
applicable requirements of part D.\4\
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    \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 PM2.5 National Ambient Air Quality Standards,'' but 
as mentioned above is not relevant to today's proposed rulemaking.
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     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 sections 110(a)(1) and (2) for ozone and fine 
particulate matter (PM2.5) NAAQS for various states across 
the country. Commenters on EPA's recent proposals for some states 
raised concerns about EPA's 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 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 (NSR) 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 2008 8-hour ozone NAAQS from Tennessee.
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    \5\ See Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket  EPA-R05-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.
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    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 
PM2.5 NAAQS should not be construed as explicit or

[[Page 50654]]

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 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\
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    \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'').
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    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 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\
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    \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)(I)).
    \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 PM2.5 NAAQS. See ``Guidance for State Implementation 
Plan (SIP) Submissions to Meet Current Outstanding Obligations Under 
Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director 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.
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    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 applicable elements 
for other SIP submissions. For example, nonattainment SIPs required by 
part D

[[Page 50655]]

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 PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for 
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS 
and the 1997 PM2.5 NAAQS.\11\ 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 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 PM2.5 
NAAQS), EPA gave much more specific recommendations. But for other 
infrastructure SIP submittals, and for certain elements of the 
submittals for the 1997 PM2.5 NAAQS, EPA assumed 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.
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    \11\ See ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
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.
    \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.
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    On September 25, 2009, EPA issued guidance to make recommendations 
to states with respect to the infrastructure SIPs for the 2006 
PM2.5 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 PM2.5 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 PM2.5 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 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.
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    \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'').
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    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 PM2.5 NAAQS because of

[[Page 50656]]

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\
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    \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 Emitting-Sources 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 21, 2010) (proposed 
disapproval of director's discretion provisions); 76 FR 4540 
(January 26, 2011) (final disapproval of such provisions).
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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: 
Tennessee's SIP contains several Air Pollution Control Regulations 
relevant to air quality control regulations. The regulations described 
below have been federally approved into 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 2008 8-hour ozone NAAQS. EPA has made the 
preliminary determination that the provisions contained in these 
chapters and Tennessee's practices are adequate to protect the 2008 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.
    2. 110(a)(2)(B) Ambient air quality monitoring/data system: 
Tennessee's Air Pollution Control Regulations, 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-OAR-2012-
0237. 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 2008 8-hour ozone NAAQS.
    3. 110(a)(2)(C) Program for enforcement of control measures 
including review of proposed new sources. In this action, EPA is 
proposing to approve Tennessee's infrastructure SIP for the 2008 8-hour 
ozone NAAQS with respect to the general requirement in section 
110(a)(2)(C) to include a program in the SIP that regulates the 
modification and construction of any stationary source as necessary to 
assure that the NAAQS are achieved. Chapter 1200-3-9, Construction and 
Operating Permits, of Tennessee's SIP pertains to the construction of 
any new major stationary source or any project at an existing major 
stationary source in an area designated as nonattainment, attainment or 
unclassifiable. There are three revisions to the Tennessee SIP that 
that are necessary to meet the requirements of infrastructure element 
110(a)(2)(C). These three revisions are related to the Ozone 
Implementation NSR Update (November 29, 2005, 70 FR 71612), the 
``Prevention of Significant Deterioration and Title V Greenhouse Gas 
Tailoring Rule'' (June 3, 2010, 75 FR 31514), and the NSR 
PM2.5 Rule (May 16, 2008, 73 FR 28321).
    The first revision to the Tennessee SIP (Ozone Implementation NSR 
Update revisions) was submitted by TDEC on May 28, 2009. This revision 
modifies provisions of the State's SIP at Chapter 1200-3-9, 
Construction and Operating Permits. In addition to meeting the 
requirements of the Ozone Implementation NSR Update, these revisions 
are also necessary to address portions of the infrastructure SIP 
requirements described at element 110(a)(2)(C) and to include nitrogen 
oxides (NOX) as a precursor to ozone. EPA approved this 
revision on February 7, 2012. See 77 FR 6016.
    The second revision pertains to revisions to the PSD program

[[Page 50657]]

promulgated in the Greenhouse Gas (GHG) Tailoring Rule, submitted to 
EPA on January 11, 2012. This revision establishes appropriate emission 
thresholds for determining which new stationary sources and 
modification projects become subject to Tennessee's PSD permitting 
requirements for their GHG emissions, and thereby addresses the 
thresholds for GHG permitting applicability in Tennessee. EPA approved 
this revision on February 28, 2012. See 77 FR 11744. In the January 
2012 revision, Tennessee also amended its PSD regulations to add 
automatic rescission provisions. EPA finalized approval of these 
provisions on March 1, 2012.
    The third revision pertains to the adoption of PSD and 
Nonattainment New Source Review (NNSR) requirements related to the 
implementation of the NSR PM2.5 Rule. On July 29, 2011, TDEC 
submitted revisions to its PSD/NSR regulations for EPA approval to 
revise the Tennessee SIP in Chapter 1200-03-09-.01, Construction 
Permits. The rule amendment adopts required federal PSD and NNSR 
permitting provisions governing the implementation of the NSR program 
for PM2.5 as promulgated in the NSR PM2.5 Rule 
that address the infrastructure requirements (C) and (J). See 73 FR 
28321 (May 16, 2008). EPA finalized approval of Tennessee's July 29, 
2011, submittal on July 30, 2012. See 77 FR 44481. These SIP revisions 
\19\ address requisite requirements of infrastructure element 
110(a)(2)(C), today's action to propose approval of infrastructure SIP 
element 110(a)(2)(C). EPA also notes that today's action is not 
proposing to approve or disapprove the State's existing minor NSR 
program itself to the extent that it is inconsistent with EPA's 
regulations governing this program. EPA believes that a number of 
states may have minor NSR provisions that are contrary to the existing 
EPA regulations for this program. EPA intends to work with states to 
reconcile state minor NSR programs with EPA's regulatory provisions for 
the program. The statutory requirements of section 110(a)(2)(C) provide 
for considerable flexibility in designing minor NSR programs, and EPA 
believes it may be time to revisit the regulatory requirements for this 
program to give the states an appropriate level of flexibility to 
design a program that meets their particular air quality concerns, 
while assuring reasonable consistency across the country in protecting 
the NAAQS with respect to new and modified minor sources.
---------------------------------------------------------------------------

    \19\ (1) EPA's approval of Tennessee's PSD/NSR regulations which 
address the Ozone Implementation NSR Update requirements, (2) EPA's 
approval of Tennessee's PSD GHG Tailoring Rule revisions which 
addresses the thresholds for GHG permitting applicability in 
Tennessee, and (3) EPA's approval of Tennessee's NSR 
PM2.5 Rule.
---------------------------------------------------------------------------

    EPA has made the preliminary determination that Tennessee's SIP and 
practices are adequate for program enforcement of control measures 
including review of proposed new sources related to the 2008 8-hour 
ozone NAAQS.
    4. 110(a)(2)(D)(i)(II) Interstate Transport. EPA is proposing to 
approve Tennessee's infrastructure SIP for the 2008 8-hour ozone NAAQS 
with respect to the general requirement in section 110(a)(2)(D)(i)(II) 
to include a program in the SIP that provides for meeting the 
applicable PSD and visibility requirements of part C of the Act.
    PSD Requirements: In this action, EPA is proposing to approve 
Tennessee's infrastructure SIP for the 2008 8-hour ozone NAAQS with 
respect to the general requirement in section 110(a)(2)(D)(i)(II) 
related to PSD to include a program in the SIP that regulates the 
modification and construction of any stationary source as necessary to 
assure that the NAAQS are achieved. Chapter 1200-3-9, Construction and 
Operating Permits, of Tennessee's SIP pertains to the construction of 
any new major stationary source or any project at an existing major 
stationary source in an area designated as nonattainment, attainment or 
unclassifiable. There are three revisions to the Tennessee SIP that 
that are necessary to meet the requirements of infrastructure element 
110(a)(2)(C). These three revisions are related to the Ozone 
Implementation NSR Update, the ``Prevention of Significant 
Deterioration and Title V Greenhouse Gas Tailoring Rule'', and the NSR 
PM2.5 Rule. For more detail on these rules, see item 3 
above. These three rules demonstrate that Tennessee has a comprehensive 
PSD program approved in the state, thus EPA has made the preliminary 
determination that Tennessee's SIP and practices are adequate for 
insuring compliance with the applicable PSD requirements relating to 
interstate transport pollution for the 2008 8-hour ozone NAAQS.
    Visibility Requirements: EPA recognizes that states are subject to 
visibility and regional haze program requirements under part C of the 
Act (which includes sections 169A and 169B). In the event of the 
establishment of a new NAAQS, however, the visibility and regional haze 
program requirements under part C do not change. Thus, EPA finds that 
there is no new visibility obligation ``triggered'' under section 
110(a)(2)(D)(i)(II) when a new NAAQS becomes effective. This would be 
the case even in the event a secondary PM2.5 NAAQS for 
visibility is established, because this NAAQS would not affect 
visibility requirements under part C. Tennessee has submitted SIP 
revisions for approval to satisfy the requirements of the CAA Section 
169A and 169B, and the regional haze and best available retrofit 
technology rules contained in 40 CFR 51.308. On April 24, 2012, EPA 
published a final rulemaking regarding Tennessee's regional haze 
program. See 77 FR 24392. EPA has made the preliminary determination 
that Tennessee's SIP and practices adequately demonstrate the State's 
ability to implement and provide for visibility protection relating to 
interstate transport pollution for the 2008 8-hour ozone NAAQS as 
necessary.
    5. 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 2008 8-hour ozone NAAQS.
    6. 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

[[Page 50658]]

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 sub-elements (i) and (iii), EPA submitted a letter to 
Tennessee on April 24, 2012, outlining 105 grant commitments and 
current status of these commitments for fiscal year 2011. The letter 
EPA submitted to Tennessee can be accessed at www.regulations.gov using 
Docket ID No. EPA-R04-OAR-2012-0237. 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 2011, therefore, Tennessee's 
grants were finalized and closed out. EPA has made the preliminary 
determination that Tennessee has adequate resources for implementation 
of the 2008 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) provides that each SIP shall require 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 to the 
applicable section 128(a)(2) requirements.
    Today's proposed conditional approval of this sub-element 
110(a)(2)(E)(ii) regarding section 128(a)(1) requirements is based upon 
a commitment made by Tennessee to adopt specific enforceable measures 
into its SIP within one year to address the applicable portions of 
section 128(a)(1). Tennessee's commitment letter to EPA, dated March 
28, 2012, can be accessed at www.regulations.gov using docket ID No. 
EPA-R04-OAR-2011-0353. Based upon that commitment, on July 23, 2012, 
EPA took final action to conditionally approve infrastructure sub-
element 110(a)(2)(E)(ii) regarding section 128(a)(1) for purposes of 
the 1997 8-hour Ozone NAAQS. See 77 FR 42997. In accordance with 
section 110(k)(4) of the CAA, the commitment from Tennessee provided 
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 July 
23, 2012.\20\ Failure by the State to adopt these provisions and submit 
them to EPA for incorporation into the SIP by July 23, 2013, would 
result in today's conditional approval being treated as a disapproval. 
Should that occur, EPA would provide the public with notice of such a 
disapproval in the Federal Register.\21\
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    \20\ July 23, 2012, is one year from the approval date of EPA's 
final rulemaking to conditionally approve sub-section 
110(a)(2)(E)(ii) regarding section 128(a)(1) for purposes of the 
1997 8-hour Ozone NAAQS.
    \21\ 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.
---------------------------------------------------------------------------

    Because the 110(a)(2)(E)(ii) obligations to incorporate provisions 
into the Tennessee SIP to meet the requirements of section 128(a)(1) 
have not changed for purposes of the 2008 8-hour Ozone NAAQS, EPA is 
today proposing to rely upon Tennessee's earlier commitment to adopt 
specific enforceable measures into its SIP within one year as the basis 
for a condition of this sub-element as it relates to the section 
128(a)(1) requirements. 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 2008 8-
hour ozone NAAQS.
    7. 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 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 
2008 8-hour ozone NAAQS.
    8. 110(a)(2)(G) Emergency power: 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

[[Page 50659]]

adequate for emergency powers related to the 2008 8-hour ozone NAAQS.
    9. 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.
    Tennessee has two areas, Knoxville, TN and Memphis, TN-MS-AR, that 
are designated as nonattainment for the 2008 8-hour ozone NAAQS. These 
two areas are classified as marginal nonattainment areas and therefore 
no attainment demonstration SIPs are required. Section 182(a) of the 
CAA does require that, for marginal areas, states must submit Base Year 
Emissions Inventory SIPs, Periodic Emission Inventory SIPs, Emission 
Statement SIPs and possible SIP updates to their NSR program. While the 
CAA requires these types of SIPs for marginal areas, the specific 
requirements and compliance dates for these SIPs, as they relate to the 
2008 8-hour ozone NAAQS, are not yet established but are expected to be 
addressed in the upcoming Implementation Rule for the 2008 Ozone NAAQS 
SIP Requirements. Tennessee has provided SIP revisions for both the 1-
hour ozone and 8-hour ozone standards. EPA has made the preliminary 
determination that Tennessee's SIP and practices adequately demonstrate 
a commitment to provide future SIP revisions related to the 2008 8-hour 
ozone NAAQS when necessary.
    10. 110(a)(2)(J). EPA is proposing to approve Tennessee's 
infrastructure SIP for the 2008 8-hour ozone 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 the PSD and visibility protection requirements of part C of the 
Act.
    110(a)(2)(J) (121 consultation) Consultation with government 
officials: Chapter 1200-3-9 Construction and Operating Permits, as well 
as the 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. Tennessee adopted state-wide 
consultation procedures for the implementation of transportation 
conformity. These consultation procedures include considerations 
associated with the development of mobile inventories for SIPs. 
Implementation of transportation conformity, as outlined in the 
consultation procedures, requires TDEC to consult with federal, state 
and local transportation and air quality agency officials on the 
development of motor vehicle emissions budgets. EPA approved 
Tennessee's consultation procedures on May 16, 2003 (68 FR 26492). EPA 
has made the preliminary determination that Tennessee's SIP and 
practices adequately demonstrate consultation with government officials 
related to the 2008 8-hour ozone NAAQS when necessary.
    110(a)(2)(J) (127 public notification) Public notification: TDEC 
has public notice mechanisms in place to notify the public of ozone and 
other pollutant forecasting, including an air quality monitoring Web 
site with ground level ozone alerts, http://tn.gov/environment/apc/ozone/. Chapter 1200-3-15, Emergency Episode Requirements, requires 
that TDEC notify the public of any air pollution episode or NAAQS 
violation. 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 2008 8-hour ozone NAAQS when 
necessary.
    110(a)(2)(J) (Part C) PSD and visibility protection: Tennessee 
demonstrates its authority to regulate new and modified sources of 
ozone precursors, VOCs, and NOX to assist in the protection 
of air quality in Chapter 1200-3-9, Construction and Operating Permits. 
As with infrastructure element 110(a)(2)(C), infrastructure element 
110(a)(2)(J) also requires compliance with applicable provisions of the 
PSD program described in part C of the Act. Accordingly, this portion 
of element (J) also requires compliance with the Ozone Implementation 
NSR Update, the ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule'', and the NSR PM2.5 Rule. 
These SIP revisions \22\ have been approved into the Tennessee SIP and 
address requisite requirements of infrastructure element 110(a)(2)(J) 
(PSD and visibility protection).
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    \22\ (1) EPA's approval of Tennessee's PSD/NSR regulations which 
address the Ozone Implementation NSR Update requirements, (2) EPA's 
approval of Tennessee's PSD GHG Tailoring Rule revisions which 
addresses the thresholds for GHG permitting applicability in 
Tennessee and (3) EPA's approval of Tennessee's NSR PM2.5 
Rule.
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    With regard to the applicable requirements for visibility 
protection, EPA recognizes that states are subject to visibility and 
regional haze program requirements under part C of the Act (which 
includes sections 169A and 169B). In the event of the establishment of 
a new NAAQS, however, the visibility and regional haze program 
requirements under part C do not change. Thus, EPA finds that there is 
no new visibility obligation ``triggered'' under section 110(a)(2)(J) 
when a new NAAQS becomes effective. This would be the case even in the 
event a secondary PM2.5 NAAQS for visibility is established, 
because this NAAQS would not affect visibility requirements under part 
C. Tennessee has submitted SIP revisions for approval to satisfy the 
requirements of the CAA Section 169A and 169B, and the regional haze 
and best available retrofit technology rules contained in 40 CFR 
51.308. On April 24, 2012, EPA published a final rulemaking regarding 
Tennessee's regional haze program. See 77 FR 24392.EPA has made the 
preliminary determination that Tennessee's SIP and practices adequately 
demonstrate the State's ability to implement PSD programs and to 
provide for visibility protection related to the 2008 8-hour ozone 
NAAQS when necessary.
    11. 110(a)(2)(K) Air quality and modeling/data: Chapter 1200-3-
9-.01(4)(k), Air Quality Models, of the Tennessee SIP specifies that 
required air modeling be conducted in accordance with 40 CFR part 51, 
Appendix W ``Guideline on Air Quality Models,'' as incorporated into 
the Tennessee SIP. This demonstrates 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 2008 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 2008 8-hour ozone NAAQS when necessary.
    12. 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

[[Page 50660]]

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 2008 8-hour ozone NAAQS when necessary.
    13. 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 2008 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 October 19, 2009, 
addressed the required infrastructure elements for the 2008 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) (as it relates to section 128(a)(1)), TDEC has 
addressed the elements of the CAA 110(a)(1) and (2) SIP requirements 
pursuant to section 110 of the CAA to ensure that the 2008 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 
based on a March 28, 2012, commitment that TDEC will adopt specific 
enforceable measures into its SIP and submit these revisions to EPA 
July 23, 2013, to address the applicable portions of section 128. EPA 
is also proposing to approve Tennessee's infrastructure submission for 
the 2008 8-hour ozone NAAQS, with the exception of sub-element 
110(a)(2)(E)(ii), because its October 19, 2009, 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: August 8, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-20668 Filed 8-21-12; 8:45 am]
BILLING CODE 6560-50-P
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