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Federal Register/Vol. 77, No. 14/Monday, January 23, 2012/Proposed Rules

emissions from industrial boilers and

process heaters at petroleum refineries

in Delaware, 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,

Particulate matter, Reporting and

recordkeeping requirements.

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

Dated: January 3, 2012.

W.C. Early,

Acting, Regional Administrator, Region IIL

[FR Doe. 2012-1225 Filed 1-20-12; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-R04-OAR-2011-0353-201122; FRL9621-6]

Approval and Promulgation of

Implementation Plans; Tennessee;

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

Requirements for the 1997 8-Hour

Ozone National Ambient Air Quality

Standards

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve

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) with respect to

sections 110(a)(2)(C) and (J), of the

Clean Air Act (CAA or Act) for the 1997

8-hour ozone national ambient air

quality standards (NAAQS). Section

110(a) of the CAA requires that each

state adopt and submit a SIP for the

implementation, maintenance, and

enforcement of each NAAQS

promulgated by the EPA, which is

commonly referred to as an

"infrastructure" SIP. TDEC certified that

the Tennessee SIP contains provisions

that ensure the 1997 8-hour ozone

NAAQS are implemented, enforced, and

maintained in Tennessee (hereafter

referred to as "infrastructure

submission"). Tennessee's

infrastructure submission, provided to

EPA on December 14, 2007, and

clarified in a subsequent May 28, 2009,

submission, addressed the required

infrastructure elements for the 1997 8-

hour ozone NAAQS, however the

subject of this notice is limited to

infrastructure elements 110(a)(2)(C) and

(J). All other applicable Tennessee

infrastructure elements will be

addressed in a separate rulemaking.

DATES: Written comments must be

received on or before February 22, 2012.

ADDRESSES: Submit your comments,

identified by Docket ID No. EPA-R04-

OAR-2011-0353, by one of the

following methods:

1. www.regulations.gov: Follow the

on-line instructions for submitting

comments.

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

3. Fax: (404) 562-9019.

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

0353," Regulatory Development Section,

Air Planning Branch, Air, Pesticides and

Toxics Management Division, U.S.

Environmental Protection Agency,

Region 4, 61 Forsyth Street SW.,

Atlanta, Georgia 30303-8960.

5. Hand Delivery or Courier: Lynorae

Benjamin, Regulatory Development

Section, Air Planning Branch, Air,

Pesticides and Toxics Management

Division, U.S. Environmental Protection

Agency, Region 4, 61 Forsyth Street

SW., Atlanta, Georgia 30303-8960. Such

deliveries are only accepted during the

Regional Office's normal hours of

operation. The Regional Office's official

hours of business are Monday through

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

holidays.

Instructions: Direct your comments to

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

0353. EPA's policy is that all comments

received will be included in the public

docket without change and may be

made available online at

www.regulations.gov, including any

personal information provided, unless

the comment includes information

claimed to be Confidential Business

Information (CBI) or other information

whose disclosure is restricted by statute.

Do not submit through

www.regulations.gov or email,

information that you consider to be CBI

or otherwise protected. The

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

means EPA will not know your identity

or contact information unless you

provide it in the body of your comment.

If you send an email comment directly

to EPA without going through

www.regulations.gov, your email

address will be automatically captured

and included as part of the comment

that is placed in the public docket and

made available on the Internet. If you

submit an electronic comment, EPA

recommends that you include your

name and other contact information in

the body of your comment and with any

disk or CD-ROM you submit. If EPA

cannot read your comment due to

technical difficulties and cannot contact

you for clarification, EPA may not be

able to consider your comment.

Electronic files should avoid the use of

special characters, any form of

encryption, and be free of any defects or

viruses. For additional information

about EPA's public docket visit the EPA

Docket Center homepage at http://

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

Docket: All documents in the

electronic docket are listed in the

www.regulations.gov index. Although

listed in the index, some information is

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

information whose disclosure is

restricted by statute. Certain other

material, such as copyrighted material,

is not placed on the Internet and will be

publicly available only in hard copy

form. Publicly available docket

materials are available either

electronically in www.regulations.gov or

in hard copy at the Regulatory

Development Section, Air Planning

Branch, Air, Pesticides and Toxics

Management Division, U.S.

Environmental Protection Agency,

Region 4, 61 Forsyth Street SW.,

Atlanta, Georgia 30303-8960. EPA

requests that if at all possible, you

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to

schedule your inspection. The Regional

Office's official hours of business are

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

excluding federal holidays.

FOR FURTHER INFORMATION CONTACT:

Nacosta C. Ward, Regulatory

Development Section, Air Planning

Branch, Air, Pesticides and Toxics

Management Division, U.S.

Environmental Protection Agency,

Region 4, 61 Forsyth Street SW.,

Atlanta, Georgia 30303-8960. The

telephone number is (404) 562-9140.

Ms. Ward can be reached via electronic

mail at ward.nacosta@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. 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 (C) and (J) of

Sections 110(a)(1) and (2)

"Infrastructure" provisions?

V. Proposed Action

VI. Statutory and Executive Order Reviews

3213
Federal Register/Vol. 77, No. 14/Monday, January 23, 2012/Proposed Rules

I. Background

On July 18, 1997, EPA promulgated a

new NAAQS for ozone based on 8-hour

average concentrations. The 8-hour

averaging period replaced the previous

1-hour averaging period, and the level of

the NAAQS was changed from 0.12

parts per million (ppm) to 0.08 ppm.

See 62 FR 38856. Pursuant to section

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

to submit SIPs meeting the requirements

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

after promulgation of a new or revised

NAAQS. Section 110(a)(2) requires

states to address basic SIP requirements,

including emissions inventories,

monitoring, and modeling to assure

attainment and maintenance of the

NAAQS. States were required to submit

such SIPs for the 1997 8-hour ozone

NAAQS to EPA no later than June 2000.

However, intervening litigation over the

1997 8-hour ozone NAAQS created

uncertainty about how to proceed and

many states did not provide the

required "infrastructure" SIP

submission for these newly promulgated

NAAQS.

On March 4, 2004, Earthjustice

submitted a notice of intent to sue

related to EPA's failure to issue findings

of failure to submit related to the

"infrastructure" requirements for the

1997 8-hour ozone NAAQS. EPA

entered into a consent decree with

Earthjustice which required EPA, among

other things, to complete a Federal

Register notice announcing EPA's

determinations pursuant to section

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

made complete submissions to meet the

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

1997 8-hour ozone NAAQS by

December 15, 2007. Subsequently, EPA

received an extension of the date to

complete this Federal Register notice

until March 17, 2008, based upon

agreement to make the findings with

respect to submissions made by January

7, 2008. In accordance with the consent

decree, EPA made completeness

findings for each state based upon what

the Agency received from each state as

of January 7, 2008.

On March 27, 2008, EPA published a

final rulemaking entitled,

"Completeness Findings for Section

110(a) State Implementation Plans; 8-

hour ozone NAAQS," making a finding

that each state had submitted or failed

to submit a complete SIP that provided

the basic program elements of section

110(a)(2) necessary to implement the

1997 8-hour ozone NAAQS. See 73 FR

16205. For those states that did receive

findings, such as Tennessee, the

findings of failure to submit for all or a

portion of a state's implementation plan

established a 24-month deadline for

EPA to promulgate a Federal

Implementation Plan to address the

outstanding SIP elements unless, prior

to that time, the affected states

submitted, and EPA approved, the

required SIPs. However, the findings of

failure to submit did not impose

sanctions or set deadlines for imposing

sanctions as described in section 179 of

the CAA, because these findings do not

pertain to the elements contained in the

Title I part D plan for nonattainment

areas as required under section

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

of failure to submit for the infrastructure

submittals are not a SIP call pursuant to

section 110(k)(5).

The findings that all or portions of a

state's submission are complete

established a 12-month deadline for

EPA to take action upon the complete

SIP elements in accordance with section

110(k). Tennessee's infrastructure

submission was received by EPA on

December 14, 2007, and was determined

to be complete on March 27, 2008, for

all elements with the exception of

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

among other states that received a

finding of failure to submit because its

infrastructure submission was not

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

1997 8-hour ozone NAAQS by March 1,

2008. Specifically, the Tennessee

infrastructure submission did not

address the part C Prevention of

Significant Deterioration (PSD) permit

program requirements promulgated in

the 1997 8-Hour Ozone NAAQS

Implementation Rule New Source

Review (NSR) Update-Phase 2 final

rule (hereafter referred to as the Ozone

Implementation NSR Update)

recognizing nitrogen oxide (NOx) as an

ozone precursor. See 70 FR 71612,

(November 29, 2005). On May 28, 2009,

TDEC submitted a SIP revision to EPA

for federal approval which included

revisions to Chapter 1200-03-09 of the

Tennessee NSR program that address

changes promulgated in the Ozone

Implementation NSR Update. On

December 5, 2011, EPA proposed to

approve Tennessee's May 28, 2009, SIP

revision. See 76 FR 75845. EPA is

moving forward with final action on

Tennessee's May 28, 2009, SIP revision

in an action separate from today's

action. Today's action is proposing to

approve Tennessee's infrastructure

submission for which EPA made the

findings of failure to submit on March

27, 2008. This action is not approving

any specific rule, but rather proposing

that Tennessee's SIP, once two separate

proposed revisions have been

incorporated, meets certain CAA

requirements. As discussed further

below, final approval of today's

proposed rule is contingent upon the

Agency first taking final action to

approve Tennessee's Ozone

Implementation NSR Update (76 FR

75845) and PSD Greenhouse Gas (GHG)

Tailoring Rule Revision (75 FR 68265).

As such, final action approving

Tennessee's infrastructure submission

with respect to infrastructure elements

110(a)(2)(C) and (J) will not occur prior

to those revisions being approved in the

SIP.

II. What elements are required under

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

Section 110(a) of the CAA requires

states to submit SIPs to provide for the

implementation, maintenance, and

enforcement of a new or revised

NAAQS within three years following

the promulgation of such NAAQS, or

within such shorter period as EPA may

prescribe. Section 110(a) imposes the

obligation upon states to make a SIP

submission to EPA for a new or revised

NAAQS, but the contents of that

submission may vary depending upon

the facts and circumstances. In

particular, the data and analytical tools

available at the time the state develops

and submits the SIP for a new or revised

NAAQS affects the content of the

submission. The contents of such SIP

submissions may also vary depending

upon what provisions the state's

existing SIP already contains. In the

case of the 1997 8-hour ozone NAAQS,

states typically have met the basic

program elements required in section

110(a)(2) through earlier SIP

submissions in connection with

previous ozone NAAQS.

More specifically, section 110(a)(1)

provides the procedural and timing

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

lists specific elements that states must

meet for "infrastructure" SIP

requirements related to a newly

established or revised NAAQS. As

mentioned above, these requirements

include SIP infrastructure elements

such as modeling, monitoring, and

emissions inventories that are designed

to assure attainment and maintenance of

the NAAQS. The requirements that are

the subject of this proposed rulemaking

are listed below' and in EPA's October

'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)

3214
Federal Register/Vol. 77, No. 14/Monday, January 23, 2012/Proposed Rules

2, 2007, memorandum entitled

"Guidance on SIP Elements Required

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

1997 8-Hour Ozone and PM 2.

5 National

Ambient Air Quality Standards."

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

other control measures. * 110(a)(2)(B): Ambient air quality

monitoring/data system.

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

enforcement of control measures. 2

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

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

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

monitoring system.

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

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

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

nonattainment and meet the applicable

requirements of part D. 4

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

government officials; public

notification; and PSD and visibility

protection.

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

data.

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

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

participation by affected local entities.

III. Scope of Infrastructure SIPs

EPA is currently acting upon SIPs that

address the infrastructure requirements

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

ozone and PM 2.

5 NAAQS for various

states across the country. Commenters

on EPA's recent proposals for some

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

pertain to the nonattainment planning requirements

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

rulemaking does not address infrastructure

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

nonattainment planning requirements of

110(a)(2)(C).

2 This rulemaking only addresses requirements

for this element as they relate to attainment areas.

3 Today's proposed rule does not address element

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

hour ozone NAAQS. Interstate transport

requirements were formerly addressed by

Tennessee consistent with the Clean Air Interstate

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

remanded by the DC Circuit Court of Appeals,

without vacatur, back to EPA. See North Carolina

v. EPA, 531 F.3d 896 (DC 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 the interstate

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

Transport Rule"). That rule was recently stayed by

the DC Circuit Court of Appeals. EPA's action on

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

separate action.

4 This requirement was inadvertently omitted

from EPA's October 2, 2007, memorandum entitled

"Guidance on SIP Elements Required Under

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

and PM 25 National Ambient Air Quality

Standards," but as mentioned above is not relevant

to today's proposed rulemaking.

states raised concerns about EPA

statements that it was not addressing

certain substantive issues in the context

of acting on those infrastructure SIP

submissions. 5 Those Commenters

specifically raised concerns involving

provisions in existing SIPs and with

EPA's statements in other proposals that

it would address two issues separately

and not as part of actions on the

infrastructure SIP submissions: (i)

Existing provisions related to excess

emissions during periods of start-up,

shutdown, or malfunction at sources,

that may be contrary to the CAA and

EPA's policies addressing such excess

emissions (SSM); and (ii) existing

provisions related to "director's

variance" or "director's discretion" that

purport to permit revisions to SIP

approved emissions limits with limited

public process or without requiring

further approval by EPA, that may be

contrary to the CAA (director's

discretion). EPA notes that there are two

other substantive issues for which EPA

likewise stated in other proposals that it

would address the issues separately: (i)

Existing provisions for minor source

new source review programs that may

be inconsistent with the requirements of

the CAA and EPA's regulations that

pertain to such programs (minor source

NSR); and (ii) existing provisions for

PSD programs that may be inconsistent

with current requirements of EPA's

"Final NSR Improvement Rule," 67 FR

80186 (December 31, 2002), as amended

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

Reform). In light of the comments, EPA

believes that its statements in various

proposed actions on infrastructure SIPs

with respect to these four individual

issues should be explained in greater

depth. It is important to emphasize that

EPA is taking the same position with

respect to these four substantive issues

in this action on the infrastructure SIPs

for the 1997 8-hour ozone NAAQS from

Tennessee.

EPA intended the statements in the

other proposals concerning these four

issues merely to be informational, and

to provide general notice of the

potential existence of provisions within

the existing SIPs of some states that

might require future corrective action.

EPA did not want states, regulated

entities, or members of the public to be

under the misconception that the

5 See Comments of Midwest Environmental

Defense Center, dated May 31, 2011. Docket # EPARO5-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.

Agency's approval of the infrastructure

SIP submission of a given state should

be interpreted as a re-approval of certain

types of provisions that might exist

buried in the larger existing SIP for such

state. Thus, for example, EPA explicitly

noted that the Agency believes that

some states may have existing SIP

approved SSM provisions that are

contrary to the CAA and EPA policy,

but that "in this rulemaking, EPA is not

proposing to approve or disapprove any

existing state provisions with regard to

excess emissions during SSM of

operations at facilities." EPA further

explained, for informational purposes,

that "EPA plans to address such State

regulations in the future." EPA made

similar statements, for similar reasons,

with respect to the director's discretion,

minor source NSR, and NSR Reform

issues. EPA's objective was to make

clear that approval of an infrastructure

SIP for these ozone and PM 2.5 NAAQS

should not be construed as explicit or

implicit re-approval of any existing

provisions that relate to these four

substantive issues. EPA is reiterating

that position in this action on the

infrastructure SIP for Tennessee.

Unfortunately, the Commenters and

others evidently interpreted these

statements to mean that EPA considered

action upon the SSM provisions and the

other three substantive issues to be

integral parts of acting on an

infrastructure SIP submission, and

therefore that EPA was merely

postponing taking final action on the

issues in the context of the

infrastructure SIPs. This was not EPA's

intention. To the contrary, EPA only

meant to convey its awareness of the

potential for certain types of

deficiencies in existing SIPs, and to

prevent any misunderstanding that it

was reapproving any such existing

provisions. EPA's intention was to

convey its position that the statute does

not require that infrastructure SIPs

address these specific substantive issues

in existing SIPs and that these issues

may be dealt with separately, outside

the context of acting on the

infrastructure SIP submission of a state.

To be clear, EPA did not mean to imply

that it was not taking a full final agency

action on the infrastructure SIP

submission with respect to any

substantive issue that EPA considers to

be a required part of acting on such

submissions under section 110(k) or

under section 110(c). Given the

confusion evidently resulting from

EPA's statements in those other

proposals, however, we want to explain

more fully the Agency's reasons for

concluding that these four potential

3215
Federal Register/Vol. 77, No. 14/Monday, January 23, 2012/Proposed Rules

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

6For 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.

rulemaking, or recommendations

through guidance, in order to give

specific meaning for a particular

NAAQS. 7

Notwithstanding that section 110(a)(2)

provides that "each" SIP submission

must meet the list of requirements

therein, EPA has long noted that this

literal reading of the statute is internally

inconsistent, insofar as section

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

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").

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

(explaining relationship between timing

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

110 (a) (2) (1)).

9 EPA issued separate guidance to states with

respect to SIP submissions to meet section

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

NAAQS. See "Guidance for State Implementation

Plan (SIP) Submissions to Meet Current

Outstanding Obligations Under Section

110(a)(2)(D)(i) for the 8-Hour Ozone and PM 2.5

National Ambient Air Quality Standards," from

William T. Harnett, Director Air Quality Policy

Division OAQPS, to Regional Air Division Director,

Regions I-X, dated August 15, 2006.

the same way, for each new or revised

NAAQS and the attendant infrastructure

SIP submission for that NAAQS. For

example, the monitoring requirements

that might be necessary for purposes of

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

could be very different than what might

be necessary for a different pollutant.

Thus, the content of an infrastructure

SIP submission to meet this element

from a state might be very different for

an entirely new NAAQS, versus a minor

revision to an existing NAAQS. 10

Similarly, EPA notes that other types

of SIP submissions required under the

statute also must meet the requirements

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

demonstrates the need to identify the

applicable elements for other SIP

submissions. For example,

nonattainment SIPs required by part D

likewise have to meet the relevant

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

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

it is clear that nonattainment SIPs

would not need to meet the portion of

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

C, i.e., the PSD requirements applicable

in attainment areas. Nonattainment SIPs

required by part D also would not need

to address the requirements of section

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

episodes, as such requirements would

not be limited to nonattainment areas.

As this example illustrates, each type of

SIP submission may implicate some

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

others.

Given the potential for ambiguity of

the statutory language of section

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

appropriate for EPA to interpret that

language in the context of acting on the

infrastructure SIPs for a given NAAQS.

Because of the inherent ambiguity of the

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

EPA has adopted an approach in which

it reviews infrastructure SIPs against

this list of elements "as applicable." In

other words, EPA assumes that Congress

could not have intended that each and

every SIP submission, regardless of the

purpose of the submission or the

NAAQS in question, would meet each

of the requirements, or meet each of

them in the same way. EPA elected to

use guidance to make recommendations

for infrastructure SIPs for these ozone

and PM 2.

5 NAAQS.

On October 2, 2007, EPA issued

guidance making recommendations for

the infrastructure SIP submissions for

both the 1997 8-hour ozone NAAQS and

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.

3216
Federal Register/Vol. 77, No. 14/Monday, January 23, 2012/Proposed Rules

the 1997 PM2 .

5 NAAQS. " 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 PM 2.

5 NAAQS), EPA gave

much more specific recommendations.

But for other infrastructure SIP

submittals, and for certain elements of

the submittals for the 1997 PM 2.

5

NAAQS, EPA assumed that each State

would work with its corresponding EPA

regional office to refine the scope of a

State's submittal based on an

assessment of how the requirements of

section 110(a)(2) should reasonably

apply to the basic structure of the State's

implementation plans for the NAAQS in

question.

On September 25, 2009, EPA issued

guidance to make recommendations to

states with respect to the infrastructure

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 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.

SIPs for the 2006 PM 2.5 NAAQS. 15 In the

2009 Guidance, EPA addressed a

number of additional issues that were

not germane to the infrastructure SIPs

for the 1997 8-hour ozone and 1997

PM 2.

5 NAAQS, but were germane to

these SIP submissions for the 2006

PM 2.

5 NAAQS (e.g., the requirements of

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

bifurcated from the other infrastructure

elements for those specific 1997 ozone

and PM 2.

5 NAAQS). Significantly,

neither the 2007 Guidance nor the 2009

Guidance explicitly referred to the SSM,

director's discretion, minor source NSR,

or NSR Reform issues as among specific

substantive issues EPA expected states

to address in the context of the

infrastructure SIPs, nor did EPA give

any more specific recommendations

with respect to how states might address

such issues even if they elected to do so.

The SSM and director's discretion

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

and the minor source NSR and NSR

Reform issues implicate section

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

the 2009 Guidance, however, EPA did

not indicate to states that it intended to

interpret these provisions as requiring a

substantive submission to address these

specific issues in existing SIP provisions

in the context of the infrastructure SIPs

for these NAAQS. Instead, EPA's 2007

Guidance merely indicated its belief

that the states should make submissions

in which they established that they have

the basic SIP structure necessary to

implement, maintain, and enforce the

NAAQS. EPA believes that states can

establish that they have the basic SIP

structure, notwithstanding that there

may be potential deficiencies within the

existing SIP. Thus, EPA's proposals for

other states mentioned these issues not

because the Agency considers them

issues that must be addressed in the

context of an infrastructure SIP as

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

but rather because EPA wanted to be

clear that it considers these potential

existing SIP problems as separate from

the pending infrastructure SIP actions.

The same holds true for this action on

the infrastructure SIPs for Tennessee.

EPA believes that this approach to the

infrastructure SIP requirement is

reasonable because it would not be

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

to require a top to bottom, stem to stern,

review of each and every provision of an

existing SIP merely for purposes of

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").

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 p.m. 2.5 NAAQS because of

the absence of underlying EPA

regulations for emergency episodes for

this NAAQS and an anticipated absence

of relevant provisions in existing SIPs.

Finally, EPA believes that its

approach is a reasonable reading of

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

statute provides other avenues and

mechanisms to address specific

substantive deficiencies in existing SIPs.

These other statutory tools allow the

Agency to take appropriate tailored

action, depending upon the nature and

severity of the alleged SIP deficiency.

Section 110(k)(5) authorizes EPA to

issue a "SIP call" whenever the Agency

determines that a state's SIP is

substantially inadequate to attain or

maintain the NAAQS, to mitigate

interstate transport, or otherwise to

comply with the CAA.16 Section

110(k)(6) authorizes EPA to correct

errors in past actions, such as past

approvals of SIP submissions.17

16 EPA has recently issued a SIP call to rectify a

specific SIP deficiency related to the SSM issue.

See, "Finding of Substantial Inadequacy of

Implementation Plan; Call for Utah State

Implementation Plan Revision," 76 FR 21639 (April

18, 2011).

17 EPA has recently utilized this authority to

correct errors in past actions on SIP submissions

related to PSD programs. See "Limitation of

Approval of Prevention of Significant Deterioration

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

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

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

to remove numerous other SIP provisions that the

Agency determined it had approved in error. See 61

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

1997) (corrections to American Samoa, Arizona,

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

Continued

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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

IV. What is EPA's analysis of how

Tennessee addressed the elements (C)

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

"infrastructure" provisions?

The Tennessee infrastructure

submission addresses the provisions of

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

elements (C) and (J), as described below.

1. 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 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. This

regulation addresses many of the

infrastructure element 110(a)(2)(C)

requirements, however, as discussed

below, there are two pending revisions

to the Tennessee SIP (including

revisions to Chapter 1200-3-9) that are

necessary to meet the requirements of

infrastructure element 110(a)(2)(C).

These two revisions are related to the

Ozone Implementation NSR Update and

the "Prevention of Significant

Deterioration and Title V Greenhouse

Gas Tailoring Rule" (75 FR 31514).

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

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

to Arizona and Nevada SIPs).

1' 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).

The first pending revision to the

Tennessee SIP (Ozone Implementation

NSR Update revisions) was submitted

by TDEC on May 28, 2009. That 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). Specifically, the May 28,

2009, SIP revisions address the Ozone

Implementation NSR Update

requirements to include NOx as an

ozone precursor for permitting

purposes. These revisions involve

changes to major source thresholds for

sources in certain classes of

nonattainment areas, changes to offset

ratios for marginal, moderate, serious,

severe, and extreme ozone

nonattainment areas, provisions

addressing offset requirements for

facilities that shut down or curtail

operation, and a requirement stating

that NOx emissions are ozone

precursors. On December 5, 2011, EPA

proposed approval of Tennessee's May

28, 2009, submission. See 76 FR 75845.

EPA will take final action on these

regulations in a separate action from

this notice.

The second pending rulemaking

pertains to revisions to the PSD program

promulgated in the GHG Tailoring Rule.

On November 5, 2010, EPA published a

rulemaking proposing to approve

Tennessee's PSD GHG Tailoring Rule

revision, 19 which was submitted to EPA

on August 30, 2010, for parallel

processing. 20 See 75 FR 68265. This

19 On December 30, 2010, EPA published a final

rulemaking, "Limitation of Approval of Prevention

of Significant Deterioration Concerning Greenhouse

Gas Emitting-Sources in State Implementation

Plans: Final Rule" (75 FR 82536), which narrowed

its previous approval of PSD programs as applicable

to GHG-emitting sources in SIPs for 24 states,

including Tennessee. Specifically, in the PSD

Narrowing Rule, EPA withdrew its previous

approval of Tennessee's SIP to the extent it applied

PSD requirements to GHG-emitting sources below

the thresholds described in the final Tailoring Rule.

The provisions of SIPs from which EPA withdrew

its approval are treated as submitted by the state but

not yet acted upon by EPA. Once a state submits

a SIP revision for EPA's approval to incorporate the

Tailoring Rule thresholds, EPA will treat the

approval as removing the no-longer-approved

provisions. See 75 FR at 82540.

20 Tennessee requested parallel processing of this

SIP revision because on the date of its submittal, the

revision was not yet state-effective. Under parallel

processing an EPA Regional Office works closely

with the state while developing new or revised

regulations. Generally the state submits a copy of

the proposed regulation or other revisions to EPA

before conducting its public hearing. EPA then

proceeds with a federal rulemaking to add to or

revise the SIP during approximately the same time

during which the state is holding its public hearing.

proposed 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. On January

11, 2012, EPA received Tennessee's PSD

GHG Tailoring Rule revision final

submittal. EPA will take final action on

these regulations in a separate action

from this notice.

Both of these proposed SIP

revisions 21 address requisite

requirements of infrastructure element

110(a)(2)(C), therefore, today's action to

propose approval of infrastructure SIP

element 110(a)(2)(C) is contingent upon

EPA taking final action to approve each

of these pending revisions into the

Tennessee SIP. Final action regarding

today's proposed approval of

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

will not occur prior to final approval of

these related SIP revisions.

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.

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 1997 8-hour ozone

NAAQS.

The state and EPA thus provide for public comment

periods on both the state and federal action in

parallel. 21 EPA's proposed approval of: (1) Tennessee's

PSD/NSR regulations which address the Ozone

Implementation NSR Update requirements and (2)

Tennessee's PSD GHG Tailoring Rule revisions

which addresses the thresholds for GHG permitting

applicability in Tennessee (See 76 FR 75845 and 75

FR 68265).

3218
Federal Register/Vol. 77, No. 14/Monday, January 23, 2012/Proposed Rules

2. 110(a)(2)(J). In this action, EPA is

also proposing to approve Tennessee's

infrastructure SIP for the 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 1997 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/environmentl

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 1997 8-hour ozone

NAAQS when necessary.

11 0(a)(2)(J) (Part C) PSD and visibility

protection: Tennessee demonstrates its

authority to regulate new and modified

sources of ozone precursors, volatile

organic compounds, 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, the pending EPA actions

on the Ozone Implementation NSR

Update and GHG Tailoring Rule

revisions to Tennessee's SIP are

likewise prerequisites to today's

proposed action to approve the State's

infrastructure element 110(a)(2)(J). See

the discussion for element 110(a)(2)(C)

above for a description of these two

pending revisions to the Tennessee SIP.

Both of these proposed SIP

revisions 22 address requisite

requirements of infrastructure element

110(a)(2)(J) (PSD and visibility

protection), therefore, today's action to

propose approval of infrastructure SIP

element 110(a)(2)(J) (PSD and visibility

protection) is contingent upon EPA

taking final action to approve each of

these pending revisions into the

Tennessee SIP. Final action regarding

today's proposed approval of

infrastructure SIP element 110(a)(2)(J)

(PSD and visibility protection) will not

occur prior to final approval of these

related SIP revisions.

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 PM 2.5 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. These

revisions are currently under review

and will be acted on in a separate

action. EPA has made the preliminary

determination that Tennessee's SIP and

22 EPA's proposed approval of: (1) Tennessee's

PSD/NSR regulations which addresses the Ozone

Implementation NSR Update requirements and (2)

Tennessee's PSD GHG Tailoring Rule revisions

which addresses the thresholds for GHG permitting

applicability in Tennessee (See 76 FR 75845 and 75

FR 68265).

practices adequately demonstrate the

State's ability to implement PSD

programs and to provide for visibility

protection related to the 1997 8-hour

ozone NAAQS when necessary.

V. Proposed Action

As described above, following final

approval of the proposed revisions to

the Tennessee SIP regarding the Ozone

Implementation NSR Update and the

PSD GHG Tailoring Rule Revision,

TDEC will have addressed elements

110(a)(2)(C) and (J) of the CAA 110(a)(1)

and (2) SIP requirements pursuant to

EPA's October 2, 2007, guidance to

ensure that the 1997 8-hour ozone

NAAQS are implemented, enforced, and

maintained in Tennessee. EPA is

proposing to approve Tennessee's

infrastructure submission for the 1997

8-hour ozone NAAQS for these

elements, contingent upon the final

approval of those revisions, because its

December 12, 2007, and May 28, 2009,

submissions will then be 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

3219
Federal Register/Vol. 77, No. 14/Monday, January 23, 2012/Proposed Rules

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, Ozone, Reporting and

recordkeeping requirements, Volatile

organic compounds.

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

Dated: January 12, 2012.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

[FR Doe. 2012-1220 Filed 1-20-12; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-RO1-OAR-2011-0960; A-1-FRL9621-2]

Approval and Promulgation of Air

Quality Implementation Plans;

Massachusetts; Determination of

Attainment of the 1997 Ozone Standard

for the Western Massachusetts

Nonattainment Area

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The EPA is proposing two

separate and independent

determinations regarding the

Springfield (Western Massachusetts)

moderate 1997 8-hour ozone

nonattainment area. First, EPA is

proposing to determine that the Western

Massachusetts nonattainment area has

attained the 1997 8-hour National

Ambient Air Quality Standard (NAAQS)

for ozone, based upon complete,

quality-assured, certified ambient air

monitoring data that show the area has

monitored attainment of the 1997 8-

hour ozone NAAQS for the 2007-2009

and 2008-2010 monitoring periods.

Preliminary data for 2011 indicate the

area continues to attain the standard. If

this proposed determination is made

final, under the provisions of EPA's

ozone implementation rule, the

requirements for this area to submit an

attainment demonstration, a reasonable

further progress plan, contingency

measures, and other planning State

Implementation Plans related to

attainment of the 1997 8-hour ozone

NAAQS shall be suspended for so long

as the area continues to attain the 1997

ozone NAAQS. Second, based on

complete, quality-assured and certified

air monitoring data for 2007-2009, EPA

is proposing to determine that the

Western Massachusetts nonattainment

area also attained the 1997 ozone

NAAQS as of June 15, 2010, its

applicable attainment date.

DATES: Written comments must be

received on or before February 22, 2012.

ADDRESSES: Submit your comments,

identified by Docket ID Number EPAR01-OAR-2011-0960 by one of the

following methods:

1. www.regulations.gov: Follow the

on-line instructions for submitting

comments.

2. Email: arnold.anne@epa.gov.

3. Fax: (617) 918-0047.

4. Mail: "Docket Identification

Number EPA-ROl-OAR-2011-0960,"

Anne Arnold, U.S. Environmental

Protection Agency, EPA New England

Regional Office, 5 Post Office Square,

Suite 100 (mail code: OEP05-2), Boston,

MA 02109-3912.

5. Hand Delivery or Courier. Deliver

your comments to: Anne Arnold,

Manager, Air Quality Planning Unit,

Office of Ecosystem Protection, U.S.

Environmental Protection Agency, EPA

New England Regional Office, 5 Post

Office Square, Suite 100, Boston, MA

02109-3912. 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 legal holidays.

Instructions: Direct your comments to

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

0960. 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.

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 Office of Ecosystem

Protection, U.S. Environmental

Protection Agency, EPA New England

Regional Office, 5 Post Office Square,

Suite 100, Boston, MA. 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 legal holidays.

FOR FURTHER INFORMATION CONTACT:

Richard P. Burkhart, Air Quality

Planning Unit, U.S. Environmental

Protection Agency, EPA New England

Regional Office, 5 Post Office Square,

Suite 100, Boston, MA 02109-3912,

telephone number (617) 918-1664, fax

number (617) 918-0664, email

Burkhart.Richard@epa.gov.

SUPPLEMENTARY INFORMATION:

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