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[Federal Register Volume 87, Number 65 (Tuesday, April 5, 2022)]
[Rules and Regulations]
[Pages 19645-19649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07090]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2021-0428; FRL-9374-02-R4]

Finding of Failure To Attain the 2010 Sulfur Dioxide Standard; 
Tennessee; Sullivan County Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is 
finalizing the determination that the Sullivan County, Tennessee, 
sulfur dioxide (SO2) nonattainment area (hereinafter 
referred to as ``the Sullivan County Area'' or ``Area'') failed to 
attain the 2010 1-hour SO2 primary National Ambient Air 
Quality Standard (NAAQS or standard) by the applicable attainment date 
of October 4, 2018, based upon a weight of evidence analysis of 
available quality-assured and certified SO2 ambient air 
monitoring data and SO2 emissions data from January 2015 
through December 2017. As a result of this determination, the State of 
Tennessee is required to submit by April 5, 2023, revisions to the 
Tennessee State Implementation Plan (SIP) that, among other things, 
provide for the attainment of the SO2 NAAQS in the Sullivan 
County Area as expeditiously as practicable but no later than April 5, 
2027.

DATES: This rule is effective May 5, 2022.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2021-0428. All documents in the docket 
are listed on the www.regulations.gov website. Although listed in the 
index, some information may not be publicly available, i.e., 
Confidential Business Information 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 through www.regulations.gov or in hard 
copy at the Air Regulatory Management Section, Air Planning and 
Implementation Branch, Air and Radiation 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 a.m. to 4:30 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Evan Adams, Air Regulatory Management 
Section, Air Planning and Implementation Branch, Air and Radiation 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street SW, Atlanta, Georgia 30303-8960. Mr. Adams can be reached by 
telephone at (404) 562-9009 or via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On January 13, 2022 (87 FR 2095), EPA published a notice of 
proposed rulemaking (NPRM) proposing to find that the Sullivan County 
Area failed to attain the 2010 1-hour SO2 primary NAAQS \1\ 
by the applicable attainment

[[Page 19646]]

date of October 4, 2018, based upon a weight of evidence analysis of 
available quality-assured and certified SO2 ambient air 
monitoring data and SO2 emissions data from January 2015 
through December 2017.
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    \1\ The Clean Air Act (CAA or Act) establishes a process for air 
quality management through the establishment and implementation of 
the NAAQS. On June 2, 2010, EPA revised the primary SO2 
NAAQS, establishing a new 1-hour SO2 standard of 75 parts 
per billion (ppb). See 75 FR 35520 (June 22, 2010). After the 
promulgation of a new or revised NAAQS, EPA is required to designate 
all areas of the country pursuant to section 107(d)(1)-(2) of the 
CAA.
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    EPA designated the Sullivan County Area as nonattainment on August 
5, 2013,\2\ based on air quality monitoring data from an SO2 
monitor operating at the time of designation (Air Quality System (AQS) 
Site ID: 47-163-0007). The Sullivan County Area is comprised of a 3-
kilometer (km) radius circle centered around the B-253 powerhouse at 
the Eastman Chemical Company facility in Kingsport, Tennessee 
(Eastman), which encompasses this SO2 monitor that was 
operating at the time of designation.\3\ EPA's first round of 
designations for the 2010 SO2 NAAQS, including the Sullivan 
County Area, became effective on October 4, 2013.
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    \2\ On August 5, 2013, EPA finalized its first round (round 1) 
of designations for the 2010 primary SO2 NAAQS. 
Specifically, in the 2013 action, EPA designated 29 areas in 16 
states as nonattainment for the 2010 SO2 NAAQS, including 
a portion of Sullivan County.
    \3\ For exact descriptions of the Sullivan County Area, refer to 
40 CFR 81.343.
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    Pursuant to CAA section 192(a), the attainment date for the Area 
was no later than October 4, 2018, which is five years after the 
effective date of the final action designating the Sullivan County Area 
as nonattainment for the 2010 SO2 NAAQS. Under section 
179(c) of the CAA, within six months of the attainment date, EPA is 
required to make a determination, based on the area's air quality as of 
the attainment date, whether an area attained by that date. If EPA 
determines that an area failed to attain by the attainment date, EPA is 
required to publish that determination in the Federal Register. See CAA 
section 179(c)(2).
    On June 25, 2021, EPA entered into a consent decree with the Center 
for Biological Diversity in the U.S. District Court for the Northern 
District of California.\4\ The consent decree requires EPA to finalize 
by March 31, 2022, a determination whether the Sullivan County Area 
attained the 1-hour SO2 standard by the October 4, 2018, 
attainment date.
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    \4\ See Consent Decree entered June 25, 2021, (Docket ID: EPA-
R04-OAR-2021-0428), Center for Biological Diversity et al. v. EPA, 
Case No. 3:20-cv-05436-EMC (N.D. Cal.) which is included in the 
docket for this action.
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    In the January 13, 2022, NPRM, EPA evaluated whether the Sullivan 
County Area attained the 2010 SO2 NAAQS by the October 4, 
2018, attainment date. For an area to attain the 2010 SO2 
NAAQS by the October 4, 2018, attainment date, the design value based 
upon monitored air quality data from 2015-2017 at each eligible 
monitoring site must be equal to or less than 75 ppb for the 1-hour 
standard. EPA developed a weight of evidence assessment based on 
available quality-assured and certified air quality monitoring data, 
and source-specific SO2 emissions in the Area from January 
2015 through December 2017 to support the proposed determination that 
the Sullivan County Area did not attain the 1-hour SO2 
standard by October 4, 2018.
    Air monitoring data in the Sullivan County Area from January 1, 
2015, to July 20, 2016, did not meet the quality assurance requirements 
in 40 CFR part 58 Appendix A and, therefore, were not comparable to the 
NAAQS. Consequently, a valid 2015-2017 design value could not be 
determined for the Area. In lieu of a 2015-2017, 3-year design value, 
EPA reviewed the available quality-assured ambient monitoring data from 
July 20, 2016, to December 31, 2017, and annual and hourly 
SO2 emissions data at Eastman from January 1, 2015, to 
December 31, 2017, to determine the air quality in the Sullivan County 
Area as of the applicable attainment date. The available annual 99th 
percentile daily maximum 1-hour average SO2 data at each 
state and local air monitoring station (SLAMS) site \5\ within the 
Sullivan County Area for the 2015-2017 period are presented in Table 1.
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    \5\ See EPA's January 13, 2022, NPRM for additional details 
regarding the Ross N. Robinson and Skyland Drive SLAMS sites. See 87 
FR 2095.

                       Table 1--2015-2017 SO2 Monitoring Data for the Sullivan County Area
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                                   Annual 99th percentile daily maximum 1-hour
                                                  average (ppb)
         Site (AQS ID)          ------------------------------------------------       Design Value valid?
                                      2015            2016            2017
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Ross N. Robinson (47-163-6001).         \a\ N/A         \b\ 152              92  No.
Skyland Dr. (47-163-6002)......         \a\ N/A          \b\ 91              78  No.
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Notes:
\a\ The SLAMS monitors did not collect data in 2015.
\b\ The Ross N. Robinson monitor had only two quarters of complete data in 2016 due to the monitor beginning
  operation on July 21, 2016. The Skyland Drive monitor had only one quarter of complete data in 2016 due to the
  monitor beginning operation on September 1, 2016.
Source: EPA AQS Design Value Report, retrieved September 14, 2021.

    The data in Table 1 indicates that although the two sites in the 
Sullivan County Area did not have complete data in 2015 and 2016 to 
determine a 3-year design value, both monitors consistently measured 
99th percentile daily maximum 1-hour SO2 concentrations 
above the 75 ppb level of the 1-hour NAAQS in 2016 and 2017, after 
beginning operation in mid-2016. Both monitors have complete 2017 
datasets.
    The primary SO2 emissions sources in the Area are the 
coal-fired boilers at Eastman. EPA observed that the annual 
SO2 emissions and the hourly SO2 emissions from 
the Eastman boilers were significantly higher from January 1, 2015, to 
June 30, 2016, when air monitoring data are not available, than from 
July 1, 2016, through December 31, 2017, when air monitoring data are 
available. Considering that the ambient measured concentrations 
exceeded the level of the NAAQS in 2016 and 2017, when emissions from 
the primary sources of SO2 were lower than they were in 
2015, EPA believes it is reasonable to expect that the 99th percentile 
maximum daily 1-hour SO2 concentration in 2015 likely also 
exceeded the level of 75 ppb. Consequently, the three-year average of 
the 99th percentile value for 2015 (likely exceeded the level of the 
NAAQS), 2016 (exceeded the level of the NAAQS), and 2017 (exceeded the 
level of the NAAQS) almost certainly would have resulted in a design 
value that violated the NAAQS. Thus, EPA

[[Page 19647]]

finds that this analysis of available quality-assured and certified 
ambient concentration data and SO2 emissions data 
demonstrates by a weight of evidence that the Sullivan County Area 
failed to attain the 1-hour SO2 NAAQS by the required 
attainment date of October 4, 2018.
    EPA's January 13, 2022, NPRM provided detailed assessments of the 
SO2 monitoring network and emissions data for the primary 
SO2-emitting sources in the Area at Eastman. The NPRM also 
provided additional background information on the promulgation of the 
2010 SO2 NAAQS, as well as the designation of the Sullivan 
County Area under the CAA, and EPA's obligation under CAA section 
179(c)(1) to determine if an area attained by the statutory attainment 
date. Lastly, the January 13, 2022, NPRM discussed the consequences for 
SO2 nonattainment areas that failed to attain the 1-hour 
SO2 standard by the October 4, 2018, attainment date. 
Comments on the January 13, 2022, NPRM were due on or before February 
14, 2022.

II. Response to Comments

    EPA received two comments on the January 13, 2022, NPRM, which are 
included in the docket for this action. The comments do not object to 
the proposed conclusion that the Sullivan County Area failed to timely 
attain the NAAQS and are generally in favor of the proposed finding set 
forth in the January 13, 2022, proposed rulemaking. EPA summarizes and 
responds to the comments below.
    Comment 1: The commenter discusses the findings that EPA outlined 
in the January 13, 2022, NPRM and generally agrees that a ``SIP is 
needed to more closely monitor Sullivan County and hold them 
accountable to following the emission standards.'' The commenter notes 
that EPA cites to CAA section 179(d) for the consequences for the 
failure to meet the SO2 standard. In addition, the commenter 
expresses concern that the required SIP ``simply passes on 
responsibility to the State'' and will not address the problem quickly 
and suggests EPA ``handle the situation.'' The commenter believes EPA 
has jurisdiction due to the nature of the SO2 emissions 
impacting multiple states and that fines should be imposed on the 
responsible organizations.
    Response 1: The commenter does not disagree with EPA's proposed 
determination that the Sullivan County, Tennessee SO2 
nonattainment area did not attain the 1-hour standard by the October 4, 
2018, statutory attainment date. The commenter also supports the 
requirement for Tennessee to submit a SIP one year after EPA's finding 
that will provide attainment of the SO2 standard in the 
nonattainment area by a new statutory attainment date pursuant to the 
requirements established at 179(d) of the CAA.
    The commenter, however, expresses concern with relying on the State 
to address the problem, and suggests it would be ideal for EPA to 
handle the situation. The commenter asserts that EPA should levy fines 
and should have jurisdiction because of the nature of SO2 
emissions impacting multiple states. As acknowledged by the commenter, 
EPA is taking this action pursuant to CAA section 179, which specifies 
the consequences of EPA's determination that the Area did not attain 
the air quality standard by the applicable attainment date. 
Specifically, Section 179(d) requires each state with a nonattainment 
area that fails to attain the standard by the applicable attainment 
date to submit a SIP revision meeting the requirements of CAA sections 
110 and 172 within one year after EPA publishes notice of its 
determination. Section 172 requires the revision to include, among 
other elements, a demonstration of attainment (within the period 
prescribed by CAA section 179(d)), reasonable further progress, and 
contingency measures. In addition, under CAA section 179(d)(2), the SIP 
revision must include such additional measures as EPA may reasonably 
prescribe, including all measures that can be feasibly implemented in 
the area in light of technological achievability, costs, and any non-
air quality and other air quality-related health and environmental 
impacts.\6\
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    \6\ At this time, EPA is not prescribing any additional measures 
for the Sullivan County Area under CAA section 179(d)(2).
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    The relevance of the commenter's statements that EPA should have 
jurisdiction because of the nature of SO2 emissions 
impacting multiple states, and that fines should be imposed on the 
responsible organizations, is unclear. The source-specific nature of 
the SO2 standard is not relevant to EPA's obligations 
prescribed under the Act to ensure states comply with CAA planning 
requirements within the statutory timeframes. EPA appreciates the 
commenter's concern and believes the CAA clearly establishes the 
State's and EPA's respective responsibilities to ensure nonattainment 
areas demonstrate expeditious attainment of the standards within the 
period prescribed by CAA section 179(d). Regarding SO2 
emissions impacting multiple states, separate CAA provisions in section 
110(a)(2)(D) require SIPs to contain adequate provisions to prohibit 
source emission activity that could impact another state's ability to 
attain or maintain the SO2 standard.\7\
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    \7\ Sections 110(a)(1) and (2) of the CAA require each state to 
adopt and submit a SIP for the implementation, maintenance, and 
enforcement of each NAAQS promulgated by EPA. This includes CAA 
section 110(a)(2)(D), which requires SIPs to (i) contain adequate 
provisions prohibiting any source or other type of emissions 
activity within a state from emitting any air pollutants in amounts 
which will (I) contribute significantly to nonattainment or 
interfere with maintenance of the NAAQS in any other state, or (II) 
interfere with measures required to prevent significant 
deterioration of air quality or to protect visibility. EPA has 
considered or will consider the adequacy of Tennessee's SIP for 
these interstate provisions separately. EPA approved the interstate 
provisions of Tennessee's SIP for the 2010 SO2 NAAQS of 
110(a)(2)(D)(i)(II) on November 28, 2016, and September 24, 2018 
(see 81 FR 85410 and 83 FR 48237, respectively), and intends to act 
on the section110(a)(2)(D)(i)(I) interstate transport SIP provisions 
separately.
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    Comment 2: The commenter expresses concern about the proposed rule 
only addressing the SO2 NAAQS in Sullivan County, Tennessee, 
and notes the importance of the proposed rule in maintaining the safety 
of the people. The commenter also brings up negative impacts from 
SO2 on human health and the environment and states that 
``that this is an important issue that I hope gets passed.''
    Response 2: The commenter does not object to EPA's proposed 
determination that the Sullivan County Area failed to timely attain the 
NAAQS. EPA appreciates the commenter's acknowledgement of the health 
and environmental impacts from SO2 pollution. Regarding the 
commenter's impression that the rule is only beneficial to those living 
in Sullivan County, EPA notes that the finding of failure to attain is 
specific to a portion of Sullivan County, Tennessee surrounding Eastman 
Chemical based on the Agency's 2013 determination that the Area was not 
attaining the 1-hour SO2 standard. Since 2013, EPA has 
determined that areas in the vicinity of large SO2-emitting 
sources in the rest of the state are meeting the health-based 1-hour 
SO2 standard based on an assessment of available air quality 
data. Furthermore, based on EPA's 2010 promulgation of the 1-hour 
SO2 standard, states were required to submit a SIP revision 
to EPA to ensure their SIPs have the necessary provisions to provide 
for the implementation, attainment, and maintenance of the standard 
pursuant to section 110(a)(1) and 110(a)(2) of the CAA. Among other 
elements, this revision must include necessary or appropriate 
SO2 emission limits and standards, an appropriate air 
quality monitoring network, and a

[[Page 19648]]

permitting program to prevent any construction of new sources or source 
modifications from deteriorating air quality in areas meeting the 
NAAQS.

III. Final Action

    EPA is taking final action to determine that the Sullivan County 
Area failed to attain the 2010 1-hour primary SO2 NAAQS by 
the applicable attainment date of October 4, 2018. As a result of this 
determination, the State of Tennessee is required under CAA section 
179(d) to submit revisions to the Tennessee SIP for the Sullivan 
County, Tennessee SO2 nonattainment area to, among other 
elements, provide for the attainment of the respective standard as 
expeditiously as practicable but no later than April 5, 2027. At this 
time, EPA is not prescribing additional measures for the SO2 
SIP revisions under CAA section 179(d)(2). Tennessee is required under 
CAA section 179(d) to submit a SIP revision meeting the requirements of 
sections 110 and 172 of the CAA to EPA by April 5, 2023.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review, and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and therefore 
was not submitted to the Office of Management and Budget (OMB) for 
review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the provisions of the PRA because it does not contain any information 
collection activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate of $100 million 
or more, as described in UMRA (2 U.S.C. 1531-1538) and does not 
significantly or uniquely affect small governments. This action itself 
imposes no enforceable duty on any state, local, or tribal governments, 
or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. The finding of failure to attain SO2 
NAAQS does not apply to tribal areas, and the rule does not impose a 
burden on Indian reservation lands or other areas where EPA or an 
Indian tribe has demonstrated that a tribe has jurisdiction. Thus, this 
rule does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law as specified 
by Executive Order 13175.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. This action is not subject to Executive Order 
13045 because the effect of this action is to trigger additional 
planning requirements under the CAA. This action does not establish an 
environmental standard intended to mitigate health or safety risks.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes that this action does not have disproportionately high 
and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). 
This action triggers additional planning requirements under the CAA.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 6, 2022. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Lead, Pollution, Sulfur 
dioxide.

    Dated: March 30, 2022.
Daniel Blackman,
Regional Administrator, Region 4.

    For the reasons stated in the preamble, the EPA amends chapter I, 
title 40 of the Code of Federal Regulations as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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1. The authority citation for part 52 continues to read as follows:

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

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Subpart RR--Tennessee

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2. Amend Sec.  52.2231 by adding paragraph (g) to read as follows:

Sec.  52.2231  Control strategy: Sulfur oxides and particulate matter.

* * * * *
    (g) Effective May 5, 2022, EPA has determined that the Sullivan 
County SO2 nonattainment area (NAA) has failed to attain the 
2010 1-hour primary sulfur dioxide (SO2) national ambient 
air quality standard (NAAQS) by the applicable attainment date of 
October 4, 2018. This determination triggers the requirements of CAA 
section 179(d) for the State of Tennessee to submit a revision to the 
Tennessee State Implementation Plan (SIP) for the Sullivan County 
SO2 NAA to EPA by April 5, 2023. The SIP revision must, 
among other elements, provide for the attainment of the 1-hour primary 
SO2 NAAQS in the Sullivan County SO2 NAA as 
expeditiously as practicable but no later than April 5, 2027.
* * * * *
[FR Doc. 2022-07090 Filed 4-4-22; 8:45 am]
BILLING CODE 6560-50-P
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