14450 Federal Register / Vol. 78, No. 44 / Wednesday, March 6, 2013 / Rules and Regulations 

circumstances listed in 43 CFR 46.215 

that would require further analysis of 

the selected action for the Vickery Creek 

unit under NEPA. A copy of the EA and 

FONSI can be downloaded from the 

park’s planning Web site, http:// 

www.nps.gov/chat/parkmgmt/ 

planning.htm, then clicking on the link 

entitled ‘‘Chattahoochee River Trail 

Connection Plan.’’ 

Effects on the Energy Supply (Executive 

Order 13211) 

This rule is not a significant energy 

action under the definition in Executive 

Order 13211. A Statement of Energy 

Effects in not required. 

Drafting Information 

The primary authors of this regulation 

were Joel Brumm, Chattahoochee River 

National Recreation Area, and Jay P. 

Calhoun, Regulations and Special Park 

Uses, National Park Service. 

List of Subjects in 36 CFR Part 7 

National parks, Reporting and 

recordkeeping requirements. 

In consideration of the foregoing, the 

National Park Service amends 36 CFR 

part 7 as set forth below: 

PART 7—SPECIAL REGULATIONS, 

AREAS OF THE NATIONAL PARK 

SYSTEM 

■ 1. The authority for part 7 continues 

to read as follows: 

Authority: 16 U.S.C. 1, 3, 9a, 462(k); Sec. 

7.96 also issued under 36 U.S.C. 501–511, 

D.C. Code 10–137 (2001) and D.C. Code 50– 

2201.07 (2001). 

■ 2. Add § 7.90 to read as follows: 

§ 7.90 Chattahoochee River National 

Recreation Area. 

(a) Bicycling. (1) Where may I ride a 

bicycle within Chattahoochee River 

National Recreation Area? The 

following routes are designated for 

bicycle use: 

(i) The approximately 500-foot-long 

segment of paved multi-use trail along 

the Chattahoochee River located within 

the boundary of the Vickery Creek unit. 

(ii) The approximately 2.2-mile-long 

multi-use trail in the Johnson Ferry 

South unit that connects to the bridge 

underpass at Johnson Ferry Road. 

(iii) The approximately 6.7-mile-long 

loop-style multi-use trail in the Cochran 

Shoals unit. 

(2) Will the routes be identified on the 

ground? Yes, the three trails will be 

posted at trail junctions indicating they 

are open to bicycle use. 

(3) Where can I find maps depicting 

routes designated for bicycle use? Maps 

depicting designated bicycle routes are 

available in the office of the 

Superintendent and online at 

www.nps.gov/chat/planyourvisit/bikemaps.htm. 

(4) How will the Superintendent 

manage the designated bicycle routes? 

(i) The Superintendent may open or 

close designated bicycle routes, or 

portions thereof, or impose conditions 

or restrictions for bicycle use after 

taking into consideration public health 

and safety, natural and cultural resource 

protection, carrying capacity and other 

management activities and objectives. 

(ii) Following a rain event, the 

Superintendent may exercise discretion 

to temporarily close the trails in the 

Johnson Ferry South and Cochran 

Shoals units to mitigate soil erosion and 

water quality impacts from bicycle use. 

(iii) The Superintendent will provide 

public notice of all such actions through 

one or more of the methods listed in 

§ 1.7 of this chapter. 

(iv) Violating a closure, condition, or 

restriction is prohibited. 

(b) [Reserved] 

Dated: February 21, 2013. 

Rachel Jacobson, 

Principal Deputy Assistant Secretary for Fish 

and Wildlife and Parks. 

[FR Doc. 2013–05250 Filed 3–5–13; 8:45 am] 

BILLING CODE 4312–EJ–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2012–0237; FRL–9787–6] 

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: Final rule. 

SUMMARY: EPA is taking final action 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 

infrastructure requirements of Clean Air 

Act (CAA or Act) for the 2008 8-hour 

ozone national ambient air quality 

standards (NAAQS). The CAA requires 

that each state adopt and submit a SIP 

for the implementation, maintenance, 

and enforcement of each NAAQS 

promulgated by EPA, which is 

commonly referred to as an 

‘‘infrastructure’’ SIP. On October 19, 

2009, TDEC made a SIP submission to 

certify that the Tennessee SIP already 

contains provisions that ensure the 2008 

8-hour ozone NAAQS are implemented, 

enforced, and maintained in Tennessee 

(hereafter referred to as ‘‘infrastructure 

submission’’). On March 23, 2012, TDEC 

submitted a letter requesting conditional 

approval of the infrastructure 

submission with respect to the 

requirements in its SIP applicable to 

state boards. On October 4, 2012, 

Tennessee submitted a letter requesting 

conditional approval of infrastructure 

submission with respect to requirements 

in its SIP with respect to requirements 

applicable to its permitting program for 

prevention of significant deterioration 

(PSD) increments. With the exception of 

elements pertaining to PSD increments 

and state board requirements, 

Tennessee’s infrastructure submission, 

provided to EPA on October 19, 2009, 

addresses all the applicable 

infrastructure SIP requirements for the 

2008 8-hour ozone NAAQS. At this 

time, there are no outstanding 

infrastructure submission requirements 

for Tennessee with respect to significant 

contribution to nonattainment or 

interference with maintenance of the 

2008 8-hour ozone NAAQS. 

DATES: Effective Date: This rule will be 

effective April 5, 2013. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2012–0237. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not 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 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 a.m. to 

4:30 p.m. excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Nacosta C. Ward, Regulatory 


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1Two 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 other provisions of the CAA for 

submission of SIP revisions specifically applicable 

for attainment planning purposes. 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). 

2This rulemaking only addresses requirements 

for this element as they relate to attainment areas. 

3Today’s final rule does not address section 

110(a)(2)(D)(i)(I) (the significant contribution to 

nonattainment prong or the interfere with 

maintenance prong) for the 2008 8-hour Ozone 

NAAQS, which as described in greater detail below, 

EPA does not presently view as a ‘‘required 

submission’’ consistent with the D.C. Circuit 

Court’s recent opinion in EME City Generation v. 

EPA, 696 F.3d 7, 31 (D.C. Cir. 2012). In that 

opinion, the D.C. Circuit Court concluded that a SIP 

submission to address section 110(a)(2)(D)(i)(I) for 

a new or revised NAAQS cannot be considered a 

‘‘required’’ SIP submission until EPA has first 

defined a state’s obligations pursuant to that 

section. See EME Homer City, 696 F.3d at 32 (‘‘A 

SIP logically cannot be deemed to lack a ‘required 

submission’ or deemed to be deficient for failure to 

meet the good neighbor obligation before EPA 

quantifies the good neighbor obligation.’’) 

4This requirement as mentioned above is not 

relevant to today’s proposed rulemaking. 

5As discussed in the proposed rule for today’s 

action, section 110(a)(2)(E)(ii) requires that the SIP 

include provisions necessary to meet the 

requirements of section 128 of the CAA. See 77 FR 

50651. 

6Section 110(a)(2)(D)(i) includes four 

requirements referred to as prongs 1 through 4. 

Prongs 1 and 2 are provided at section 

110(a)(2)(D)(i)(I); prongs 3 and 4 are provided at 

section 110(a)(2)(D)(i)(II). Today’s conditional 

approval only relates to the PSD requirements of 

section 110(a)(2)(D)(i)(II), also known as prong 3. 

7EPA originally proposed approval of these 

elements as they related to PSD requirements. See 

77 FR 50651. EPA is not taking action to finalize 

the proposed approvals for these elements, rather, 

EPA is today taking action to finalize conditional 

approval for these elements as they relate to PSD 

requirements based upon the December 3, 2012, 

supplement proposal. See 77 FR 71568. As 

described in the December 3, 2012, supplemental 

proposal, Tennessee’s SIP currently does not 

contain the requisite PM2.5 PSD increments 

necessary to satisfy these requirements. 

Accordingly, EPA is finalizing a conditional 

approval of Tennessee’s infrastructure SIP 

submission based upon the state’s commitment to 

rectify this concern with respect to this structural 

deficiency in Tennessee’s current PSD program. 

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. Response to Comments 

III. This Action 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. Background 

Upon promulgation of a new or 

revised NAAQS, sections 110(a)(1) and 

(2) of the CAA require states to address 

basic SIP requirements, including 

emissions inventories, monitoring, and 

modeling to assure attainment and 

maintenance for that new NAAQS. 

Section 110(a) of the CAA generally 

requires states to make a SIP submission 

to meet applicable requirements in 

order to provide for the implementation, 

maintenance, and enforcement of a new 

or revised NAAQS within 3 years 

following the promulgation of such 

NAAQS, or within such shorter period 

as EPA may prescribe. These SIP 

submissions are commonly referred to 

as ‘‘infrastructure’’ SIP submissions. 

Section 110(a) imposes the obligation 

upon states to make an infrastructure 

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 infrastructure SIP for a 

new or revised NAAQS affect the 

content of the submission. The contents 

of such infrastructure 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 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 basic structural 

SIP elements such as modeling, 

monitoring, and emissions inventories 

that are designed to assure attainment 

and maintenance of the NAAQS. The 

applicable infrastructure SIP 

requirements that are the subject of this 

rulemaking are listed below.1

• 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)(i)(II): Interstate 

transport (PSD and visibility prongs).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. 

On August 22, 2012, EPA proposed to 

approve Tennessee’s October 19, 2009, 

2008 8-hour ozone NAAQS 

infrastructure SIP submission except as 

it related to section 110(a)(2)(E)(ii), 

which EPA proposed to approve in part, 

and conditionally approve in part.5 See 

77 FR 50651. 

EPA proposed conditional approval in 

part for element 110(a)(2)(E)(ii) because, 

while Tennessee’s SIP does not 

currently contain provisions to address 

the requirements of CAA section 

128(a)(1), the State committed in a letter 

dated March 28, 2012, to submit, within 

one year, specific enforceable measures 

to EPA for incorporation into the SIP to 

address these requirements. EPA 

proposed approval of the state’s 

infrastructure SIP submission in part, 

for section 110(a)(2)(E)(ii) because the 

State’s implementation plan already 

contains adequate provisions to address 

the requirements of CAA section 

128(a)(2). See 77 FR 50651; August 22, 

2012. 

With respect to the PSD requirements 

of sections 110(a)(2)(C), 

110(a)(2)(D)(i)(II) (hereafter referred to 

as prong 3 of 110(a)(2)(D)(i)),6 and 

110(a)(2)(J) for the 2008 8-hour ozone 

NAAQS, EPA published a supplemental 

proposal on December 3, 2012. In this 

supplemental notice, EPA proposed 

conditional approval of Tennessee’s 

infrastructure SIP submission for these 

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

2008 8-hour ozone NAAQS.7 See 77 FR 

71568, December 3, 2012. As described 

in the supplemental proposal, on 

October 4, 2012, Tennessee submitted a 

request for conditional approval of the 

State’s infrastructure SIP submission 

with respect to sections 110(a)(2)(C), 

prong 3 of 110(a)(2)(D)(i), and 

110(a)(2)(J), specifically as they relate to 

PSD program requirements and the State 

committed to address the SIP 

deficiencies by submitting specific 


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enforceable SIP revisions to address 

PM2.5 PSD increments. This letter of 

commitment meets the requirements of 

section 110(k)(4) of the CAA. 

Tennessee’s October 4, 2012, letter can 

be accessed at www.regulations.gov 

using Docket ID No. EPA–R04–OAR– 

2012–0237. 

Finally, EPA notes that this final 

action on Tennessee’s infrastructure SIP 

submission for the 2008 8-hour ozone 

NAAQS is required not only by section 

110(k), but also by order issued by the 

U.S. District Court for the Northern 

District of California in WildEarth 

Guardians v. Jackson, Case No. 11–CV– 

5651 YGR. In an October 17, 2012, order 

granting partial summary judgment in 

the case, as modified in a December 7, 

2012, order granting in part EPA’s 

motion for an amended order, that court 

directed EPA to take final action upon 

the infrastructure SIP at issue in this 

action by March 4, 2013. With respect 

to Tennessee, the court specifically 

ordered EPA to act upon the 

infrastructure SIP submission made by 

the state on October 19, 2009, as 

revised/withdrawn in part on July 3, 

2012. The court specifically explained 

in the December 7, 2012, amended order 

that ‘‘EPA is being ordered to assess the 

remaining submissions, i.e., the revised 

SIP from Kentucky and the nonwithdrawn portion of the Tennessee 

SIP.’’ (emphasis in the original). 

Accordingly, EPA is taking final action 

upon Tennessee’s infrastructure SIP for 

the 2008 8-hour ozone NAAQS in its 

revised form, which reflects Tennessee’s 

withdrawal of the portion of the original 

submission intended to address section 

110(a)(2)(D)(i)(I). As explained in more 

detail in response to relevant comments, 

EPA is addressing the requirements of 

section 110(a)(2)(D)(i)(I) consistent with 

the opinion of the D.C. Circuit Court’s 

opinion in EPA Homer City Generation 

v. EPA, 696 F.3d 7 (D.C. Cir. 2012). 

II. Response to Comments 

EPA received no comments on the 

initial August 22, 2012, notice 

proposing action on Tennessee’s 

infrastructure SIP submission for the 

2008 8-hour ozone NAAQS. EPA 

received two sets of comments on the 

December 3, 2012, supplemental 

proposed rulemaking in which EPA 

proposed conditional approval of the 

State’s infrastructure SIP submission as 

meeting the applicable requirements of 

CAA sections 110(a)(2)(C) and (J), and 

prong 3 of section 110(a)(2)(D)(i) for the 

2008 8-hour ozone NAAQS. A summary 

of the comments and EPA’s responses 

are provided below. 

EPA notes that the majority of the 

comments received are well beyond the 

scope of the supplemental proposal 

which addressed only certain issues 

associated with PSD rules as they 

impacted Tennessee’s infrastructure 

submittal for CAA sections 110(a)(2)(C) 

and (J), and prong 3 of 110(a)(2)(D)(i), 

for the 2008 8-hour ozone NAAQS. 

Instead, the comments primarily 

concerned the interstate transport 

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

(prongs 1 and 2). These requirements 

were not at issue in either the original 

August 22, 2012, proposal notice, or the 

December 3, 2012, supplemental notice, 

because the State had by this point 

already withdrawn that portion of the 

infrastructure SIP submission that was 

intended to address section 

110(a)(2)(D)(i)(I) for the 2008 8-hour 

ozone NAAQS. As the supplemental 

proposal specifically provided at 

footnote 5, EPA is not addressing 

section 110(a)(2)(D(i)(I) requirements 

through this action. See 77 FR 71568, 

71570. Even though EPA may not be 

obligated to respond to the comments 

outside the scope of the December 3, 

2012, supplemental proposal, EPA 

nonetheless provides the following 

responses in order to assist in the public 

understanding of EPA’s final action. 

Comment 1: The Commenters contend 

that under section 110(k) of the Act, 

EPA must make a finding that 

Tennessee has failed to submit an 

interstate transport SIP to meet the 

requirements of infrastructure element 

110(a)(2)(D)(i)(I) (prongs 1 and 2). 

Response 1: EPA does not agree with 

the Commenter. As noted above, this 

comment is beyond the scope of the 

supplemental action proposed in the 

December 3, 2012, rulemaking, which 

was limited to the above-described PSDrelated elements. Moreover, the D.C. 

Circuit Court’s recent opinion in EME 

City Generation v. EPA, 696 F.3d 7, 31 

(D.C. Cir. 2012), concluded that a SIP 

submission to address section 

110(a)(2)(D)(i)(I) for a new or revised 

NAAQS cannot be considered a 

‘‘required’’ SIP submission until EPA 

has first defined a state’s obligations 

pursuant to that section. See EME 

Homer City, 696 F.3d at 32 (‘‘A SIP 

logically cannot be deemed to lack a 

‘required submission’ or deemed to be 

deficient for failure to meet the good 

neighbor obligation before EPA 

quantifies the good neighbor 

obligation.’’) On January 24, 2013, the 

D.C. Circuit issued an order denying all 

petitions for rehearing of the EME 

Homer City decision. At this time, 

however, the deadline for asking the 

Supreme Court to review the D.C. 

Circuit’s decision has not passed and 

the United States has not yet decided 

whether to seek further appeal. In the 

meantime, and unless the EME Homer 

City decision is reversed or otherwise 

modified, EPA intends to act in 

accordance with the panel opinion in 

the EME Homer City opinion. Thus, 

although EPA historically has 

interpreted section 110(a)(1) of the CAA 

as establishing the required submittal 

date for infrastructure SIP submissions 

to address all of the ‘‘interstate 

transport’’ requirements in section 

110(a)(2)(D), including the provisions in 

section 110(a)(2)(D)(i)(I) regarding 

significant contribution to 

nonattainment and interference with 

maintenance, it would not be consistent 

with the EME Homer City opinion for 

EPA to make a finding that Tennessee 

has failed to make a SIP submission to 

address section 110(a)(2)(D)(i)(I) for the 

2008 ozone NAAQS at this time. See 78 

FR 2882, 2884–85 (January 15, 2012) 

(explaining why EPA did not make 

findings of failure to submit with 

respect to 110(a)(2)(D)(i)(I) for the 2008 

ozone NAAQS). Accordingly, EPA is not 

making a finding of failure to submit for 

section 110(a)(2)(D)(i)(I) for Tennessee 

for the 2008 8-hour ozone NAAQS at 

this time. 

Comment 2: One Commenter 

contends that EPA must disapprove the 

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

Tennessee’s submittal (referred to by the 

Commenter as the ‘‘good neighbor’’ 

provisions) because it fails to include 

adequate provisions to meet the 

requirements of this subsection. 

Response 2: EPA does not agree with 

the Commenter. First, this comment is 

beyond the scope of the supplemental 

action proposed in the December 3, 

2012, rulemaking, which was limited to 

the above-described PSD-related 

elements. Second, the element of the 

SIP submission to which the 

Commenter refers was withdrawn by 

Tennessee. On July 3, 2012, Tennessee 

withdrew the portion of its SIP 

submittal addressing 110(a)(2)(D)(i)(I). 

Thus, this portion of the submittal is no 

longer before EPA and the Agency does 

not interpret the CAA as requiring that 

EPA take action, either to approve or 

disapprove under section 110(k), on 

submissions not before EPA. EPA does 

not interpret the CAA to mandate that 

EPA take action on a submission that a 

state has withdrawn (i.e., withdrawing 

the request that EPA take action on the 

submittal). Third, as a result of the 

decision of the D.C. Circuit in EME 

Homer City, that court has concluded 

that states, including Tennessee, have 

no obligation to make a SIP submission 

to address section 110(a)(2)(D)(i)(I) for a 

new or revised NAAQS until EPA has 

first defined a state’s obligations 

pursuant to that section. 


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8Moreover, in its decision granting the petitions 

for review of CAIR, the DC Circuit held that 

compliance with CAIR did not constitute 

compliance with section 110(a)(2)(D)(i)(I) even for 

the NAAQS that were addressed by CAIR—namely 

the 1997 ozone and 1997 annual PM2.5 NAAQS. See 

North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 

2008). 

As a result, EPA does not agree with 

the Commenter that EPA has an 

obligation to disapprove the 

110(a)(2)(D)(i)(I) portion of the 

Tennessee SIP submittal that was 

withdrawn. The Commenter does not 

point to any statutory authority which 

requires EPA to disapprove a nonrequired SIP submission not presently 

before EPA, and for which a state has 

specifically requested that EPA not take 

action (by formally withdrawing the 

voluntary submission from EPA review). 

In situations where all or a portion of 

a required state submission has been 

withdrawn following a section 

110(k)(1)(B) completeness 

determination, the Agency has the 

authority to issue a finding that a state 

has failed to submit such required 

submission pursuant to section 

110(k)(1)(B). In accordance with the 

requirements of section 110(c)(1)(A), 

such a finding of failure to submit a 

complete required SIP submission 

would trigger EPA’s obligation to 

promulgate a federal implementation 

plan unless the state corrected the 

deficiency. As discussed above in the 

response to comment 1, however, it 

would not be consistent with the EME 

Homer City decision for EPA to make a 

finding of failure to submit for 

Tennessee with respect to section 

110(a)(2)(D)(i)(I) for the 2008 8-hour 

ozone NAAQS at this time. 

Comment 3: The Commenters contend 

that EPA lacks authority to approve or 

conditionally approve the balance of 

Tennessee’s infrastructure SIP 

submission despite the State’s 

withdrawal of the portion of the SIP 

originally submitted to comply with 

section 110(a)(2)(D)(i)(I). One 

Commenter contends that the ‘‘Clean 

Air Act gives EPA no discretion to 

approve a SIP without the good 

neighbor provision on the grounds that 

it intends to address Tennessee’s 

[section] 110(a)(2)(D)(i)(I) obligations in 

a separate action. There is no separate 

action available to EPA under the Clean 

Air Act to address a state’s failure to 

satisfy its good neighbor obligations 

aside from the promulgation of a 

Federal Implementation Plan within 

two-years pursuant to section 110(c)(1) 

of the Clean Air Act.’’ 

Response 3: EPA does not agree with 

the Commenter. Section 110(k)(3) of the 

Act authorizes EPA to approve a plan in 

full, disapprove it in full, or approve it 

in part and disapprove it in part, 

depending on the extent to which such 

plan meets the requirements of the Act. 

Section 110(k)(4) of the Act explicitly 

authorizes EPA to use conditional 

approval, consistent with the 

parameters for such conditional 

approvals stipulated in that section. 

This authority to approve the States’ SIP 

revisions in separable parts was 

included in the 1990 Amendments to 

the CAA to overrule a decision in the 

Court of Appeals for the Ninth Circuit 

holding that EPA could not approve 

individual measures in a plan 

submission without either approving or 

disapproving the plan as a whole. See 

S. Rep. No. 101–228, at 22, 1990 

U.S.C.C.A.N. 3385, 3408 (discussing the 

express overruling of Abramowitz v. 

EPA, 832 F.2d 1071 (9th Cir. 1987)). 

As such, the Agency interprets its 

authority under sections 110(k)(3) and 

(k)(4), as affording EPA the discretion to 

approve or conditionally approve 

individual elements of Tennessee’s 

infrastructure submission for the 2008 

8-hour ozone NAAQS, separate and 

apart from any action with respect to the 

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

with respect to that NAAQS. EPA views 

discrete infrastructure SIP requirements, 

such as the requirements of 

110(a)(2)(D)(i)(I), as severable from the 

other infrastructure elements and 

interprets section 110(k)(3) as allowing 

it to Act on individual severable 

measures in a plan submission. In short, 

EPA believes that even if the SIP 

submission for section 110(a)(2)(D)(i)(I) 

were now relevant, which it is not, it 

would still have discretion under 

section 110(k) to act upon the various 

individual elements of the state’s 

infrastructure SIP submission, 

separately or together, as appropriate. 

The Commenters raise no compelling 

legal or environmental rationale for an 

alternate interpretation. 

Comment 4: The Commenters contend 

that compliance with the Clean Air 

Interstate Rule (CAIR) is not relevant to 

Tennessee’s obligation under the CAA 

to submit a SIP addressing the 

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

with respect to the 2008 ozone NAAQS. 

Response 4: EPA agrees with the 

substance of this comment, but does not 

agree that it is relevant for this action. 

As described above, and in the 

supplemental proposal associated with 

today’s action, EPA is not taking any 

action through this rulemaking with 

respect to Tennessee’s obligations 

pursuant to section 110(a)(2)(D)(i)(I) for 

the 2008 8-hour ozone NAAQS; 

therefore, this comment is not relevant 

to today’s action. As a general matter, 

however, EPA agrees that compliance 

with CAIR is not relevant to a state’s 

obligations under section 

110(a)(2)(D)(i)(I) for purposes of the 

2008 8-hour ozone NAAQS. CAIR was 

promulgated by EPA in 2005 to address, 

for certain states, the requirements of 

CAA section 110(a)(2)(D)(i)(I) with 

respect to the 1997 ozone and 1997 

annual PM2.5 NAAQS. See 70 FR 25162. 

EPA promulgated CAIR long before it 

promulgated the 2008 8-hour ozone 

NAAQS, and CAIR did not, in any way, 

address interstate transport 

requirements related to the 2008 8-hour 

ozone NAAQS.8 For these reasons CAIR 

is not relevant to Tennessee’s section 

110(a)(2)(D)(i)(I) obligation with respect 

to the 2008 ozone NAAQS. 

Comment 5: One Commenter notes 

that EPA proposed to conditionally 

approve certain portions of Tennessee’s 

infrastructure SIP, while leaving other 

infrastructure elements to be addressed 

in a separate rulemaking. The 

Commenter contends that EPA ‘‘does 

not have the authority to approve some 

provisions of a SIP while deferring 

action on other mandatory provisions 

once the 12-month mandatory 

determination deadline to act on an 

administratively complete SIP submittal 

has run.’’ The Commenter asserts that 

because Tennessee has withdrawn the 

‘‘good neighbor’’ provisions of its SIP 

submittal, the submittal ‘‘fails to include 

adequate provisions ‘prohibiting* * * 

any source or other type of emissions 

activity within the State from emitting 

any air pollutant in amounts which will 

contribute significantly to 

nonattainment, or interfere with 

maintenance by, any other State’ with 

respect to the 2008 8-hour ozone 

NAAQS.’’ Therefore, the Commenter 

concludes, ‘‘EPA is required to 

disapprove the ‘good neighbor’ portions 

of the Tennessee SIP.’’ The Commenter 

asserts that ‘‘[s]ince the statutory 

deadline has past under which EPA is 

required to act on the 2008 8-hour ozone 

NAAQS SIP submittals, EPA has no 

authority to indefinitely postpone ruling 

on all the required infrastructure SIP 

elements, including the 110(a)(2)(D)(i)(I) 

portions of Tennessee’s SIP submittal.’’ 

The Commenter asserts that this 

approach is consistent with the logic 

espoused in an October 17, 2012, court 

order granting partial summary 

judgment to the plaintiffs in the case 

WildEarth Guardians v. Jackson, Case 

No. 11–CV–5651 YGR. 

Response 5: As an initial matter, EPA 

does not agree with the Commenter that 

it is prohibited from acting on portions 

of an infrastructure SIP submission on 

an element by element basis, or in 

whatever combination of elements that 


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may be appropriate in a given action. As 

noted above, the language which 

Congress ultimately included in section 

110(k) allowing EPA to approve a plan 

in full, disapprove it in full, or approve 

it in part and disapprove it in part was 

added to overrule the portion of the 

decision Abramowitz v. EPA, 832 F. 2d 

1071 (9th Cir. 1987), which held that 

EPA could not approve individual 

measures in a plan submission without 

either approving or disapproving the 

plan as a whole. See S. Rep. No. 101– 

228 (1989), reprinted at 1990 

U.S.C.C.A.N. 3385, 3402. 

Further, the Commenter appears to 

misunderstand what actions EPA is now 

taking. EPA does not intend to 

‘‘indefinitely postpone’’ action with 

respect to the other required elements of 

Tennessee’s infrastructure SIP 

submission for the 2008 8-hour ozone 

NAAQS. In the December 3, 2012, 

supplemental proposal, EPA explained 

that it had previously proposed 

approval, on August 22, 2012, for the 

majority of other sections of Tennessee’s 

2008 8-hour ozone infrastructure SIP 

submission relevant to the applicable 

elements of section 110(a)(2). See 77 FR 

50651. EPA is today finalizing its 

proposed approval of the infrastructure 

SIP submission for those other elements. 

Notably, the Commenter did not 

comment on the timing of EPA’s action 

with respect to these other sections of 

the Tennessee 2008 8-hour ozone 

infrastructure SIP submission at the 

time EPA proposed action on those 

sections. Therefore, the Commenter’s 

concerns regarding the timing of EPA’s 

action on these other elements are not 

properly raised in comments to the 

December 3, 2012, rulemaking which 

was limited to the PSD elements 

contained sections 110(a)(2)(C) and (J), 

and prong 3 of 110(a)(2)(D)(i). 

In addition, EPA notes that the 

October 17, 2012, court order referenced 

by the Commenter was subsequently 

amended by the court on December 7, 

2012, to extend EPA’s deadline for 

action on the Tennessee submittal 

through March 4, 2013. In that amended 

order, the court also clarified that it 

intended EPA to act on Tennessee’s 

October 19, 2009, as revised/withdrawn 

in part on July 3, 2012. The court 

specifically explained in the December 

7, 2012, amended order that ‘‘EPA is 

being ordered to assess the remaining 

submissions, i.e., the revised SIP from 

Kentucky and the non-withdrawn 

portion of the Tennessee SIP.’’ 

(emphasis in the original). Today’s final 

action, approving in part and 

conditionally approving in part 

Tennessee’s infrastructure SIP 

submission, in conjunction with the 

aforementioned determination not to 

issue a finding of failure to submit for 

section 110(a)(2)(D)(i)(I) at this time, 

consistent with the decision in EME 

Homer City, fully satisfy the Agency’s 

obligations under the December 7, 2012, 

court order in WildEarth Guardians v. 

Jackson, with respect to the Tennessee 

SIP submittal at issue. 

Comment 6: One Commenter argued 

that EPA should disapprove the SIP 

submission from Tennessee with respect 

to section 110(a)(2)(D)(i) for the 2008 

ozone NAAQS because ‘‘EPA’s own 

modeling conducted in support of the 

Cross State Air Pollution Rule 

* * *identified Tennessee as a state 

which contributes at least one percent of 

the 2008 8-hour ozone NAAQS to 

Maryland’s nonattainment.’’ Thus, the 

Commenter argued that EPA’s ‘‘delay in 

disapproving’’ the submission would 

adversely impact the ability of the State 

of Maryland to provide for attainment of 

the 2008 ozone NAAQS within that 

state, consistent with the statutory 

schedule for attainment of the NAAQS. 

Response 6: EPA acknowledges the 

Commenter’s concern that interstate 

transport of ozone and ozone precursors 

from upwind states to downwind states 

may have adverse consequences on the 

ability of downwind areas to attain the 

NAAQS in a timely fashion. It is for this 

reason that EPA attempted, through the 

Cross State Air Pollution Rule (CSAPR), 

to address emissions found to contribute 

significantly to nonattainment of, or 

interfere with maintenance of, the 1997 

ozone NAAQS. The modeling done for 

CSAPR, however, did not address the 

2008 ozone NAAQS and EPA did not, 

in the CSAPR itself or in the modeling 

done during development of the rule, 

draw any conclusions regarding 

interstate transport with respect to the 

2008 ozone NAAQS. Moreover, the D.C. 

Circuit, in its recent decision vacating 

the CSAPR, held that states are not 

required to submit SIPs addressing the 

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

until EPA has quantified their obligation 

under that provision. See EME Homer 

City, 696 F.3d 7 (D.C. Cir. 2012). The 

EME Homer City decision was issued in 

August of 2012, and on January 24, 

2013, the court denied all petitions for 

rehearing. At this time, however, the 

deadline for asking the Supreme Court 

to review the D.C. Circuit’s decision has 

not passed and the United States has not 

yet decided whether to seek further 

appeal. In the mean time, and unless the 

EME Homer City decision is reversed or 

otherwise modified, EPA intends to act 

in accordance with the D.C. Circuit’s 

opinion. 

Finally, as the EME Homer City 

decision establishes that the Tennessee 

110(a)(2)(D)(i)(I) SIP submission was 

optional, Tennessee remains free not to 

make such a SIP submission or to 

withdraw such a submission without 

penalty. Moreover, EPA has no 

authority to disapprove an 

infrastructure SIP submission which is 

no longer pending before the Agency or 

to find that a state failed to submit a SIP 

submission to meet the requirements of 

section 110(a)(2)(D)(i)(I) at this time 

under the EME Homer City decision. 

III. This Action 

In this rulemaking, EPA is taking final 

action to approve Tennessee’s 

infrastructure submission as 

demonstrating that the State meets the 

applicable requirements of sections 

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

2008 8-hour ozone NAAQS, with the 

exception of sections 110(a)(2)(C), prong 

3 of 110(a)(2)(D)(i), and 110(a)(2)(J) 

pertaining to PSD increments, and the 

portion of section 110(a)(2)(E)(ii) 

pertaining to section 128(a)(1) 

requirements. EPA is taking no action 

with respect to section 110(a)(2)(D)(i)(I) 

for the 2008 ozone NAAQS in this 

rulemaking because no such action is 

required at this time for this State. EPA 

will be taking action on 

110(a)(2)(D)(i)(I), if required, in a 

separate future action. 

With respect to section 110(a)(2)(E)(ii) 

specifically pertaining to section 

128(a)(1) requirements, EPA is finalizing 

a conditional approval for this portion 

of Tennessee’s infrastructure SIP 

submission for the 2008 8-hour ozone 

NAAQS. 

Today’s final action to conditionally 

approve of the portion of element 

110(a)(2)(E)(ii) related to the section 

128(a)(1) requirements is based upon a 

March 28, 2012, commitment letter 

submitted by Tennessee to EPA. 

Tennessee’s March 28, 2012, letter can 

be accessed at www.regulations.gov 

using Docket ID No. EPA–R04–OAR– 

2011–0353. Through this letter, 

Tennessee committed to adopt specific 

enforceable measures to address current 

deficiencies in its SIP related to section 

128(a)(1) requirements. This letter of 

commitment meets the requirements of 

section 110(k)(4) of the CAA, and as 

such, EPA is relying upon this 

commitment to conditionally approve 

section 110(a)(2)(E)(ii) as it relates to the 

requirements of section 128(a)(1) of the 

CAA. For more information, see EPA’s 

proposal for today’s rulemaking. See 77 

FR 50651. EPA has previously relied 

upon Tennessee’s March 28, 2012, 

commitment to conditionally approve 

section 110(a)(2)(E)(ii) as it relates to the 

section 128(a)(1) for purposes of the 

1997 8-hour ozone NAAQS. See 77 FR 


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9As described in the response to comment 1 in 

Section II above, EPA does not presently view 

section 110(a)(2)(D)(i)(I) (significant contribution to 

nonattainment prong and interference with 

maintenance prong) for the 2008 8-hour Ozone 

NAAQS, as a ‘‘required submission’’ based upon 

the opinion of the D.C. Circuit in the EME Homer 

case. 

42997 July 23, 2012. Pursuant to that 

earlier conditional approval, Tennessee 

is committed to providing EPA with the 

specified SIP revision by no later than 

July 23, 2013. 

Accordingly, for purposes of today’s 

conditional approval of section 

110(a)(2)(E)(ii) as it relates to the 

requirements of section 128(a)(1), 

Tennessee must submit to EPA by July 

23, 2013 (within one year from the date 

of publication for the final rule that EPA 

published on July 23, 2012, for the 1997 

8-hour ozone NAAQS), a SIP revision 

adopting the specific enforceable 

measures related to CAA section 

128(a)(1) as described in the State’s 

commitment letter described above. If 

the State fails to submit this promised 

SIP revision by July 23, 2013, today’s 

conditional approval will automatically 

become a disapproval on that date and 

EPA will issue a finding of disapproval. 

With respect to the PSD requirements 

of elements 110(a)(2)(C), prong 3 of 

110(a)(2)(D)(i) and 110(a)(2)(J) for the 

2008 8-hour ozone NAAQS, EPA 

published a supplemental proposal to 

conditionally approve Tennessee’s 

infrastructure SIP submission, based 

upon the October 4, 2012, conditional 

approval request related to these 

elements for the 2008 8-hour ozone 

NAAQS. See 77 FR 71568. As described 

in the supplemental proposal, on 

October 4, 2012, Tennessee submitted a 

request for conditional approval of 

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

110(a)(2)(D)(i), and 110(a)(2)(J) as they 

relate to PSD requirements and 

committed to address the SIP 

deficiencies by submitting specific 

enforceable SIP revisions to address 

PM2.5 PSD increments within one year. 

This commitment letter meets the 

requirements of section 110(k)(4) of the 

CAA. Tennessee’s October 4, 2012, 

letter can be accessed at 

www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2012–0237. 

Today’s action finalizes conditional 

approval of the infrastructure SIP 

submission for these sections of section 

110(a)(2), based upon a commitment by 

Tennessee to submit the necessary SIP 

revisions to address PM2.5 PSD 

increments. If the State fails to submit 

these promised SIP revisions by March 

6, 2014 today’s conditional approval 

will automatically become a disapproval 

on that date and EPA will issue a 

finding of disapproval. 

IV. Final Action 

EPA is taking final action to approve 

Tennessee’s infrastructure submission, 

provided to EPA on October 19, 2009, 

because it addresses the required 

infrastructure elements for the 2008 

8-hour ozone NAAQS with exception of 

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

110(a)(2)(D)(i), and 110(a)(2)(J) as they 

relate to PSD requirements, section 

110(a)(2)(E)(ii) as it relates to section 

128(a)(1) requirements, and section 

110(a)(2)(D)(i)(I) as it relates to interstate 

transport.9 With the exceptions noted 

above 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 sections 110(a)(2)(C), 

prong 3 of 110(a)(2)(D)(i), and 

110(a)(2)(J) as they relate to PSD 

requirements, EPA is taking final action 

to conditionally approve Tennessee’s 

infrastructure SIP in part, based on an 

October 4, 2012, commitment that TDEC 

will adopt specific enforceable measures 

related to PSD increments and submit 

these revisions as a SIP submission to 

EPA for approval into the Tennessee’s 

SIP by March 6, 2014. 

With respect to section 110(a)(2)(E)(ii) 

related to section 128(a)(1) 

requirements, EPA is taking final action 

to conditionally approve Tennessee’s 

infrastructure SIP in part, based on a 

March 28, 2012, commitment that TDEC 

will adopt specific enforceable measures 

and submit these as a SIP submission to 

EPA for approval into the Tennessee’s 

SIP by July 23, 2013, to address the 

applicable portions of section 128(a)(1). 

If the State fails to submit these 

promised SIP revisions by the 

applicable dates described above, 

today’s conditional approval of 

Tennessee’s infrastructure SIP for the 

2008 8-hour ozone NAAQS will 

automatically be disapproved for the 

element or elements that the state fails 

to address on that date and EPA will 

issue a corresponding finding of 

disapproval. 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this 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 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 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. 

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 


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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). 

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 May 6, 2013. 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, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: February 27, 2013. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart RR—Tennessee 

■ 2. Section 52.2219 is amended by 

adding paragraphs (c) and (d) to read as 

follows: 

§ 52.2219 Conditional approval. 

* * * * * 

(c) Conditional Approval—Submittal 

from the State of Tennessee, through the 

Department of Environment and 

Conservation (TDEC), dated October 4, 

2012, to address the Clean Air Act 

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

110(a)(2)(D)(i), and 110(a)(2)(J) for the 

2008 8-hour Ozone National Ambient 

Air Quality Standards. EPA is 

conditionally approving TDEC’s 

submittal with respect to the PSD 

requirements of CAA sections 

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

and 110(a)(2)(J), specifically related to 

the adoption of enforceable provisions 

for PSD increments as detailed in 

TDEC’s October 4, 2012, commitment 

letter. Tennessee must submit to EPA by 

March 6, 2014, a SIP revision adopting 

specific enforceable measures related to 

PSD increments as described in the 

State’s letter of commitment. 

(d) Conditional Approval—Submittal 

from the State of Tennessee, through the 

Department of Environment and 

Conservation (TDEC), dated October 19, 

2009, to address the Clean Air Act 

(CAA) section 110(a)(2)(E)(ii) for the 

2008 8-hour Ozone National Ambient 

Air Quality Standards. With respect to 

CAA section 110(a)(2)(E)(ii), specifically 

related to the adoption of enforceable 

measures contained in CAA section 

128(a)(1), EPA published in the Federal 

Register a final rulemaking to 

conditionally approve TDEC’s March 

28, 2012, commitment on July 23, 2012. 

Tennessee must submit to EPA by July 

23, 2013, SIP revisions adopting specific 

enforceable measures related to CAA 

sections 128(a)(1) as described in the 

State’s letter of commitment. 

■ 3. Section 52.2220(e) is amended by 

adding a new entry ‘‘110(a)(1) and (2) 

Infrastructure Requirements for the 2008 

8-Hour Ozone National Ambient Air 

Quality Standards’’ at the end of the 

table to read as follows: 

§ 52.2220 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED TENNESSEE NON-REGULATORY PROVISIONS

Name of nonregulatory SIP provision 

Applicable 

geographic or 

nonattainment 

area 

State 

effective 

date 

EPA approval date Explanation 

* * * * * * * 

110(a)(1) and (2) Infrastructure Requirements for the 2008 8-Hour 

Ozone National Ambient Air Quality 

Standards.

Tennessee ... 10/19/2009 3/6/2013 [Insert citation of 

publication].

With the exception of section 

110(a)(2)(D)(i)(I) concerning interstate 

transport; the portions of sections 

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

110(a)(2)(D)(i), and 110(a)(2)(J) related to PSD , which are being conditionally approved; and section 

110(a)(2)(E)(ii) as it relates to section 

128(a)(1), which is being conditionally 

approved. 


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[FR Doc. 2013–05112 Filed 3–5–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 60 and 63 

[EPA–HQ–OAR–2008–0708, FRL–9756–4] 

RIN 2060–AQ58 

National Emission Standards for 

Hazardous Air Pollutants for 

Reciprocating Internal Combustion 

Engines; New Source Performance 

Standards for Stationary Internal 

Combustion Engines 

Correction 

In rule document 2013–01288, 

appearing on pages 6674–6724 in the 

issue of Wednesday, January 30, 2013, 

make the following corrections: 

§ 63.6655 [Corrected] 

■ 1. On page 6708, the heading in Table 

2c to Subpart ZZZZ of Part 63 is 

corrected read as follows: 

Table 2c to Subpart ZZZZ of Part 63. 

Requirements for Existing Compression 

Ignition Stationary RICE Located at a 

Major Source of HAP Emissions and 

Existing Spark Ignition Stationary RICE 

≤500 HP Located at a Major Source of 

HAP Emissions 

■ 2. On page 6708, in the first column 

of Table 2c to Subpart ZZZZ of Part 63, 

the entry reading ‘‘4. Non-Emergency, 

non-black start CI stationary RICE 

300>HP≤500.’’ is corrected to read ‘‘4. 

Non-Emergency, non-black start CI 

stationary RICE 300<HP≤500.’’ 

■ 3. On page 6709, the heading in Table 

2c to Subpart ZZZZ of Part 63 is 

corrected read as follows: 

Table 2c to Subpart ZZZZ of Part 63. 

Requirements for Existing Compression 

Ignition Stationary RICE Located at a 

Major Source of HAP Emissions and 

Existing Spark Ignition Stationary RICE 

≤500 HP Located at a Major Source of 

HAP Emissions—Continued 

[FR Doc. C1–2013–01288 Filed 3–5–13; 8:45 am] 

BILLING CODE 1505–01–D 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 136 

[EPA–HQ–OW–2010–0192; FRL–9787–7] 

Guidelines Establishing Test 

Procedures for the Analysis of 

Pollutants Under the Clean Water Act; 

Analysis and Sampling Procedures; 

Notice 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of final decision. 

SUMMARY: EPA discussed, but did not 

propose, a new method, ASTM D7575, 

for oil and grease in the 2010 proposed 

Methods Update Rule (MUR). Oil and 

grease is a method-defined parameter. 

That is, the nature and amount of 

material determined by the method is 

defined in terms of the method. EPA 

subsequently published a Notice of Data 

Availability (NODA) on this method 

that provided new data and requested 

comment on whether and how EPA 

should approve the method in Part 136 

as an alternative oil and grease method. 

This document provides EPA’s final 

decision on its reconsideration of this 

method. 

DATES: March 6, 2013. 

FOR FURTHER INFORMATION CONTACT: Jan 

Matuszko, Office of Science and 

Technology, Office of Water (4303–T), 

Environmental Protection Agency, 1200 

Pennsylvania Avenue NW.; Washington, 

DC 20460; telephone number: 202–566– 

1035; fax number: 202–566–1053; email 

address: matuszko.jan@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. CWA Analytical Methods and 

Limited Use Alternate Test Procedures 

(ATP) Program 

EPA establishes test procedures (also 

referred to as analytical methods) 

codified in 40 CFR Part 136 under its 

authority in section 304(h) of the CWA 

to promulgate guidelines establishing 

test procedures for the analysis of 

pollutants. EPA’s regulations provide 

that, when EPA has promulgated a test 

procedure for analysis of a specific 

pollutant in 40 CFR Part 136, an NPDES 

permittee must use an approved test 

procedure for the specific pollutant 

when measuring the pollutant for an 

application submitted to EPA or to a 

State with an approved NPDES program 

and for reports required to be submitted 

by dischargers under the NPDES 

program. See 40 CFR § 136.1(a). This 

approach simplifies the permitting 

process for hundreds of thousands of 

NPDES and indirect discharging 

permittees and permitting authorities. In 

the absence of an approved test 

procedure for a specific pollutant (or 

when an approved test procedure does 

not work in a specific matrix, e.g., 

because of a matrix interference), 

generally, a permit applicant may use 

any suitable method but must provide 

the permitting authority a description of 

the method for evaluation of its 

suitability. See 40 CFR 122.21(g)(7). 

However, 40 CFR Part 136 also 

recognizes that new technologies and 

approaches are constantly being 

developed, including methods for 

pollutants for which EPA already has an 

approved test procedure. As such, Part 

136.5 allows for use of an alternate 

method for a specific pollutant or 

parameter in a regulated CWA matrix 

that is different from the approved test 

procedure (i.e., limited use approval). 

Requests for such uses, along with 

supporting data, are made to the 

applicable Regional Alternate Test 

Procedure (ATP) Coordinator for 

consideration and approval. 

B. Oil and Grease 

Unlike many parameters, oil and 

grease is not a unique chemical entity, 

but is a mixture of chemical species that 

varies from source to source. Common 

substances that may contribute to oil 

and grease include petroleum based 

compounds such as fuels, motor oil, 

lubricating oil, soaps, waxes, and 

hydraulic oil and vegetable based 

compounds such as cooking oil and 

other fats. Oil and grease is defined by 

the method used to measure it (i.e., it is 

a method-defined analyte). The CWA 

defines oil and grease as a conventional 

parameter and hundreds of thousands of 

NPDES permits and indirect discharging 

permits contain oil and grease 

numerical limits. Currently, Part 136 

lists two analytical methodologies for 

the measurement of oil and grease in 

such discharge permits. Permittees have 

been using EPA Method 1664A to 

measure compliance with such 

discharge limits. Method 1664A is a 

liquid/liquid extraction (LLE), 

gravimetric procedure that employs 

normal hexane (n-hexane) as the 

extraction solvent that is applicable for 

measuring oil and grease in 

concentrations from 5 mg/L to 1,000 

mg/L. This method also allows the use 

of solid-phase extraction (SPE) provided 

that the results obtained by SPE are 

equivalent to the results obtained by 

LLE. 

C. Method-Defined Analytes 

The measurement results obtained for 

a method-defined analyte are both 


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