Federal Register / Vol. 81, No. 47 / Thursday, March 10, 2016 / Proposed Rules 12627 

DATES: Comments must be received on 

or before April 11, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2014–0658 at http:// 

www.regulations.gov or via email to 

Aburano.Douglas@epa.gov. For 

comments submitted at Regulations.gov, 

follow the online instructions for 

submitting comments. Once submitted, 

comments cannot be edited or removed 

from Regulations.gov. For either manner 

of submission, EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e. 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, please contact the person 

identified in the FOR FURTHER

INFORMATION CONTACT section. For the 

full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

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

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Edward Doty, Air Programs Branch 

(AR–18J), Environmental Protection 

Agency, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 886–6057, 

Doty.Edward@epa.gov. 

SUPPLEMENTARY INFORMATION: In the 

Rules and Regulations section of this 

Federal Register, EPA is approving 

Ohio’s SIP revision submittal as a direct 

final rule without prior proposal 

because the Agency views this as a 

noncontroversial submittal and 

anticipates no adverse comments. A 

detailed rationale for the approval is set 

forth in the direct final rule. If no 

adverse comments are received in 

response to this rule, no further activity 

is contemplated. If EPA receives adverse 

comments, the direct final rule will be 

withdrawn and all public comments 

received will be addressed in a 

subsequent final rule based on this 

proposed rule. EPA will not institute a 

second comment period. Any parties 

interested in commenting on this action 

should do so at this time. Please note 

that, if EPA receives adverse comment 

on an amendment, paragraph, or section 

of this rule and if that provision may be 

severed from the remainder of the rule, 

EPA may adopt as final those provisions 

of the rule that are not the subject of an 

adverse comment. For additional 

information see the direct final rule, 

which is located in the Rules section of 

this Federal Register. 

Dated: February 26, 2016. 

Robert A. Kaplan, 

Acting Regional Administrator, Region 5. 

[FR Doc. 2016–05272 Filed 3–9–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2015–0154; FRL–9943–44– 

Region 4] 

Air Quality Plans; Tennessee; 

Infrastructure Requirements for the 

2010 Sulfur Dioxide National Ambient 

Air Quality Standard 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (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), on March 13, 

2014, for inclusion into the Tennessee 

SIP. This proposal pertains to the 

infrastructure requirements of the Clean 

Air Act (CAA or Act) for the 2010 1- 

hour sulfur dioxide (SO2) national 

ambient air quality standard (NAAQS). 

The CAA requires that each state adopt 

and submit a SIP for the 

implementation, maintenance and 

enforcement of each NAAQS 

promulgated by EPA, which is 

commonly referred to as an 

‘‘infrastructure SIP submission.’’ TDEC 

certified that the Tennessee SIP contains 

provisions that ensure the 2010 1-hour 

SO2 NAAQS is implemented, enforced, 

and maintained in Tennessee. EPA is 

proposing to determine that portions of 

Tennessee’s infrastructure SIP 

submission, provided to EPA on March 

13, 2014, satisfy certain required 

infrastructure elements for the 2010 1- 

hour SO2 NAAQS. 

DATES: Written comments must be 

received on or before April 11, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2015–0154 at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

The EPA may publish any comment 

received to its public docket. Do not 

submit electronically any information 

you consider to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

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

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

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

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Michele Notarianni, Air Regulatory 

Management Section, Air Planning and 

Implementation Branch, Air, Pesticides 

and Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Ms. 

Notarianni can be reached via electronic 

mail at notarianni.michele@epa.gov or 

via telephone at (404) 562–9031. 

Table of Contents 

I. Background and Overview 

II. What elements are required under sections 

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

III. What is EPA’s approach to the review of 

infrastructure SIP submissions? 

IV. What is EPA’s analysis of how Tennessee 

addressed the elements of the sections 

110(a)(1) and (2) ‘‘Infrastructure’’ 

provisions? 

V. Proposed Action 

VI. Statutory and Executive Order Reviews 

I. Background and Overview 

On June 22, 2010 (75 FR 35520), EPA 

promulgated a revised primary SO2

NAAQS to an hourly standard of 75 

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

average of the annual 99th percentile of 

1-hour daily maximum concentrations. 

Pursuant to section 110(a)(1) of the 

CAA, states are required to submit SIPs 

meeting the applicable requirements of 

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

promulgation of a new or revised 

NAAQS or within such shorter period 

as EPA may prescribe. Section 110(a)(2) 

requires states to address basic SIP 

elements such as requirements for 

monitoring, basic program requirements 

and legal authority that are designed to 

assure attainment and maintenance of 

the NAAQS. States were required to 

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12628 Federal Register / Vol. 81, No. 47 / Thursday, March 10, 2016 / Proposed Rules 

1 In these infrastructure SIP submissions states 

generally certify evidence of compliance with 

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

combination of state regulations and statutes, some 

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

appropriate for demonstrating compliance with 

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

rulemaking, unless otherwise indicated, the term 

‘‘Tennessee Air Pollution Control Regulations’’ or 

‘‘TAPCR XXXX–XX–XX’’ indicates that the cited 

regulation has been approved into Tennessee’s 

federally-approved SIP. The term ‘‘Tennessee Air 

Quality Act’’ or ‘‘Tennessee Code Annotated’’ or 

‘‘TCA XX–XX–XXXXX’’ indicates cited Tennessee 

State statutes, which are not a part of the SIP unless 

otherwise indicated. 

2Two elements identified in section 110(a)(2) are 

not governed by the three year submission deadline 

of section 110(a)(1) because SIPs incorporating 

necessary local nonattainment area controls are not 

due within three years after promulgation of a new 

or revised NAAQS, but rather are due at the time 

the nonattainment area plan requirements are due 

pursuant to section 172. These requirements are: (1) 

Submissions required by section 110(a)(2)(C) to the 

extent that subsection refers to a permit program as 

required in part D, title I of the CAA; and (2) 

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

pertain to the nonattainment planning requirements 

of part D, title I of the CAA. Today’s proposed 

rulemaking does not address infrastructure 

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

nonattainment planning requirements of 

110(a)(2)(C). 

3This rulemaking only addresses requirements 

for this element as they relate to attainment areas. 

4As mentioned above, this element is not 

relevant to today’s proposed rulemaking. 

5For example: Section 110(a)(2)(E)(i) provides 

that states must provide assurances that they have 

adequate legal authority under state and local law 

to carry out the SIP; section 110(a)(2)(C) provides 

that states must have a SIP-approved program to 

address certain sources as required by part C of title 

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

states must have legal authority to address 

submit such SIPs for the 2010 1-hour 

SO2 NAAQS to EPA no later than June 

22, 2013.1

Today’s action is proposing to 

approve Tennessee’s infrastructure SIP 

submission for certain applicable 

requirements of the 2010 1-hour SO2

NAAQS. With respect to the interstate 

transport requirements of section 

110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, 

and 4), EPA is not proposing any action 

today regarding these requirements. For 

the aspects of Tennessee’s submittal 

proposed for approval today, EPA notes 

that the Agency is not approving any 

specific rule, but rather proposing that 

Tennessee’s already approved SIP meets 

certain CAA requirements. 

II. What elements are required under 

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

Section 110(a) of the CAA requires 

states to submit SIPs to provide for the 

implementation, maintenance, and 

enforcement of a new or revised 

NAAQS within three years following 

the promulgation of such NAAQS, or 

within such shorter period as EPA may 

prescribe. Section 110(a) imposes the 

obligation upon states to make a SIP 

submission to EPA for a new or revised 

NAAQS, but the contents of that 

submission may vary depending upon 

the facts and circumstances. In 

particular, the data and analytical tools 

available at the time the state develops 

and submits the SIP for a new or revised 

NAAQS affects the content of the 

submission. The contents of such SIP 

submissions may also vary depending 

upon what provisions the state’s 

existing SIP already contains. 

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 SIP elements such as 

requirements for monitoring, basic 

program requirements and legal 

authority that are designed to assure 

attainment and maintenance of the 

NAAQS. The requirements are 

summarized below and in EPA’s 

September 13, 2013, memorandum 

entitled ‘‘Guidance on Infrastructure 

State Implementation Plan (SIP) 

Elements under Clean Air Act Sections 

110(a)(1) and 110(a)(2).’’ 2

• 110(a)(2)(A): Emission Limits and 

Other Control Measures 

• 110(a)(2)(B): Ambient Air Quality 

Monitoring/Data System 

• 110(a)(2)(C): Programs for 

Enforcement of Control Measures and 

for Construction or Modification of 

Stationary Sources 3

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

Pollution Transport 

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

Abatement and International Air 

Pollution 

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

Authority, Conflict of Interest, and 

Oversight of Local Governments and 

Regional Agencies 

• 110(a)(2)(F): Stationary Source 

Monitoring and Reporting 

• 110(a)(2)(G): Emergency Powers 

• 110(a)(2)(H): SIP Revisions 

• 110(a)(2)(I): Plan Revisions for 

Nonattainment Areas 4

• 110(a)(2)(J): Consultation with 

Government Officials, Public 

Notification, and Prevention of 

Significant Deterioration (PSD) and 

Visibility Protection 

• 110(a)(2)(K): Air Quality Modeling 

and Submission of Modeling Data 

• 110(a)(2)(L): Permitting fees 

• 110(a)(2)(M): Consultation and 

Participation by Affected Local 

Entities 

III. What is EPA’s approach to the 

review of infrastructure SIP 

submissions? 

EPA is acting upon the SIP 

submission from Tennessee that 

addresses the infrastructure 

requirements of CAA sections 110(a)(1) 

and 110(a)(2) for the 2010 1-hour SO2

NAAQS. The requirement for states to 

make a SIP submission of this type 

arises out of CAA section 110(a)(1). 

Pursuant to section 110(a)(1), states 

must make SIP submissions ‘‘within 3 

years (or such shorter period as the 

Administrator may prescribe) after the 

promulgation of a national primary 

ambient air quality standard (or any 

revision thereof),’’ and these SIP 

submissions are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

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

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

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

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of title I of the 

CAA, ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 

visibility protection requirements of 

CAA section 169A, and nonattainment 

new source review (NNSR) permit 

program submissions to address the 

permit requirements of CAA, title I, part 

D. 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submissions, and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submissions. The list of required 

elements provided in section 110(a)(2) 

contains a wide variety of disparate 

provisions, some of which pertain to 

required legal authority, some of which 

pertain to required substantive program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.5 EPA 

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Federal Register / Vol. 81, No. 47 / Thursday, March 10, 2016 / Proposed Rules 12629 

emergencies as well as contingency plans that are 

triggered in the event of such emergencies. 

6See, e.g., ‘‘Rule To Reduce Interstate Transport 

of Fine Particulate Matter and Ozone (Clean Air 

Interstate Rule); Revisions to Acid Rain Program; 

Revisions to the NOX SIP Call; Final Rule,’’ 70 FR 

25162, at 25163–65 (May 12, 2005) (explaining 

relationship between timing requirement of section 

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

7EPA notes that this ambiguity within section 

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

subparts of part D set specific dates for submission 

of certain types of SIP submissions in designated 

nonattainment areas for various pollutants. Note, 

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

for submission of emissions inventories for the 

ozone NAAQS. Some of these specific dates are 

necessarily later than three years after promulgation 

of the new or revised NAAQS. 

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

Implementation Plans; New Mexico; Revisions to 

the New Source Review (NSR) State 

Implementation Plan (SIP); Prevention of 

Significant Deterioration (PSD) and Nonattainment 

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

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

approving the structural PSD elements of the New 

Mexico SIP submitted by the State separately to 

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

rule), and ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; New Mexico; 

Infrastructure and Interstate Transport 

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

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

infrastructure SIP for the 2006 PM2.5 NAAQS). 

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

through the Tennessee Department of Environment 

and Conservation, made a SIP revision to EPA 

demonstrating that the State meets the requirements 

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

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

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

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

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

42997), EPA took separate proposed and final 

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

SIP elements of Tennessee’s December 14, 2007, 

submittal. 

10For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of 

new monitors to measure ambient levels of that new 

indicator species for the new NAAQS. 

therefore believes that while the timing 

requirement in section 110(a)(1) is 

unambiguous, some of the other 

statutory provisions are ambiguous. In 

particular, EPA believes that the list of 

required elements for infrastructure SIP 

submissions provided in section 

110(a)(2) contains ambiguities 

concerning what is required for 

inclusion in an infrastructure SIP 

submission. 

The following examples of 

ambiguities illustrate the need for EPA 

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

section 110(a)(2) requirements with 

respect to infrastructure SIP 

submissions for a given new or revised 

NAAQS. One example of ambiguity is 

that section 110(a)(2) requires that 

‘‘each’’ SIP submission must meet the 

list of requirements therein, while EPA 

has long noted that this literal reading 

of the statute is internally inconsistent 

and would create a conflict with the 

nonattainment provisions in part D of 

title I of the Act, which specifically 

address nonattainment SIP 

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

pertains to nonattainment SIP 

requirements and part D addresses 

when attainment plan SIP submissions 

to address nonattainment area 

requirements are due. For example, 

section 172(b) requires EPA to establish 

a schedule for submission of such plans 

for certain pollutants when the 

Administrator promulgates the 

designation of an area as nonattainment, 

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

two years, or in some cases three years, 

for such designations to be 

promulgated.7 This ambiguity illustrates 

that rather than apply all the stated 

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

strict literal sense, EPA must determine 

which provisions of section 110(a)(2) 

are applicable for a particular 

infrastructure SIP submission. 

Another example of ambiguity within 

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

respect to infrastructure SIPs pertains to 

whether states must meet all of the 

infrastructure SIP requirements in a 

single SIP submission, and whether EPA 

must act upon such SIP submission in 

a single action. Although section 

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

plan’’ to meet these requirements, EPA 

interprets the CAA to allow states to 

make multiple SIP submissions 

separately addressing infrastructure SIP 

elements for the same NAAQS. If states 

elect to make such multiple SIP 

submissions to meet the infrastructure 

SIP requirements, EPA can elect to act 

on such submissions either individually 

or in a larger combined action.8

Similarly, EPA interprets the CAA to 

allow it to take action on the individual 

parts of one larger, comprehensive 

infrastructure SIP submission for a 

given NAAQS without concurrent 

action on the entire submission. For 

example, EPA has sometimes elected to 

act at different times on various 

elements and sub-elements of the same 

infrastructure SIP submission.9

Ambiguities within sections 110(a)(1) 

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

respect to infrastructure SIP submission 

requirements for different NAAQS. 

Thus, EPA notes that not every element 

of section 110(a)(2) would be relevant, 

or as relevant, or relevant in the same 

way, for each new or revised NAAQS. 

The states’ attendant infrastructure SIP 

submissions for each NAAQS therefore 

could be different. For example, the 

monitoring requirements that a state 

might need to meet in its infrastructure 

SIP submission for purposes of section 

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

different pollutants because the content 

and scope of a state’s infrastructure SIP 

submission to meet this element might 

be very different for an entirely new 

NAAQS than for a minor revision to an 

existing NAAQS.10

EPA notes that interpretation of 

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

EPA reviews other types of SIP 

submissions required under the CAA. 

Therefore, as with infrastructure SIP 

submissions, EPA also has to identify 

and interpret the relevant elements of 

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

these other types of SIP submissions. 

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

that attainment plan SIP submissions 

required by part D have to meet the 

‘‘applicable requirements’’ of section 

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

plan SIP submissions must meet the 

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

regarding enforceable emission limits 

and control measures and section 

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

resources and authority. By contrast, it 

is clear that attainment plan SIP 

submissions required by part D would 

not need to meet the portion of section 

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

program required in part C of title I of 

the CAA, because PSD does not apply 

to a pollutant for which an area is 

designated nonattainment and thus 

subject to part D planning requirements. 

As this example illustrates, each type of 

SIP submission may implicate some 

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

others. 

Given the potential for ambiguity in 

some of the statutory language of section 

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

believes that it is appropriate to 

interpret the ambiguous portions of 

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

in the context of acting on a particular 

SIP submission. In other words, EPA 

assumes that Congress could not have 

intended that each and every SIP 

submission, regardless of the NAAQS in 

question or the history of SIP 

development for the relevant pollutant, 

would meet each of the requirements, or 

meet each of them in the same way. 

Therefore, EPA has adopted an 

approach under which it reviews 

infrastructure SIP submissions against 

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

but only to the extent each element 

applies for that particular NAAQS. 

Historically, EPA has elected to use 

guidance documents to make 

recommendations to states for 

infrastructure SIPs, in some cases 

conveying needed interpretations on 

newly arising issues and in some cases 

conveying interpretations that have 

already been developed and applied to 

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12630 Federal Register / Vol. 81, No. 47 / Thursday, March 10, 2016 / Proposed Rules 

11EPA notes, however, that nothing in the CAA 

requires EPA to provide guidance or to promulgate 

regulations for infrastructure SIP submissions. The 

CAA directly applies to states and requires the 

submission of infrastructure SIP submissions, 

regardless of whether or not EPA provides guidance 

or regulations pertaining to such submissions. EPA 

elects to issue such guidance in order to assist 

states, as appropriate. 

12 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean 

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

Memorandum from Stephen D. Page, September 13, 

2013. 

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

make recommendations with respect to 

infrastructure SIP submissions to address section 

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

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

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

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

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

the uncertainty created by ongoing litigation, EPA 

elected not to provide additional guidance on the 

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

time. As the guidance is neither binding nor 

required by statute, whether EPA elects to provide 

guidance on a particular section has no impact on 

a state’s CAA obligations. 

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

include a new provision in an infrastructure SIP 

submission that contained a legal deficiency, such 

as a new exemption for excess emissions during 

SSM events, then EPA would need to evaluate that 

provision for compliance against the rubric of 

applicable CAA requirements in the context of the 

action on the infrastructure SIP. 

individual SIP submissions for 

particular elements.11 EPA most 

recently issued guidance for 

infrastructure SIPs on September 13, 

2013 (2013 Guidance). 12 EPA 

developed this document to provide 

states with up-to-date guidance for 

infrastructure SIPs for any new or 

revised NAAQS. Within this guidance, 

EPA describes the duty of states to make 

infrastructure SIP submissions to meet 

basic structural SIP requirements within 

three years of promulgation of a new or 

revised NAAQS. EPA also made 

recommendations about many specific 

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

relevant in the context of infrastructure 

SIP submissions.13 The guidance also 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). 

Significantly, EPA interprets sections 

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

infrastructure SIP submissions need to 

address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submission for compliance with the 

applicable statutory provisions of 

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

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

is a required element of section 

110(a)(2) for infrastructure SIP 

submissions. Under this element, a state 

must meet the substantive requirements 

of section 128, which pertain to state 

boards that approve permits or 

enforcement orders and heads of 

executive agencies with similar powers. 

Thus, EPA reviews infrastructure SIP 

submissions to ensure that the state’s 

implementation plan appropriately 

addresses the requirements of section 

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

2013 Guidance explains EPA’s 

interpretation that there may be a 

variety of ways by which states can 

appropriately address these substantive 

statutory requirements, depending on 

the structure of an individual state’s 

permitting or enforcement program (e.g., 

whether permits and enforcement 

orders are approved by a multi-member 

board or by a head of an executive 

agency). However they are addressed by 

the state, the substantive requirements 

of section 128 are necessarily included 

in EPA’s evaluation of infrastructure SIP 

submissions because section 

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

the state satisfy the provisions of section 

128. 

As another example, EPA’s review of 

infrastructure SIP submissions with 

respect to the PSD program 

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

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

structural PSD program requirements 

contained in part C and EPA’s PSD 

regulations. Structural PSD program 

requirements include provisions 

necessary for the PSD program to 

address all regulated sources and new 

source review (NSR) pollutants, 

including greenhouse gases (GHG). By 

contrast, structural PSD program 

requirements do not include provisions 

that are not required under EPA’s 

regulations at 40 CFR 51.166 but are 

merely available as an option for the 

state, such as the option to provide 

grandfathering of complete permit 

applications with respect to the 2012 

fine particulate matter (PM2.5) NAAQS. 

Accordingly, the latter optional 

provisions are types of provisions EPA 

considers irrelevant in the context of an 

infrastructure SIP action. 

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

however, EPA’s review of a state’s 

infrastructure SIP submission focuses 

on assuring that the state’s SIP meets 

basic structural requirements. For 

example, section 110(a)(2)(C) includes, 

inter alia, the requirement that states 

have a program to regulate minor new 

sources. Thus, EPA evaluates whether 

the state has an EPA-approved minor 

NSR program and whether the program 

addresses the pollutants relevant to that 

NAAQS. In the context of acting on an 

infrastructure SIP submission, however, 

EPA does not think it is necessary to 

conduct a review of each and every 

provision of a state’s existing minor 

source program (i.e., already in the 

existing SIP) for compliance with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs. 

With respect to certain other issues, 

EPA does not believe that an action on 

a state’s infrastructure SIP submission is 

necessarily the appropriate type of 

action in which to address possible 

deficiencies in a state’s existing SIP. 

These issues include: (i) Existing 

provisions related to excess emissions 

from sources during periods of startup, 

shutdown, or malfunction that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

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

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

discretion’’ that may be contrary to the 

CAA because they purport to allow 

revisions to SIP-approved emissions 

limits while limiting public process or 

not requiring further approval by EPA; 

and (iii) existing provisions for PSD 

programs that may be inconsistent with 

current requirements of EPA’s ‘‘Final 

NSR Improvement Rule,’’ 67 FR 80186 

(December 31, 2002), as amended by 72 

FR 32526 (June 13, 2007) (‘‘NSR 

Reform’’). Thus, EPA believes it may 

approve an infrastructure SIP 

submission without scrutinizing the 

totality of the existing SIP for such 

potentially deficient provisions and may 

approve the submission even if it is 

aware of such existing provisions.14 It is 

important to note that EPA’s approval of 

a state’s infrastructure SIP submission 

should not be construed as explicit or 

implicit re-approval of any existing 

potentially deficient provisions that 

relate to the three specific issues just 

described. 

EPA’s approach to review of 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submission is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

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

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

and every provision of a state’s existing 

SIP against all requirements in the CAA 

and EPA regulations merely for 

purposes of assuring that the state in 

question has the basic structural 

elements for a functioning SIP for a new 

or revised NAAQS. Because SIPs have 

grown by accretion over the decades as 

statutory and regulatory requirements 

under the CAA have evolved, they may 

include some outmoded provisions and 

historical artifacts. These provisions, 

while not fully up to date, nevertheless 

may not pose a significant problem for 

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

address specific existing SIP deficiencies related to 

the treatment of excess emissions during SSM 

events. See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revisions,’’ 74 FR 21639 

(April 18, 2011). 

16EPA has used this authority to correct errors in 

past actions on SIP submissions related to PSD 

programs. See ‘‘Limitation of Approval of 

Prevention of Significant Deterioration Provisions 

Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82536 (December 30, 2010). EPA has previously 

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

remove numerous other SIP provisions that the 

Agency determined it had approved in error. See, 

e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 

(June 27, 1997) (corrections to American Samoa, 

Arizona, California, Hawaii, and Nevada SIPs); 69 

FR 67062 (November 16, 2004) (corrections to 

California SIP); and 74 FR 57051 (November 3, 

2009) (corrections to Arizona and Nevada SIPs). 

17See, e.g., EPA’s disapproval of a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 

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

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

(final disapproval of such provisions). 

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

entitled, ‘‘State Implementation Plans: Response to 

Petition for Rulemaking; Restatement and Update of 

EPA’s SSM Policy Applicable to SIPs; Findings of 

Substantial Inadequacy; and SIP Calls to Amend 

Provisions Applying to Excess Emissions During 

Periods of Startup, Shutdown, and Malfunction.’’ 

See 80 FR 33840. 

the purposes of ‘‘implementation, 

maintenance, and enforcement’’ of a 

new or revised NAAQS when EPA 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

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

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance 

gives simpler recommendations with 

respect to carbon monoxide than other 

NAAQS pollutants to meet the visibility 

requirements of section 

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

monoxide does not affect visibility. As 

a result, an infrastructure SIP 

submission for any future new or 

revised NAAQS for carbon monoxide 

need only state this fact in order to 

address the visibility prong of section 

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

Finally, EPA believes that its 

approach with respect to infrastructure 

SIP requirements is based on a 

reasonable reading of sections 110(a)(1) 

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

other avenues and mechanisms to 

address specific substantive deficiencies 

in existing SIPs. These other statutory 

tools allow EPA to take appropriately 

tailored action, depending upon the 

nature and severity of the alleged SIP 

deficiency. Section 110(k)(5) authorizes 

EPA to issue a ‘‘SIP call’’ whenever the 

Agency determines that a state’s SIP is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or to otherwise 

comply with the CAA.15 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.16

Significantly, EPA’s determination that 

an action on a state’s infrastructure SIP 

submission is not the appropriate time 

and place to address all potential 

existing SIP deficiencies does not 

preclude EPA’s subsequent reliance on 

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

the basis for action to correct those 

deficiencies at a later time. For example, 

although it may not be appropriate to 

require a state to eliminate all existing 

inappropriate director’s discretion 

provisions in the course of acting on an 

infrastructure SIP submission, EPA 

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

among the statutory bases that EPA 

relies upon in the course of addressing 

such deficiency in a subsequent 

action.17

IV. What is EPA’s analysis of how 

Tennessee addressed the elements of 

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

‘‘Infrastructure’’ provisions? 

The Tennessee infrastructure 

submission addresses the provisions of 

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

below. 

1. 110(a)(2)(A) Emission Limits and 

Other Control Measures: Section 

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

implementation plan include 

enforceable emission limitations and 

other control measures, means, or 

techniques (including economic 

incentives such as fees, marketable 

permits, and auctions of emissions 

rights), as well as schedules and 

timetables for compliance, as may be 

necessary or appropriate to meet the 

applicable requirements. Several 

regulations within Tennessee’s SIP are 

relevant to air quality control 

regulations. The regulations described 

below include enforceable emission 

limitations and other control measures. 

SIP-approved Tennessee Air Pollution 

Control Regulations (TAPCR) 1200–03– 

03, Ambient Air Quality Standards, 

1200–03–04, Open Burning, 1200–03– 

06, Non-process Emission Standards, 

1200–03–07, Process Emission 

Standards, 1200–03–09, Construction 

and Operating Permits, 1200–03–14, 

Control of Sulfur Dioxide Emission, 

1200–03–19, Emission Standards and 

Monitoring Requirements for Additional 

Control Areas, 1200–03–21, General 

Alternate Emission Standards, and 

1200–03–24, Good Engineering Practice 

Stack Height Regulations, collectively 

establish enforceable emissions 

limitations and other control measures, 

means or techniques, for activities that 

contribute to SO2 concentrations in the 

ambient air, and provide authority for 

TDEC to establish such limits and 

measures as well as schedules for 

compliance to meet the applicable 

requirements of the CAA. Additionally, 

State statutes established in the 

Tennessee Air Quality Act and adopted 

in the Tennessee Code Annotated (TCA) 

section 68–201–105(a), Powers and 

duties of board—Notification of vacancy 

—Termination due to vacancy, provide 

the Tennessee Air Pollution Control 

Board and TDEC’s Division of Air 

Pollution Control the authority to take 

actions in support of this infrastructure 

element such as issue permits, 

promulgate regulations, and issue orders 

to implement the Tennessee Air Quality 

Act and the CAA, as relevant. EPA has 

made the preliminary determination 

that the provisions contained in these 

State regulations and State statute 

satisfy Section 110(a)(2)(A) for the 2010 

1-hour SO2 NAAQS in the State. 

In this action, EPA is not proposing to 

approve or disapprove any existing state 

provisions with regard to excess 

emissions during start up, shut down, 

and malfunction (SSM) operations at a 

facility. EPA believes that a number of 

states have SSM provisions which are 

contrary to the CAA and existing EPA 

guidance, ‘‘State Implementation Plans: 

Policy Regarding Excess Emissions 

During Malfunctions, Startup, and 

Shutdown’’ (September 20, 1999), and 

the Agency is addressing such state 

regulations in a separate action.18

Additionally, in this action, EPA is 

not proposing to approve or disapprove 

any existing state rules with regard to 

director’s discretion or variance 

provisions. EPA believes that a number 

of states have such provisions which are 

contrary to the CAA and existing EPA 

guidance (52 FR 45109 (November 24, 

1987)), and the Agency plans to take 

action in the future to address such state 

regulations. In the meantime, EPA 

encourages any state having a director’s 

discretion or variance provision which 

is contrary to the CAA and EPA 

guidance to take steps to correct the 

deficiency as soon as possible. 

2. 110(a)(2)(B) Ambient Air Quality 

Monitoring/Data System: Section 

110(a)(2)(B) requires SIPs to provide for 

establishment and operation of 

appropriate devices, methods, systems, 

and procedures necessary to (i) monitor, 

compile, and analyze data on ambient 

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19The annual network plans are approved by EPA 

in accordance with 40 CFR part 58, and, on 

occasion, proposed changes to the monitoring 

network are evaluated outside of the network plan 

approval process in accordance with 40 CFR part 

58. 

20Once EPA is in agreement with the proposed 

locations for the monitoring sites in Sullivan and 

Loudon Counties, the State is required to make the 

network plan updates available for public 

inspection and submit an addendum to its network 

plan for EPA approval in accordance with 40 CFR 

part 58. 

21More information concerning how the 

Tennessee infrastructure SIP submission currently 

meets applicable requirements for the PSD elements 

(110(a)(2)(C); (D)(i)(I), prong 3; and (J)) can be found 

in the technical support document in the docket for 

today’s rulemaking. 

air quality, and (ii) upon request, make 

such data available to the 

Administrator. TCA 68–201–105(b)(4) 

gives TDEC the authority to provide 

technical, scientific and other services 

as may be required to implement the 

provisions of the Tennessee Air Quality 

Act. Annually, states develop and 

submit to EPA for approval statewide 

ambient monitoring network plans 

consistent with the requirements of 40 

CFR parts 50, 53, and 58. The annual 

network plan involves an evaluation of 

any proposed changes to the monitoring 

network, includes the annual ambient 

monitoring network design plan, and 

includes a certified evaluation of the 

agency’s ambient monitors and auxiliary 

support equipment.19 On June 30, 2015, 

Tennessee submitted its most recent 

plan to EPA, which was approved by 

EPA on October 26, 2015, with the 

exception of two aspects—one related to 

a monitor for the SO2 nonattainment 

area in Sullivan County, and the other 

related to a monitor for ozone and fine 

particulate in Loudon County.20

Tennessee’s monitoring network plan 

can be accessed at www.regulations.gov 

using Docket ID No. EPA–R04–OAR– 

2015–0154. EPA has made the 

preliminary determination that 

Tennessee’s SIP and practices are 

adequate for the ambient air quality 

monitoring and data system related to 

the 2010 1-hour SO2 NAAQS. 

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

Enforcement of Control Measures and 

for Construction or Modification of 

Stationary Sources: This element 

consists of three sub-elements: 

enforcement, state-wide regulation of 

new and modified minor sources and 

minor modifications of major sources, 

and preconstruction permitting of major 

sources and major modifications in 

areas designated attainment or 

unclassifiable for the subject NAAQS as 

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

major source PSD program). TDEC’s 

2010 1-hour SO2 NAAQS infrastructure 

SIP submission cites a number of SIP 

provisions to address these 

requirements. EPA’s rationale for its 

proposed action regarding each subelement is described below. 

Enforcement: The following SIPapproved regulation provides TDEC 

with authority for enforcement of SO2

emission limits and control measures. 

TAPCR 1200–3–13–01, Violation 

Statement, states that, ‘‘Failure to 

comply with any of the provisions of 

these regulations shall constitute a 

violation thereof and shall subject the 

person or persons responsible therefore 

to any and all the penalties provided by 

law.’’ Also note, under TCA 68–201– 

116, Orders and assessments of 

damages and civil penalty—Appeal, the 

State’s Technical Secretary is authorized 

to issue orders requiring correction of 

violations of any part of the Tennessee 

Air Quality Act, or of any regulation 

promulgated under this State statute. 

Violators are subject to civil penalties of 

up to 25,000 dollars per day for each 

day of violation and for any damages to 

the State resulting from the violations. 

Preconstruction PSD Permitting for 

Major Sources: EPA interprets the PSD 

sub-element to require that a state’s 

infrastructure SIP submission for a 

particular NAAQS demonstrate that the 

state has a complete PSD permitting 

program in place covering the structural 

PSD requirements for all regulated NSR 

pollutants. A state’s PSD permitting 

program is complete for this subelement (and prong 3 of D(i) and J 

related to PSD) if EPA has already 

approved or is simultaneously 

approving the state’s implementation 

plan with respect to all structural PSD 

requirements that are due under the 

EPA regulations or the CAA on or before 

the date of the EPA’s proposed action on 

the infrastructure SIP submission. For 

the 2010 1-hour SO2 NAAQS, 

Tennessee’s authority to regulate 

construction of new and modified 

stationary sources to assist in the 

protection of air quality in attainment or 

unclassifiable areas is established in 

TAPCR 1200–03–09–01(4), Prevention 

of Significant Deterioration of Air 

Quality. Tennessee’s infrastructure SIP 

submission demonstrates that new 

major sources and major modifications 

in areas of the State designated 

attainment or unclassifiable for the 

specified NAAQS are subject to a 

federally-approved PSD permitting 

program meeting all the current 

structural requirements of part C of title 

I of the CAA to satisfy the infrastructure 

SIP PSD elements.21

Regulation of minor sources and 

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

requires the SIP to include provisions 

that govern the minor source program 

that regulates emissions of the 2010 1- 

hour SO2 NAAQS. TAPCR 1200–03–09– 

01, Construction Permits, and TAPCR 

1200–03–09–03, General Provisions, 

collectively govern the preconstruction 

permitting of modifications and 

construction of minor stationary 

sources, and minor modifications of 

major stationary sources. 

EPA has made the preliminary 

determination that Tennessee’s SIP and 

practices are adequate for program 

enforcement of control measures, 

regulation of minor sources and 

modifications, and preconstruction 

permitting of major sources and major 

modifications related to the 2010 1-hour 

SO2 NAAQS. 

4. 110(a)(2)(D)(i)(I) and (II) Interstate 

Pollution Transport: Section 

110(a)(2)(D)(i) has two components: 

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

Each of these components has two 

subparts resulting in four distinct 

components, commonly referred to as 

‘‘prongs,’’ that must be addressed in 

infrastructure SIP submissions. The first 

two prongs, which are codified in 

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

that prohibit any source or other type of 

emissions activity in one state from 

contributing significantly to 

nonattainment of the NAAQS in another 

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

maintenance of the NAAQS in another 

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

prongs, which are codified in section 

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

prohibit emissions activity in one state 

from interfering with measures required 

to prevent significant deterioration of air 

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

to protect visibility in another state 

(‘‘prong 4’’). 

110(a)(2)(D)(i)(I)—prongs 1, and 2: 

EPA is not proposing any action in this 

rulemaking related to the interstate 

transport provisions pertaining to the 

contribution to nonattainment or 

interference with maintenance in other 

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

(prongs 1 and 2) because Tennessee’s 

2010 1-hour SO2 NAAQS infrastructure 

submission did not address prongs 1 

and 2. 

110(a)(2)(D)(i)(II)—prong 3: With 

regard to section 110(a)(2)(D)(i)(II), the 

PSD element, referred to as prong 3, 

may be met by a state’s confirmation in 

an infrastructure SIP submission that 

new major sources and major 

modifications in the state are subject to 

a PSD program meeting all the current 

structural requirements of part C of title 

I of the CAA, or (if the state contains a 

nonattainment area that has the 

potential to impact PSD in another 

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22See 79 FR 18453 (April 2, 2014). 

state), a NNSR program. As discussed in 

more detail above under section 

110(a)(2)(C), Tennessee’s SIP contains 

provisions for the State’s PSD program 

that reflects the required structural PSD 

requirements to satisfy prong 3 of 

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

addresses prong 3 through TAPCR 

1200–03–09–01(4), Prevention of 

Significant Deterioration of Air Quality, 

and TAPCR 1200–03–09–01(5), Growth 

Policy, for the PSD and NNSR programs, 

respectively. EPA has made the 

preliminary determination that 

Tennessee’s SIP is adequate for 

interstate transport for PSD permitting 

of major sources and major 

modifications related to the 2010 1-hour 

SO2 NAAQS for section 

110(a)(2)(D)(i)(II) (prong 3). 

110(a)(2)(D)(i)(II)—prong 4: EPA is not 

proposing any action in this rulemaking 

related to the interstate transport 

provisions pertaining to visibility in 

other states of section 110(a)(2)(D)(i)(II) 

(prong 4) and will consider these 

requirements in relation to Tennessee’s 

2010 1-hour SO2 NAAQS infrastructure 

submission in a separate rulemaking. 

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

Abatement and International Air 

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

requires SIPs to include provisions 

ensuring compliance with sections 115 

and 126 of the Act, relating to interstate 

and international pollution abatement. 

Regulation 1200–03–09–03, General 

Provisions, requires the permitting 

authority to notify air agencies whose 

areas may be affected by emissions from 

a source. Additionally, Tennessee does 

not have any pending obligation under 

sections 115 and 126 of the CAA 

relating to international or interstate 

pollution abatement. EPA has made the 

preliminary determination that 

Tennessee’s SIP and practices are 

adequate for ensuring compliance with 

the applicable requirements relating to 

interstate and international pollution 

abatement for the 2010 1-hour SO2

NAAQS. 

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

and Authority, Conflict of Interest, and 

Oversight of Local Governments and 

Regional Agencies: Section 110(a)(2)(E) 

requires that each implementation plan 

provide: (i) Necessary assurances that 

the state will have adequate personnel, 

funding, and authority under state law 

to carry out its implementation plan, (ii) 

that the state comply with the 

requirements respecting state boards 

pursuant to section 128 of the Act, and 

(iii) necessary assurances that, where 

the state has relied on a local or regional 

government, agency, or instrumentality 

for the implementation of any plan 

provision, the state has responsibility 

for ensuring adequate implementation 

of such plan provisions. EPA is 

proposing to approve Tennessee’s 

infrastructure SIP submission as 

meeting the requirements of subelements 110(a)(2)(E)(i), (ii), and (iii). 

EPA’s rationale for today’s proposal 

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

described in turn below. 

In support of EPA’s proposal to 

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

(iii), TCA 68–201–105, Powers and 

duties of board—Notification of 

vacancy—Termination due to vacancy, 

gives the Tennessee Air Pollution 

Control Board the power and duty to 

promulgate rules and regulations to 

implement the Tennessee Air Quality 

Act. The Board may define ambient air 

quality standards, set emission 

standards, set forth general policies or 

plans, establish a system of permits, and 

identify a schedule of fees for review of 

plans and specifications, issuance or 

renewal of permits or inspection of air 

contaminant sources. 

TAPCR 1200–03–26, Administrative 

Fees Schedule, establishes construction 

fees, annual emission fees, and permit 

review fees sufficient to supplement 

existing State and Federal funding and 

to cover reasonable costs associated 

with the administration of Tennessee’s 

air pollution control program. These 

costs include costs associated with the 

review of permit applications and 

reports, issuance of permits, source 

inspections and emission unit 

observations, review and evaluation of 

stack and/or ambient monitoring results, 

modeling, and costs associated with 

enforcement actions. 

TCA 68–201–115, Local pollution 

control programs—Exemption from 

state supervision—Applicability of part 

to air contaminant sources burning 

wood waste—Open burning of wood 

waste, states that ‘‘Any municipality or 

county in this state may enact, by 

ordinance or resolution respectively, air 

pollution control regulations not less 

stringent than the standards adopted for 

the state pursuant to this part, or any 

such municipality or county may also 

adopt or repeal an ordinance or 

resolution which incorporates by 

reference any or all of the regulations of 

the board, or any federal regulations 

including any changes in such 

regulations, when such regulations are 

properly identified as to date and 

source.’’ Before such ordinances or 

resolutions become effective, the 

municipality or county must receive a 

certificate of exemption from the Board 

to enact local regulations in the State. In 

granting any certificate of exemption, 

the State of Tennessee reserves the right 

to enforce any applicable resolution, 

ordinance, or regulation of the local 

program. 

TCA 68–201–115 also directs TDEC to 

‘‘frequently determine whether or not 

any exempted municipality or county 

meets the terms of the exemption 

granted and continues to comply with 

this section.’’ If TDEC determines that 

the local program does not meet the 

terms of the exemption or does not 

otherwise comply with the law, the 

Board may suspend the exemption in 

whole or in part until the local program 

complies with the State standards. 

As evidence of the adequacy of 

TDEC’s resources with respect to subelements (i) and (iii), EPA submitted a 

letter to Tennessee on March 9, 2015, 

outlining section 105 grant 

commitments and the current status of 

these commitments for fiscal year 2014. 

The letter EPA submitted to Tennessee 

can be accessed at www.regulations.gov 

using Docket ID No. EPA–R04–OAR– 

2015–0154. Annually, states update 

these grant commitments based on 

current SIP requirements, air quality 

planning, and applicable requirements 

related to the NAAQS. Tennessee 

satisfactorily met all commitments 

agreed to in the Air Planning Agreement 

for fiscal year 2014, therefore 

Tennessee’s grants were finalized and 

closed out. EPA has made the 

preliminary determination that 

Tennessee has adequate resources and 

authority for implementation of the 

2010 1-hour SO2 NAAQS. 

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

the state comply with section 128 of the 

CAA. Section 128 requires that the SIP 

provide: (a)(1) the majority of members 

of the state board or body which 

approves permits or enforcement orders 

represent the public interest and do not 

derive any significant portion of their 

income from persons subject to 

permitting or enforcement orders under 

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

conflicts of interest by such board or 

body, or the head of an executive agency 

with similar powers be adequately 

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

obligations for the 2010 1-hour SO2

NAAQS and the requirements of CAA 

section 128 are met in Regulation 0400– 

30–17, Conflict of Interest.22

EPA has made the preliminary 

determination that the State has 

adequately addressed the requirements 

of section 128, and accordingly has met 

the requirements of section 

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

infrastructure SIP requirements. 

Therefore, EPA is proposing to approve 

Tennessee’s infrastructure SIP 

submission as meeting the requirements 

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

(iii). 

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

Monitoring and Reporting: Section 

110(a)(2)(F) requires SIPs to meet 

applicable requirements addressing (i) 

the installation, maintenance, and 

replacement of equipment, and the 

implementation of other necessary 

steps, by owners or operators of 

stationary sources to monitor emissions 

from such sources, (ii) periodic reports 

on the nature and amounts of emissions 

and emissions related data from such 

sources, and (iii) correlation of such 

reports by the state agency with any 

emission limitations or standards 

established pursuant to this section, 

which reports shall be available at 

reasonable times for public inspection. 

TDEC’s infrastructure SIP submission 

identifies requirements for compliance 

testing by emissions sampling and 

analysis, and for emissions and 

operation monitoring to ensure the 

quality of data in the State, and also the 

collection of source emission data 

throughout the State and the assurance 

of the quality of such data. These data 

are used to compare against current 

emission limits and to meet 

requirements of EPA’s Air Emissions 

Reporting Rule (AERR). Specifically, 

TAPCR 1200–03–10, Required 

Sampling, Recording, and Reporting, 

gives the State’s Technical Secretary the 

authority to monitor emissions at 

stationary sources, and to require these 

sources to conduct emissions 

monitoring and to submit periodic 

emissions reports. This rule requires 

owners or operators of stationary 

sources to compute emissions, submit 

periodic reports of such emissions and 

maintain records as specified by various 

regulations and permits, and to evaluate 

reports and records for consistency with 

the applicable emission limitation or 

standard on a continuing basis over 

time. The monitoring data collected and 

records of operations serve as the basis 

for a source to certify compliance, and 

can be used by Tennessee as direct 

evidence of an enforceable violation of 

the underlying emission limitation or 

standard. 

Additionally, Tennessee is required to 

submit emissions data to EPA for 

purposes of the National Emissions 

Inventory (NEI). The NEI is EPA’s 

central repository for air emissions data. 

EPA published the AERR on December 

5, 2008, which modified the 

requirements for collecting and 

reporting air emissions data (73 FR 

76539). The AERR shortened the time 

states had to report emissions data from 

17 to 12 months, giving states one 

calendar year to submit emissions data. 

All states are required to submit a 

comprehensive emissions inventory 

every three years and report emissions 

for certain larger sources annually 

through EPA’s online Emissions 

Inventory System. States report 

emissions data for the six criteria 

pollutants and the precursors that form 

them—NOX, SO2, ammonia, lead, 

carbon monoxide, particulate matter, 

and volatile organic compounds. Many 

states also voluntarily report emissions 

of hazardous air pollutants. Tennessee 

made its latest update to the 2011 NEI 

on April 9, 2014. EPA compiles the 

emissions data, supplementing it where 

necessary, and releases it to the general 

public through the Web site http://www.

epa.gov/ttn/chief/eiinformation.html. 

EPA has made the preliminary 

determination that Tennessee’s SIP and 

practices are adequate for the stationary 

source monitoring systems related to the 

2010 1-hour SO2 NAAQS. 

Regarding credible evidence, TAPCR 

1200–3–10–04, Sampling, Recording, 

and Reporting Required for Major 

Stationary Sources, states that: ‘‘the 

Technical Secretary is authorized to 

require by permit condition any 

periodic or enhanced monitoring, 

recording and reporting that he deems 

necessary for the verification of the 

source’s compliance with the applicable 

requirements as defined in paragraph 

1200–03–09–02(11).’’ EPA is unaware of 

any provision preventing the use of 

credible evidence in the Tennessee SIP. 

EPA has made the preliminary 

determination that Tennessee’s SIP and 

practices are adequate for the stationary 

source monitoring systems related to the 

1-hour SO2 NAAQS. Accordingly, EPA 

is proposing to approve Tennessee’s 

infrastructure SIP submission with 

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

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

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

that states demonstrate authority 

comparable with section 303 of the CAA 

and adequate contingency plans to 

implement such authority. Tennessee’s 

emergency powers are outlined in 

TAPCR 1200–03–15, Emergency 

Episode Plan, which establishes the 

criteria for declaring an air pollution 

episode (air pollution alert, air pollution 

warning, or air pollution emergency), 

specific emissions reductions for each 

episode level, and emergency episode 

plan requirements for major sources 

located in or significantly impacting a 

nonattainment area. Additional 

emergency powers are codified in TCA 

68–201–109, Emergency Stop Orders for 

Air Contaminant Sources. Under TCA 

68–201–109, if the Commissioner of 

TDEC finds that emissions from the 

operation of one or more sources are 

causing imminent danger to human 

health and safety, the Commissioner 

may, with the approval of the Governor, 

order the source(s) responsible to reduce 

or discontinue immediately its (their) 

air emissions. Additionally, this State 

law requires a hearing to be held before 

the Commissioner within 24 hours of 

any such order. 

Regarding the public welfare and 

environment, TCA 68–201–106, Matters 

to be considered in exercising powers, 

states that ‘‘In exercising powers to 

prevent, abate and control air pollution, 

the board or department shall give due 

consideration to all pertinent facts, 

including, but not necessarily limited 

to: (1) The character and degree of 

injury to, or interference with, the 

protection of the health, general welfare 

and physical property of the people 

. . .’’ Also, TCA 68–201–116, Orders 

and assessments of damages and civil 

penalty Appeal, provides in subsection 

(a) that if the Tennessee technical 

secretary discovers that any State air 

quality regulation has been violated, the 

Tennessee technical secretary may issue 

an order to correct the violation, and 

this order shall be complied with within 

the time limit specified in the order. 

EPA has made the preliminary 

determination that Tennessee’s SIP and 

practices are adequate for emergency 

powers related to the 2010 1-hour SO2

NAAQS. Accordingly, EPA is proposing 

to approve Tennessee’s infrastructure 

SIP submission with respect to section 

110(a)(2)(G). 

9. 110(a)(2)(H) SIP Revisions: Section 

110(a)(2)(H), in summary, requires each 

SIP to provide for revisions of such plan 

(i) as may be necessary to take account 

of revisions of such national primary or 

secondary ambient air quality standard 

or the availability of improved or more 

expeditious methods of attaining such 

standard, and (ii) whenever the 

Administrator finds that the plan is 

substantially inadequate to attain the 

NAAQS or to otherwise comply with 

any additional applicable requirements. 

As previously discussed, TDEC is 

responsible for adopting air quality 

rules and revising SIPs as needed to 

attain or maintain the NAAQS in 

Tennessee. 

Section 68–201–105(a) of the 

Tennessee Air Quality Act authorizes 

the Tennessee Air Pollution Control 

Board to promulgate rules and 

regulations to implement this State 

statute, including setting and 

implementing ambient air quality 

standards, emission standards, general 

policies or plans, a permits system, and 

a schedule of fees for review of plans 

and specifications, issuance or renewal 

of permits, and inspection of sources. 

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EPA has made the preliminary 

determination that Tennessee’s SIP and 

practices adequately demonstrate a 

commitment to provide future SIP 

revisions related to the 2010 1-hour SO2

NAAQS when necessary. Accordingly, 

EPA is proposing to approve 

Tennessee’s infrastructure SIP 

submission with respect to section 

110(a)(2)(H). 

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

Government Officials, Public 

Notification, and PSD and Visibility 

Protection: EPA is proposing to approve 

Tennessee’s infrastructure SIP 

submission for the 2010 1-hour SO2

NAAQS with respect to the general 

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

include a program in the SIP that 

complies with the applicable 

consultation requirements of section 

121, the public notification 

requirements of section 127, PSD and 

visibility protection. EPA’s rationale for 

each sub-element is described below. 

Consultation with government 

officials (121 consultation): Section 

110(a)(2)(J) of the CAA requires states to 

provide a process for consultation with 

local governments, designated 

organizations and Federal Land 

Managers carrying out NAAQS 

implementation requirements pursuant 

to section 121 relative to consultation. 

The following State rule, as well as the 

State’s Regional Haze Implementation 

Plan (which allows for consultation 

between appropriate state, local, and 

tribal air pollution control agencies as 

well as the corresponding Federal Land 

Managers), provide for consultation 

with government officials whose 

jurisdictions might be affected by SIP 

development activities: TAPCR 1200– 

03–34, Conformity, provides for 

interagency consultation on 

transportation and general conformity 

issues. Tennessee adopted state-wide 

consultation procedures for the 

implementation of transportation 

conformity which includes the 

development of mobile inventories for 

SIP development. These consultation 

procedures were developed in 

coordination with the transportation 

partners in the State and are consistent 

with the approaches used for 

development of mobile inventories for 

SIPs. Required partners covered by 

Tennessee’s consultation procedures 

include Federal, state and local 

transportation and air quality agency 

officials. EPA has made the preliminary 

determination that Tennessee’s SIP and 

practices adequately demonstrate 

consultation with government officials 

related to the 2010 1-hour SO2 NAAQS 

when necessary. Accordingly, EPA is 

proposing to approve Tennessee’s 

infrastructure SIP submission with 

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

consultation with government officials. 

Public notification: These 

requirements are met through the State’s 

existing Air Quality Index and Air 

Quality Forecasting programs, which 

provide a method to alert the public if 

any NAAQS is exceeded in an area. 

Additionally, the State’s annual 

monitoring plan update is sent out each 

year for public review and comment. 

EPA has made the preliminary 

determination that Tennessee’s SIP and 

practices adequately demonstrate the 

State’s ability to provide public 

notification related to the 2010 1-hour 

SO2 NAAQS when necessary. 

Accordingly, EPA is proposing to 

approve Tennessee’s infrastructure SIP 

submission with respect to section 

110(a)(2)(J) public notification. 

PSD: With regard to the PSD element 

of section 110(a)(2)(J), this requirement 

may be met by a state’s confirmation in 

an infrastructure SIP submission that 

new major sources and major 

modifications in the state are subject to 

a PSD program meeting all the current 

structural requirements of part C of title 

I of the CAA. As discussed in more 

detail above under section 110(a)(2)(C), 

Tennessee’s SIP contains provisions for 

the State’s PSD program that reflect the 

relevant SIP revisions pertaining to the 

required structural PSD requirements to 

satisfy the requirement of the PSD 

element of section 110(a)(2)(J). EPA has 

made the preliminary determination 

that Tennessee’s SIP and practices are 

adequate for PSD permitting of major 

sources and major modifications related 

to the 2010 1-hour SO2 NAAQS for the 

PSD element of section 110(a)(2)(J). 

Accordingly, EPA is proposing to 

approve Tennessee’s infrastructure SIP 

submission with respect to the PSD 

element of section 110(a)(2)(J). 

Visibility protection: EPA’s 2013 

Guidance notes that it does not treat the 

visibility protection aspects of section 

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

the infrastructure SIP approval process. 

EPA recognizes that states are subject to 

visibility protection and regional haze 

program requirements under part C of 

the Act (which includes sections 169A 

and 169B). However, there are no newly 

applicable visibility protection 

obligations after the promulgation of a 

new or revised NAAQS. Thus, EPA has 

determined that states do not need to 

address the visibility component of 

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

submittals. As such, EPA has made the 

preliminary determination that it does 

not need to address the visibility 

protection element of section 

110(a)(2)(J) in Tennessee’s infrastructure 

SIP submission related to the 2010 1- 

hour SO2 NAAQS. 

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

and Submission of Modeling Data: 

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

that SIPs provide for performing air 

quality modeling so that effects on air 

quality of emissions from NAAQS 

pollutants can be predicted and 

submission of such data to the EPA can 

be made. TAPCR 1200–03–09–01(4), 

Prevention of Significant Air Quality 

Deterioration, specifies when modeling 

and when monitoring (pre- or postconstruction) must be performed and 

that the resulting data be made available 

for review to EPA. Tennessee has 

personnel with training and experience 

to conduct source-oriented dispersion 

modeling with models approved by 

EPA. Additionally, Tennessee 

participates in a regional effort to 

coordinate the development of 

emissions inventories and conduct 

regional modeling for several NAAQS, 

including the 2010 1-hour SO2 NAAQS, 

for the Southeastern states. Taken as a 

whole, Tennessee’s air quality 

regulations and practices demonstrate 

that TDEC has the authority to provide 

relevant data for the purpose of 

predicting the effect on ambient air 

quality of the 1-hour SO2 NAAQS. EPA 

has made the preliminary determination 

that Tennessee’s SIP and practices 

adequately demonstrate the State’s 

ability to provide for air quality 

modeling, along with analysis of the 

associated data, related to the 2010 1- 

hour SO2 NAAQS. Accordingly, EPA is 

proposing to approve Tennessee’s 

infrastructure SIP submission with 

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

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

Section 110(a)(2)(L) requires the owner 

or operator of each major stationary 

source to pay to the permitting 

authority, as a condition of any permit 

required under the CAA, a fee sufficient 

to cover (i) the reasonable costs of 

reviewing and acting upon any 

application for such a permit, and (ii) if 

the owner or operator receives a permit 

for such source, the reasonable costs of 

implementing and enforcing the terms 

and conditions of any such permit (not 

including any court costs or other costs 

associated with any enforcement 

action), until such fee requirement is 

superseded with respect to such sources 

by the Administrator’s approval of a fee 

program under title V. 

In Tennessee, funding for review of 

PSD and NNSR permits comes from 

permit-specific fees that are charged to 

new applicants and from annual 

emission fees charged to existing title V 

emission sources that are applying for 

major modifications under PSD or 

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12636 Federal Register / Vol. 81, No. 47 / Thursday, March 10, 2016 / Proposed Rules 

23Title V program regulations are federallyapproved but not incorporated into the federallyapproved SIP. 

NNSR. The cost of reviewing, 

approving, implementing, and enforcing 

PSD and major NNSR permits are 

covered under the following State 

regulations: (1) TAPCR 1200–03–26– 

02(5) requires each new major stationary 

source to pay a construction permit 

application filing/processing fee and (2) 

TAPCR 1200–03–26–02(9), Annual 

Emission Fees for Major Sources,23

mandates that existing major stationary 

sources pay annual title V emission fees, 

which are used to cover the permitting 

costs for any new construction or 

modifications at these facilities as well 

as implementation and enforcement of 

PSD and NNSR permits after they have 

been issued. EPA has made the 

preliminary determination that 

Tennessee adequately provides for 

permitting fees related to the 2010 1- 

hour SO2 NAAQS when necessary. 

Accordingly, EPA is proposing to 

approve Tennessee’s infrastructure SIP 

submission with respect to section 

110(a)(2)(L). 

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

participation by affected local entities: 

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

states to provide for consultation and 

participation in SIP development by 

local political subdivisions affected by 

the SIP. TCA 68–201–105, Powers and 

duties of board Notification of vacancy 

Termination due to vacancy, authorizes 

and requires the Tennessee Air 

Pollution Control Board to promulgate 

rules and regulations related to 

consultation under the provisions of the 

State’s Uniform Administrative 

Procedures Act. TCA 4–5–202, When 

hearings required, requires agencies to 

precede all rulemaking with a notice 

and public hearing, except for 

exemptions. TCA 4–5–203, Notice of 

hearing, states that whenever an agency 

is required by law to hold a public 

hearing as part of its rulemaking 

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

written notice of the hearings to the 

secretary of state for publication in the 

notice section of the administrative 

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

other steps as it deems necessary to 

convey effective notice to persons who 

are likely to have an interest in the 

proposed rulemaking.’’ TCA 68–201– 

105(b)(7) authorizes and requires TDEC 

to ‘‘encourage voluntary cooperation of 

affected persons or groups in preserving 

and restoring a reasonable degree of air 

purity; advise, consult and cooperate 

with other agencies, persons or groups 

in matters pertaining to air pollution; 

and encourage authorized air pollution 

agencies of political subdivisions to 

handle air pollution problems within 

their respective jurisdictions to the 

greatest extent possible and to provide 

technical assistance to political 

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

Conformity, requires interagency 

consultation on transportation and 

general conformity issues. Additionally, 

TDEC has, in practice, consulted with 

local entities for the development of its 

transportation conformity SIP and has 

worked with the Federal Land Managers 

as a requirement of EPA’s regional haze 

rule. EPA has made the preliminary 

determination that Tennessee’s SIP and 

practices adequately demonstrate 

consultation with affected local entities 

related to the 2010 1-hour SO2 NAAQS. 

Accordingly, EPA is proposing to 

approve Tennessee’s infrastructure SIP 

submission with respect to section 

110(a)(2)(M). 

V. Proposed Action 

With the exception of interstate 

transport provisions pertaining to the 

contribution to nonattainment or 

interference with maintenance in other 

states and visibility protection 

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

and (II) (prongs 1, 2, and 4), EPA is 

proposing to approve Tennessee’s 

infrastructure submission submitted on 

March 13, 2014, for the 2010 1-hour SO2

NAAQS for the above described 

infrastructure SIP requirements. EPA is 

proposing to approve Tennessee’s 

infrastructure SIP submission for the 

2010 1-hour SO2 NAAQS because the 

submission is consistent with section 

110 of the CAA. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

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 Orders 12866 (58 FR 51735, 

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

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

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, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), nor will it impose 

substantial direct costs on tribal 

governments or preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

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

Dated: February 23, 2016. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

[FR Doc. 2016–05160 Filed 3–9–16; 8:45 am] 

BILLING CODE 6560–50–P 

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