
[Federal Register Volume 77, Number 141 (Monday, July 23, 2012)]
[Rules and Regulations]
[Pages 42997-43000]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17644]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2011-0353; FRL-9699-5]


Approval and Promulgation of Implementation Plans; Tennessee; 
110(a)(1) and (2) Infrastructure Requirements for the 1997 8-Hour Ozone 
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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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 requirements of sections 110(a)(1) and (2) of the 
Clean Air Act (CAA or Act) for the 1997 8-hour ozone national ambient 
air quality standards (NAAQS). Section 110(a) of the CAA requires that 
each state adopt and submit a SIP for the implementation, maintenance, 
and enforcement of each NAAQS promulgated by EPA, which is commonly 
referred to as an ``infrastructure'' SIP. TDEC certified that the 
Tennessee SIP contains provisions that ensure the 1997 8-hour ozone 
NAAQS are implemented, enforced, and maintained in Tennessee (hereafter 
referred to as ``infrastructure submission''). With the exception of 
sub-element 110(a)(2)(E)(ii), which pertains to the requirements of 
section 128(a)(1) of the CAA, Tennessee's infrastructure submission, 
provided to EPA on December 14, 2007, addresses all the required 
infrastructure elements for the 1997 8-hour ozone NAAQS.

DATES: Effective Date: This rule will be effective August 22, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2011-0353. 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 to 4:30 excluding Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number 
is (404) 562-9140. Ms. Ward can be reached via electronic mail at 
ward.nacosta@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. This Action
III. Final Action
IV. 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 requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 1997 8-hour ozone NAAQS, states typically 
have met the basic program elements required in section 110(a)(2) 
through earlier SIP submissions in connection with previous ozone 
NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing

[[Page 42998]]

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 already mentioned, these 
requirements include SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The requirements that are the 
subject of this final rulemaking are listed below \1\ and in EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards.''
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    \1\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather 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 final rulemaking 
does not address infrastructure elements related to section 
110(a)(2)(I) or (C). In a March 14, 2012, final rulemaking, EPA 
addressed the section 110(a)(2)(C) requirements for Tennessee. See 
77 FR 14976.
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     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control 
measures.\2\
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    \2\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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     110(a)(2)(D): Interstate transport.\3\
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    \3\ Today's final rule does not address element 110(a)(2)(D)(i) 
(Interstate Transport) for the 1997 8-hour ozone NAAQS. Interstate 
transport requirements were formerly addressed by Tennessee 
consistent with the Clean Air Interstate Rule (CAIR). On December 
23, 2008, CAIR was remanded by the D.C. Circuit Court of Appeals, 
without vacatur, back to EPA. See North Carolina v. EPA, 531 F.3d 
896 (D.C. Cir. 2008). Prior to this remand, EPA took final action to 
approve Tennessee's SIP revision, which was submitted to comply with 
CAIR. See 72 FR 46388 (August 20, 2007). In so doing, Tennessee's 
CAIR SIP revision addressed the interstate transport provisions in 
section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS. In response 
to the remand of CAIR, EPA has promulgated a new rule to address 
interstate transport. See 76 FR 48208 (August 8, 2011) (``the 
Transport Rule''). That rule was recently stayed by the D.C. Circuit 
Court of Appeals. EPA's action on element 110(a)(2)(D)(i) will be 
addressed in a separate action.
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     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the 
applicable requirements of part D.\4\
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    \4\ This requirement was inadvertently omitted from EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone 
and PM2.5 National Ambient Air Quality Standards,'' but 
as mentioned above is not relevant to today's proposed rulemaking.
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     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    On July 18, 1997, EPA promulgated a new NAAQS for ozone based on 8-
hour average concentrations, thus states were required to provide 
submissions to address sections 110(a)(1) and (2) of the CAA for this 
new NAAQS. Tennessee provided its infrastructure submission for the 
1997 8-hour ozone NAAQS on December 14, 2007. On March 27, 2008, 
Tennessee was among other states that received a finding of failure to 
submit because its infrastructure submission was deemed incomplete for 
elements 110(a)(2)(C) and (J) for the 1997 8-hour ozone NAAQS by March 
1, 2008. See 73 FR 16205. Infrastructure elements 110(a)(2)(C) and (J) 
relate to a SIP addressing changes to its part C prevention of 
significant deterioration (PSD) permit program as required by the 1997 
8-Hour Ozone NAAQS Implementation Rule New Source Review (NSR) Update--
Phase 2 Rule (hereafter referred to as the Ozone Implementation NSR 
Update) recognizing nitrogen oxides as a precursor for ozone in 40 CFR 
51.166 and 40 CFR 52.21, among other requirements. See 70 FR 71612, 
(November 29, 2005). Tennessee has since met the completeness 
requirements for 110(a)(2)(C) and (J) and these infrastructure elements 
were federally approved on March 14, 2012. See 77 FR 14976.
    On April 16, 2012, EPA proposed to approve Tennessee's December 14, 
2007, infrastructure submission and proposed to approve in part, and 
conditionally approve in part, infrastructure sub-element 
110(a)(2)(E)(ii) for the 1997 8-hour ozone NAAQS. See 77 FR 22533. CAA 
section 110(a)(2)(E)(ii), pertaining to section 128 State Board 
requirements, requires at subsection (a)(1) that each SIP shall contain 
requirements that any board or body which approves permits or 
enforcement orders be subject to the described public interest and 
income restrictions. It further requires at subsection (a)(2) that any 
board or body, or the head of an executive agency with similar power to 
approve permits or enforcement orders under the CAA, shall also be 
subject to conflict of interest disclosure requirements. In this 
action, EPA is taking two actions regarding the section 
110(a)(2)(E)(ii) requirements. First, EPA is finalizing its conditional 
approval for part of Tennessee's infrastructure SIP for element 
110(a)(2)(E)(ii) with respect to the applicable section 128(a)(1) 
requirements. Second, EPA is approving the remaining part Tennessee's 
infrastructure SIP for element 110(a)(2)(E)(ii) with respect the 
applicable section 128(a)(2) requirements.
    On March 28, 2012, Tennessee submitted a letter of commitment to 
EPA to adopt specific enforceable measures related to 128(a)(1) to 
address current deficiencies in the Tennessee SIP as outlined in EPA's 
April 16, 2012, proposed rulemaking. This letter of commitment meets 
the requirements of section 110(k)(4) of the CAA. Failure to adopt 
these provisions into the Tennessee SIP within one year (by July 23, 
2013) will result in today's conditional approval becoming a 
disapproval. Tennessee's March 28, 2012, letter can be accessed at 
www.regulations.gov using Docket ID No. EPA-R04-OAR-2011-0353. A 
summary of the background for today's final action is provided below. 
See EPA's April 16, 2012, proposed rulemaking at 77 FR 22533 for more 
detail.

II. This Action

    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 1997 8-
hour ozone NAAQS, with the exception of one portion of CAA section 
110(a)(2)(E)(ii) specifically pertaining to section 128(a)(1) 
requirements. EPA is taking final action to conditionally approve, sub-
element 110(a)(2)(E)(ii) as it pertains to section 128(a)(1). Section 
110(a) of the CAA requires that each state adopt and submit a SIP for 
the implementation, maintenance, and enforcement of each NAAQS 
promulgated by the EPA, which is commonly referred to as an 
``infrastructure'' SIP. Tennessee, through TDEC, certified that the 
Tennessee SIP contains provisions that ensure the 1997 8-hour ozone 
NAAQS is implemented, enforced, and maintained in Tennessee. EPA 
received no adverse comments on its April 16,

[[Page 42999]]

2012, proposed approval of Tennessee's December 14, 2007, 
infrastructure submission and proposed conditional approval of one 
portion of section 110(a)(2)(E)(ii).
    Tennessee's infrastructure submission, provided to EPA on December 
14, 2007, addresses all the required infrastructure elements for the 
1997 8-hour ozone NAAQS, with the exception of CAA section 
110(a)(2)(E)(ii), pertaining to section 128(a)(1) requirements. EPA has 
determined that Tennessee's December 14, 2007, submission is consistent 
with section 110 of the CAA, with the exception of the CAA section 
128(a)(1) requirements of section 110(a)(2)(E)(ii).
    On March 28, 2012, Tennessee submitted a letter of commitment to 
EPA to adopt specific enforceable measures related to CAA section 
128(a)(1) to address the current deficiencies in the Tennessee SIP 
related to CAA section 110(a)(2)(E)(ii) as outlined in EPA's April 16, 
2012, proposed rulemaking. As a result of Tennessee's March 28, 2012, 
submission, EPA has determined that conditional approval, specifically 
pertaining to the requirements of 128(a)(1), is appropriate because the 
State has explicitly committed to address current deficiencies in the 
Tennessee SIP related to sub-element 110(a)(2)(E)(ii) consistent with 
the requirements of CAA section 110(k)(4).
    EPA is conditionally approving the March 28, 2012, submittal with 
respect to the CAA requirement of sub-element 110(a)(2)(E)(ii) and 
section 128(a)(1). Tennessee must submit to EPA by July 23, 2013, a SIP 
revision adopting specific enforceable measures related to CAA section 
128(a)(1) as described in the State's letter of commitment described 
above. If the State fails to actually submit these revisions by July 
23, 2013, today's conditional approval will automatically become a 
disapproval on that date and EPA will issue a finding of disapproval. 
EPA is not required to propose the finding of disapproval. If the 
conditional approval is converted to a disapproval, the final 
disapproval triggers the Federal Implementation Plan requirement under 
section 110(c). However, if the State meets its commitment within the 
applicable timeframe, the conditionally approved submission will remain 
a part of the SIP until EPA takes final action approving or 
disapproving the new submittal. If EPA disapproves the new submittal, 
today's conditionally approved submittal will also be disapproved at 
that time. If EPA approves the new submittal, Tennessee's 
infrastructure SIP will be fully approved in its entirety and replace 
the conditionally approved element in the SIP.

III. Final Action

    EPA is taking final action to approve Tennessee's December 14, 
2007, submission for the 1997 8-hour ozone NAAQS and conditionally 
approve in part, Tennessee's March 28, 2012, submission because these 
submissions are consistent with section 110 of the CAA. With the 
exception of section 110(a)(2)(E)(ii) pertaining to the section 
128(a)(1) requirements, TDEC has addressed the elements of the CAA 
110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 2007, 
guidance to ensure that the 1997 8-hour ozone NAAQS are implemented, 
enforced, and maintained in Tennessee.

IV. 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 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 September 21, 2012. 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.


[[Page 43000]]


    Dated: June 25, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart RR--Tennessee

0
2. Section 52.2219 is added to read as follows:


Sec.  52.2219  Conditional approval.

    Conditional Approval--Submittal from the State of Tennessee, 
through the Department of Environment and Conservation (TDEC), dated 
December 14, 2007, to address the Clean Air Act (CAA) infrastructure 
requirements for the 1997 8-hour ozone National Ambient Air Quality 
Standards. On March 28, 2012, TDEC supplemented their December 14, 
2007, submission with a commitment to address the deficient 
requirements of CAA section 110(a)(2)(E)(ii) of the CAA, which requires 
state compliance with section 128(a)(1) of the CAA. EPA is 
conditionally approving Tennessee's submittal 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).
0
3. Section 52.2220(e) is amended by adding a new entry ``110(a)(1) and 
(2) Infrastructure Requirements for the 1997 8-Hour Ozone National 
Ambient Air Quality Standards'' at the end of the table to read as 
follows:


Sec.  52.2220  Identification of plan.

* * * * *
    (e) * * *

                                EPA-Approved Tennessee Non-Regulatory Provisions
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                                       Applicable
    Name of nonregulatory SIP        geographic or     State effective   EPA approval date       Explanation
            provision              nonattainment area        date
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                                                  * * * * * * *
110(a)(1) and (2) Infrastructure  Tennessee..........      12/14/2007   7/23/2012 [Insert    ...................
 Requirements for the 1997 8-                                            citation of
 Hour Ozone National Ambient Air                                         publication].
 Quality Standards.
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[FR Doc. 2012-17644 Filed 7-20-12; 8:45 am]
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