
[Federal Register Volume 81, Number 135 (Thursday, July 14, 2016)]
[Proposed Rules]
[Pages 45438-45447]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16514]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2015-0252; FRL-9948-96-Region 4]


Air Plan Approval; Tennessee Infrastructure Requirements for the 
2010 Nitrogen Dioxide National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve portions of 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, to 
demonstrate that the State meets the infrastructure requirements of the 
Clean Air Act (CAA or Act) for the 2010 nitrogen dioxide 
(NO2) 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 NO2 NAAQS is implemented, enforced, and maintained in 
Tennessee. With the exception of provisions pertaining to prevention of 
significant deterioration (PSD) permitting, and interstate transport 
provisions pertaining to the contribution to nonattainment or 
interference with maintenance, and visibility in other states, for 
which EPA is proposing no action through this rulemaking, EPA is 
proposing to find that Tennessee's infrastructure SIP submission, 
provided to EPA on March 13, 2014, satisfies the required 
infrastructure elements for the 2010 NO2 NAAQS.

DATES: Written comments must be received on or before August 15, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2015-0252 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. 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, 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: Richard Wong, 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. Mr. Wong can be reached via electronic mail at 
wong.richard@epa.gov or via telephone at (404) 562-8726.

SUPPLEMENTARY INFORMATION:

I. Background and Overview

    On February 9, 2010 (75 FR 6474), EPA published a new 1-hour 
primary NAAQS for NO2 at a level of 100 parts per billion 
(ppb), based on a 3-year average of the 98th percentile of the yearly 
distribution of 1-hour daily maximum concentrations. See 75 FR 6474. 
Pursuant to section 110(a)(1) of the CAA, states are required to submit 
SIPs meeting the requirements of section 110(a)(2) within three years 
after promulgation of a new or revised NAAQS or within such shorter 
period as EPA may prescribe. Section 110(a)(2) requires states to 
address basic SIP requirements, including emissions inventories, 
monitoring, and modeling to assure attainment and maintenance of the 
NAAQS. States were required to submit such SIPs for the 2010 1-hour 
NO2 NAAQS to EPA no later than January 22, 2013.\1\
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    \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 federally-approved 
SIP. In addition, certain federally-approved, 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 ``Regulation'' indicates that the cited regulation has been 
approved into Tennessee's federally-approved SIP. The term 
``Tennessee Annotated Code'', or ``TCA'', indicates cited Tennessee 
state statutes, which are not a part of the SIP unless otherwise 
indicated.
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    This action is proposing to approve Tennessee's infrastructure SIP 
submission for the applicable requirements of the 2010 1-hour 
NO2 NAAQS, with the exception of the PSD permitting 
requirements for major sources of sections 110(a)(2)(C), prong 3 of 
D(i), and (J), and the interstate transport provisions of prongs 1, 2, 
and 4 of section 110(a)(2)(D)(i). On March 18, 2015, EPA approved 
Tennessee's March 13, 2014 infrastructure SIP submission regarding the 
PSD permitting requirements for major sources of sections 110(a)(2)(C), 
prong 3 of D(i), and (J) for the 2010 1-hour NO2

[[Page 45439]]

NAAQS. See 80 FR 14019. Therefore, EPA is not proposing any action 
pertaining to these requirements. With respect to Tennessee's 
infrastructure SIP submission related to the interstate transport 
provisions of prongs 1, 2 and 4 of section 110(a)(2)(D)(i), EPA is not 
proposing any action today. EPA will act on these provisions in a 
separate action. 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. In the case of the 2010 1-hour NO2 NAAQS, states 
typically have met the basic program elements required in section 
110(a)(2) through earlier SIP submissions in connection with previous 
NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned previously, these 
requirements include SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The requirements that are the 
subject of this proposed rulemaking are listed below and in EPA's 
September 13, 2013, memorandum entitled ``Guidance on Infrastructure 
State Implementation Plan (SIP) Elements under Clean Air Act Sections 
110(a)(1) and (2).'' \2\
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    \2\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA; and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. This proposed rulemaking 
does not address infrastructure elements related to section 
110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).
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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): Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources \3\
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    \3\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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 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\
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    \4\ As mentioned previously, this element is not relevant to 
this 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 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 NO2 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 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 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.
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    \5\ For 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 emergencies as well as contingency plans that are 
triggered in the event of such emergencies.

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[[Page 45440]]

    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.
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    \6\ See, 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)).
    \7\ EPA 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.
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    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\
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    \8\ See, 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).
    \9\ On 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.
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    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\
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    \10\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    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 individual SIP submissions for particular elements.\11\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\12\ EPA developed

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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.
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    \11\ EPA 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.
    \13\ EPA'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.
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    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 NSR pollutants, including 
GHGs. 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 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 implementation plan 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 new source review 
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.
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    \14\ By 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.
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    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 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

[[Page 45442]]

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 implementation 
plan 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\
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    \15\ For 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).
    \16\ EPA 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).
    \17\ See, 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).
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IV. What is EPA's analysis of how Tennessee addressed the elements of 
the sections 110(a)(1) and (2) ``infrastructure'' provisions?

    Tennessee's 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. The Tennessee Code Annotated section 68-
201-105(a) provides TDEC authority to establish limits and measures as 
well as schedules for compliance to meet the applicable requirements of 
the CAA. Emission limits and other control measures, means, and 
techniques as well as schedules and timetables for activities that 
contribute to NO2 concentrations in the ambient air are 
found in Regulations 1200-03-03, Ambient Air Quality Standards, 1200-
03-19, Emission Standards and Monitoring Requirements for Additional 
Control Areas, and 1200-03-27, Nitrogen Oxides. EPA has made the 
preliminary determination that the cited provisions adequately address 
110(a)(2)(A) for the 2010 1-hour NO2 NAAQS.
    In this action, EPA is not proposing to approve or disapprove any 
existing State provisions with regard to excess emissions during SSM of 
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\
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    \18\ On 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.
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    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: SIPs 
are required to provide for the establishment and operation of ambient 
air quality monitors, the compilation and analysis of ambient air 
quality data, and the submission of these data to EPA upon request. TCA 
68-201-105(b)(4) provides TDEC with the authority to collect and 
disseminate information relating to air quality and pollution and the 
prevention, control, supervision, and abatement thereof. 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 a certified evaluation of 
the agency's ambient monitors and auxiliary support equipment.\19\ On 
June 30, 2015, Tennessee submitted its monitoring network plan to EPA, 
and on October 26, 2015, EPA approved this plan. Tennessee's approved 
monitoring network plan can be accessed at www.regulations.gov using 
Docket ID No. EPA-R04-OAR-2015-0252. 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 NO2 NAAQS.
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    \19\ On occasion, proposed changes to the monitoring network are 
evaluated outside of the network plan approval process in accordance 
with 40 CFR part 58.
---------------------------------------------------------------------------

    3. 110(a)(2)(C) Program 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

[[Page 45443]]

unclassifiable for the subject NAAQS as required by CAA title I part C 
(i.e., the major source PSD program). To satisfy the requirements of 
110(a)(2)(C), Tennessee cites to Regulations 1200-03-09, Construction 
and Operating Permits, and 1200-03-13, Violation. These provisions of 
Tennessee's SIP pertain to the construction and modification of 
stationary sources and the enforcement of air pollution control 
regulations. As discussed further below, in this action EPA is only 
proposing to approve the enforcement, and the regulation of minor 
sources and minor modifications aspects of Tennessee's section 
110(a)(2)(C) infrastructure SIP submission.
    Enforcement: Regulation 1200-03-13, Enforcement provides for 
enforcement of emission limits and control measures and construction 
permitting for new or modified stationary sources. 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: With respect to 
Tennessee's March 13, 2014, infrastructure SIP submission related to 
the PSD permitting requirements for major sources of section 
110(a)(2)(C), EPA took final action to approve these provisions for the 
2010 1-hour NO2 NAAQS on March 18, 2015 (80 FR 14019).
    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 
NO2 NAAQS. Tennessee has a SIP-approved minor NSR permitting 
program at Regulations 1200-03-09-.01, Construction Permits, and 1200-
03-09-.03, General Provisions, that regulates the preconstruction 
permitting of minor modifications and construction of minor stationary 
sources.
    EPA has made the preliminary determination that Tennessee's SIP and 
practices are adequate for program enforcement of control measures and 
regulation of minor sources and modifications related to the 2010 1-
hour NO2 NAAQS.
    4. 110(a)(2)(D)(i) 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 have 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 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 NO2 NAAQS infrastructure 
submission did not address prongs 1 and 2.
    110(a)(2)(D)(i)(II)--prong 3: With respect to Tennessee's 
infrastructure SIP submission related to the interstate transport 
requirements for PSD of section 110(a)(2)(D)(i)(II) (prong 3), EPA took 
final action to approve Tennessee's March 13, 2014, infrastructure SIP 
submission regarding prong 3 of D(i) for the 2010 1-hour NO2 
NAAQS on March 18, 2015. See 80 FR 14019.
    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 protection 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 NO2 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. EPA is unaware of any pending obligations for 
the State of Tennessee pursuant to sections 115 or 126 of the CAA. EPA 
has made the preliminary determination that Tennessee's SIP and 
practices are adequate for insuring compliance with the applicable 
requirements relating to interstate and international pollution 
abatement for the 2010 1-hour NO2 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 SIP as meeting the requirements of sections 110(a)(2)(E). 
EPA's rationale for this proposals 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

[[Page 45444]]

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, 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-2015-0252. 
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. EPA has made the preliminary determination that 
Tennessee has adequate authority and resources for implementation of 
the 2010 1-hour NO2 NAAQS.
    Section 110(a)(2)(E)(ii) requires that the state to 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 NO2 
NAAQS and the requirements of CAA section 128 are met in Regulation 
0400-30-17, Conflict of Interest. Under this regulation, the Tennessee 
board with authority over air permits and enforcement orders is 
required to determine annually and after receiving a new member that at 
least a majority of its members represent to public interest and do not 
derive any significant portion of income from persons subject to such 
permits and enforcement orders. Further, the board cannot act to hear 
contested cases until it has determined it can do so consistent with 
CAA section 128. The regulation also requires TDEC's Technical 
Secretary and board members to declare any conflict-of-interest in 
writing prior to the issuance of any permit, variance or enforcement 
order that requires action on their part.
    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 
of sub-elements 110(a)(2)(E)(i), (ii) and (iii).
    7. 110(a)(2)(F) Stationary source monitoring system: 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. Tennessee's infrastructure 
SIP submission describes how the State establishes requirements for 
emissions compliance testing and utilizes emissions sampling and 
analysis. It further describes how the State ensures the quality of its 
data through observing emissions and monitoring operations. These 
infrastructure SIP requirements are codified at Regulation 1200-03-10, 
Required Sampling, Recording, and Reporting. 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. 
Accordingly, EPA is unaware of any provision preventing the use of 
credible evidence in the Tennessee SIP.
    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 Air 
Emissions Reporting Rule (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--nitrogen oxides, sulfur dioxide, 
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 NO2 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

[[Page 45445]]

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 NO2 NAAQS2010 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) Future 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, Tennessee 
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. 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 NO2 
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 
NO2 NAAQS with respect to the general requirement in section 
110(a)(2)(J) to include a program in the SIP that provides for meeting 
the applicable consultation requirements of section 121, the public 
notification requirements of section 127; and visibility protection 
requirements of part C of the Act. With respect to Tennessee's 
infrastructure SIP submission related to the preconstruction PSD 
permitting requirements of section 110(a)(2)(J), EPA took final action 
to approve Tennessee's March 13, 2014, 2010 1-hour NO2 NAAQS 
infrastructure SIP for these requirements on March 18, 2015. See 80 FR 
14019. EPA's rationale for its proposed action regarding applicable 
consultation requirements of section 121, the public notification 
requirements of section 127, and visibility protection requirements is 
described below.
    110(a)(2)(J) (121 consultation)--Consultation with government 
officials: 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. Regulation 1200-03-34, Conformity, as well as Tennessee'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. 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 NO2 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.
    110(a)(2)(J) (127 public notification)--Public notification: These 
requirements are met through Regulation 1200-03-15, Emergency Episode 
Plan, which requires that TDEC notify the public of any air pollution 
alert, warning, or emergency. The TDEC Web site also provides air 
quality summary data, air quality index reports and links to more 
information regarding public awareness of measures that can prevent 
such exceedances and of ways in which the public can participate in 
regulatory and other efforts to improve air quality. 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 NO2 NAAQS when necessary. Accordingly, 
EPA is proposing to approve Tennessee's infrastructure SIP submissions 
with respect to section 110(a)(2)(J) public notification.
    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,

[[Page 45446]]

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 related to the 2010 1-hour 
NO2 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. Regulation 1200-03-09-.01(4), Prevention 
of Significant Air Quality Deterioration, specifies that air modeling 
be conducted in accordance with 40 CFR part 51, Appendix W ``Guideline 
on Air Quality Models.'' Tennessee also states that it has personnel 
with training and experience to conduct dispersion modeling consistent 
with models approved by EPA protocols. Also note that TCA 68-201-
105(b)(7) grants TDEC the power and duty to collect and disseminate 
information relative to air pollution. Additionally, Tennessee supports 
a regional effort to coordinate the development of emissions 
inventories and conduct regional modeling for NOx, which includes 
NO2. Taken as a whole, Tennessee's regulations, statutes and 
practices demonstrate that Tennessee has the authority to collect and 
provide relevant data for the purpose of predicting the effect on 
ambient air quality of the 1-hour NO2 NAAQS. EPA has made 
the preliminary determination that Tennessee's SIP and practices 
adequately demonstrate the State's ability to provide for air quality 
and modeling, along with analysis of the associated data, related to 
the 2010 1-hour NO2 NAAQS when necessary.
    12. 110(a)(2)(L) Permitting fees: This element necessitates that 
the SIP require 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.
    Funding for the Tennessee air permit program comes from a 
processing fee, submitted by permit applicants, required by Regulations 
1200-03-26.02(5), Construction Fee, and 1200-03-26.02(9), Annual 
Emissions Fees for Major Sources. Tennessee ensures this is sufficient 
for the reasonable cost of reviewing and acting upon PSD and NNSR 
permits. Additionally, Tennessee has a fully approved title V operating 
permit program at Regulation 1200-03-09 \20\ that covers the cost of 
implementation and enforcement of PSD and NNSR permits after they have 
been issued. EPA has made the preliminary determination that 
Tennessee's SIP and practices adequately provide for permitting fees 
related to the 2010 NO2 NAAQS, when necessary. Accordingly, 
EPA is proposing to approve Tennessee's infrastructure SIP submission 
with respect to section 110(a)(2)(L).
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    \20\ Title V program regulations are federally-approved but not 
incorporated into the federally-approved SIP.
---------------------------------------------------------------------------

    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 NO2 NAAQS 
when necessary. 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 the preconstruction PSD permitting 
requirements for major sources of section 110(a)(2)(C), prong 3 of 
(D)(i), and (J) and the interstate transport provisions pertaining to 
the contribution to nonattainment or interference with maintenance in 
other states and visibility of prongs 1, 2, and 4 of section 
110(a)(2)(D)(i), EPA is proposing to approve that Tennessee's March 13, 
2014, SIP submission for the 2010 1-hour NO2 NAAQS has met 
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. 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

[[Page 45447]]

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).
    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: June 30, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-16514 Filed 7-13-16; 8:45 am]
 BILLING CODE 6560-50-P


