[Federal Register Volume 85, Number 28 (Tuesday, February 11, 2020)]
[Proposed Rules]
[Pages 7692-7695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02607]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2019-0203; FRL-10005-11-Region 4]


Air Plan Approvals; Tennessee; Prevention of Significant 
Deterioration Infrastructure Requirements for the 2015 Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
conditionally approve portions of the Tennessee infrastructure State 
Implementation Plan (SIP) submission for the 2015 8-hour ozone National 
Ambient Air Quality Standards (NAAQS) provided to EPA on September 13, 
2018. Whenever EPA promulgates a new or revised NAAQS, the Clean Air 
Act (CAA or Act) requires that states adopt and submit a SIP for the 
implementation, maintenance, and enforcement of each such NAAQS, 
commonly referred to as an ``infrastructure SIP.'' Specifically, EPA is 
proposing to conditionally approve the portions of the Tennessee 
infrastructure SIP submission related to the prevention of significant 
deterioration (PSD) infrastructure elements for the 2015 8-hour ozone 
NAAQS.

DATES: Comments must be received on or before March 12, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No EPA-R04-
OAR-2019-0203, 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

[[Page 7693]]

making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

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

SUPPLEMENTARY INFORMATION:

I. Background

    On October 1, 2015, EPA promulgated a revised primary and secondary 
NAAQS for ozone, revising the 8-hour ozone standards from 0.075 parts 
per million (ppm) to a new more protective level of 0.070 ppm. See 80 
FR 65292 (October 26, 2015). Pursuant to section 110(a)(1) of the CAA, 
states are required to submit SIP revisions meeting the applicable 
requirements of section 110(a)(2) within three years after promulgation 
of a new or revised NAAQS or within such shorter period as EPA may 
prescribe. Section 110(a)(2) requires states to address basic SIP 
elements such as requirements for monitoring, basic program 
requirements, and legal authority that are designed to assure 
attainment and maintenance of the NAAQS. This particular type of SIP is 
commonly referred to as an ``infrastructure SIP.'' States were required 
to submit such SIP revisions for the 2015 8-hour ozone NAAQS to EPA no 
later than October 1, 2018.\1\
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    \1\ In 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 SIP. In addition, certain 
federally-approved, non-SIP regulations may also be appropriate for 
demonstrating compliance with sections 110(a)(1) and (2).
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    EPA is proposing to conditionally approve \2\ the portions of 
Tennessee's September 13, 2018, SIP revision provided to EPA through 
the Tennessee Department of Environment and Conservation (TDEC) that 
address the PSD-related infrastructure SIP requirements under sections 
110(a)(2)(C), 110(a)(2)(D)(i)(II) (prohibiting interference with PSD in 
other states), and 110(a)(2)(J) (also referred to as infrastructure 
elements C, D(i) prong 3, and J, respectively) of the 2015 8-hour ozone 
NAAQS. These provisions are discussed in further detail in Section III, 
below. All other applicable infrastructure SIP requirements for this 
SIP submission have been or will be addressed in separate rulemakings.
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    \2\ Under CAA section 110(k)(4), EPA may conditionally approve a 
SIP revision based on a commitment from a state to adopt specific 
enforceable measures by a date certain, but not later than one year 
from the date of approval. If the state fails to meet the commitment 
within one year of the final conditional approval, the conditional 
approval automatically becomes a disapproval on that date and EPA 
will issue a finding of disapproval.
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    With respect to the PSD elements of 110(a)(2)(C) and (J), EPA 
interprets the CAA to require each state to make, for each new or 
revised NAAQS, an infrastructure SIP submission that demonstrates that 
the air agency has a complete PSD permitting program meeting the 
current requirements for all regulated new source review (NSR) 
pollutants. The requirements of element 110(D)(i)(II) (prong 3) may 
also be satisfied by demonstrating that the air agency has a complete 
PSD permitting program correctly addressing all regulated NSR 
pollutants.

II. What is EPA's approach to the review of infrastructure SIP 
submissions?

    As discussed above, whenever EPA promulgates a new or revised 
NAAQS, CAA section 110(a)(1) requires states to submit infrastructure 
SIPs that meet the various requirements of CAA section 110(a)(2), as 
applicable. Due to ambiguity in some of the language of CAA section 
110(a)(2), EPA believes that it is appropriate to interpret these 
provisions in the specific context of acting on infrastructure SIP 
submissions. EPA has previously provided comprehensive guidance on the 
application of these provisions through a guidance document for 
infrastructure SIP submissions and through regional actions on 
infrastructure submissions.\3\ Unless otherwise noted below, EPA is 
following that existing approach in acting on this submission. In 
addition, in the context of acting on such infrastructure submissions, 
EPA evaluates the submitting state's implementation plan for facial 
compliance with statutory and regulatory requirements, not for the 
state's implementation of its SIP.\4\ EPA has other authority to 
address any issues concerning a state's implementation of the rules, 
regulations, consent orders, etc. that comprise its SIP.
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    \3\ EPA explains and elaborates on these ambiguities and its 
approach to address them in its September 13, 2013 Infrastructure 
SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as well as in numerous agency actions, including EPA's prior 
action on Tennessee infrastructure SIP to address the 2010 Nitrogen 
Dioxide NAAQS. See 81 FR 45438 (July 14, 2016).
    \4\ See Mont. Envtl. Info. Ctr. v. Thomas, 902 F.3d 971 (9th 
Cir. 2018).
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III. What are the infrastructure requirements for Sections 
110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3), and 110(a)(2)(J) for 
Tennessee?

    Section 110(a)(2)(C) has three components that must be addressed in 
infrastructure SIP submissions: Enforcement, state-wide regulation of 
new and modified minor sources and minor modifications of major 
sources, and PSD permitting of new major sources and major 
modifications in areas designated attainment or unclassifiable for the 
subject NAAQS as required by the CAA title I part C (i.e., the major 
source PSD program).
    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'').
    Section 110(a)(2)(J) has four components related to: (1) 
Consultation with government officials, (2) public notification, (3) 
PSD, and (4) visibility protection.
    This proposed rulemaking relates only to the PSD-related 
requirements of sections 110(C), 110(a)(2)(D)(i)(II) (prong 3), and 
110(a)(2)(J) which as previously described, requires that the SIP 
contain adequate provisions to provide for the preconstruction PSD 
permitting for major sources and prohibit emissions activity in one 
state interfering with measures required to prevent significant 
deterioration of air quality in another state. More information on 
these requirements and EPA's rationale for this proposal that Tennessee 
is conditionally meeting this requirement for purposes of the 2015 8-
hour ozone NAAQS is provided below. All other applicable infrastructure 
requirements

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for the 2015 8-hour ozone NAAQS have been or will be addressed in 
separate rulemakings.

IV. What is EPA's analysis of how Tennessee addressed relevant portions 
of Sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3), and 
110(a)(2)(J)?

110(a)(2)(C) Programs for Enforcement of Control Measures and for 
Construction or Modification of Stationary Sources

    For the major source PSD program sub-element of section 
110(a)(2)(C), EPA interprets the CAA to require that a state's 
infrastructure SIP submission for a particular NAAQS demonstrate that 
the state has a complete PSD permitting program in place covering the 
PSD requirements for all regulated NSR pollutants.\5\ A state's PSD 
permitting program is complete for this sub-element (and prong 3 of 
D(i) and J related to PSD) if EPA has already approved or is 
simultaneously approving the state's implementation plan with respect 
to all PSD requirements that are due under EPA regulations or the CAA 
on or before the date of EPA's proposed action on the infrastructure 
SIP submission. Tennessee's 2015 8-hour ozone NAAQS infrastructure SIP 
submission cites a number of SIP provisions to address the major source 
PSD program sub-element of section 110(a)(2)(C) as described below.
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    \5\ See EPA's September 13, 2013, memorandum entitled ``Guidance 
on Infrastructure State Implementation Plan (SIP) Elements under 
Clean Air Act Sections 110(a)(1) and 110(a)(2).
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    Tennessee's infrastructure SIP submission cites Tennessee Air 
Pollution Control Regulations (TAPCR) 1200-03-09-.01(4) ``Prevention of 
Significant Deterioration of Air Quality'' to meet the PSD program 
requirements of 110(a)(2)(C). These SIP-approved regulations were 
submitted to EPA by Tennessee to provide that new major sources and 
major modifications in areas of the State designated attainment or 
unclassifiable for any given NAAQS are subject to a federally-approved 
PSD permitting program meeting all the current structural requirements 
of part C of title I of the CAA. However, the Tennessee SIP does not 
contain or reference the most recent version of EPA's Guideline on Air 
Quality Models, codified at 40 CFR part 51, Appendix W.\6\ EPA's PSD 
regulations at 40 CFR 51.166(l) require that modeling be conducted in 
accordance with Appendix W. As detailed in EPA's September 2013 
infrastructure SIP guidance, approval of element C requires a fully 
approved PSD permitting program, which requires application of Appendix 
W consistent with EPA's PSD implementing regulations, and approval of 
elements D(i)(II) and J is contingent on an approvable PSD program. 
Therefore, Tennessee has committed to update their PSD regulations to 
reference the most current version of Appendix W and submit SIP 
revisions containing the revised regulations. The commitment is 
discussed in more detail later in this section.
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    \6\ EPA approved the most recent version of Appendix W on 
January 17, 2017, at 82 FR 5182.
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    110(a)(2)(D)(i)(II)--prong 3: With regard to prong 3 of section 
110(a)(2)(D)(i)(II), a state may meet this requirement by a 
confirmation in its infrastructure SIP submission that new major 
sources and major modifications in the state are subject to a PSD 
program meeting current structural requirements of part C, or (if the 
state contains a nonattainment area that has the potential to impact 
PSD in another state) a nonattainment NSR program. To meet prong 3, 
Tennessee cites its PSD program found in the Tennessee SIP at 1200-03-
09-.01(4) ``Prevention of Significant Deterioration of Air Quality.''
    110(a)(2)(J) PSD: With regard to the PSD element of section 
110(a)(2)(J), this requirement is met by a state's confirmation in an 
infrastructure SIP submission that the state has a SIP-approved PSD 
program meeting all the current requirements of part C of title I of 
the CAA for all NSR regulated pollutants. To meet element J, Tennessee 
cites TAPCR 1200-03-09-.01(4) ``Prevention of Significant Deterioration 
of Air Quality.''
    As mentioned above, Tennessee cites to TAPCR 1200-03-09-.01(4) 
``Prevention of Significant Deterioration of Air Quality'' to 
demonstrate that their respective SIPs meet the PSD-related 
requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (Prong 3) 
and 110(a)(2)(J), but their SIP-approved PSD programs do not contain or 
reference the most recent version of Appendix W. On November 15, 2019, 
TDEC submitted a commitment letter to EPA requesting conditional 
approval of the PSD-related program requirements of sections 
110(a)(2)(C), 110(a)(2)(D)(i)(II) (Prong 3) and 110(a)(2)(J) of the 
aforementioned infrastructure SIP revision. In this letter, Tennessee 
commits to satisfy the PSD program requirements of sections 
110(a)(2)(C), 110(a)(2)(D)(i)(II) (Prong 3), and 110(a)(2)(J) for the 
2015 8-hour ozone NAAQS by revising their PSD regulations to reflect 
the most recent version of Appendix W and submitting SIP revisions 
containing these revised rules within, within one year of final 
conditional approval.\7\ If Tennessee meets its commitment within one 
year of final conditional approval, the PSD-related requirements of the 
conditionally approved infrastructure SIP submission will remain a part 
of the SIP until EPA takes final action approving or disapproving the 
new SIP revision. However, if the State fails to submit this revision 
within the one-year timeframe, the conditional approval will 
automatically become a disapproval one year from EPA's final 
conditional approval 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 FIP requirement under CAA section 110(c).
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    \7\ See Tennessee's letter dated November 15, 2019, in the 
docket for this action, for a detailed description and schedule of 
adoption for the rules being modified. This letter is contained in 
the docket for this proposed action.
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V. Proposed Action

    EPA is proposing to conditionally approve the portions of 
Tennessee's September 13, 2018, 2015 8-hour ozone infrastructure SIP 
submission, respectively, that address the PSD-related requirements of 
CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (Prong 3), and 
110(a)(2)(J). All other outstanding applicable infrastructure 
requirements for this SIP submission have been or will be addressed in 
separate rulemakings.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely proposes to approve 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);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;

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     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).
    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, 
Particulate Matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: January 28, 2020.
Mary S. Walker,
Regional Administrator, Region 4.
[FR Doc. 2020-02607 Filed 2-10-20; 8:45 am]
BILLING CODE 6560-50-P


