[Federal Register Volume 77, Number 50 (Wednesday, March 14, 2012)]
[Rules and Regulations]
[Pages 14976-14979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5764]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2011-0353; FRL-9644-3]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking final action to approve the state implementation 
plan (SIP) revision submitted by the State of Tennessee, through the 
Tennessee Department of Environment and Conservation (TDEC), to 
demonstrate that the State meets the requirements of sections 110(a)(1) 
and (2) with respect to sections 110(a)(2)(C) and (J), of the Clean Air 
Act (CAA or Act) for the 1997 8-hour ozone national ambient air quality 
standards (NAAQS). Section 110(a) of the CAA requires that each state 
adopt and submit a state implementation plan (SIP) for the 
implementation, maintenance, and enforcement of each NAAQS promulgated 
by EPA, which is commonly referred to as an ``infrastructure'' SIP. 
TDEC certified that the Tennessee SIP contains provisions that ensure 
the 1997 8-hour ozone NAAQS are implemented, enforced, and maintained 
in Tennessee (hereafter referred to as ``infrastructure submission''). 
Tennessee's infrastructure submission, provided to EPA on December 14, 
2007, and clarified in a subsequent May 28, 2009, submission, addressed 
the required infrastructure elements for the 1997 8-hour ozone NAAQS, 
however the subject of this notice is limited to infrastructure 
elements 110(a)(2)(C) and (J). All other applicable Tennessee 
infrastructure elements will be addressed in a separate rulemaking.

DATES: Effective Date: This rule will be effective April 13, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2011-0353. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the Regulatory Development Section, Air Planning Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 
30303-8960. EPA requests that if at all possible, you contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30 excluding Federal 
holidays.

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. This Action
III. Final Action
IV. Statutory and Executive Order Reviews

[[Page 14977]]

I. Background

    Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and 
(2) of the CAA require states to address basic SIP requirements, 
including emissions inventories, monitoring, and modeling to assure 
attainment and maintenance for that new NAAQS. On July 18, 1997, EPA 
promulgated a new NAAQS for ozone based on 8-hour average 
concentrations, thus states were required to provide submissions to 
address sections 110(a)(1) and (2) of the CAA for this new NAAQS. 
Tennessee provided its infrastructure submission for the 1997 8-hour 
ozone NAAQS on December 14, 2007, and clarified it in a subsequent 
submission submitted on May 28, 2009. On March 27, 2008, Tennessee was 
among other states that received a finding of failure to submit because 
its infrastructure submission was deemed incomplete for elements 
110(a)(2)(C) and (J) for the 1997 8-hour ozone NAAQS by March 1, 2008. 
See 73 FR 16205. Specifically, the Tennessee infrastructure submission 
did not address the part C Prevention of Significant Deterioration 
(PSD) permit program requirements promulgated in the 1997 8-Hour Ozone 
NAAQS Implementation Rule New Source Review (NSR) Update--Phase 2 final 
rule (hereafter referred to as the Ozone Implementation NSR Update) 
recognizing nitrogen oxide (NOx) as an ozone precursor, among other 
elements. See 70 FR 71612 (November 29, 2005). On May 28, 2009, TDEC 
submitted a SIP revision to EPA for federal approval which included 
revisions to Chapter 1200-03-09 of the Tennessee NSR program that 
addressed changes promulgated in the Ozone Implementation NSR Update. 
On February 7, 2012, EPA finalized approval of Tennessee's May 28, 
2009, SIP revision. See 77 FR 6016. The May 28, 2009, submission was 
one of two required SIP revisions that were necessary in order for 
Tennessee to meet the requirements of infrastructure elements 
110(a)(2)(C) and (J). In addition revisions related to the Ozone 
Implementation NSR Update, Tennessee was also required to submit 
revisions related to the ``Prevention of Significant Deterioration and 
Title V Greenhouse Gas Tailoring Rule'' (hereafter referred to as the 
``PSD GHG Tailoring Rule'').
    On January 11, 2012, TDEC submitted its final PSD GHG Tailoring 
Rule revision to EPA. This revision establishes appropriate emission 
thresholds for determining which new stationary sources and 
modification projects become subject to Tennessee's PSD permitting 
requirements for their GHG emissions, and thereby addresses the 
thresholds for GHG permitting applicability in Tennessee. On January 
27, 2012, the final rulemaking approving Tennessee's January 11, 2012, 
SIP revision was signed by the Acting EPA Region 4 Administrator. This 
rulemaking is scheduled to be published in the Federal Register on or 
before February 28, 2012. On January 23, 2012, EPA proposed to approve 
Tennessee's December 14, 2007, infrastructure submission for the 1997 
8-hour ozone NAAQS for elements 110(a)(2)(C) and (J), which is the 
subject of today's rulemaking. See 77 FR 3213. A summary of the 
background for today's final action is provided below. See EPA's 
January 23, 2012, proposed rulemaking at 77 FR 3213 for more detail.
    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 1997 8-hour ozone NAAQS, states typically 
have met the basic program elements required in section 110(a)(2) 
through earlier SIP submissions in connection with previous ozone 
NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As already mentioned, these 
requirements include SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The requirements that are the 
subject of this final rulemaking are listed below \1\ and in EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards.''
---------------------------------------------------------------------------

    \1\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather are due at the time the nonattainment 
area plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA, and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. Today's final rulemaking 
does not address infrastructure elements related to section 
110(a)(2)(I) but does provide detail on how Tennessee's SIP 
addresses 110(a)(2)(C).
---------------------------------------------------------------------------

     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control 
measures.\2\
---------------------------------------------------------------------------

    \2\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
---------------------------------------------------------------------------

     110(a)(2)(D): Interstate transport.\3\
---------------------------------------------------------------------------

    \3\ Today's proposed rule does not address element 
110(a)(2)(D)(i) (Interstate Transport) for the 1997 8-hour ozone 
NAAQS. Interstate transport requirements were formerly addressed by 
Tennessee consistent with the Clean Air Interstate Rule (CAIR). On 
December 23, 2008, CAIR was remanded by the DC Circuit Court of 
Appeals, without vacatur, back to EPA. See North Carolina v. EPA, 
531 F.3d 896 (DC Cir. 2008). Prior to this remand, EPA took final 
action to approve Tennessee's SIP revision, which was submitted to 
comply with CAIR. See 72 FR 46388 (August 20, 2007). In so doing, 
Tennessee's CAIR SIP revision addressed the interstate transport 
provisions in section 110(a)(2)(D)(i) for the 1997 8-hour ozone 
NAAQS. In response to the remand of CAIR, EPA has promulgated a new 
rule to address the interstate transport. See 76 FR 48208 (August 8, 
2011) (``the Transport Rule''). That rule was recently stayed by the 
DC Circuit Court of Appeals. EPA's action on element 110(a)(2)(D)(i) 
will be addressed in a separate action.
---------------------------------------------------------------------------

     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the 
applicable requirements of part D.\4\
---------------------------------------------------------------------------

    \4\ This requirement was inadvertently omitted from EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone 
and PM2.5 National Ambient Air Quality Standards,'' but 
as mentioned above is not relevant to today's final rulemaking.
---------------------------------------------------------------------------

     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.

II. This Action

    EPA is taking final action to approve Tennessee's December 14, 
2007, and

[[Page 14978]]

clarified on May 28, 2009, infrastructure submission as demonstrating 
that the State meets the applicable requirements of elements 
110(a)(2)(C) and (J) of the CAA 110(a)(1) and (2) SIP requirements for 
the 1997 8-hour ozone NAAQS. Section 110(a) of the CAA requires that 
each state adopt and submit a SIP for the implementation, maintenance, 
and enforcement of each NAAQS promulgated by the EPA, which is commonly 
referred to as an ``infrastructure'' SIP. Tennessee, through TDEC, 
certified that the TDEC SIP contains provisions that ensure the 1997 8-
hour ozone NAAQS is implemented, enforced, and maintained in Tennessee 
for infrastructure elements 110(a)(2)(C) and (J). Additionally, EPA 
received no adverse comments on its January 23, 2012, proposed approval 
of Tennessee's December 14, 2007, infrastructure submission.
    EPA has determined that Tennessee's infrastructure submission, 
provided to EPA on December 14, 2007, and clarified in a subsequent 
submission submitted on May 28, 2009, which addressed infrastructure 
elements 110(a)(2)(C) and (J) for the 1997 8-hour ozone NAAQS, is 
consistent with section 110 of the CAA.

III. Final Action

    EPA is taking final action to approve Tennessee's December 14, 
2007, submission as clarified on May 28, 2009, for the 1997 8-hour 
ozone NAAQS because this submission is consistent with section 110 of 
the CAA. TDEC has addressed the elements (C) and (J) of the CAA 
110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 2007, 
guidance to ensure that the 1997 8-hour ozone NAAQS are implemented, 
enforced, and maintained in Tennessee.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country, and EPA notes that it 
will not impose substantial direct costs on tribal governments or 
preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 14, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: February 24, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart RR--Tennessee

0
2. Section 52.2220(e) is amended by adding a new entry ``110(a)(1) and 
(2) Infrastructure Requirements for the 1997 8-Hour Ozone National 
Ambient Air Quality Standards--Elements 110(a)(1) and (2)(C) and (J)'' 
at the end of the table to read as follows:


Sec.  52.2220  Identification of plan.

* * * * *
    (e) * * *

[[Page 14979]]



                                EPA-Approved Tennessee Non-regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                          Applicable          State
Name of nonregulatory SIP provision      geographic or      effective    EPA approval date       Explanation
                                      nonattainment area       date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
110(a)(1) and (2) Infrastructure     Tennessee...........   12/14/2007  3/14/2012 [Insert
 Requirements for the 1997 8-Hour                                        citation of
 Ozone National Ambient Air Quality                                      publication].
 Standards--Elements 110(a)(1) and
 (2)(C) and (J).
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2012-5764 Filed 3-13-12; 8:45 am]
BILLING CODE 6560-50-P