[Federal Register Volume 77, Number 79 (Tuesday, April 24, 2012)]
[Rules and Regulations]
[Pages 24392-24397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9697]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2009-0786; FRL-9663-6]


Approval and Promulgation of Implementation Plans; Tennessee; 
Regional Haze State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval and a limited disapproval 
of a revision to the Tennessee State Implementation Plan (SIP) 
submitted by the State of Tennessee, through the Tennessee Department 
Environment and Conservation (TDEC), on April 4, 2008. EPA is taking 
final action on the entire SIP revision except for the Best Available 
Retrofit Technology (BART) determination for Eastman Chemical Company 
(Eastman). EPA is not taking any action on the Eastman BART 
determination at this time. Tennessee's April 4, 2008, SIP revision 
addresses regional haze for the first implementation period. 
Specifically, this SIP revision addresses the requirements of the Clean 
Air Act (CAA or Act) and EPA's rules that require states to prevent any 
future and remedy any existing anthropogenic impairment of visibility 
in mandatory Class I areas (national parks and wilderness areas) caused 
by emissions of air pollutants from numerous sources located over a 
wide geographic area (also referred to as the ``regional haze 
program''). States are required to assure reasonable progress toward 
the national goal of achieving natural visibility conditions in Class I 
areas. EPA is finalizing a limited approval of Tennessee's April 4, 
2008, SIP revision, except for the Eastman BART determination, to 
implement the regional haze requirements for Tennessee on the basis 
that this SIP revision, as a whole, strengthens the Tennessee SIP. Also 
in this action, EPA is finalizing a limited disapproval of this same 
SIP revision because of the deficiencies in the State's regional haze 
SIP revision arising from the remand by the U.S. Court of Appeals for 
the District of Columbia Circuit (D.C. Circuit) to EPA of the Clean Air 
Interstate Rule (CAIR).

DATES: Effective Date: This rule will be effective May 24, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2009-0786. 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 for 
further information. The Regional Office's official hours of business 
are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni, 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. Michele Notarianni can 
be reached at telephone number (404) 562-9031 and by electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What is the background for this final action?
II. What is EPA's response to comments received on this action?
III. What is the effect of this final action?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What is the background for this final action?

    Regional haze is visibility impairment that is produced by a 
multitude of sources and activities which are located across a broad 
geographic area and emit fine particles (e.g., sulfates, nitrates, 
organic carbon, elemental carbon, and soil dust), and their precursors 
(e.g., sulfur dioxide (SO2), nitrogen oxides 
(NOX), and in some cases, ammonia and volatile organic 
compounds. Fine particle precursors react in the atmosphere to form 
fine particulate matter (PM2.5) which impairs visibility by 
scattering and absorbing light. Visibility impairment reduces the 
clarity, color, and visible distance that one can see. PM2.5 
can also cause serious health effects and mortality in humans and 
contributes to environmental effects such as acid deposition and 
eutrophication.
    In section 169A of the 1977 Amendments to the CAA, Congress created 
a program for protecting visibility in the nation's national parks and 
wilderness areas. This section of the CAA establishes as a national 
goal the ``prevention of any future, and the remedying of any existing, 
impairment of visibility in mandatory Class I areas which impairment 
results from manmade air pollution.'' On December 2, 1980, EPA 
promulgated regulations to address visibility impairment in Class I 
areas that is ``reasonably attributable'' to a single source or small 
group of sources, i.e., ``reasonably attributable visibility 
impairment.'' See 45 FR 80084. These regulations represented the first 
phase in addressing visibility impairment. EPA deferred action on 
regional haze that emanates from a variety of sources until monitoring, 
modeling, and scientific knowledge about the relationships between 
pollutants and visibility impairment were improved.
    Congress added section 169B to the CAA in 1990 to address regional 
haze issues. EPA promulgated a rule to address regional haze on July 1, 
1999 (64 FR 35713), the Regional Haze Rule (RHR). The RHR revised the 
existing visibility regulations to integrate into the regulation 
provisions addressing regional haze impairment and established a 
comprehensive visibility protection program for Class I areas. The 
requirements for regional haze, found at 40 CFR 51.308 and 51.309, are 
included in EPA's visibility protection regulations at 40 CFR 51.300-
309. The requirement to submit a regional haze SIP applies to all 50 
states, the District of Columbia, and the Virgin Islands. 40 CFR 
51.308(b) requires states to submit the first implementation plan 
addressing regional haze visibility impairment no later than December 
17, 2007.
    On April 4, 2008, TDEC submitted a revision to Tennessee's SIP to 
address regional haze in the State's and other states' Class I areas. 
On June 9, 2011, EPA published an action proposing a limited approval 
and a limited disapproval of Tennessee's April 4, 2008, SIP revision 
(including the BART determination for Eastman) to address the first 
implementation period for regional haze. See 76 FR 33662. EPA proposed 
a limited approval of Tennessee's April 4, 2008, SIP revision

[[Page 24393]]

to implement the regional haze requirements for Tennessee on the basis 
that this revision, as a whole, strengthens the Tennessee SIP. Also in 
that action, EPA proposed a limited disapproval of this same SIP 
revision because of the deficiencies in the State's regional haze SIP 
revision arising from the remand of CAIR to EPA by the D.C. Circuit.
    On July 26, 2011, EPA reopened the comment period for EPA's 
proposed actions related to Tennessee's April 4, 2008, SIP revision. 
See 76 FR 44534. See section II of this rulemaking for a summary of the 
comments received on the proposed actions and EPA's responses to these 
comments. Also, detailed background information and EPA's rationale for 
the proposed actions is provided in EPA's June 9, 2011, proposed 
rulemaking. See 76 FR 33662.
    Following the remand of CAIR, EPA recently issued a new rule in 
2011 to address the interstate transport of NOX and 
SO2 in the eastern United States. See 76 FR 48208 (August 8, 
2011) (``the Transport Rule,'' also known as the Cross-State Air 
Pollution Rule (CSAPR)). On December 30, 2011, EPA proposed to find 
that the trading programs in the Transport Rule would achieve greater 
reasonable progress towards the national goal than would BART in the 
states in which the Transport Rule applies. See 76 FR 82219. Based on 
this proposed finding, EPA also proposed to revise the RHR to allow 
states to substitute participation in the trading programs under the 
Transport Rule for source-specific BART. EPA has not yet taken final 
action on that rule.
    Also on December 30, 2011, the D.C. Circuit issued an order 
addressing the status of the Transport Rule and CAIR in response to 
motions filed by numerous parties seeking a stay of the Transport Rule. 
In that order, the DC Circuit stayed the Transport Rule pending the 
court's resolutions of the petitions for review of that rule in EME 
Homer Generation, L.P. v. EPA (No. 11-1302 and consolidated cases). The 
court also indicated that EPA is expected to continue to administer 
CAIR in the interim until the court rules on the petitions for review 
of the Transport Rule.

II. What is EPA's response to comments received on this action?

    EPA received six sets of comments on the June 9, 2011, rulemaking 
proposing a limited approval and limited disapproval of Tennessee's 
April 4, 2008, regional haze SIP revision. Specifically, the comments 
were received from the American Coalition for Clean Coal Electricity, 
Eastman, TDEC, the National Park Service, and the Tennessee Valley 
Authority. Full sets of the comments provided by all of the 
aforementioned entities (hereinafter referred to as ``the Commenter'') 
are provided in the docket for today's final action. A summary of the 
comments and EPA's responses are provided below.
    Comment 1: The Commenter urges EPA to move expeditiously to assess, 
through modeling, whether the emissions reductions that will be 
achieved under the Transport Rule will be sufficient to satisfy BART 
requirements for electric generating units (EGUs) under the regional 
haze program.
    Response 1: This comment does not directly address the proposed 
action in the June 9, 2011, proposed rulemaking. Rather, the comment 
urges EPA to act more expeditiously in evaluating the impacts of the 
Transport Rule on regional haze. EPA appreciates the Commenter's 
interest in the proposed rule and notes that the Agency has performed 
modeling analyses to determine the visibility improvement expected from 
the implementation of the Transport Rule and compared the results to 
the improvements expected from BART. On December 30, 2011 (76 FR 
82219), EPA proposed its determination that the Transport Rule achieves 
greater reasonable progress toward the national goal of achieving 
natural visibility conditions in Class I areas (including Tennessee's 
two areas) than source-specific BART (i.e., that the Transport Rule is 
``better than BART''). Based on this proposed action, EPA believes that 
the Transport Rule will satisfy BART requirements for SO2 
and NOX for EGUs in Tennessee. The final action in that 
rulemaking will determine whether the Transport Rule may satisfy BART 
requirements for Tennessee's EGUs.
    Comment 2: The Commenter requests that EPA delay final action on 
the June 9, 2011, proposed rulemaking related to Tennessee's regional 
SIP revision so that the BART requirements are harmonized with other 
pending federal air quality regulatory actions that affect Eastman's 
Tennessee facility (e.g., 1-hour SO2 National Ambient Air 
Quality Standard (NAAQS), the maximum achievable control technology 
(MACT) rule for industrial boilers (Industrial Boiler MACT), and the 
Transport Rule). The Commenter asserts that this delay will provide 
Eastman with an opportunity to meet all of the requirements of these 
programs at one time and will allow the Company to comply with all 
pending requirements in an efficient and cost-effective manner.
    Response 2: Under section 110(k)(2) of the CAA, EPA is required to 
act within specified timeframes to approve or disapprove SIP revisions. 
Tennessee submitted its regional haze SIP revision for EPA review on 
April 4, 2008, and because EPA did not approve or disapprove the SIP 
within 12 months as required by section 110(k)(2), the National Parks 
Conservation Association and other interested parties (Plaintiffs) sued 
EPA to take action. As a result of that lawsuit, EPA is now operating 
under a consent decree to finalize approval or disapproval of 
Tennessee's regional haze SIP. The proposed consent decree originally 
required EPA to finalize an approval or disapproval action on 
Tennessee's entire regional haze SIP by March 15, 2012. After 
publication of EPA's proposed limited approval and limited disapproval 
action on Tennessee's SIP, the State and Eastman entered into 
discussions with the Plaintiffs regarding the BART determination for 
Eastman. The Eastman facility is considering a conversion to natural 
gas in one or two of its powerhouses in lieu of continuing to use coal 
and retrofitting its facility pursuant to the facility's BART 
determination to reduce its SO2 emissions. Based on these 
discussions and a March 14, 2012, agreement between Tennessee and 
Eastman regarding possible control options to satisfy BART, the 
Plaintiffs agreed to extend the date in the consent decree for EPA to 
take final action on the BART determination for Eastman. Accordingly, 
EPA is taking no action on this BART determination at this time since 
EPA expects Tennessee to submit a revised BART determination for 
Eastman in the near future. EPA will take action on Eastman BART in a 
separate rulemaking. A copy of the March 14, 2012, agreement between 
Eastman and Tennessee is included in the docket for this action.
    Comment 3: The Commenter indicates that it is fundamentally 
inequitable to set the BART compliance deadline earlier for non-EGUs 
(in reference to the Eastman facility) than for EGUs and to require 
non-EGUs to make necessary investments earlier than EGUs. Further, the 
Commenter asserts that this step is not required to ensure reasonable 
progress in visibility improvement in Class I areas.
    Response 3: It is not clear what compliance dates the Commenter is 
referring to. Pursuant to 40 CFR 51.308(e), Tennessee submitted a 
regional haze SIP containing BART determinations for each BART-eligible 
source that may reasonably be anticipated to cause or contribute to any

[[Page 24394]]

impairment of visibility in any Class I area and schedules for 
compliance with BART for each of these sources. Tennessee's April 4, 
2008, regional haze SIP also contains a requirement, based on the 
provisions of 40 CFR 51.308(e)(1)(iv), that each source subject to BART 
be required to install and operate BART as expeditiously as 
practicable, but in no event later than five years after approval of 
the SIP revision. Therefore, the latest BART compliance date under the 
Tennessee regional haze SIP for the State's subject-to-BART sources 
(excluding Eastman for the reasons discussed below and in Response 2) 
is in 2017, five years after final action on this rulemaking. Under the 
aforementioned March 14, 2012, agreement between Tennessee and Eastman, 
the BART compliance date for Eastman is the same compliance date that 
Eastman would have received had EPA taken final action on the Eastman 
BART determination on March 15, 2012, if Eastman does not convert its 
BART subject unit to natural gas. Additionally, under the RHR, states 
may opt to implement an alternative measure to source-specific BART 
that must achieve greater reasonable progress than would be achieved by 
implementation of BART. 40 CFR 51.308(e)(2). For any BART alternative 
measure, all emissions reductions must take place during the period of 
the first long-term strategy (LTS). 40 CFR 51.308(e)(2)(iii).
    In addition, the Utility Boiler MACT and the Industrial Boiler MACT 
require compliance with their respective standards by 2015 as does the 
Transport Rule, a rule that applies only to EGUs. It is therefore 
possible that an EGU relying on the Transport Rule to satisfy BART will 
be required to implement BART (via the Transport Rule) before a non-
EGU. The SO2 and ozone NAAQS processes have not progressed 
sufficiently to establish any independent requirements for industrial 
or utility boilers.
    Comment 4: The Commenter questions EPA's authority to issue a 
limited approval of Tennessee's SIP revision. Further, the Commenter 
states that EPA should reach full resolution of the issue of what 
constitutes BART and reasonable progress for EGUs before approving any 
portion of Tennessee's regional haze SIP.
    Response 4: EPA has the authority to issue a limited approval and 
believes that it is appropriate and necessary to promulgate a limited 
approval and limited disapproval of Tennessee's regional haze SIP at 
this time. This action results in an approval of the entire regional 
haze submission and all of its elements, preserving the visibility 
benefits offered by the SIP while providing EPA with the opportunity to 
demonstrate that the Transport Rule is better than BART. As noted 
above, EPA has already published a proposed rule reflecting this 
demonstration. EPA cannot fully approve regional haze SIP revisions 
that rely on CAIR for emissions reduction measures for the reasons 
discussed in section IV of the June 9, 2011, proposed rulemaking (see 
76 FR 33662) and therefore proposed to grant limited approval and 
limited disapproval of the Tennessee regional haze SIP. It is not 
necessary to reach full resolution on whether the Transport Rule is 
better than BART for EPA to issue a limited approval. Granting full 
approval at a later date would only delay realization of the SIP's 
visibility benefits whereas the SIP is strengthened now by acting 
through the limited approval.
    Comment 5: The Commenter asserts that the 1-hour SO2 
NAAQS is very restrictive and may result in fuel switching from coal to 
natural gas. In addition, the Commenter mentions that sources upgrading 
their facilities may be faced with possible greenhouse gas best 
available control technology determinations that would drive repowering 
from coal to natural gas. Further, the Commenter mentions that sources 
must also consider what controls may be required by the Transport Rule 
and the Industrial Boiler MACT. The Commenter concludes with a request 
that EPA time the final approval of the Tennessee Regional Haze SIP to 
allow BART sources to have a reasonable amount of time to plan for the 
implementation of the four above-listed regulatory programs, and 
mentions that the burden of meshing all of the planning and 
construction of equipment to meet these programs is too much to ask of 
industries that are trying to stay competitive and to keep citizens 
employed.
    Response 5: See response to Comment 2.
    Comment 6: The Commenter states that EPA should have considered 
updated information in evaluating the BART determination for Alcoa 
Tennessee's (Alcoa's) primary aluminum smelter. In the Commenter's 
opinion, based on this information, Alcoa should have: (1) Conducted a 
full five-step analysis of sodium-based scrubbing for potline 
SO2 emissions; (2) used EPA's Air Pollution Control Cost 
Manual (EPA's ``Cost Manual'') to estimate costs, or better document 
and justify costs that deviate from EPA's Cost Manual approach; (3) 
justified the need for a redundant scrubbing module (absorber), or 
revised the facility's estimates to eliminate it; (4) provided modeling 
results consistent with established modeling procedures for all Class I 
areas within 300 kilometers for the base case as well as the 95 percent 
potline SO2 removal case; and (5) explained how the facility 
objectively evaluated the resulting visibility benefits to all Class I 
areas within 300 kilometers of the facility. The Commenter states that 
Alcoa also appears to have overestimated costs for limestone slurry 
forced oxidation scrubbing. The Commenter asserts that wet scrubbing of 
potline emissions is BART at Alcoa.
    Response 6: In December 2007, the Commenter submitted comments to 
Tennessee on the State's regional haze SIP, based on the information 
available to both EPA and the State at that time, and raised no 
substantive issues regarding Tennessee's BART determination for Alcoa. 
EPA does not believe that the Commenter's expressed concerns regarding 
Alcoa's BART analysis (in response to the June 9, 2011, proposed 
rulemaking) justify reconsideration of Tennessee's BART determination.
    Tennessee considered the degree of improvement in visibility 
reasonably anticipated to result from the implementation of the 
evaluated control technologies and determined that, for the two Class I 
areas that modeled an impact from Alcoa of greater than 0.5 deciview, 
the highest 98th percentile visibility improvement from wet scrubbing 
potline emissions at Alcoa's BART-eligible source was 0.72 deciview at 
Great Smoky Mountains National Park, the Class I area receiving the 
greatest impact from Alcoa's SO2 emissions. The visibility 
improvement at the Joyce Kilmer-Slickrock Wilderness Area, Tennessee's 
other Class I area, was 0.27 deciview. While the Commenter questioned 
the modeled visibility improvements, the Commenter presented no 
alternative assessment. Hence, the best available estimate of 
visibility improvement from the Commenter's suggested BART 
determination remains as it is presented in the SIP. EPA also notes 
that both of Tennessee's Class I areas are projected to meet or exceed 
the uniform rate of progress with the State's BART determination for 
Alcoa.
    The degree of visibility improvement reasonably anticipated from 
each evaluated BART control technology is one of the five statutory 
factors that a state must consider in making a BART determination, and 
the weight and significance to be assigned to each factor by a state 
will vary depending on the particular circumstances in each

[[Page 24395]]

determination. See 70 FR 39170. In the SIP, the State weighed the 
projected improvements in visibility against the cost effectiveness 
calculation as well as the projected capital and annual control costs. 
Tennessee also considered the energy and non-air quality environmental 
impacts of compliance associated with wet scrubbers in evaluating 
possible BART controls. The State determined that the capital costs and 
control costs for the wet scrubbers were approximately $200,000,000 and 
$39,000,000, respectively, and that the scrubbers would require 180 
million gallons per year of makeup water, generate 17,600 tons per year 
of solid waste requiring off-site disposal, and increase 
PM2.5 emissions by 438 tons per year. Considering all of 
these factors, Tennessee determined that wet scrubbers were not 
appropriate as BART. The cost effectiveness would remain substantially 
higher than the values that Tennessee considered reasonable for any 
other BART source even with the Commenter's suggested changes to the 
cost of compliance factor in the BART determination.
    When considering all of the BART factors, including the limited 
visibility improvement projected in Tennessee's Class I areas, EPA 
believes that the State's BART determination is reasonable using either 
the cost effectiveness values calculated by Tennessee or the values 
presented by the Commenter. EPA reviewed Tennessee's BART analysis for 
Alcoa and concludes it was conducted in a manner that is consistent 
with the approach set forth in EPA's BART Guidelines and reflects a 
reasonable application of EPA's guidance to this particular source.
    Comment 7: The Commenter recommends that EPA grant full, not 
limited, approval of the Tennessee SIP for regional haze, and mentions 
that such full approval should not be delayed pending EPA's analysis to 
confirm that the Transport Rule would provide sufficient reductions to 
satisfy BART requirements. Rather, in the Commenter's opinion, EPA must 
grant full approval but reserve the option of having the SIP reopened 
in the unlikely event that its analysis indicates that emissions 
reductions beyond the Transport Rule are necessary in Tennessee to meet 
the national visibility goals.
    Response 7: See response to Comment 4.
    Comment 8: The Commenter asserts that EPA should give full, not 
limited, approval to Tennessee's regional haze SIP because CAIR and 40 
CFR 51.308(e)(4) remain in effect. Further, the Commenter states that 
EPA could not have a basis to propose or promulgate disapproval or 
limited disapproval of a regional haze SIP due to its reliance on CAIR 
and on 40 CFR 51.308(e)(4) unless EPA had first determined, based on a 
thorough and defensible analysis, that: (a) The emissions reductions 
and associated visibility-improvement benefits that are likely to 
result from the final Transport Rule will not be at least comparable to 
those achieved under CAIR; and (b) for that reason, the Transport Rule 
(i) will not satisfy the CAA's BART alternative requirements for 
NOX and SO2 emissions from affected EGUs and (ii) 
cannot be used, in at least the same measure as CAIR was used, to help 
meet reasonable progress requirements for regional haze. The Commenter 
opines that because the Agency has not made and cannot make such a 
determination at this time, there is no basis for EPA to do anything 
other than to give full approval to Tennessee's SIP. The Commenter 
concludes by stating that EPA should recognize that full approval of 
the SIP is required because, in the Commenter's opinion, ``the SIP is 
fully compliant with relevant EPA regulations--which are as binding on 
EPA as they are on the state and sources--as those regulations existed 
at the time of the SIP's development and submission and as they exist 
today.''
    Response 8: See response to Comment 4.

III. What is the effect of this final action?

    Under CAA sections 301(a) and 110(k)(6) and EPA's long-standing 
guidance, a limited approval results in approval of the entire SIP 
revision, even of those parts that are deficient and prevent EPA from 
granting a full approval of the SIP revision. Processing of State 
Implementation Plan (SIP) Revisions, EPA Memorandum from John Calcagni, 
Director, Air Quality Management Division, OAQPS, to Air Division 
Directors, EPA Regional Offices I-X, September 7, 1992, (1992 Calcagni 
Memorandum) located at: http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf. Today, EPA is finalizing a limited approval of Tennessee's 
April 4, 2008, regional haze SIP revision, except for the Eastman BART 
determination. This limited approval results in approval of Tennessee's 
entire regional haze submission and all its elements except for the 
Eastman BART determination. EPA is taking this approach because 
Tennessee's SIP will be stronger and more protective of the environment 
with the implementation of those measures by the State and having 
federal approval and enforceability than it would without those 
measures being included in the SIP.
    In this action, EPA is also finalizing a limited disapproval of 
Tennessee's April 4, 2008, regional haze SIP revision insofar as this 
SIP revision relies on CAIR to address the impact of emissions from the 
State's own EGUs. As explained in the 1992 Calcagni Memorandum, 
``[t]hrough a limited approval, EPA [will] concurrently, or within a 
reasonable period of time thereafter, disapprove the rule * * * for not 
meeting all of the applicable requirements of the Act. * * * [T]he 
limited disapproval is a rulemaking action, and it is subject to notice 
and comment.'' Final limited disapproval of a SIP submittal does not 
affect the federal enforceability of the measures in the subject SIP 
revision nor prevent state implementation of these measures. The legal 
effect of the final limited disapproval for Tennessee's April 4, 2008, 
SIP revision is to provide EPA the authority to issue a federal 
implementation plan at any time, and to obligate the Agency to take 
such action no more than two years after the effective date of EPA's 
final action. As explained in the 1992 Calcagni Memorandum, ``[t]hrough 
a limited approval, EPA [will] concurrently, or within a reasonable 
period of time thereafter, disapprove the rule * * * for not meeting 
all of the applicable requirements of the Act. * * * [T]he limited 
disapproval is a rulemaking action, and it is subject to notice and 
comment.''

IV. Final Action

    EPA is finalizing a limited approval and a limited disapproval of a 
revision to the Tennessee SIP submitted by the State of Tennessee on 
April 4, 2008, as meeting some of the applicable regional haze 
requirements as set forth in sections 169A and 169B of the CAA and in 
40 CFR 51.300-308. As discussed above, EPA is not taking final action 
on the BART determination for Eastman at this time.

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

[[Page 24396]]

B. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must 
approve all ``collections of information'' by EPA. The Act defines 
``collection of information'' as a requirement for answers to * * * 
identical reporting or recordkeeping requirements imposed on ten or 
more persons * * *. 44 U.S.C. 3502(3)(A). The Paperwork Reduction Act 
does not apply to this action.

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to conduct a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the CAA do not create any new requirements but 
simply approve requirements that the State is already imposing. 
Therefore, because the federal SIP approval does not create any new 
requirements, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.
    Moreover, due to the nature of the federal-state relationship under 
the CAA, preparation of flexibility analysis would constitute federal 
inquiry into the economic reasonableness of state action. The CAA 
forbids EPA to base its actions concerning SIPs on such grounds. Union 
Electric Co., v. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).

D. Unfunded Mandates Reform Act (UMRA)

    Under sections 202 of the UMRA of 1995 (Unfunded Mandates Act), 
signed into law on March 22, 1995, EPA must prepare a budgetary impact 
statement to accompany any proposed or final rule that includes a 
federal mandate that may result in estimated costs to state, local, or 
tribal governments in the aggregate; or to the private sector, of $100 
million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives 
of the rule and is consistent with statutory requirements. Section 203 
requires EPA to establish a plan for informing and advising any small 
governments that may be significantly or uniquely impacted by the rule.
    EPA has determined that today's action does not include a federal 
mandate that may result in estimated costs of $100 million or more to 
either state, local, or tribal governments in the aggregate, or to the 
private sector. This federal action approves pre-existing requirements 
under state or local law, and imposes no new requirements. Accordingly, 
no additional costs to state, local, or tribal governments, or to the 
private sector, result from this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have Federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has Federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the federal government provides the funds necessary to pay the direct 
compliance costs incurred by state and local governments, or EPA 
consults with state and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has Federalism implications and that preempts state law unless the 
Agency consults with state and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the states, 
on the relationship between the national government and the states, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the CAA. Thus, the requirements of 
section 6 of the Executive Order do not apply to this rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments. Thus, Executive 
Order 13175 does not apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12 of the NTTAA of 1995 requires federal agencies to 
evaluate existing technical standards when developing a new regulation. 
To comply with NTTAA, EPA must consider and use ``voluntary consensus 
standards'' (VCS) if available and applicable when developing programs 
and policies unless doing so would be inconsistent with applicable law 
or otherwise impractical.
    EPA believes that VCS are inapplicable to this action. Today's

[[Page 24397]]

action does not require the public to perform activities conducive to 
the use of VCS.

J. Congressional Review Act

    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 rule 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).

K. Petitions for Judicial Review

    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 June 25, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

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

    Dated: April 11, 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, the table in paragraph (e) is amended by adding an 
entry for Regional Haze Plan at the end of the table to read as 
follows:


Sec.  52.2220  Identification of plan.

* * * * *
    (e) * * *

                                EPA-Approved Tennessee Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                      Applicable
    Name of nonregulatory SIP        geographic or      State effective    EPA approval date      Explanation
            provision             nonattainment area         date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Regional Haze Plan (excluding     Statewide.........  April 4, 2008.....  4/24/2012 [Insert   BART emissions
 Eastman Chemical Company BART                                             citation of         limits are listed
 determination).                                                           publication].       in Section 7.5.3.
----------------------------------------------------------------------------------------------------------------


0
3. Section 52.2234 is added to read as follows:


Sec.  52.2234  Visibility protection.

    (a) The requirements of section 169A of the Clean Air Act are not 
met because the plan does not include approvable measures for meeting 
the requirements of 40 CFR 51.308 for protection of visibility in 
mandatory Class I federal areas.
    (b) No action has been taken on the BART determination for Eastman 
Chemical Company.

[FR Doc. 2012-9697 Filed 4-23-12; 8:45 am]
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