[Federal Register Volume 77, Number 149 (Thursday, August 2, 2012)]
[Rules and Regulations]
[Pages 45958-45962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18797]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0285; FRL-9705-7]


Approval and Promulgation of Implementation Plans; Tennessee 
110(a)(1) and (2) Infrastructure Requirements for the 1997 and 2006 
Fine Particulate Matter National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: EPA is taking final action to approve in part, and 
conditionally approve in part, the State Implementation Plan (SIP) 
submission, submitted by the State of Tennessee, through the Tennessee 
Department of Environment and Conservation (TDEC), as demonstrating 
that the State meets the SIP requirements of sections 110(a)(1) and (2) 
of the Clean Air Act (CAA or the Act) for the 1997 annual and 2006 24-
hour fine particulate matter (PM2.5) national ambient air 
quality standards (NAAQS). Section 110(a) of

[[Page 45959]]

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. 
Tennessee certified that the Tennessee SIP contains provisions that 
ensure the 1997 annual and 2006 24-hour PM2 NAAQS are 
implemented, enforced, and maintained in Tennessee (hereafter referred 
to as ``infrastructure submission''). With the exception of element 
110(a)(2)(E)(ii), which pertains to the requirements of section 
128(a)(1) of the CAA, Tennessee's infrastructure submissions, provided 
to EPA on December 14, 2007, and October 19, 2009, addresses all the 
required infrastructure elements for the 1997 annual and 2006 24-hour 
PM2 NAAQS.

DATES: Effective Date: This rule will be effective September 4, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2012-0285. 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: Sean Lakeman, 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) 
562-9043. Mr. Lakeman 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

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 (62 FR 
36852), EPA promulgated a new annual PM2.5 NAAQS and on 
October 17, 2006 (71 FR 61144), EPA promulgated a new 24-hour NAAQS. On 
June 11, 2012, EPA proposed to approve Tennessee's December 14, 2007, 
and October 19, 2009, infrastructure submissions for the 1997 annual 
and 2006 24-hour PM2.5 NAAQS addressing elements 
110(a)(2)(A)-(H), (J)-(M), except for section 110(a)(2)(C) 
nonattainment area requirements, 110(a)(2)(E)(ii)--board requirements; 
and section 110(a)(2)(D)(i) interstate transport requirements. See 
EPA's June 11, 2012, proposed rulemaking at 77 FR 34306 for more 
detail. On March 28, 2012, Tennessee submitted a letter of commitment 
to EPA to adopt specific enforceable measures related to 128(a)(1) to 
address current deficiencies in the Tennessee SIP. As a result of 
Tennessee's March 28, 2012, commitment letter, EPA signed a final rule 
on June 25, 2012, determining that the conditional approval is 
appropriate because the State has explicitly committed to address 
current deficiencies in the Tennessee SIP related to element 
110(a)(2)(E)(ii) for the 1997 8-hour ozone NAAQS consistent with the 
requirements of CAA section 110(k)(4). Tennessee's March 28, 2012, 
commitment letter related to section 128(a)(1) is also applicable to 
address 110(a)(2) requirements for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS. In EPA's June 11, 2012, proposed rulemaking, 
EPA is also proposed to approve in part and conditionally approve in 
part Tennessee's 1997 annual and 2006 24-hour PM2.5 
infrastructure submissions with regards to section 110(a)(2)(E)(ii) 
based on the State's March 28, 2012, commitment letter. See 77 FR 
34306. A summary of the background for today's final action is provided 
below.
    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. 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 annual and 2006 24-hour 
PM2.5 NAAQS, states typically have met the basic program 
elements required in section 110(a)(2) through earlier SIP submissions 
in connection with previous PM 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 final rule does not address element 110(a)(2)(D)(i) 
(Interstate Transport) for the 1997 and 2006 PM2.5 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 PM2.5 
NAAQS. Concerning the 2006 PM2.5 NAAQS, EPA has finalized 
a new rule to address the interstate transport of NOX and 
SOX in the eastern United States. See 76 FR 48208 (August 
8, 2011) (``the Transport Rule''). On July 20, 2011 (76 FR 43180), 
EPA made a finding that Tennessee failed to submit a SIP that 
addresses the requirements of section 110(a)(2)(D)(i)(I) of the CAA 
for the revised 2006 24-hour PM2.5 NAAQS. This finding 
created a 2-year deadline for the promulgation of a Federal 
Implementation Plan (FIP) by EPA for Tennessee unless the State 
submits a SIP to satisfy these section 110(a)(2)(D)(i)(I) 
requirements, and EPA approves such submission prior to promulgation 
of a FIP.

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

[[Page 45960]]

     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.
    As mentioned above, with respect to element 110(a)(2)(E)(ii), on 
June 11, 2012, EPA proposed to approve Tennessee's December 14, 2007, 
and October 19, 2009, infrastructure submissions and proposed to 
approve in part, and conditionally approve in part, infrastructure 
element 110(a)(2)(E)(ii) for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS. See 77 FR 34306. EPA proposed conditional 
approval in part for element 110(a)(2)(E)(ii) because the State's 
implementation plan does not contain provisions to address the 
requirements of CAA section 128(a)(1), that requires that each SIP 
shall contain requirements that any board or body which approves 
permits or enforcement orders be subject to the described public 
interest and income restrictions. EPA proposed approval in part, of 
this element because the State's implementation plan contains 
provisions to address the requirements of CAA section 128(a)(2), that 
requires that any board or body, or the head of an executive agency 
with similar power to approve permits or enforcement orders under the 
CAA, shall also be subject to conflict of interest disclosure 
requirements. See 77 FR 34306.
    In this action, EPA is taking two actions regarding the section 
110(a)(2)(E)(ii) requirements. First, EPA is finalizing its conditional 
approval for part of Tennessee's infrastructure SIP for element 
110(a)(2)(E)(ii) with respect to the applicable section 128(a)(1) 
requirements for the 1997 annual and 2006 24-hour PM2.5 
NAAQS. Second, EPA is approving the remaining infrastructure 
submissions as demonstrating that the State meets the applicable 
requirements of sections 110(a)(1) and (2) of the CAA for the 1997 
annual and 2006 24-hour PM2.5 NAAQS.
    On March 28, 2012, Tennessee submitted a letter of commitment to 
EPA to adopt specific enforceable measures related to 128(a)(1) to 
address current deficiencies in the Tennessee SIP. This letter of 
commitment meets the requirements of section 110(k)(4) of the CAA. As a 
result of Tennessee's March 28, 2012, commitment letter, EPA signed a 
final rule on June 25, 2012, determining that the conditional approval 
is appropriate because the State has explicitly committed to address 
current deficiencies in the Tennessee SIP related to element 
110(a)(2)(E)(ii) for the 1997 8-hour ozone NAAQS consistent with the 
requirements of CAA section 110(k)(4). Tennessee's March 28, 2012, 
letter can be accessed at www.regulations.gov using Docket ID No. EPA-
R04-OAR-2011-0353.
    As mentioned above, EPA conditionally approved the Tennessee's 
infrastructure SIP for the 1997 8-hour ozone NAAQS with respect to the 
CAA requirement of element 110(a)(2)(E)(ii). EPA anticipates that 
Tennessee's action with respect to that conditional approval will 
satisfy today's 110(a)(2)(E)(ii) conditional approval for the 1997 
annual and 2006 24-hour PM2.5 NAAQS. Tennessee must submit 
to EPA (within one year from the date of publication for the final rule 
that EPA signed on June 25, 2012, for the 1997 8-hour ozone NAAQS), a 
SIP revision adopting specific enforceable measures related to CAA 
section 128(a)(1) as described in the State's letter of commitment 
described above. If the State fails to actually submit this revision 
within one year from the date of publication for the final rule that 
EPA signed on June 25, 2012, today's conditional approval will 
automatically become a disapproval on that date and EPA will issue a 
finding of disapproval. EPA is not required to propose the finding of 
disapproval. If the conditional approval is converted to a disapproval, 
the final disapproval triggers the Federal Implementation Plan 
requirement under section 110(c). However, if the State meets its 
commitment within the applicable timeframe, the conditionally approved 
submission will remain a part of the SIP until EPA takes final action 
approving or disapproving the new submittal. A summary of the 
background for today's final action is provided below. See EPA's June 
11, 2012, proposed rulemaking at 77 FR 34306 for more detail.

II. This Action

    EPA is taking final action to approve Tennessee's infrastructure 
submissions as demonstrating that the State meets the applicable 
requirements of sections 110(a)(1) and (2) of the CAA for the 1997 
annual and 2006 24-hour PM2.5 NAAQS, with the exception of 
section 110(a)(2)(E)(ii). 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 certified that the 
Tennessee SIP contains provisions that ensure the 1997 annual and 2006 
24-hour PM2.5 NAAQS are implemented, enforced, and 
maintained in Tennessee.
    On July 16, 2012, EPA signed a final rulemaking action approving 
revisions to Tennessee's New Source Review (NSR) requirements relating 
to PM2.5. EPA is not taking action today on Tennessee's NSR 
program, as these requirements are already approved in Tennessee's SIP. 
Additionally, EPA received no adverse comments on its June 11, 2012, 
proposed approval of Tennessee's December 14, 2007, and October 19, 
2009, infrastructure submissions, which is being finalized today.
    Tennessee's infrastructure submissions, provided to EPA on December 
14, 2007, and October 19, 2009, address all the required infrastructure 
elements for the 1997 annual and 2006 24-hour PM2.5 NAAQS, 
with the exception of CAA section 110(a)(2)(E)(ii), pertaining to 
section 128(a)(1) requirements. EPA has determined that Tennessee's 
December 14, 2007, and October 19, 2009, submissions are consistent 
with section 110 of the CAA, and thus is approving Tennessee's 
infrastructure submissions, with the exception of CAA section

[[Page 45961]]

110(a)(2)(E)(ii), pertaining to section 128(a)(1) requirements. With 
respect to CAA section 110(a)(2)(E)(ii), pertaining to section 
128(a)(1) requirements, EPA is conditionally approving Tennessee's 1997 
annual and 2006 24-hour PM2.5 infrastructure submissions.

III. Final Action

    As already described, TDEC has addressed the elements of the CAA 
110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 2007, 
guidance to ensure that 1997 annual and 2006 24-hour PM2.5 
NAAQS are implemented, enforced, and maintained in Tennessee. EPA is 
taking final action to approve in part, and conditionally approve in 
part, Tennessee's December 14, 2007, and October 19, 2009, submissions 
for 1997 annual and 2006 24-hour PM2.5 NAAQS because these 
submissions are consistent with section 110 of the CAA.

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 October 1, 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, Particulate 
Matter, Reporting and recordkeeping requirements, Volatile organic 
compounds.

    Dated: July 16, 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.


0
2. Amend Sec.  52.2219 by designating the existing undesignated 
paragraph as paragraph (a), and adding paragraph (b) to read as 
follows:


Sec.  52.2219  Conditional approval.

    (a) * * *
    (b) Conditional Approval--Submittals from the State of Tennessee, 
through the Department of Environment and Conservation (TDEC), dated 
December 14, 2007, and October 19, 2009, to address the Clean Air Act 
(CAA) infrastructure requirements for the 1997 annual and 2006 24-hour 
PM2.5 National Ambient Air Quality Standards. With respect 
to CAA section 110(a)(2)(E)(ii), specifically related to the adoption 
of enforceable measures contained in CAA section 128(a)(1), EPA 
conditionally approved TDEC's March 28, 2012, commitment on June 25, 
2012. Tennessee must submit to EPA by July 23, 2013, SIP revisions 
adopting specific enforceable measures related to CAA sections 
128(a)(1) as described in the State's letter of commitment.

0
3. Section 52.2220(e) is amended by adding two new entries for 
``110(a)(1) and (2) Infrastructure Requirements for the 1997 Fine 
Particulate Matter National Ambient Air Quality Standards'' and 
``110(a)(1) and (2) Infrastructure Requirements for the 2006 Fine 
Particulate Matter National Ambient Air Quality Standards'' at the end 
of the table to read as follows:


Sec.  52.2220  Identification of plan.

* * * * *
    (e) * * *

[[Page 45962]]



                                EPA-Approved Tennessee Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                      Applicable        State submittal
    Name of nonregulatory SIP        geographic or      date/effective     EPA approval date      Explanation
            provision             nonattainment area         date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
110(a)(1) and (2) Infrastructure  Tennessee.........  12/14/2007........  8/2/2012 [Insert
 Requirements for 1997 Fine                                                citation of
 Particulate Matter National                                               publication].
 Ambient Air Quality Standards.
110(a)(1) and (2) Infrastructure  Tennessee.........  10/19/2009........  8/2/2012 [Insert
 Requirements for 2006 Fine                                                citation of
 Particulate Matter National                                               publication].
 Ambient Air Quality Standards.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2012-18797 Filed 8-1-12; 8:45 am]
BILLING CODE 6560-50-P