[Federal Register Volume 78, Number 44 (Wednesday, March 6, 2013)]
[Rules and Regulations]
[Pages 14450-14457]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-05112]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0237; FRL-9787-6]


Approval and Promulgation of Implementation Plans; Tennessee; 
110(a)(1) and (2) Infrastructure Requirements for the 2008 8-Hour Ozone 
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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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), to demonstrate that 
the State meets the infrastructure requirements of Clean Air Act (CAA 
or Act) for the 2008 8-hour ozone national ambient air quality 
standards (NAAQS). The CAA requires that each state adopt and submit a 
SIP for the implementation, maintenance, and enforcement of each NAAQS 
promulgated by EPA, which is commonly referred to as an 
``infrastructure'' SIP. On October 19, 2009, TDEC made a SIP submission 
to certify that the Tennessee SIP already contains provisions that 
ensure the 2008 8-hour ozone NAAQS are implemented, enforced, and 
maintained in Tennessee (hereafter referred to as ``infrastructure 
submission''). On March 23, 2012, TDEC submitted a letter requesting 
conditional approval of the infrastructure submission with respect to 
the requirements in its SIP applicable to state boards. On October 4, 
2012, Tennessee submitted a letter requesting conditional approval of 
infrastructure submission with respect to requirements in its SIP with 
respect to requirements applicable to its permitting program for 
prevention of significant deterioration (PSD) increments. With the 
exception of elements pertaining to PSD increments and state board 
requirements, Tennessee's infrastructure submission, provided to EPA on 
October 19, 2009, addresses all the applicable infrastructure SIP 
requirements for the 2008 8-hour ozone NAAQS. At this time, there are 
no outstanding infrastructure submission requirements for Tennessee 
with respect to significant contribution to nonattainment or 
interference with maintenance of the 2008 8-hour ozone NAAQS.

DATES: Effective Date: This rule will be effective April 5, 2013.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2012-0237. 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 a.m. to 4:30 p.m. excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Regulatory

[[Page 14451]]

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. Response to Comments
III. This Action
IV. Final Action
V. 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.
    Section 110(a) of the CAA generally requires states to make a SIP 
submission to meet applicable requirements in order to provide for the 
implementation, maintenance, and enforcement of a new or revised NAAQS 
within 3 years following the promulgation of such NAAQS, or within such 
shorter period as EPA may prescribe. These SIP submissions are commonly 
referred to as ``infrastructure'' SIP submissions. Section 110(a) 
imposes the obligation upon states to make an infrastructure 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 infrastructure SIP for a new or revised 
NAAQS affect the content of the submission. The contents of such 
infrastructure SIP submissions may also vary depending upon what 
provisions the state's existing SIP already contains. In the case of 
the 2008 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 mentioned above, these 
requirements include basic structural SIP elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The applicable infrastructure 
SIP requirements that are the subject of this rulemaking are listed 
below.\1\
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    \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 due at the time the nonattainment area 
plan requirements are due pursuant to other provisions of the CAA 
for submission of SIP revisions specifically applicable for 
attainment planning purposes. 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 proposed rulemaking does not address 
infrastructure elements related to section 110(a)(2)(I) or the 
nonattainment planning requirements of 110(a)(2)(C).
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     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control 
measures.\2\
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    \2\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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     110(a)(2)(D)(i)(II): Interstate transport (PSD and 
visibility prongs).\3\
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    \3\ Today's final rule does not address section 
110(a)(2)(D)(i)(I) (the significant contribution to nonattainment 
prong or the interfere with maintenance prong) for the 2008 8-hour 
Ozone NAAQS, which as described in greater detail below, EPA does 
not presently view as a ``required submission'' consistent with the 
D.C. Circuit Court's recent opinion in EME City Generation v. EPA, 
696 F.3d 7, 31 (D.C. Cir. 2012). In that opinion, the D.C. Circuit 
Court concluded that a SIP submission to address section 
110(a)(2)(D)(i)(I) for a new or revised NAAQS cannot be considered a 
``required'' SIP submission until EPA has first defined a state's 
obligations pursuant to that section. See EME Homer City, 696 F.3d 
at 32 (``A SIP logically cannot be deemed to lack a `required 
submission' or deemed to be deficient for failure to meet the good 
neighbor obligation before EPA quantifies the good neighbor 
obligation.'')
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     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\
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    \4\ This requirement as mentioned above is not relevant to 
today's proposed rulemaking.
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     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    On August 22, 2012, EPA proposed to approve Tennessee's October 19, 
2009, 2008 8-hour ozone NAAQS infrastructure SIP submission except as 
it related to section 110(a)(2)(E)(ii), which EPA proposed to approve 
in part, and conditionally approve in part.\5\ See 77 FR 50651.
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    \5\ As discussed in the proposed rule for today's action, 
section 110(a)(2)(E)(ii) requires that the SIP include provisions 
necessary to meet the requirements of section 128 of the CAA. See 77 
FR 50651.
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    EPA proposed conditional approval in part for element 
110(a)(2)(E)(ii) because, while Tennessee's SIP does not currently 
contain provisions to address the requirements of CAA section 
128(a)(1), the State committed in a letter dated March 28, 2012, to 
submit, within one year, specific enforceable measures to EPA for 
incorporation into the SIP to address these requirements. EPA proposed 
approval of the state's infrastructure SIP submission in part, for 
section 110(a)(2)(E)(ii) because the State's implementation plan 
already contains adequate provisions to address the requirements of CAA 
section 128(a)(2). See 77 FR 50651; August 22, 2012.
    With respect to the PSD requirements of sections 110(a)(2)(C), 
110(a)(2)(D)(i)(II) (hereafter referred to as prong 3 of 
110(a)(2)(D)(i)),\6\ and 110(a)(2)(J) for the 2008 8-hour ozone NAAQS, 
EPA published a supplemental proposal on December 3, 2012. In this 
supplemental notice, EPA proposed conditional approval of Tennessee's 
infrastructure SIP submission for these elements of section 110(a)(2) 
for the 2008 8-hour ozone NAAQS.\7\ See 77 FR 71568, December 3, 2012. 
As described in the supplemental proposal, on October 4, 2012, 
Tennessee submitted a request for conditional approval of the State's 
infrastructure SIP submission with respect to sections 110(a)(2)(C), 
prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J), specifically as they 
relate to PSD program requirements and the State committed to address 
the SIP deficiencies by submitting specific

[[Page 14452]]

enforceable SIP revisions to address PM2.5 PSD increments. 
This letter of commitment meets the requirements of section 110(k)(4) 
of the CAA. Tennessee's October 4, 2012, letter can be accessed at 
www.regulations.gov using Docket ID No. EPA-R04-OAR-2012-0237.
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    \6\ Section 110(a)(2)(D)(i) includes four requirements referred 
to as prongs 1 through 4. Prongs 1 and 2 are provided at section 
110(a)(2)(D)(i)(I); prongs 3 and 4 are provided at section 
110(a)(2)(D)(i)(II). Today's conditional approval only relates to 
the PSD requirements of section 110(a)(2)(D)(i)(II), also known as 
prong 3.
    \7\ EPA originally proposed approval of these elements as they 
related to PSD requirements. See 77 FR 50651. EPA is not taking 
action to finalize the proposed approvals for these elements, 
rather, EPA is today taking action to finalize conditional approval 
for these elements as they relate to PSD requirements based upon the 
December 3, 2012, supplement proposal. See 77 FR 71568. As described 
in the December 3, 2012, supplemental proposal, Tennessee's SIP 
currently does not contain the requisite PM2.5 PSD 
increments necessary to satisfy these requirements. Accordingly, EPA 
is finalizing a conditional approval of Tennessee's infrastructure 
SIP submission based upon the state's commitment to rectify this 
concern with respect to this structural deficiency in Tennessee's 
current PSD program.
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    Finally, EPA notes that this final action on Tennessee's 
infrastructure SIP submission for the 2008 8-hour ozone NAAQS is 
required not only by section 110(k), but also by order issued by the 
U.S. District Court for the Northern District of California in 
WildEarth Guardians v. Jackson, Case No. 11-CV-5651 YGR. In an October 
17, 2012, order granting partial summary judgment in the case, as 
modified in a December 7, 2012, order granting in part EPA's motion for 
an amended order, that court directed EPA to take final action upon the 
infrastructure SIP at issue in this action by March 4, 2013. With 
respect to Tennessee, the court specifically ordered EPA to act upon 
the infrastructure SIP submission made by the state on October 19, 
2009, as revised/withdrawn in part on July 3, 2012. The court 
specifically explained in the December 7, 2012, amended order that 
``EPA is being ordered to assess the remaining submissions, i.e., the 
revised SIP from Kentucky and the non-withdrawn portion of the 
Tennessee SIP.'' (emphasis in the original). Accordingly, EPA is taking 
final action upon Tennessee's infrastructure SIP for the 2008 8-hour 
ozone NAAQS in its revised form, which reflects Tennessee's withdrawal 
of the portion of the original submission intended to address section 
110(a)(2)(D)(i)(I). As explained in more detail in response to relevant 
comments, EPA is addressing the requirements of section 
110(a)(2)(D)(i)(I) consistent with the opinion of the D.C. Circuit 
Court's opinion in EPA Homer City Generation v. EPA, 696 F.3d 7 (D.C. 
Cir. 2012).

II. Response to Comments

    EPA received no comments on the initial August 22, 2012, notice 
proposing action on Tennessee's infrastructure SIP submission for the 
2008 8-hour ozone NAAQS. EPA received two sets of comments on the 
December 3, 2012, supplemental proposed rulemaking in which EPA 
proposed conditional approval of the State's infrastructure SIP 
submission as meeting the applicable requirements of CAA sections 
110(a)(2)(C) and (J), and prong 3 of section 110(a)(2)(D)(i) for the 
2008 8-hour ozone NAAQS. A summary of the comments and EPA's responses 
are provided below.
    EPA notes that the majority of the comments received are well 
beyond the scope of the supplemental proposal which addressed only 
certain issues associated with PSD rules as they impacted Tennessee's 
infrastructure submittal for CAA sections 110(a)(2)(C) and (J), and 
prong 3 of 110(a)(2)(D)(i), for the 2008 8-hour ozone NAAQS. Instead, 
the comments primarily concerned the interstate transport requirements 
of section 110(a)(2)(D)(i)(I) (prongs 1 and 2). These requirements were 
not at issue in either the original August 22, 2012, proposal notice, 
or the December 3, 2012, supplemental notice, because the State had by 
this point already withdrawn that portion of the infrastructure SIP 
submission that was intended to address section 110(a)(2)(D)(i)(I) for 
the 2008 8-hour ozone NAAQS. As the supplemental proposal specifically 
provided at footnote 5, EPA is not addressing section 110(a)(2)(D(i)(I) 
requirements through this action. See 77 FR 71568, 71570. Even though 
EPA may not be obligated to respond to the comments outside the scope 
of the December 3, 2012, supplemental proposal, EPA nonetheless 
provides the following responses in order to assist in the public 
understanding of EPA's final action.
    Comment 1: The Commenters contend that under section 110(k) of the 
Act, EPA must make a finding that Tennessee has failed to submit an 
interstate transport SIP to meet the requirements of infrastructure 
element 110(a)(2)(D)(i)(I) (prongs 1 and 2).
    Response 1: EPA does not agree with the Commenter. As noted above, 
this comment is beyond the scope of the supplemental action proposed in 
the December 3, 2012, rulemaking, which was limited to the above-
described PSD-related elements. Moreover, the D.C. Circuit Court's 
recent opinion in EME City Generation v. EPA, 696 F.3d 7, 31 (D.C. Cir. 
2012), concluded that a SIP submission to address section 
110(a)(2)(D)(i)(I) for a new or revised NAAQS cannot be considered a 
``required'' SIP submission until EPA has first defined a state's 
obligations pursuant to that section. See EME Homer City, 696 F.3d at 
32 (``A SIP logically cannot be deemed to lack a `required submission' 
or deemed to be deficient for failure to meet the good neighbor 
obligation before EPA quantifies the good neighbor obligation.'') On 
January 24, 2013, the D.C. Circuit issued an order denying all 
petitions for rehearing of the EME Homer City decision. At this time, 
however, the deadline for asking the Supreme Court to review the D.C. 
Circuit's decision has not passed and the United States has not yet 
decided whether to seek further appeal. In the meantime, and unless the 
EME Homer City decision is reversed or otherwise modified, EPA intends 
to act in accordance with the panel opinion in the EME Homer City 
opinion. Thus, although EPA historically has interpreted section 
110(a)(1) of the CAA as establishing the required submittal date for 
infrastructure SIP submissions to address all of the ``interstate 
transport'' requirements in section 110(a)(2)(D), including the 
provisions in section 110(a)(2)(D)(i)(I) regarding significant 
contribution to nonattainment and interference with maintenance, it 
would not be consistent with the EME Homer City opinion for EPA to make 
a finding that Tennessee has failed to make a SIP submission to address 
section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS at this time. See 
78 FR 2882, 2884-85 (January 15, 2012) (explaining why EPA did not make 
findings of failure to submit with respect to 110(a)(2)(D)(i)(I) for 
the 2008 ozone NAAQS). Accordingly, EPA is not making a finding of 
failure to submit for section 110(a)(2)(D)(i)(I) for Tennessee for the 
2008 8-hour ozone NAAQS at this time.
    Comment 2: One Commenter contends that EPA must disapprove the 
section 110(a)(2)(D)(i)(I) portion of Tennessee's submittal (referred 
to by the Commenter as the ``good neighbor'' provisions) because it 
fails to include adequate provisions to meet the requirements of this 
subsection.
    Response 2: EPA does not agree with the Commenter. First, this 
comment is beyond the scope of the supplemental action proposed in the 
December 3, 2012, rulemaking, which was limited to the above-described 
PSD-related elements. Second, the element of the SIP submission to 
which the Commenter refers was withdrawn by Tennessee. On July 3, 2012, 
Tennessee withdrew the portion of its SIP submittal addressing 
110(a)(2)(D)(i)(I). Thus, this portion of the submittal is no longer 
before EPA and the Agency does not interpret the CAA as requiring that 
EPA take action, either to approve or disapprove under section 110(k), 
on submissions not before EPA. EPA does not interpret the CAA to 
mandate that EPA take action on a submission that a state has withdrawn 
(i.e., withdrawing the request that EPA take action on the submittal). 
Third, as a result of the decision of the D.C. Circuit in EME Homer 
City, that court has concluded that states, including Tennessee, have 
no obligation to make a SIP submission to address section 
110(a)(2)(D)(i)(I) for a new or revised NAAQS until EPA has first 
defined a state's obligations pursuant to that section.

[[Page 14453]]

    As a result, EPA does not agree with the Commenter that EPA has an 
obligation to disapprove the 110(a)(2)(D)(i)(I) portion of the 
Tennessee SIP submittal that was withdrawn. The Commenter does not 
point to any statutory authority which requires EPA to disapprove a 
non-required SIP submission not presently before EPA, and for which a 
state has specifically requested that EPA not take action (by formally 
withdrawing the voluntary submission from EPA review).
    In situations where all or a portion of a required state submission 
has been withdrawn following a section 110(k)(1)(B) completeness 
determination, the Agency has the authority to issue a finding that a 
state has failed to submit such required submission pursuant to section 
110(k)(1)(B). In accordance with the requirements of section 
110(c)(1)(A), such a finding of failure to submit a complete required 
SIP submission would trigger EPA's obligation to promulgate a federal 
implementation plan unless the state corrected the deficiency. As 
discussed above in the response to comment 1, however, it would not be 
consistent with the EME Homer City decision for EPA to make a finding 
of failure to submit for Tennessee with respect to section 
110(a)(2)(D)(i)(I) for the 2008 8-hour ozone NAAQS at this time.
    Comment 3: The Commenters contend that EPA lacks authority to 
approve or conditionally approve the balance of Tennessee's 
infrastructure SIP submission despite the State's withdrawal of the 
portion of the SIP originally submitted to comply with section 
110(a)(2)(D)(i)(I). One Commenter contends that the ``Clean Air Act 
gives EPA no discretion to approve a SIP without the good neighbor 
provision on the grounds that it intends to address Tennessee's 
[section] 110(a)(2)(D)(i)(I) obligations in a separate action. There is 
no separate action available to EPA under the Clean Air Act to address 
a state's failure to satisfy its good neighbor obligations aside from 
the promulgation of a Federal Implementation Plan within two-years 
pursuant to section 110(c)(1) of the Clean Air Act.''
    Response 3: EPA does not agree with the Commenter. Section 
110(k)(3) of the Act authorizes EPA to approve a plan in full, 
disapprove it in full, or approve it in part and disapprove it in part, 
depending on the extent to which such plan meets the requirements of 
the Act. Section 110(k)(4) of the Act explicitly authorizes EPA to use 
conditional approval, consistent with the parameters for such 
conditional approvals stipulated in that section. This authority to 
approve the States' SIP revisions in separable parts was included in 
the 1990 Amendments to the CAA to overrule a decision in the Court of 
Appeals for the Ninth Circuit holding that EPA could not approve 
individual measures in a plan submission without either approving or 
disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 
U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of 
Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).
    As such, the Agency interprets its authority under sections 
110(k)(3) and (k)(4), as affording EPA the discretion to approve or 
conditionally approve individual elements of Tennessee's infrastructure 
submission for the 2008 8-hour ozone NAAQS, separate and apart from any 
action with respect to the requirements of section 110(a)(2)(D)(i)(I) 
with respect to that NAAQS. EPA views discrete infrastructure SIP 
requirements, such as the requirements of 110(a)(2)(D)(i)(I), as 
severable from the other infrastructure elements and interprets section 
110(k)(3) as allowing it to Act on individual severable measures in a 
plan submission. In short, EPA believes that even if the SIP submission 
for section 110(a)(2)(D)(i)(I) were now relevant, which it is not, it 
would still have discretion under section 110(k) to act upon the 
various individual elements of the state's infrastructure SIP 
submission, separately or together, as appropriate. The Commenters 
raise no compelling legal or environmental rationale for an alternate 
interpretation.
    Comment 4: The Commenters contend that compliance with the Clean 
Air Interstate Rule (CAIR) is not relevant to Tennessee's obligation 
under the CAA to submit a SIP addressing the requirements of section 
110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS.
    Response 4: EPA agrees with the substance of this comment, but does 
not agree that it is relevant for this action. As described above, and 
in the supplemental proposal associated with today's action, EPA is not 
taking any action through this rulemaking with respect to Tennessee's 
obligations pursuant to section 110(a)(2)(D)(i)(I) for the 2008 8-hour 
ozone NAAQS; therefore, this comment is not relevant to today's action. 
As a general matter, however, EPA agrees that compliance with CAIR is 
not relevant to a state's obligations under section 110(a)(2)(D)(i)(I) 
for purposes of the 2008 8-hour ozone NAAQS. CAIR was promulgated by 
EPA in 2005 to address, for certain states, the requirements of CAA 
section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone and 1997 
annual PM2.5 NAAQS. See 70 FR 25162. EPA promulgated CAIR 
long before it promulgated the 2008 8-hour ozone NAAQS, and CAIR did 
not, in any way, address interstate transport requirements related to 
the 2008 8-hour ozone NAAQS.\8\ For these reasons CAIR is not relevant 
to Tennessee's section 110(a)(2)(D)(i)(I) obligation with respect to 
the 2008 ozone NAAQS.
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    \8\ Moreover, in its decision granting the petitions for review 
of CAIR, the DC Circuit held that compliance with CAIR did not 
constitute compliance with section 110(a)(2)(D)(i)(I) even for the 
NAAQS that were addressed by CAIR--namely the 1997 ozone and 1997 
annual PM2.5 NAAQS. See North Carolina v. EPA, 531 F.3d 
896 (D.C. Cir. 2008).
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    Comment 5: One Commenter notes that EPA proposed to conditionally 
approve certain portions of Tennessee's infrastructure SIP, while 
leaving other infrastructure elements to be addressed in a separate 
rulemaking. The Commenter contends that EPA ``does not have the 
authority to approve some provisions of a SIP while deferring action on 
other mandatory provisions once the 12-month mandatory determination 
deadline to act on an administratively complete SIP submittal has 
run.'' The Commenter asserts that because Tennessee has withdrawn the 
``good neighbor'' provisions of its SIP submittal, the submittal 
``fails to include adequate provisions `prohibiting* * * any source or 
other type of emissions activity within the State from emitting any air 
pollutant in amounts which will contribute significantly to 
nonattainment, or interfere with maintenance by, any other State' with 
respect to the 2008 8-hour ozone NAAQS.'' Therefore, the Commenter 
concludes, ``EPA is required to disapprove the `good neighbor' portions 
of the Tennessee SIP.'' The Commenter asserts that ``[s]ince the 
statutory deadline has past under which EPA is required to act on the 
2008 8-hour ozone NAAQS SIP submittals, EPA has no authority to 
indefinitely postpone ruling on all the required infrastructure SIP 
elements, including the 110(a)(2)(D)(i)(I) portions of Tennessee's SIP 
submittal.'' The Commenter asserts that this approach is consistent 
with the logic espoused in an October 17, 2012, court order granting 
partial summary judgment to the plaintiffs in the case WildEarth 
Guardians v. Jackson, Case No. 11-CV-5651 YGR.
    Response 5: As an initial matter, EPA does not agree with the 
Commenter that it is prohibited from acting on portions of an 
infrastructure SIP submission on an element by element basis, or in 
whatever combination of elements that

[[Page 14454]]

may be appropriate in a given action. As noted above, the language 
which Congress ultimately included in section 110(k) allowing EPA to 
approve a plan in full, disapprove it in full, or approve it in part 
and disapprove it in part was added to overrule the portion of the 
decision Abramowitz v. EPA, 832 F. 2d 1071 (9th Cir. 1987), which held 
that EPA could not approve individual measures in a plan submission 
without either approving or disapproving the plan as a whole. See S. 
Rep. No. 101-228 (1989), reprinted at 1990 U.S.C.C.A.N. 3385, 3402.
    Further, the Commenter appears to misunderstand what actions EPA is 
now taking. EPA does not intend to ``indefinitely postpone'' action 
with respect to the other required elements of Tennessee's 
infrastructure SIP submission for the 2008 8-hour ozone NAAQS. In the 
December 3, 2012, supplemental proposal, EPA explained that it had 
previously proposed approval, on August 22, 2012, for the majority of 
other sections of Tennessee's 2008 8-hour ozone infrastructure SIP 
submission relevant to the applicable elements of section 110(a)(2). 
See 77 FR 50651. EPA is today finalizing its proposed approval of the 
infrastructure SIP submission for those other elements. Notably, the 
Commenter did not comment on the timing of EPA's action with respect to 
these other sections of the Tennessee 2008 8-hour ozone infrastructure 
SIP submission at the time EPA proposed action on those sections. 
Therefore, the Commenter's concerns regarding the timing of EPA's 
action on these other elements are not properly raised in comments to 
the December 3, 2012, rulemaking which was limited to the PSD elements 
contained sections 110(a)(2)(C) and (J), and prong 3 of 
110(a)(2)(D)(i).
    In addition, EPA notes that the October 17, 2012, court order 
referenced by the Commenter was subsequently amended by the court on 
December 7, 2012, to extend EPA's deadline for action on the Tennessee 
submittal through March 4, 2013. In that amended order, the court also 
clarified that it intended EPA to act on Tennessee's October 19, 2009, 
as revised/withdrawn in part on July 3, 2012. The court specifically 
explained in the December 7, 2012, amended order that ``EPA is being 
ordered to assess the remaining submissions, i.e., the revised SIP from 
Kentucky and the non-withdrawn portion of the Tennessee SIP.'' 
(emphasis in the original). Today's final action, approving in part and 
conditionally approving in part Tennessee's infrastructure SIP 
submission, in conjunction with the aforementioned determination not to 
issue a finding of failure to submit for section 110(a)(2)(D)(i)(I) at 
this time, consistent with the decision in EME Homer City, fully 
satisfy the Agency's obligations under the December 7, 2012, court 
order in WildEarth Guardians v. Jackson, with respect to the Tennessee 
SIP submittal at issue.
    Comment 6: One Commenter argued that EPA should disapprove the SIP 
submission from Tennessee with respect to section 110(a)(2)(D)(i) for 
the 2008 ozone NAAQS because ``EPA's own modeling conducted in support 
of the Cross State Air Pollution Rule * * *identified Tennessee as a 
state which contributes at least one percent of the 2008 8-hour ozone 
NAAQS to Maryland's nonattainment.'' Thus, the Commenter argued that 
EPA's ``delay in disapproving'' the submission would adversely impact 
the ability of the State of Maryland to provide for attainment of the 
2008 ozone NAAQS within that state, consistent with the statutory 
schedule for attainment of the NAAQS.
    Response 6: EPA acknowledges the Commenter's concern that 
interstate transport of ozone and ozone precursors from upwind states 
to downwind states may have adverse consequences on the ability of 
downwind areas to attain the NAAQS in a timely fashion. It is for this 
reason that EPA attempted, through the Cross State Air Pollution Rule 
(CSAPR), to address emissions found to contribute significantly to 
nonattainment of, or interfere with maintenance of, the 1997 ozone 
NAAQS. The modeling done for CSAPR, however, did not address the 2008 
ozone NAAQS and EPA did not, in the CSAPR itself or in the modeling 
done during development of the rule, draw any conclusions regarding 
interstate transport with respect to the 2008 ozone NAAQS. Moreover, 
the D.C. Circuit, in its recent decision vacating the CSAPR, held that 
states are not required to submit SIPs addressing the requirements of 
section 110(a)(2)(D)(i)(I) until EPA has quantified their obligation 
under that provision. See EME Homer City, 696 F.3d 7 (D.C. Cir. 2012). 
The EME Homer City decision was issued in August of 2012, and on 
January 24, 2013, the court denied all petitions for rehearing. At this 
time, however, the deadline for asking the Supreme Court to review the 
D.C. Circuit's decision has not passed and the United States has not 
yet decided whether to seek further appeal. In the mean time, and 
unless the EME Homer City decision is reversed or otherwise modified, 
EPA intends to act in accordance with the D.C. Circuit's opinion.
    Finally, as the EME Homer City decision establishes that the 
Tennessee 110(a)(2)(D)(i)(I) SIP submission was optional, Tennessee 
remains free not to make such a SIP submission or to withdraw such a 
submission without penalty. Moreover, EPA has no authority to 
disapprove an infrastructure SIP submission which is no longer pending 
before the Agency or to find that a state failed to submit a SIP 
submission to meet the requirements of section 110(a)(2)(D)(i)(I) at 
this time under the EME Homer City decision.

III. This Action

    In this rulemaking, EPA is taking final action to approve 
Tennessee's infrastructure submission as demonstrating that the State 
meets the applicable requirements of sections 110(a)(1) and (2) of the 
CAA for the 2008 8-hour ozone NAAQS, with the exception of sections 
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J) pertaining 
to PSD increments, and the portion of section 110(a)(2)(E)(ii) 
pertaining to section 128(a)(1) requirements. EPA is taking no action 
with respect to section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS in 
this rulemaking because no such action is required at this time for 
this State. EPA will be taking action on 110(a)(2)(D)(i)(I), if 
required, in a separate future action.
    With respect to section 110(a)(2)(E)(ii) specifically pertaining to 
section 128(a)(1) requirements, EPA is finalizing a conditional 
approval for this portion of Tennessee's infrastructure SIP submission 
for the 2008 8-hour ozone NAAQS.
    Today's final action to conditionally approve of the portion of 
element 110(a)(2)(E)(ii) related to the section 128(a)(1) requirements 
is based upon a March 28, 2012, commitment letter submitted by 
Tennessee to EPA. Tennessee's March 28, 2012, letter can be accessed at 
www.regulations.gov using Docket ID No. EPA-R04-OAR-2011-0353. Through 
this letter, Tennessee committed to adopt specific enforceable measures 
to address current deficiencies in its SIP related to section 128(a)(1) 
requirements. This letter of commitment meets the requirements of 
section 110(k)(4) of the CAA, and as such, EPA is relying upon this 
commitment to conditionally approve section 110(a)(2)(E)(ii) as it 
relates to the requirements of section 128(a)(1) of the CAA. For more 
information, see EPA's proposal for today's rulemaking. See 77 FR 
50651. EPA has previously relied upon Tennessee's March 28, 2012, 
commitment to conditionally approve section 110(a)(2)(E)(ii) as it 
relates to the section 128(a)(1) for purposes of the 1997 8-hour ozone 
NAAQS. See 77 FR

[[Page 14455]]

42997 July 23, 2012. Pursuant to that earlier conditional approval, 
Tennessee is committed to providing EPA with the specified SIP revision 
by no later than July 23, 2013.
    Accordingly, for purposes of today's conditional approval of 
section 110(a)(2)(E)(ii) as it relates to the requirements of section 
128(a)(1), Tennessee must submit to EPA by July 23, 2013 (within one 
year from the date of publication for the final rule that EPA published 
on July 23, 2012, for the 1997 8-hour ozone NAAQS), a SIP revision 
adopting the specific enforceable measures related to CAA section 
128(a)(1) as described in the State's commitment letter described 
above. If the State fails to submit this promised SIP revision by July 
23, 2013, today's conditional approval will automatically become a 
disapproval on that date and EPA will issue a finding of disapproval.
    With respect to the PSD requirements of elements 110(a)(2)(C), 
prong 3 of 110(a)(2)(D)(i) and 110(a)(2)(J) for the 2008 8-hour ozone 
NAAQS, EPA published a supplemental proposal to conditionally approve 
Tennessee's infrastructure SIP submission, based upon the October 4, 
2012, conditional approval request related to these elements for the 
2008 8-hour ozone NAAQS. See 77 FR 71568. As described in the 
supplemental proposal, on October 4, 2012, Tennessee submitted a 
request for conditional approval of sections 110(a)(2)(C), prong 3 of 
110(a)(2)(D)(i), and 110(a)(2)(J) as they relate to PSD requirements 
and committed to address the SIP deficiencies by submitting specific 
enforceable SIP revisions to address PM2.5 PSD increments 
within one year. This commitment letter meets the requirements of 
section 110(k)(4) of the CAA. Tennessee's October 4, 2012, letter can 
be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-
2012-0237. Today's action finalizes conditional approval of the 
infrastructure SIP submission for these sections of section 110(a)(2), 
based upon a commitment by Tennessee to submit the necessary SIP 
revisions to address PM2.5 PSD increments. If the State 
fails to submit these promised SIP revisions by March 6, 2014 today's 
conditional approval will automatically become a disapproval on that 
date and EPA will issue a finding of disapproval.

IV. Final Action

    EPA is taking final action to approve Tennessee's infrastructure 
submission, provided to EPA on October 19, 2009, because it addresses 
the required infrastructure elements for the 2008 8-hour ozone NAAQS 
with exception of sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), 
and 110(a)(2)(J) as they relate to PSD requirements, section 
110(a)(2)(E)(ii) as it relates to section 128(a)(1) requirements, and 
section 110(a)(2)(D)(i)(I) as it relates to interstate transport.\9\ 
With the exceptions noted above TDEC has addressed the elements of the 
CAA 110(a)(1) and (2) SIP requirements pursuant to section 110 of the 
CAA to ensure that the 2008 8-hour ozone NAAQS are implemented, 
enforced, and maintained in Tennessee.
---------------------------------------------------------------------------

    \9\ As described in the response to comment 1 in Section II 
above, EPA does not presently view section 110(a)(2)(D)(i)(I) 
(significant contribution to nonattainment prong and interference 
with maintenance prong) for the 2008 8-hour Ozone NAAQS, as a 
``required submission'' based upon the opinion of the D.C. Circuit 
in the EME Homer case.
---------------------------------------------------------------------------

    With respect to sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), 
and 110(a)(2)(J) as they relate to PSD requirements, EPA is taking 
final action to conditionally approve Tennessee's infrastructure SIP in 
part, based on an October 4, 2012, commitment that TDEC will adopt 
specific enforceable measures related to PSD increments and submit 
these revisions as a SIP submission to EPA for approval into the 
Tennessee's SIP by March 6, 2014.
    With respect to section 110(a)(2)(E)(ii) related to section 
128(a)(1) requirements, EPA is taking final action to conditionally 
approve Tennessee's infrastructure SIP in part, based on a March 28, 
2012, commitment that TDEC will adopt specific enforceable measures and 
submit these as a SIP submission to EPA for approval into the 
Tennessee's SIP by July 23, 2013, to address the applicable portions of 
section 128(a)(1).
    If the State fails to submit these promised SIP revisions by the 
applicable dates described above, today's conditional approval of 
Tennessee's infrastructure SIP for the 2008 8-hour ozone NAAQS will 
automatically be disapproved for the element or elements that the state 
fails to address on that date and EPA will issue a corresponding 
finding of disapproval.

V. 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 located in 
the state, 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

[[Page 14456]]

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 6, 2013. 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.

    Dated: February 27, 2013.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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 52.2219 is amended by adding paragraphs (c) and (d) to read 
as follows:


Sec.  52.2219  Conditional approval.

* * * * *
    (c) Conditional Approval--Submittal from the State of Tennessee, 
through the Department of Environment and Conservation (TDEC), dated 
October 4, 2012, to address the Clean Air Act (CAA) sections 
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J) for the 2008 
8-hour Ozone National Ambient Air Quality Standards. EPA is 
conditionally approving TDEC's submittal with respect to the PSD 
requirements of CAA sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), 
and 110(a)(2)(J), specifically related to the adoption of enforceable 
provisions for PSD increments as detailed in TDEC's October 4, 2012, 
commitment letter. Tennessee must submit to EPA by March 6, 2014, a SIP 
revision adopting specific enforceable measures related to PSD 
increments as described in the State's letter of commitment.
    (d) Conditional Approval--Submittal from the State of Tennessee, 
through the Department of Environment and Conservation (TDEC), dated 
October 19, 2009, to address the Clean Air Act (CAA) section 
110(a)(2)(E)(ii) for the 2008 8-hour Ozone 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 published in the Federal Register a final 
rulemaking to conditionally approve TDEC's March 28, 2012, commitment 
on July 23, 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 a new entry ``110(a)(1) and 
(2) Infrastructure Requirements for the 2008 8-Hour Ozone National 
Ambient Air Quality Standards'' at the end of the table to read as 
follows:


Sec.  52.2220  Identification of plan.

* * * * *
    (e) * * *

                                EPA-Approved Tennessee Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                       Applicable            State
    Name of nonregulatory SIP         geographic or        effective     EPA approval date       Explanation
            provision              nonattainment  area       date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
110(a)(1) and (2) Infrastructure  Tennessee...........      10/19/2009  3/6/2013 [Insert     With the exception
 Requirements for the 2008 8-                                            citation of          of section
 Hour Ozone National Ambient Air                                         publication].        110(a)(2)(D)(i)(I)
 Quality Standards.                                                                           concerning
                                                                                              interstate
                                                                                              transport; the
                                                                                              portions of
                                                                                              sections
                                                                                              110(a)(2)(C),
                                                                                              prong 3 of
                                                                                              110(a)(2)(D)(i),
                                                                                              and 110(a)(2)(J)
                                                                                              related to PSD ,
                                                                                              which are being
                                                                                              conditionally
                                                                                              approved; and
                                                                                              section
                                                                                              110(a)(2)(E)(ii)
                                                                                              as it relates to
                                                                                              section 128(a)(1),
                                                                                              which is being
                                                                                              conditionally
                                                                                              approved.
----------------------------------------------------------------------------------------------------------------


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[FR Doc. 2013-05112 Filed 3-5-13; 8:45 am]
BILLING CODE 6560-50-P