[Federal Register Volume 78, Number 58 (Tuesday, March 26, 2013)]
[Rules and Regulations]
[Pages 18241-18244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-06646]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0814; FRL-9792-2]


Approval and Promulgation of Implementation Plans; Region 4 
States; Prong 3 of Section 110(a)(2)(D)(i) Infrastructure Requirement 
for the 1997 and 2006 Fine Particulate Matter National Ambient Air 
Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to conditionally approve 
submissions from Kentucky, North Carolina and Tennessee for inclusion 
into each State Implementation Plan (SIP). This action addresses the 
Clean Air Act (CAA or Act) requirements pertaining to prevention of 
significant deterioration (PSD) for the 1997 annual and 2006 24-hour 
fine particulate matter (PM2.5) National Ambient Air Quality 
Standards (NAAQS) infrastructure SIPs. 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. EPA is conditionally 
approving the submissions for Kentucky, North Carolina and Tennessee 
that relate to adequate provisions prohibiting emissions that interfere 
with any other state's required measures to prevent significant 
deterioration of its air quality. All other applicable infrastructure 
requirements for the 1997 annual and 2006 24-hour PM2.5 
NAAQS associated with these States have been addressed in separate 
rulemakings.

DATES: This rule will be effective April 25, 2013.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2012-0814. 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: 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

[[Page 18242]]

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 
38652), EPA promulgated a new annual PM2.5 NAAQS and on 
October 17, 2006 (71 FR 61144), EPA promulgated a new 24-hour 
PM2.5 NAAQS. On December 5, 2012, EPA proposed to 
conditionally approve Kentucky, North Carolina and Tennessee's 
submissions addressing section 110(a)(2)(D)(i)(II) related to PSD. A 
summary of the background for today's final action is provided below. 
See EPA's December 5, 2012, proposed rulemaking (77 FR 72291) for more 
detail.
    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. 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. However, in this action, EPA 
is only addressing element 110(a)(2)(D)(i)(II) as it relates to PSD 
requirements.
    Section 110(a)(2)(D) has two components; 110(a)(2)(D)(i) and 
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct 
components, commonly referred to as ``prongs,'' that must be addressed 
in infrastructure SIP submissions. The first two prongs, which are 
codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit 
any source or other type of emissions activity in one state from 
contributing significantly to nonattainment of the NAAQS in another 
state (``prong 1''), and interfering with maintenance of the NAAQS in 
another state (``prong 2''). The third and fourth prongs, which are 
codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit 
emissions activity in one state interfering with measures required to 
prevent significant deterioration of air quality in another state 
(``prong 3''), or to protect visibility in another state (``prong 4''). 
Section 110(a)(2)(D)(ii) requires SIPs to include provisions insuring 
compliance with sections 115 and 126 of the Act, relating to interstate 
and international pollution abatement.
    In previous actions, EPA has already addressed Kentucky, North 
Carolina and Tennessee's SIP submissions related to sections 
110(a)(2)(D)(i)(I) and 110(a)(2)(D)(ii) for the 1997 annual and 2006 
24-hour PM2.5 NAAQS. Today's final conditional approval 
relates only to the requirements of section 110(a)(2)(D)(i), prong 3, 
which as previously described, requires that the SIP contain adequate 
provisions prohibiting emissions that interfere with any other state's 
required measures to prevent significant deterioration of its air 
quality. More information on this requirement and EPA's rationale for 
today's conditional approval of this requirement for purposes of the 
1997 annual and 2006 24-hour PM2.5 NAAQS is provided below.

II. This Action

    On July 3, 2012, and July 10, 2012, respectively, Kentucky and 
North Carolina submitted commitment letters to EPA requesting 
conditional approval of outstanding PSD requirements related to the New 
Source Review (NSR) PM2.5 Rule and the PM2.5 PSD 
Increment--Significant Impact Levels (SILs)--Significant Monitoring 
Concentration (SMC) Rule. EPA determined that these letters of 
commitment met the requirements of section 110(k)(4) of the CAA, and 
accordingly, EPA conditionally approved the NSR PM2.5 Rule 
and PM2.5 PSD Increment-SILs-SMC Rule submission for 
Kentucky on October 3, 2012, (77 FR 60307) and the submission for North 
Carolina on October 16, 2012 (77 FR 63234). EPA is relying upon these 
commitments to address the NSR PM2.5 Rule and the 
PM2.5 PSD Increment-SILs-SMC Rule (only as it relates to 
PM2.5 increments) as the basis for conditionally approving 
Kentucky and North Carolina's infrastructure SIPs as they relate to 
prong 3 of section 110(a)(2)(D)(i). If Kentucky fails to submit the 
revisions described in its July 3, 2012, commitment letter by October 
3, 2013, today's conditional approval of prong 3 for Kentucky will 
automatically become a disapproval, and EPA will issue a finding of 
disapproval. Likewise, if North Carolina fails to submit the revisions 
described in its July 10, 2012, commitment letter by October 16, 2013, 
today's conditional approval of prong 3 for North Carolina will 
automatically become a disapproval, and EPA will issue a finding of 
disapproval. EPA is not required to propose the finding of disapproval. 
If either conditional approval is converted to a disapproval, that 
final disapproval would trigger the Federal Implementation Plan (FIP) 
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 
on the submittals.
    On October 4, 2012, Tennessee submitted a commitment letter to EPA 
requesting conditional approval of specific enforceable measures 
related to prong 3 of section 110(a)(2)(D)(i); specifically, the 
applicable requirements of the PM2.5 PSD Increment-SILs-SMC 
Rule (only as it relates to PM2.5 increments). Consistent 
with section 110(k)(4) of the Act, EPA is relying upon this commitment 
by Tennessee to address the PM2.5 PSD Increment-SILs-SMC 
Rule (only as it relates to PM2.5 increments) as the basis 
for conditionally approving Tennessee's infrastructure SIP as it 
relates to prong 3 of section 110(a)(2)(D)(i). If Tennessee fails to 
submit these 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. EPA is not required to propose the finding of 
disapproval. If the conditional approval is converted to a disapproval, 
the final disapproval triggers the FIP requirement under 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.
    EPA received one comment on its December 5, 2012, proposed 
rulemaking

[[Page 18243]]

to conditionally approve Kentucky, North Carolina and Tennessee's SIP 
submissions as meeting the section 110(a)(2)(D)(i)(II) requirements of 
the CAA for the 1997 annual and 2006 24-hour PM2.5 NAAQS. 
The Commenter wanted ``to congratulate EPA workers for trying to 
decrease particles and increase the public's health.'' This comment 
does not appear to be related to the issues presented in the proposed 
rulemaking, and instead, appears related to a wholly separate topic--
promulgation of the PM NAAQS. EPA does not interpret this comment as 
relevant to the topic of EPA's December 5, 2012, proposed action. 
Instead, EPA interprets this comment as off-topic and outside of the 
scope of today's final rulemaking.
    EPA notes that on January 4, 2013, the U.S. Court of Appeals, in 
Natural Resources Defense Council v. EPA, No. 08-1250, 2013 WL 45653 
(D.C. Cir., filed July 15, 2008) (consolidated with 09-1102, 11-1430), 
issued a judgment that remanded EPA's 2007 and 2008 rules implementing 
the 1997 PM2.5 NAAQS. The court ordered EPA to 
``repromulgate these rules pursuant to Subpart 4 consistent with this 
opinion.'' Id. at *8. Subpart 4 of Part D, Title 1 of the CAA 
establishes additional provisions for particulate matter nonattainment 
areas.
    The 2008 implementation rule (NSR PM2.5 Rule) addressed 
by the court decision promulgated NSR requirements for implementation 
of PM2.5 in both nonattainment areas (nonattainment NSR) and 
attainment/unclassifiable areas (PSD). See 73 FR 28321 (May 16, 2008). 
As the requirements of Subpart 4 only pertain to nonattainment areas, 
EPA does not consider the portions of the 2008 rule that address 
requirements for PM2.5 attainment and unclassifiable areas 
to be affected by the court's opinion. Moreover, EPA does not 
anticipate the need to revise any PSD requirements promulgated in the 
2008 rule in order to comply with the court's decision. Accordingly, 
EPA's actions for the Kentucky, North Carolina and Tennessee 
infrastructure SIPs as related to element (D)(i)(II) with respect to 
the PSD requirements promulgated by the 2008 implementation rule does 
not conflict with the court's opinion.
    The court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 implementation rule also does not 
affect EPA's action on the present infrastructure action. EPA 
interprets the Act to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due 3 years after adoption or 
revision of a NAAQS. Instead, these elements are typically referred to 
as nonattainment SIP or attainment plan elements, which would be due by 
the dates statutorily prescribed under subpart 2 through 5 under part 
D, extending as far as 10 years following designations for some 
elements.
    Once the above-described specific enforceable measures related to 
the PM2.5 Rule and the PM2.5 PSD Increment-SILs-
SMC Rule (only as it relates to PM2.5 increments) have been 
adopted into the respective SIPs of Kentucky, North Carolina and 
Tennessee, the infrastructure SIPs for these states will adequately 
address applicable requirements of section 110(a)(2)(D)(i), prong 3 for 
the 1997 annual and 2006 24-hour PM2.5 NAAQS. EPA has 
determined that Kentucky, North Carolina and Tennessee's submissions, 
in conjunction with the above-described revisions, are consistent with 
section 110 of the CAA.

III. Final Action

    As described above, EPA is conditionally approving the SIP 
submissions for Kentucky, North Carolina and Tennessee as addressing 
prong 3 of section 110(a)(2)(D)(i) of the CAA for both the 1997 and 
2006 PM2.5 NAAQS.

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 
Commonwealth law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country, and EPA 
notes that it will not impose substantial direct costs on tribal 
governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 28, 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

[[Page 18244]]

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: March 11, 2013.
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 S--Kentucky

0
2. Section 52.919 is amended by adding paragraph (c) to read as 
follows:


Sec.  52.919  Identification of plan-conditional approval.

* * * * *
    (c) Kentucky submitted a commitment letter to EPA on July 3, 2012, 
requesting conditional approval of outstanding requirements related to 
the NSR PM2.5 Rule. In this letter, the Commonwealth 
provided a schedule as to how it will address outstanding requirements 
related to the NSR PM2.5 Rule (including PM2.5 
PSD Increment-SILs-SMC, as it relates to PM2.5 increments to 
meet the prong 3 requirements of section 110(a)(2)(D)(i)). EPA 
conditionally approved the NSR PM2.5 Rule submission for 
Kentucky on October 3, 2012, (77 FR 60307). If the Commonwealth fails 
to submit these revisions by October 3, 2013, the conditional approval 
will automatically become a disapproval on that date and EPA will issue 
a finding of disapproval.

Subpart II--North Carolina

0
3. Section 52.1773 is amended by adding paragraph (c) to read as 
follows:


Sec.  52.1773  Conditional Approval.

* * * * *
    (c) North Carolina submitted a commitment letter to EPA on July 10, 
2012, requesting conditional approval of outstanding requirements 
related to the NSR PM2.5 Rule. In this letter, North 
Carolina provided a schedule as to how it will address outstanding 
requirements related to the NSR PM2.5 Rule (including 
PM2.5 PSD Increment-SILs-SMC, as it relates to 
PM2.5 increments to meet the prong 3 requirements of section 
110(a)(2)(D)(i)). EPA conditionally approved the NSR PM2.5 
Rule submission for North Carolina on October 16, 2012, (77 FR 63234). 
If the North Carolina fails to submit these revisions by October 16, 
2013, the conditional approval will automatically become a disapproval 
on that date and EPA will issue a finding of disapproval.

Subpart RR--Tennessee

0
4. Section 52.2219 is amended by revising paragraph (e) to read as 
follows:


Sec.  52.2219  Conditional Approval.

* * * * *
    (e) Conditional Approval. On October 4, 2012, Tennessee submitted a 
commitment letter to EPA requesting conditional approval of specific 
enforceable measures related to prong 3 of section 110(a)(2)(D)(i); 
specifically, the PM2.5 PSD Increment-SILs-SMC Rule (only as 
it relates to PM2.5 increments) for the 1997 annual and 2006 
24-hour fine particulate matter (PM2.5) national ambient air 
quality standards. EPA is conditionally approving Tennessee's 
commitment to address outstanding requirements promulgated in the 
PM2.5 PSD Increment-SILs-SMC Rule (only as it relates to 
PM2.5 increments). If Tennessee fails to submit these 
revisions by March 6, 2014, the conditional approval will automatically 
become a disapproval on that date and EPA will issue a finding of 
disapproval.

[FR Doc. 2013-06646 Filed 3-25-13; 8:45 am]
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