[Federal Register Volume 78, Number 117 (Tuesday, June 18, 2013)]
[Rules and Regulations]
[Pages 36440-36444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14068]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0582; FRL- 9820-7]


Approval and Promulgation of Implementation Plans; Tennessee; 
110(a)(1) and (2) Infrastructure Requirements for the 2008 Lead 
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, portions of 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 requirements of sections 110(a)(1) 
and (2) of the Clean Air Act (CAA or Act) for the 2008 Lead national 
ambient air quality standards (NAAQS). Section 110(a) of the CAA 
requires that each

[[Page 36441]]

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. TDEC certified in its 
submission ((hereafter referred to as ``infrastructure submission) that 
the Tennessee SIP contains provisions that ensure the 2008 Lead NAAQS 
are implemented, enforced, and maintained in Tennessee. With the 
exception of the portion of section 110(a)(2)(E)(ii) respecting the 
requirements of section 128(a)(1) of the CAA, EPA has made the 
determination that the applicable portions of the TDEC's October 19, 
2009, infrastructure submission which are being approved in this final 
rulemaking meet the infrastructure requirements for the 2008 Lead 
NAAQS. In this rulemaking, EPA is also taking final action to 
conditionally approve the portion of Tennessee's section 
110(a)(2)(E)(ii) infrastructure submission that address section 
128(a)(1) requirements. Finally, EPA notes that it is not currently 
taking final action on the portions of Tennessee's infrastructure 
submission addressing sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 
110(a)(2)(J) as they relate to prevention of significant deterioration 
(PSD) requirements. EPA intends to take final action on those portions 
of Tennessee's infrastructure submission (the portions of sections 
110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J) related to PSD 
requirements) in a separate rulemaking.

DATES: Effective Date: This rule will be effective July 18, 2013.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2012-0582. 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: Zuri Farngalo, 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) 
562-9152. Mr. Farngalo 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. Section 110(a) of the 
CAA requires states to submit SIPs to provide for the implementation, 
maintenance, and enforcement of a new or revised NAAQS within three 
years following the promulgation of such NAAQS, or within such shorter 
period as EPA may prescribe. Section 110(a) imposes the obligation upon 
states to make a SIP submission to EPA for a new or revised NAAQS, but 
the contents of that submission may vary depending upon the facts and 
circumstances. In particular, the data and analytical tools available 
at the time the state develops and submits the SIP for a new or revised 
NAAQS affects the content of the submission. The contents of such SIP 
submissions may also vary depending upon what provisions the state's 
existing SIP already contains. In the case of the 2008 Lead NAAQS, 
states typically have met the basic program elements required in 
section 110(a)(2) through earlier SIP submissions in connection with 
previous 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 14, 2011, memorandum entitled'' Guidance on Infrastructure 
State Implementation Plan (SIP) Elements Required Under Sections 
110(a)(1) and 110(a)(2) for the 2008 Lead (Pb) National Ambient Air 
Quality Standards (NAAQS).''
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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 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 1 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. Accordingly, today's 
final 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): Interstate transport.\3\
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    \3\ Today's final rule does not address element 110(a)(2)(D)(i) 
(Interstate Transport) for the 1997 8-hour ozone NAAQS. Interstate 
transport requirements were formerly addressed by Tennessee 
consistent with the Clean Air Interstate Rule (CAIR). On December 
23, 2008, CAIR was remanded by the DC Circuit Court of Appeals, 
without vacatur, back to EPA. See North Carolina v. EPA, 531 F.3d 
896 (DC Cir. 2008). Prior to this remand, EPA took final action to 
approve Tennessee's SIP revision, which was submitted to comply with 
CAIR. See 72 FR 46388 (August 20, 2007). In so doing, Tennessee's 
CAIR SIP revision addressed the interstate transport provisions in 
section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS. In response 
to the remand of CAIR, EPA has promulgated a new rule to address 
interstate transport. See 76 FR 48208 (August 8, 2011) (``the 
Transport Rule''). That rule was recently stayed by the DC Circuit 
Court of Appeals. EPA's action on element 110(a)(2)(D)(i) will be 
addressed in a separate action.
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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 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 proposed rulemaking.
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     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.

[[Page 36442]]

     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 October 5, 1978, EPA promulgated primary and secondary NAAQS for 
Lead under section 109 of the Act. See 43 FR 46246. Both primary and 
secondary standards were set at a level of 1.5 micrograms per cubic 
meter ([micro]g/m\3\), measured as Lead in total suspended particulate 
matter (Pb-TSP), not to be exceeded by the maximum arithmetic mean 
concentration averaged over a calendar quarter. On November 12, 2008 
(75 FR 81126), EPA issued a final rule to revise the primary and 
secondary Lead NAAQS. The revised primary and secondary Lead NAAQS were 
revised to 0.15 [micro]g/m\3\. By statute, SIPs meeting the 
requirements of sections 110(a)(1) and (2) are to be submitted by 
states within three years after promulgation of a new or revised NAAQS. 
Sections 110(a)(1) and (2) require states to address basic SIP 
requirements, including emissions inventories, monitoring, and modeling 
to assure attainment and maintenance of the NAAQS. States were required 
to submit such SIPs to EPA no later than October 15, 2011, for the 2008 
Lead NAAQS. Tennessee provided its infrastructure submission for the 
2008 Lead NAAQS on October 19, 2009.
    On March 28, 2012, Tennessee submitted a letter of commitment to 
EPA to adopt specific enforceable measures related to CAA section 
128(a)(1) to address the current deficiencies in the Tennessee SIP 
related to CAA section 110(a)(2)(E)(ii).
    On March 20, 2013, EPA proposed to approve the majority of 
Tennessee's October 19, 2009, infrastructure submission for the 2008 
Lead NAAQS, and proposed in the alternative to conditionally approve 
the portion of the infrastructure submission related to the PSD 
requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 
110(a)(2)(J), and the section 128(a)(1) requirements of section 
110(a)(2)(E)(ii). See 78 FR 17168.
    As noted above, EPA's proposed conditional approval of section 
110(a)(2)(E)(ii) as it relates to section 128(a)(1) requirements, was 
based upon the State's March 28, 2012 commitment letter to address 
current deficiencies in the Tennessee SIP related to these 
requirements. Based upon an earlier conditional of approval of these 
section 110(a)(2)(E)(ii) requirements as part of the infrastructure SIP 
associated with another NAAQS, Tennessee has already committed to 
submitting to EPA the necessary revisions to address section 128(a)(1) 
requirements by July 23, 2013. See 77 FR 42997. Accordingly, the 
proposed conditional approval of section 110(a)(2)(E)(ii) as it relates 
to the section 128(a)(1) requirements for the 2008 Lead infrastructure 
SIP was conditioned upon the State's commitment to submit the SIP 
revision(s) adopting specific enforceable measures to address the 
128(a)(1) requirements by July 23, 2013.
    EPA did not receive any comments, adverse or otherwise, on the 
March 20, 2013, proposed rulemaking related to Tennessee's 2008 Lead 
infrastructure submission.

II. This Action

    Today's rulemaking finalizes approval of Tennessee's infrastructure 
submission except for the portions of sections 110(a)(2)(C), 
110(a)(2)(D)(i)(II), and 110(a)(2)(J) pertaining to PSD requirements, 
and the portion of section 110(a)(2)(E)(ii) related to section 
128(a)(1) requirements. Today's rulemaking also finalizes conditional 
approval of the section 110(a)(2)(E)(ii) portion of Tennessee's 
infrastructure SIP submission related to section 128(a)(1) 
requirements.\5\ EPA is not today taking any action with respect to the 
portions of Tennessee's infrastructure submission related to the PSD 
requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 
110(a)(2)(J). EPA intends to act on these remaining portions of 
Tennessee's infrastructure submission in a separate rulemaking. See 
EPA's March 20, 2013, proposed rulemaking at 78 FR 17168 for more 
detail.
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    \5\ EPA is finalizing approval of section 110(a)(2)(E)(ii) as it 
relates to section 128(a)(2) requirements and finalizing approval of 
section 110(a)(2)(E)(i) and (iii).
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    As noted above, EPA received no comments, adverse or otherwise, on 
its March 20, 2013, proposed actions related to Tennessee's October 19, 
2009, infrastructure submission for the 2008 Lead NAAQS. For those 
portions of Tennessee's October 19, 2009, infrastructure submission 
that EPA is taking final action on today, EPA has determined that the 
State's infrastructure submission, with the exception of section 
110(a)(2)(E)(ii) as it relates to section 128(a)(1) requirements,\6\ is 
consistent with section 110 of the CAA.
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    \6\ Section 128(a)(1) requires that the SIP include requirements 
that any board or body which approves permits or enforcement orders 
under the CAA shall have at least a majority of members who 
represent the public interest and do not derive any significant 
portion of their from persons subject to permits or enforcement 
orders under the CAA.
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    EPA is today finalizing a conditional of section 110(a)(2)(E)(ii) 
as it relates to section 128(a)(1) requirements \7\ based upon the 
State's March 28, 2012, commitment letter to adopt specific enforceable 
measures related to CAA section 128(a)(1) to address the current 
deficiencies in the Tennessee SIP related to CAA section 
110(a)(2)(E)(ii) by July 23, 2013. As a result of Tennessee's March 28, 
2012, commitment letter, EPA has determined that conditional approval, 
specifically pertaining to the requirements of 128(a)(1), is 
appropriate because the State has explicitly committed to address 
current deficiencies in the Tennessee SIP related to sub-element 
110(a)(2)(E)(ii) consistent with the requirements of CAA section 
110(k)(4).
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    \7\ EPA is finalizing approval of section 110(a)(2)(E)(ii) as it 
relates to section 128(a)(2) requirements and finalizing approval of 
section 110(a)(2)(E)(i) and (iii).
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    If the State fails to submit the 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. 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. If EPA disapproves the new submittal, today's conditionally 
approved submittal will also be disapproved at that time. If EPA 
approves the new submittal, Tennessee's infrastructure SIP will be 
fully approved in its entirety and replace the conditionally approved 
element in the SIP.

III. Final Action

    EPA is taking final action to approve Tennessee's October 19, 2009, 
submission for the 2008 Lead NAAQS, with the exception of the State's 
submission related to the PSD requirements of sections 110(a)(2)(C), 
110(a)(2)(D)(i)(II), and 110(a)(2)(J), and the section 128(a)(1) 
requirements of section 110(a)(2)(E)(ii). For those sections that EPA 
is today finalizing approval, EPA has made the determination that TDEC 
has addressed the CAA 110(a)(1) and (2) SIP requirements pursuant to 
EPA's October 14, 2011, guidance to ensure that the 2008 Lead NAAQS are 
implemented, enforced, and maintained in Tennessee. With respect to 
Tennessee's October 19, 2009, submission for the 2008 Lead

[[Page 36443]]

NAAQS addressing the section 128(a)(1) requirements of section 
110(a)(2)(E)(ii), EPA is conditionally approve the State's submission 
based on Tennessee's March 28, 2012, commitment to submit a SIP 
revision to address the section 128(a)(1) requirements.
    Finally, in this rulemaking, EPA notes that it is not taking final 
action related to the PSD portions of sections 110(a)(2)(C), 
110(a)(2)(D)(i)(II), and 110(a)(2)(J). EPA intends to take final action 
on the portions of Tennessee's infrastructure submission related to the 
PSD portions of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 
110(a)(2)(J) in a separate rulemaking.

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 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 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 August 19, 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, Reporting and recordkeeping 
requirements, Lead.

    Dated: May 28, 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 paragraphs (c) and (d) are revised 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 19, 2009, 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 
Lead 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 Lead 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 Lead National Ambient Air 
Quality Standards'' at the end of the table to read as follows:


Sec.  52.2220  Identification of plan.

* * * * *
    (e) * * *

[[Page 36444]]



                                EPA-Approved Tennessee Non-Regulatory Provisions
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                                       Applicable
   Name of non-regulatory SIP         geographic or          State       EPA approval date       Explanation
            provision              nonattainment area   effective date
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                                                  * * * * * * *
110(a)(1) and (2) Infrastructure  Tennessee...........      10/19/2009  06/18/2013 [Insert   With the exception
 Requirements for the 2008 Lead                                          citation of          of section
 National Ambient Air Quality                                            publication].        110(a)(2)(D)(i)(I)
 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. 2013-14068 Filed 6-17-13; 8:45 am]
BILLING CODE 6560-50-P