[Federal Register Volume 79, Number 6 (Thursday, January 9, 2014)]
[Proposed Rules]
[Pages 1608-1612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-31561]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0285; FRL-9905-08-Region 4]


Approval and Promulgation of Implementation Plans; Tennessee; 
Conflict of Interest and Notice of Finding of Disapprovals

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and notice of disapproval.

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SUMMARY: EPA is taking three actions pertaining to the infrastructure 
requirements of the Clean Air Act (CAA or Act) for the State of 
Tennessee. First, EPA is providing notice of its findings of 
disapproval for a sub-element of the Tennessee infrastructure state 
implementation plans (SIPs) for the 2008 Lead National Ambient Air 
Quality Standards (NAAQS), 1997 Annual Fine Particulate Matter 
(PM2.5) NAAQS, 2006 24-hour PM2.5 NAAQS and 1997 
8-hour ozone NAAQS. Specifically, EPA is providing notice of the 
disapproval of the previously conditionally-approved portion of the 
State board and conflict of interest requirements of the infrastructure 
SIPs for these NAAQS. These disapprovals were triggered automatically 
on July 23, 2013, when Tennessee failed to submit revisions to address 
the CAA State board and conflict of interest requirements within the 
timeframes specified in EPA's conditional approval

[[Page 1609]]

actions. Second, EPA is proposing to approve the SIP revision submitted 
by Tennessee, through the Tennessee Department of Environment and 
Conservation (TDEC) on October 9, 2013, as meeting the applicable 
requirements of the Act. This SIP revision addresses Tennessee's 
outstanding obligations related to the CAA State board and conflict of 
interest requirements. Finally, EPA is proposing to approve the 
infrastructure SIP sub-element related to the State board and conflict 
of interest requirements for the 2008 Lead, 1997 annual 
PM2.5, 2006 24-hour PM2.5, and 1997 8-hour ozone 
NAAQS. Approval of these infrastructure SIP requirements for the listed 
NAAQS would result in the disapprovals noticed above for this sub-
element being converted to approvals. Final approval of these 
infrastructure SIP sub-elements, however, is contingent upon final 
approval of the underlying October 9, 2013, SIP revision to address the 
CAA requirements also proposed through this action. EPA notes that all 
other applicable Tennessee infrastructure elements for the 2008 Lead, 
1997 annual PM2.5, 2006 24-hour PM2.5, and 1997 
8-hour ozone NAAQS have been addressed in separate rulemakings.

DATES: Written comments must be received on or before February 10, 
2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0285, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2012-0285,'' 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.
    5. Hand Delivery or Courier: Lynorae Benjamin, 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. Such deliveries are 
only accepted during the Regional Office's normal hours of operation. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2012-0285. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov, your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI 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 in 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: 

I. Background
II. Section 110(a)(2)(E) Adequate Resources Requirements
III. Notice of Disapproval
IV. EPA's Analysis of Tennessee's Conflict of Interest Submission
V. EPA's Analysis Supporting the Proposed Approval of Sub-element 
110(a)(2)(E)(ii)
VI. Proposed Action
VII. Statutory and Executive Order Reviews

I. Background

    By statute, SIPs meeting the requirements of sections 110(a)(1) and 
(2) of the CAA 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.
    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 SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. On July 23, 2012 (77 FR 
42997), August 2, 2012 (77 FR 45958), and June 18, 2013 (78 FR 36440), 
EPA approved in part, and conditionally approved in part, Tennessee's 
infrastructure SIPs for the 1997 8-hour ozone NAAQS, 1997 annual 
PM2.5 NAAQS, 2006 24-hour PM2.5 NAAQS and 2008 
Lead NAAQS respectively.

II. Section 110(a)(2)(E) Adequate Resources Requirements

    EPA conditionally approved a portion of the Tennessee 
infrastructure SIP submissions addressing the 1997 8-hour ozone NAAQS, 
1997 annual PM2.5 NAAQS, 2006 24-hour PM2.5 NAAQS 
and 2008 Lead NAAQS. Specifically, EPA conditionally approved the 
portion of section 110(a)(2)(E)(ii) respecting Act's section 128(a)(1) 
requirements (hereafter ``sub-element 110(a)(2)(E)(ii)'')

[[Page 1610]]

for each of the above NAAQS. Sub-element 110(a)(2)(E)(ii) provides that 
each infrastructure SIP shall provide requirements ``that the State 
comply with the requirements respecting State board under section [128 
of the CAA]. . . .'' Section 128 in turn provides that each SIP shall 
contain requirements that: (1) 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 a 
significant portion of their income from persons subject to permits or 
enforcement orders under the Act (hereafter ``section 128(a)(1) 
requirements''); and, (2) any potential conflicts of interest by 
members of such board or body or the head of an executive agency with 
similar powers be adequately disclosed (hereafter ``section 128(a)(2) 
requirements.'') EPA was unable to fully-approve Tennessee's 
infrastructure submissions for the above NAAQS with respect to sub-
element 110(a)(2)(E)(ii) because, at the time, the SIP did not include 
provisions to address the section 128(a)(1) requirements.\1\
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    \1\ The section 128(a)(2) conflict of interest disclosure 
requirements, however, were met by existing provisions in the 
Tennessee SIP. See 77 FR 42997, page 42998; 77 FR 45958, 45960; and 
78 FR 36440, 36442.
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    On, March 28, 2012, TDEC transmitted a letter to EPA, committing to 
adopt specific enforceable measures into its SIP by July 23, 2013, to 
address the applicable portions of section 128(a)(1). In Tennessee's 
March 28, 2012, letter, TDEC committed to bring its SIP into conformity 
with section 128(a)(1) of the CAA by submitting a SIP revision that 
designated at least a majority of the positions on the State's Air 
Pollution Control Board \2\ as being subject to the ``public interest'' 
requirement. In addition, TDEC committed to submitting a SIP revision 
establishing requirements to ensure that at least a majority of the 
members on the State's Air Pollution Control Board do not derive any 
significant portion of their income from persons subject to CAA permits 
or enforcement orders. TDEC also described in the letter that its 
planned restrictions related to the ``significant portion of income'' 
requirement of section 128 would include an exclusion for the official 
salaries of mayors of counties and municipalities, and for faculty 
members employed by institutions of higher learning.
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    \2\ The composition of Tennessee's Air Pollution Control Board 
is statutorily prescribed at Tennessee Code Annotated 68-201-104.
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III. Notice of Disapproval

    EPA's conditional approval authority is provided at section 
110(k)(4) of the CAA. Consistent with the requirements for EPA's 
exercise of the conditional approval authority, the commitment from 
Tennessee provided that the State would adopt the specified enforceable 
provisions and submit a revision to EPA for approval within one year of 
final action of the conditional approval.\3\ As described at section 
110(k)(4), and as noted by EPA in its conditional approval actions, 
failure by the State to adopt the specified provisions and submit them 
to EPA for incorporation into the SIP by July 23, 2013, would result in 
the conditional approvals being treated as disapprovals. Tennessee 
failed to meet the July 23, 2013, commitment; therefore, the 
conditional approvals automatically became disapprovals on that date.
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    \3\ EPA's initial final action to conditionally approve sub-
element 110(a)(2)(E)(ii) occurred on July 23, 2012. Therefore, 
Tennessee's commitment to submit the specific enforceable measures 
necessary to comply with section 128(a)(1) requirements was due no 
later than July 23, 2013. See 77 FR 42997.
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    EPA was not required to propose a finding of disapproval in order 
for the conditional approvals to convert to disapprovals. However, the 
Agency is hereby notifying the public of the finding of disapprovals 
for Tennessee's 2008 Lead NAAQS, 1997 annual PM2.5 NAAQS, 
2006 24-hour PM2.5 NAAQS and 1997 8-hour ozone NAAQS 
infrastructure SIPs as they relate to the sub-element 110(a)(2)(E)(ii) 
requirements respecting section 128(a)(1) requirements.
    Under section 179(a) of the CAA, final disapproval of a submittal 
that addresses a requirement of a Part D Plan (42 U.S.C. 7501-7515) or 
is required in response to a finding of substantial inadequacy as 
described in section 7410(k)(5) (SIP call) starts a sanctions clock. 
Sub-element 110(a)(2)(E)(ii) requirements are not submitted pursuant to 
Part D requirements, and therefore, no sanctions will be triggered by 
Tennessee's failure to submit SIP revisions for these requirements. The 
disapprovals do however trigger the requirement under section 110(c) 
that EPA promulgate a Federal Implementation Plan (FIP) no later than 2 
years from the date of the disapproval unless the State corrects the 
deficiency, and the Administrator approves the plan or plan revision 
before the Administrator promulgates such FIP.
    In this rulemaking, EPA is also proposing to approve Tennessee's 
October 9, 2013, SIP revision to address the section 128(a)(1) CAA 
requirements. Provided that EPA finalizes approval of TDEC's October 9, 
2013, SIP revision, on or before July 23, 2015 (two years from the date 
Tennessee's sub-element 110(a)(2)(E)(ii) conditional approvals 
converted to disapprovals), Tennessee will have corrected the 
infrastructure SIP deficiencies and a FIP for sub-element 
110(a)(2)(E)(ii) will not be necessary.
    As stated above, this notice of disapproval is limited to the 
section 128(a)(1) requirements and the associated sub-element 
110(a)(2)(E)(ii) requirements of Tennessee's infrastructure SIPs for 
the 2008 Lead NAAQS, 1997 annual PM2.5 NAAQS, 2006 24-hour 
PM2.5 NAAQS and 1997 8-hour ozone NAAQS. All other 
applicable aspects of these infrastructure SIPs have been addressed in 
separate rulemakings. See July 23, 2012 (77 FR 42997), August 2, 2012 
(77 FR 45958), and June 18, 2013 (78 FR 36440).

IV. EPA's Analysis of Tennessee's Conflict of Interest Submission

    TDEC's October 9, 2013, SIP revision repeals Chapter 1200-3-17 
moving the contents to a new Chapter 0400-30-17--Conflict of Interest, 
and adds a new section 0400-30-17-.02 Protecting the Public Interests 
and 0400-30-17-.05 Policy of Ethics and the Avoidance of Conflicts of 
Interest. EPA is proposing to approve this change because the Agency 
has preliminarily determined that, once approved into the Tennessee 
SIP, this change will address the section 128(a)(1) requirements that 
any board or body which approves permits or enforcement orders have at 
least a majority of members who represent the public interest and not 
derive a significant portion of their income from persons subject to 
permits or enforcement orders under the Act. As noted above, TDEC 
submitted the October 9, 2013, SIP revision to meet the requirements 
outlined in EPA's conditional approvals published on July 23, 2012 (77 
FR 42997), August 2, 2012 (77 FR 45958), and June 18, 2013 (78 FR 
36440), for the 1997 8-hour ozone NAAQS, 1997 annual PM2.5 
NAAQS, 2006 24-hour PM2.5 NAAQS and the 2008 Lead NAAQS 
respectively.
    Specifically, TDEC's revision would incorporate a new rule into its 
SIP to address section 128(a)(1) requirements. Rule 0400-30-17-.02 
Protecting the Public Interests contains definitions and requirements 
that will enable the Board to clearly determine if it has a majority of 
members who represent the public interest and do not derive a 
significant portion of their income from persons subject to permits or 
enforcement orders

[[Page 1611]]

under the Act. The intent of rule 0400-30-17-.02 is to ensure that at 
least half of the Board serves in the public interest and does not 
derive significant income from person subject to permits or enforcement 
orders under the Act. Pursuant to these provisions, in the event the 
Tennessee Air Pollution Control Board is unable to determine that it is 
comprised consistent with the requirements of section 128(a)(1), the 
revisions prevent the Board from hearing contested cases until such 
time as it complies with the requirements of section 128.
    TDEC is also revising sections 0400-30-17-.01 Purpose and Intent 
(formally 1200-3-17-.01), 0400-30-17-.03 Conflict of Interest on the 
Part of the Board and Technical Secretary (formally 1200-3-17-.02) and 
0400-30-17-.04 Conflict of Interest in the Permitting of Municipal 
Solid Waste (formally 1200-3-17-.03) of the SIP and adding two new 
sections to address protecting the public interest and conflict of 
interest (0400-30-17-.02 Protecting the Public Interests and 0400-30-
17-.05 Policy of Ethics and the Avoidance of Conflicts of Interest). 
EPA has preliminarily determined that these revisions, once approved 
into the SIP, will be sufficient to meet the State's obligations 
pursuant to the requirements of CAA section 128(a)(1).

V. EPA's Analysis Supporting the Proposed Approval of Sub-Element 
110(a)(2)(E)(ii)

    Sub-element 110(a)(2)(E)(ii) requires that the state comply with 
the requirements respecting State Boards pursuant to section 128 of the 
Act. With respect to sub-element 110(a)(2)(E)(ii), EPA reviews 
infrastructure SIP submissions to ensure that the SIP includes SIP-
approved provisions satisfying section 128 requirements. As previously 
discussed, Tennessee's SIP includes provisions respecting the section 
110(a)(2) requirements, and following approval of the October 9, 2013, 
SIP revision to address section 128(a)(1) requirements, would fully 
meet the applicable section 128 requirements for the State.
    Accordingly, EPA is hereby proposing to approve sub-element 
110(a)(2)(E)(ii) with respect to the applicable section 128(a)(1) 
requirements for the 2008 Lead NAAQS, 1997 annual PM2.5 
NAAQS, 2006 24-hour PM2.5 NAAQS and 1997 8-hour ozone NAAQS. 
Final action to approve this infrastructure SIP sub-element for the 
above NAAQS is contingent upon approval of the October 9, 2013, SIP 
revision into the Tennessee SIP. Should that approval be finalized, EPA 
anticipates finalizing the sub-element 110(a)(2)(E)(ii) approvals 
concurrently through the same approval notice.

VI. Proposed Action

    EPA is notifying the public of findings of disapprovals for 
Tennessee's 2008 Lead NAAQS, 1997 annual PM2.5 NAAQS, 2006 
24-hour PM2.5 NAAQS and 1997 8-hour ozone NAAQS 
infrastructure SIP sub-element 110(a)(2)(E)(ii) requirements as they 
relate to section 128(a)(1) requirements. EPA conditionally approved 
this portion of Tennessee's infrastructure submissions for these NAAQS 
on July 23, 2012, August 2, 2013, and June 18, 2013. Tennessee failed 
to meet the July 23, 2013, submission deadline associated with these 
commitments, therefore, the conditional approvals automatically 
converted to disapprovals on that date. EPA is not required to propose 
a finding for these disapprovals; however, the Agency is providing the 
public with notice of these findings through this action. Provided EPA 
finalizes approval of the October 9, 2013, SIP revision to address the 
section 128(a)(1) requirements, the Agency intends to fully approve the 
section 110(a)(2)(E)(ii) sub-element of Tennessee's infrastructure SIP 
for the 2008 Lead NAAQS, 1997 annual PM2.5 NAAQS, 2006 24-
hour PM2.5 NAAQS and 1997 8-hour ozone NAAQS, and thereby, 
convert the disapprovals noticed through this action into approvals.
    As described above, EPA is also proposing to approve Tennessee's 
October 9, 2013, SIP revision, as addressing applicable CAA section 
128(a)(1) requirements. Specifically, EPA is proposing to approve 
Tennessee's new Chapter 0400-30-17 Conflict of Interest which replaces 
Chapter 1200-03-17 in its entirety.
    Finally, EPA is proposing to approve infrastructure SIP sub-element 
110(a)(2)(E)(ii) as it relates to section 128(a)(1) requirements for 
purposes of the 2008 Lead NAAQS, 1997 annual PM2.5 NAAQS, 
2006 24-hour PM2.5 NAAQS and 1997 8-hour ozone NAAQS in 
Tennessee. Final approval of the section 110(a)(2)(E)(ii) sub-element 
for these NAAQS is contingent upon approval of the section 128(a)(1) 
requirements SIP revision also proposed for approval through this 
action.
    EPA notes that the subject of this notice is limited to the section 
128(a)(1) requirements and the associated infrastructure SIP sub-
element 110(a)(2)(E)(ii). All other applicable Tennessee infrastructure 
SIP elements for the 2008 Lead NAAQS, 1997 annual PM2.5 
NAAQS, 2006 24-hour PM2.5 NAAQS and 1997 8-hour ozone NAAQS 
have been addressed in separate rulemakings.

VII. 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. See 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 
proposed 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 proposed 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 proposed 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

[[Page 1612]]

it will not impose substantial direct costs on tribal governments or 
preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting 
and recordkeeping requirements, Volatile organic compounds.

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

    Dated: December 20, 2013.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2013-31561 Filed 1-8-14; 8:45 am]
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