[Federal Register Volume 81, Number 228 (Monday, November 28, 2016)]
[Rules and Regulations]
[Pages 85410-85417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28429]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2015-0154; FRL-9955-58-Region 4]


Air Quality Plans; Tennessee; Infrastructure Requirements for the 
2010 Sulfur Dioxide National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve the State Implementation Plan (SIP) submission, 
submitted by the State of Tennessee, through the Tennessee Department 
of Environment and Conservation (TDEC), on March 13, 2014, for 
inclusion into the Tennessee SIP. This final action pertains to the 
infrastructure requirements of the Clean Air Act (CAA or Act) for the 
2010 1-hour sulfur dioxide (SO2) national ambient air 
quality standard (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 submission.'' TDEC certified that the Tennessee 
SIP contains provisions that ensure the 2010 1-hour SO2 
NAAQS is implemented, enforced, and maintained in Tennessee. EPA has 
determined that portions of Tennessee's infrastructure SIP submission, 
provided to EPA on March 13, 2014, satisfy certain required 
infrastructure elements for the 2010 1-hour SO2 NAAQS.

DATES: This rule will be effective December 28, 2016

[[Page 85411]]


ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2015-0154. 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 Air Regulatory Management Section, Air Planning and 
Implementation 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: Michele Notarianni, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. Ms. Notarianni can be reached via electronic mail at 
[email protected] or via telephone at (404) 562-9031.

SUPPLEMENTARY INFORMATION: 

I. Background and Overview

    On June 2, 2010, (75 FR 35520, June 22, 2010), EPA promulgated a 
revised primary SO2 NAAQS to an hourly standard of 75 parts 
per billion (ppb) based on a 3-year average of the annual 99th 
percentile of 1-hour daily maximum concentrations. Pursuant to section 
110(a)(1) of the CAA, states are required to submit SIPs meeting the 
applicable requirements of section 110(a)(2) within three years after 
promulgation of a new or revised NAAQS or within such shorter period as 
EPA may prescribe. Section 110(a)(2) requires states to address basic 
SIP elements such as requirements for monitoring, basic program 
requirements and legal authority that are designed to assure attainment 
and maintenance of the NAAQS. States were required to submit such SIPs 
for the 2010 1-hour SO2 NAAQS to EPA no later than June 2, 
2013.\1\
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    \1\ In the proposed action, EPA incorrectly cited a date of June 
22, 2013, for the due date of infrastructure SIPs for the 2010 1-
hour SO2 NAAQS. 80 FR 51158 (August 24, 2015).
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    EPA is acting upon the SIP submission from Tennessee that addresses 
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) 
for the 2010 1-hour SO2 NAAQS. In a proposed rulemaking 
published on March 10, 2016 (81 FR 12627), EPA proposed to approve 
portions of Tennessee's 2010 1-hour SO2 NAAQS infrastructure 
SIP submission submitted on March 13, 2014. The details of Tennessee's 
submission and the rationale for EPA's actions are explained in the 
proposed rulemaking. Comments on the proposed rulemaking were due on or 
before April 11, 2016. EPA received adverse comments on the proposed 
action.

II. Response to Comments

    EPA received one set of comments on the March 10, 2016, proposed 
rulemaking to approve portions of Tennessee's 2010 1-hour 
SO2 NAAQS infrastructure SIP submission intended to meet the 
CAA requirements for the 2010 1-hour SO2 NAAQS. A summary of 
the comments and EPA's responses are provided below.\2\ A full set of 
these comments is provided in the docket for this final rulemaking 
action.
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    \2\ EPA's responses to these comments are consistent with 
actions taken on 2010 1-hour SO2 NAAQS infrastructure SIP 
submissions for Virginia (80 FR 11557, March 4, 2015) at https://www.gpo.gov/fdsys/pkg/FR-2015-03-04/pdf/2015-04377.pdf and West 
Virginia (79 FR 62022, October 16, 2014) at https://www.gpo.gov/fdsys/pkg/FR-2014-10-16/pdf/2014-24658.pdf.
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A. Comments on Infrastructure SIP Requirements for Enforceable Emission 
Limits

1. The Plain Language of the CAA
    Comment 1: The Commenter contends that the plain language of 
section 110(a)(2)(A) of the CAA requires the inclusion of enforceable 
emission limits in an infrastructure SIP to prevent NAAQS exceedances 
in areas not designated nonattainment. In support, the Commenter quotes 
the language in section 110(a)(1) that requires states to adopt a plan 
for implementation, maintenance, and enforcement of the NAAQS and the 
language in section 110(a)(2)(A) that requires SIPs to include 
enforceable emissions limitations as well as schedules and timetables 
for compliance, as may be necessary or appropriate to meet the 
applicable requirements of the CAA. The Commenter then states that 
applicable requirements of the CAA include requirements for the 
attainment and maintenance of the NAAQS, and that CAA section 
110(a)(2)(A) requires infrastructure SIPs to include enforceable 
emission limits to prevent exceedances of the NAAQS. The Commenter 
claims that Tennessee's SIP submission does not meet this asserted 
requirement. Thus, the Commenter asserts that EPA must disapprove 
Tennessee's proposed SO2 infrastructure SIP submission 
because it fails to include enforceable emission limitations necessary 
to ensure attainment and maintenance of the NAAQS as required by CAA 
section 110(a)(2)(A). The Commenter then contends that the Tennessee 
2010 1-hour SO2 infrastructure SIP submission fails to 
comport with CAA requirements for SIPs to establish enforceable 
emission limits that are adequate to prohibit NAAQS exceedances in 
areas not designated nonattainment.
    Response 1: EPA disagrees that section 110 must be interpreted in 
the manner suggested by the Commenter in the context of infrastructure 
SIP submissions. Section 110 is only one provision that is part of the 
complicated structure governing implementation of the NAAQS program 
under the CAA, as amended in 1990, and it must be interpreted in the 
context of not only that structure, but also of the historical 
evolution of that structure. In light of the revisions to section 110 
since 1970 and the later-promulgated and more specific SIP planning 
requirements of the CAA, EPA interprets the requirement in section 
110(a)(1) that the plan provide for ``implementation, maintenance and 
enforcement'' in conjunction with the requirements in section 
110(a)(2)(A) to mean that the infrastructure SIP must contain 
enforceable emission limits that will aid in attaining and/or 
maintaining the NAAQS and that the state demonstrate that it has the 
necessary tools to implement and enforce a NAAQS, such as adequate 
state personnel and an enforcement program.
    With regard to the requirement for emission limitations in section 
110(a)(2)(A), EPA has interpreted this to mean, for purposes of 
infrastructure SIP submissions, that the state may rely on measures 
already in place to address the pollutant at issue or any new control 
measures that the state may elect to impose as part of such SIP 
submission. As EPA stated in ``Guidance on Infrastructure State 
Implementation Plan (SIP) Elements under Clean Air Act Sections 
110(a)(1) and 110(a)(2),'' dated September 13, 2013, (Infrastructure 
SIP Guidance), ``[t]he conceptual purpose of an infrastructure SIP 
submission is to

[[Page 85412]]

assure that the air agency's SIP contains the necessary structural 
requirements for the new or revised NAAQS, whether by establishing that 
the SIP already contains the necessary provisions, by making a 
substantive SIP revision to update the SIP, or both. Overall, the 
infrastructure SIP submission process provides an opportunity . . . to 
review the basic structural requirements of the air agency's air 
quality management program in light of each new or revised NAAQS.'' 
Infrastructure SIP Guidance at pp. 1-2. Tennessee appropriately 
demonstrated that its SIP has SO2 emissions limitations and 
the ``structural requirements'' to implement the 2010 1-hour 
SO2 NAAQS in its infrastructure SIP submission.
    The Commenter makes general allegations that Tennessee does not 
have sufficient protective measures to prevent SO2 NAAQS 
exceedances. EPA addressed the adequacy of Tennessee's infrastructure 
SIP for 110(a)(2)(A) purposes in the proposed rule and explained why 
the SIP includes enforceable emission limitations and other control 
measures that aid in maintaining the 2010 1-hour SO2 NAAQS 
throughout the State. These include State regulations which 
collectively establish enforceable emissions limitations and other 
control measures, means or techniques for activities that contribute to 
SO2 concentrations in the ambient air, and provide authority 
for TDEC to establish such limits and measures as well as schedules for 
compliance through SIP-approved permits to meet the applicable 
requirements of the CAA. See 81 FR 12627, 12631 (March 10, 2016). As 
discussed in this rulemaking, EPA finds these provisions adequately 
address section 110(a)(2)(A) to aid in attaining and/or maintaining the 
2010 1-hour SO2 NAAQS and finds Tennessee demonstrated that 
it has the necessary tools to implement and enforce the 2010 1-hour 
SO2 NAAQS.
2. The Legislative History of the CAA
    Comment 2: The Commenter cites two excerpts from the legislative 
history of the 1970 CAA and claims that the ``the legislative history 
of Infrastructure SIPs provides that states must include enforceable 
emission limits in their Infrastructure SIPs sufficient to ensure the 
implementation, maintenance, and attainment of each NAAQS in all areas 
of the State.''
    Response 2: As provided in the previous response, the CAA, as 
enacted in 1970, including its legislative history, cannot be 
interpreted in isolation from the later amendments that refined that 
structure and deleted relevant language from section 110 concerning 
attainment. In any event, the two excerpts of legislative history the 
Commenter cites merely provide that states should include enforceable 
emission limits in their SIPs and they do not mention or otherwise 
address whether states are required to impose additional emission 
limitations or control measures as part of the infrastructure SIP 
submission, as opposed to requirements for other types of SIP 
submissions such as attainment plans required under section 
110(a)(2)(I). As provided in Response 1, the proposed rule explains why 
the SIP includes sufficient enforceable emissions limitations for 
purposes of the infrastructure SIP submission.
3. Case Law
    Comment 3: The Commenter also discusses several court decisions 
concerning the CAA, which the Commenter claims support its contention 
that courts have been clear that section 110(a)(2)(A) requires 
enforceable emissions limits in infrastructure SIP submissions to 
prevent violations of the NAAQS. The Commenter first cites to language 
in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement 
for ``emission limitations'' and stating that emission limitations 
``are the specific rules to which operators of pollution sources are 
subject, and which if enforced should result in ambient air which meets 
the national standards.'' The Commenter also cites to Pennsylvania 
Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for 
the proposition that the CAA directs EPA to withhold approval of a SIP 
where it does not ensure maintenance of the NAAQS, and to Mision 
Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which 
quoted section 110(a)(2)(B) of the CAA of 1970. The Commenter contends 
that the 1990 Amendments do not alter how courts have interpreted the 
requirements of section 110, quoting Alaska Dept. of Envtl. 
Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted 
section 110(a)(2)(A) of the CAA and also stated that ``SIPs must 
include certain measures Congress specified'' to ensure attainment of 
the NAAQS. The Commenter also quotes several additional opinions in 
this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th 
Cir. 2012) (``[t]he Clean Air Act directs states to develop 
implementation plans--SIPs--that `assure' attainment and maintenance of 
[NAAQS] through enforceable emissions limitations''); Mich. Dept. of 
Envtl. Quality v. Browner, 230 F.3d 181, 185 (6th Cir. 2000) (``EPA's 
deference to a state is conditioned on the state's submission of a plan 
`which satisfies the standards of Sec.  110(a)(2)' and which includes 
emission limitations that result in compliance with the NAAQS''; and 
Hall v. EPA 273 F.3d 1146 (9th Cir. 2001) for the proposition that EPA 
may not approve a SIP revision that does not demonstrate how the rules 
would not interfere with attainment and maintenance of the NAAQS.
    Response 3: None of the cases the Commenter cites support the 
Commenter's contention that it is clear that section 110(a)(2)(A) 
requires infrastructure SIP submissions to include detailed plans 
providing for attainment and maintenance of the NAAQS in all areas of 
the state, nor do they shed light on how EPA may reasonably interpret 
section 110(a)(2)(A). With the exception of Train, none of the cases 
the Commenter cites specifically concerned the interpretation of CAA 
section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). 
Rather, the other courts referenced section 110(a)(2)(A) (or section 
110(a)(2)(B) of the pre-1990 CAA) in the background section of 
decisions involving challenges to EPA actions on revisions to SIPs that 
were required and approved under other provisions of the CAA or in the 
context of an enforcement action.
    In Train, 421 U.S. 60, the Court was addressing a state revision to 
an attainment plan submission made pursuant to section 110 of the CAA, 
the primary statutory provision at that time addressing such 
submissions. The issue in that case was whether changes to requirements 
that would occur before attainment was required were variances that 
should be addressed pursuant to the provision governing SIP revisions 
or were ``postponements'' that must be addressed under section 110(f) 
of the CAA of 1970, which contained prescriptive criteria. The Court 
concluded that EPA reasonably interpreted section 110(f) not to 
restrict a state's choice of the mix of control measures needed to 
attain the NAAQS, so long as the state met other applicable 
requirements of the CAA, and that revisions to SIPs that would not 
impact attainment of the NAAQS by the attainment date were not subject 
to the limits of section 110(f). Thus the issue was not whether the 
specific SIP at issue needs to provide for attainment or whether 
emissions limits are needed as part of the SIP; rather the issue was 
which statutory provision governed when the state wanted to revise the 
emission limits in its SIP if such revision would not impact attainment 
or maintenance of the NAAQS.

[[Page 85413]]

    The decision in Pennsylvania Dept. of Envtl. Resources was also 
decided based on a pre-1990 provision of the CAA. At issue was whether 
EPA properly rejected a revision to an approved SIP where the 
inventories relied on by the state for the updated submission had gaps. 
The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of 
EPA's disapproval, but did not provide any interpretation of that 
provision. This decision did not address the question at issue in this 
action, i.e., what a state must include in an infrastructure SIP 
submission for purposes of section 110(a)(2)(A). Yet, even if the Court 
had interpreted that provision, EPA notes that it was modified by 
Congress in 1990; thus, this decision has little bearing on the issue 
here.
    At issue in Mision Industrial, 547 F.2d 123, was the definition of 
``emissions limitation'' not whether section 110 requires the state to 
demonstrate how all areas of the state will attain and maintain the 
NAAQS as part of their infrastructure SIPs. The language from the 
opinion the Commenter quotes does not interpret but rather merely 
describes section 110(a)(2)(A). The Commenter does not cite to this 
case to assert that the measures relied on by the state in the 
infrastructure SIP are not ``emissions limitations'' and the decision 
in this case has no bearing here. In Mont. Sulphur & Chem. Co., 666 
F.3d 1174, the Court was reviewing a Federal implementation plan (FIP) 
that EPA promulgated after a long history of the State failing to 
submit an adequate SIP in response to EPA's finding under section 
110(k)(5) that the previously approved SIP was substantially inadequate 
to attain or maintain the NAAQS, which triggered the State's duty to 
submit a new SIP to show how it would remedy that deficiency and attain 
the NAAQS. The Court cited generally to sections 107 and 110(a)(2)(A) 
of the CAA for the proposition that SIPs should assure attainment and 
maintenance of NAAQS through emission limitations, but this language 
was not part of the Court's holding in the case, which focused instead 
on whether EPA's finding of SIP inadequacy and adoption of a remedial 
FIP were lawful. The Commenter suggests that Alaska Dept. of Envtl. 
Conservation, 540 U.S. 461, stands for the proposition that the 1990 
CAA Amendments do not alter how courts interpret section 110. This 
claim is inaccurate. Rather, the Court quoted section 110(a)(2)(A), 
which, as noted previously, differs from the pre-1990 version of that 
provision and the court makes no mention of the changed language. 
Furthermore, the Commenter also quotes the Court's statement that 
``SIPs must include certain measures Congress specified,'' but that 
statement specifically referenced the requirement in section 
110(a)(2)(C), which requires an enforcement program and a program for 
the regulation of the modification and construction of new sources. 
Notably, at issue in that case was the State's ``new source'' 
permitting program, not what is required for purposes of an 
infrastructure SIP submission for purposes of section 110(a)(2)(A).
    EPA does not believe any of these court decisions addressed 
required measures for infrastructure SIPs and believes nothing in the 
opinions addressed whether infrastructure SIP submissions must contain 
emission limitations or measures to ensure attainment and maintenance 
of the NAAQS.
4. EPA Regulations, Such as 40 CFR 51.112(a)
    Comment 4: The Commenter cites to 40 CFR 51.112(a), providing that 
``Each plan must demonstrate that the measures, rules, and regulations 
contained in it are adequate to provide for the timely attainment and 
maintenance of the national standard that it implements.'' The 
Commenter relies on a statement in the preamble to the 1986 action 
restructuring and consolidating provisions in part 51, in which EPA 
stated that ``[i]t is beyond the scope of th[is] rulemaking to address 
the provisions of Part D of the Act . . .'' 51 FR 40656. Thus, the 
Commenter contends that ``the provisions of 40 CFR 51.112 are not 
limited to nonattainment SIPs; the regulation instead applies to 
infrastructure SIPs, which are required to attain and maintain the 
NAAQS in all areas of a state, including those not designated 
nonattainment.''
    Response 4: The Commenter's reliance on 40 CFR 51.112 to support 
its argument that infrastructure SIPs must contain emission limits 
which ensure attainment and maintenance of the NAAQS is incorrect. It 
is clear on its face that 40 CFR 51.112 directly applies to state SIP 
submissions for control strategy SIPs, i.e., plans that are 
specifically required to attain and/or maintain the NAAQS. These 
regulatory requirements apply when states are developing ``control 
strategy'' SIPs under other provisions of the CAA, such as attainment 
plans required for the various NAAQS in Part D and maintenance plans 
required in section 175A. The Commenter's suggestion that 40 CFR 51.112 
must apply to all SIP submissions required by section 110 based on the 
preamble to EPA's action ``restructuring and consolidating'' provisions 
in part 51, is also incorrect.\3\ EPA's action in 1986 was not to 
establish new substantive planning requirements, but rather was meant 
merely to consolidate and restructure provisions that had previously 
been promulgated.
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    \3\ EPA noted that it had already issued guidance addressing the 
new ``Part D'' attainment planning obligations. Also, as to 
maintenance regulations, EPA expressly stated that it was not making 
any revisions other than to re-number those provisions. See 51 FR 
40657.
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    Although EPA was explicit that it was not establishing requirements 
interpreting the provisions of new ``Part D'' of the CAA, it is clear 
that the regulations being restructured and consolidated were intended 
to address control strategy plans. In the preamble, EPA clearly stated 
that 40 CFR 51.112 was replacing 40 CFR 51.13 (``Control strategy: 
SOX and PM (portion)''), 51.14 (``Control strategy: CO, HC, 
OX and NO2 (portion)''), 51.80 (``Demonstration 
of attainment: Pb (portion)''), and 51.82 (``Air quality data 
(portion)''). Id. at 40660. Thus, the present-day 40 CFR 51.112 
contains consolidated provisions that are focused on control strategy 
SIPs, and the infrastructure SIP is not such a plan.
5. EPA Interpretations in Other Rulemakings
    Comment 5: The Commenter also references a 2006 partial approval 
and partial disapproval of revisions to Missouri's existing plan 
addressing the SO2 NAAQS and claims it was an action in 
which EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject an 
infrastructure SIP. Specifically, the Commenter asserts that in that 
action, EPA cited section 110(a)(2)(A) as a basis for disapproving a 
revision to the State plan on the basis that the State failed to 
demonstrate the SIP was sufficient to ensure attainment and maintenance 
of the SO2 NAAQS after revision of an emission limit and 
cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules 
in a SIP are adequate to attain the SO2 NAAQS.
    Response 5: EPA's partial approval and partial disapproval of 
revisions to restrictions on emissions of sulfur compounds for the 
Missouri SIP in 71 FR 12623 specifically addressed Missouri's 
attainment SIP submission --not Missouri's infrastructure SIP 
submission. It is clear from the final Missouri rule that EPA was not 
reviewing an initial infrastructure SIP submission, but rather 
reviewing

[[Page 85414]]

proposed SIP revisions that would make an already approved SIP designed 
to demonstrate attainment of the NAAQS less stringent. Therefore, EPA 
does not agree that the 2006 Missouri action referenced by the 
Commenter establishes how EPA reviews infrastructure SIP submissions 
for purpose of section 110(a)(2)(A).
    As discussed in the proposed rule, EPA finds that the Tennessee 
2010 1-hour SO2 infrastructure SIP meets certain appropriate 
and relevant structural requirements of section 110(a)(2) of the CAA 
that will aid in attaining and/or maintaining the 2010 1-hour 
SO2 NAAQS and that the State demonstrated that it has the 
necessary tools to implement and enforce the 2010 1-hour SO2 
NAAQS.\4\
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    \4\ EPA's final action does not address CAA section 
110(a)(2)(D)(i)(I) because Tennessee has not made a submission for 
these elements.
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B. Comments on Tennessee SIP SO2 Emission Limits

    Comment 6: The Commenter asserts that EPA may not approve the 
Tennessee SO2 infrastructure SIP because it fails to include 
enforceable emission limitations with a 1-hour averaging time that 
applies at all times. The Commenter cites to CAA section 302(k) which 
requires that emission limits must limit the quantity, rate or 
concentration of emissions and must apply on a continuous basis. The 
Commenter states that ``Enforceable emission limitations contained in 
the I-SIP must, therefore, be accompanied by proper averaging times; 
otherwise an appropriate numerical emission limit could allow for peak 
emissions that exceed the NAAQS and yet still be permitted since they 
would be averaged with lower emissions at other times.'' The Commenter 
also cites to recommended averaging times in EPA guidance providing 
that SIP emissions limits, ``should not exceed the averaging time of 
the applicable NAAQS that the limit is intended to help attain.'' EPA 
Memorandum of Apr. 23, 2014, to Regional Air Division Directors, 
Regions 1-10, Guidance for 1-Hour SO2 NAAQS Nonattainment 
Area SIP Submissions, at 22, available at https://www.epa.gov/sites/production/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf. The Commenter also notes that 
this EPA guidance provides that `` `any emissions limits based on 
averaging periods longer than 1 hour should be designed to have 
comparable stringency to a 1-hour average limit at the critical 
emission value.' '' The Commenter states that, ``. . . for Tennessee's 
Infrastructure SIP to rely on enforceable emission limitations for 
implementation of the SO2 NAAQS which employ an averaging 
period longer than one-hour, the numerical emission limits must be 
ratcheted down to provide adequate assurance that the NAAQS will be 
met.'' Additionally, the Commenter notes that it disagrees with 
Tennessee's responses to public comments on this SIP submission 
regarding annual emissions data to demonstrate compliance with hourly 
emissions limits.
    The Commenter also cites to a February 3, 2011, EPA Region 7 letter 
to the Kansas Department of Health and Environment regarding the need 
for 1-hour SO2 emission limits in a prevention of 
significant deterioration (PSD) permit, an EPA Environmental Appeals 
Board decision rejecting use of a 3-hour averaging time for a 
SO2 limit in a PSD permit,\5\ and EPA's disapproval of a 
Missouri SIP which relied on annual averaging for SO2 
emission rates and claims EPA has stated that 1-hour averaging times 
are necessary for the 2010 1-hour SO2 NAAQS. The Commenter 
states, ``Therefore, in order to ensure that Tennessee's Infrastructure 
SIP actually implements the SO2 NAAQS in every area of the 
state, the I-SIP must contain necessary and appropriate enforceable 
emission limits with one-hour averaging times, monitored continuously, 
for large sources of SO2.'' The Commenter asserts that EPA 
must disapprove Tennessee's infrastructure SIP because it fails to 
require emission limits with adequate averaging times.
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    \5\ The Commenter cited to In re: Mississippi Lime Co., PSD 
APPEAL 11-01, 2011 WL 3557194, at *26-27 (EPA Aug. 9, 2011) and 71 
FR 12623, 12624 (March 13, 2006) (EPA disapproval of a control 
strategy SO2 SIP).
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    Response 6: As explained in detail in previous responses, the 
purpose of the infrastructure SIP is to ensure that a state has the 
structural capability to implement and enforce the NAAQS and thus, 
additional SO2 emission limitations to ensure attainment and 
maintenance of the NAAQS are not required for such infrastructure 
SIPs.\6\ EPA disagrees that it must disapprove the proposed Tennessee 
infrastructure SIP submission merely because the SIP does not contain 
enforceable SO2 emission limitations with 1-hour averaging 
periods that apply at all times, as this issue is not appropriate for 
resolution in this action in advance of EPA action on the State's 
submissions of other required SIP submissions including an attainment 
plan for one area which is designated nonattainment pursuant to section 
107 of the CAA.\7\ Therefore, because EPA finds Tennessee's 
SO2 infrastructure SIP approvable without the additional 
SO2 emission limitations showing attainment of the NAAQS, 
EPA finds the issue of appropriate averaging periods for such future 
limitations not relevant at this time.
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    \6\ For a discussion on emission averaging times for emissions 
limitations for SO2 attainment SIPs, see the April 23, 
2014, Guidance for 1-Hour SO Nonattainment Area SIP Submissions. As 
noted by the Commenter, EPA explained that it is possible, in 
specific cases, for states to develop control strategies that 
account for variability in 1-hour emissions rates through emission 
limits with averaging times that are longer than 1-hour, using 
averaging times as long as 30-days, but still provide for attainment 
of the 2010 SO2 NAAQS as long as the limits are of at 
least comparable stringency to a 1-hour limit at the critical 
emission value. EPA has not taken final action to approve any 
specific submission of such a limit that a state has relied upon to 
demonstrate NAAQS attainment, and Tennessee has not submitted such a 
limit for that purpose here, so it is premature at this time to 
evaluate whether any emission limit in Tennessee's SIP is in 
accordance with the April 23, 2014, guidance. If and when Tennessee 
submits an emission limitation that relies upon such a longer 
averaging time to demonstrate NAAQS attainment, EPA will evaluate it 
then.
    \7\ There is currently one area designated nonattainment 
pursuant to CAA section 107 for the 2010 1-hour SO2 NAAQS 
in Tennessee. EPA believes the appropriate time for examining the 
necessity of 1-hour SO2 emission limits on specific 
sources is within the attainment planning process.
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    Further, the Commenter's citation to a prior EPA discussion on 
emission limitations required in PSD permits (from EPA's Environmental 
Appeals Board decision and EPA's letter to Kansas' permitting 
authority) pursuant to part C of the CAA is neither relevant nor 
applicable to infrastructure SIP submissions under CAA section 110. In 
addition, and as previously discussed, the EPA disapproval of the 2006 
Missouri SIP was a disapproval relating to an attainment plan SIP 
submission required pursuant to part D attainment planning and is 
likewise not relevant to the analysis of infrastructure SIP 
requirements. As for the Commenter's evaluation of TDEC's position 
regarding averaging times, as described in Response 7, this action is 
not the appropriate context to address the adequacy of various 
averaging periods for the 2010 1-hour SO2 NAAQS.
    Comment 7: Citing to section 110(a)(1) and (a)(2)(A) of the CAA, 
the Commenter contends that EPA may not approve Tennessee's 
infrastructure SIP because it does not include enforceable 1-hour 
emission limits for sources that the Commenter claims are currently 
contributing to NAAQS exceedances. The Commenter asserts that emission 
limits are especially important for meeting the 1-hour SO2 
NAAQS because SO2 impacts are strongly source oriented. The 
Commenter states that

[[Page 85415]]

``[d]espite the large contribution from coal-fired EGUs [electricity 
generating units] to the State's SO2 pollution, Tennessee's 
I-SIP lacks enforceable emissions limitations applicable to its coal-
fired EGUs sufficient to ensure the implementation, attainment, and 
maintenance of the 2010 SO2 NAAQS.'' The Commenter refers to 
data from EPA's National Emissions Inventory (NEI) and states, ``In 
Tennessee, 77 percent (or 120,134 tons) of SO2 emissions 
come from its coal electric generating units (``EGUs'').'' The 
Commenter also provides air dispersion modeling reports that it 
conducted for two power plants in Tennessee, the Tennessee Valley 
Authority (TVA) Allen and TVA Gallatin Power Plants. The Commenter 
summarizes its modeling results for the TVA Allen and TVA Gallatin 
Power Plants stating that the data predict exceedances of the standard. 
During the State's public comment period on its proposed SIP revision, 
the Commenter submitted comments stating, ``. . . in determining 
whether enforceable emission limitations in an I-SIP submittal are 
sufficient to implement the NAAQS, an agency may not ignore information 
put in front of it. The expert air dispersion modeling analyses for TVA 
Allen and Gallatin that [the Commenter] has provided to TDEC over the 
years demonstrate the inadequacy of the State's rules and regulations 
for SO2 emissions--those which Tennessee has relied on in 
its I-SIP to attain and maintain the NAAQS throughout the State.'' The 
Commenter further contends that ``neither TDEC nor EPA may rely on the 
cited provisions already contained in Tennessee's I-SIP to satisfy 
section 110(a)(2)(A) for the 2010 SO2 NAAQS, see 81 FR at 
12631, without first addressing and rectifying the insufficiencies of 
the SO2 emission limitations in the state's I-SIP 
certification that have been identified and demonstrated through the 
various modeling analyses provided to the agency by [the Commenter].'' 
Thus, the Commenter asserts that EPA must disapprove Tennessee's SIP 
submission, and must establish a FIP ``which incorporates necessary and 
appropriate source-specific enforceable emission limitations 
(preferably informed by modeling) on TVA Allen Plant and TVA Gallatin 
Plant, as well as any other major source of SO2 pollution in 
the State which has modeled exceedances of the NAAQS.'' Further, the 
Commenter states that ``For TVA Allen and TVA Gallatin, enforceable 
emission limitations must be at least as stringent as the modeling-
based limits [provided by the Commenter] in order to protect the one-
hour SO2 NAAQS and implement, maintain, and enforce the 
standard in Tennessee.''
    Response 7: As stated previously, EPA believes that the proper 
inquiry is whether Tennessee has met the basic, structural SIP 
requirements appropriate at the point in time EPA is acting upon the 
infrastructure submissions. Emissions limitations and other control 
measures, whether on coal-fired EGUs or other SO2 sources, 
that may be needed to attain and maintain the NAAQS in areas designated 
nonattainment for that NAAQS are due on a different schedule from the 
section 110 infrastructure SIP submission. A state, like Tennessee, may 
reference pre-existing SIP emission limits or other rules contained in 
part D plans for previous NAAQS in an infrastructure SIP submission for 
purposes of section 110(a)(2)(A). For example, Tennessee submitted a 
list of existing emission reduction measures in the SIP that control 
emissions of SO2 as discussed above in response to a prior 
comment and discussed in the proposed rulemaking on Tennessee's 
SO2 infrastructure SIP. These provisions have the ability to 
reduce SO2 overall. Although the Tennessee SIP relies on 
measures and programs used to implement previous SO2 NAAQS, 
these provisions are not limited to reducing SO2 levels to 
meet one specific NAAQS and will continue to provide benefits for the 
2010 1-hour SO2 NAAQS.
    Regarding the air dispersion modeling conducted by the Commenter 
pursuant to AERMOD for the TVA Allen and TVA Gallatin Power Plants, EPA 
is not in this action making a determination regarding the air quality 
status in the area where these EGUs are located, and is not evaluating 
whether emissions applicable to these EGUs are adequate to attain and 
maintain the NAAQS. Consequently, the EPA does not find the modeling 
information relevant for review of an infrastructure SIP for purposes 
of section 110(a)(2)(A). When additional areas in Tennessee are 
designated under the 2010 1-hour SO2 NAAQS, and if any 
additional areas in Tennessee are designated nonattainment in the 
future, any potential future modeling submitted by the State with 
designations or attainment demonstrations would need to account for any 
new emissions limitations Tennessee develops to support such 
designation or demonstration, which at this point is unknown. While EPA 
has extensively discussed the use of modeling for attainment 
demonstration purposes and for designations,\8\ EPA has recommended 
that such modeling was not needed for the SO2 infrastructure 
SIPs for the 2010 1-hour SO2 NAAQS for purposes of section 
110(a)(2)(A), which are not actions in which EPA makes determinations 
regarding current air quality status. See April 12, 2012, letters to 
states and 2012 Draft White Paper.\9\
---------------------------------------------------------------------------

    \8\ See for example, EPA's discussion of modeling for 
characterizing air quality in the Agency's August 21, 2015, final 
rule at 80 FR 51052 and for nonattainment planning in the April 23, 
2014, Guidance for 1-Hour SO2 Nonattainment Area SIP 
Submissions.
    \9\ Implementation of the 2010 Primary 1-Hour SO2 NAAQS, Draft 
White Paper for Discussion, May 2012 (2012 Draft White Paper) and a 
sample April 12, 2012, letter from EPA to states are available in 
the docket for this action.
---------------------------------------------------------------------------

    In conclusion, EPA disagrees with the Commenter's statements that 
EPA must disapprove Tennessee's infrastructure SIP submission because 
it does not establish specific enforceable SO2 emission 
limits, either on coal-fired EGUs or other large SO2 
sources, in order to demonstrate attainment and maintenance with the 
2010 1-hour SO2 NAAQS at this time.
    Comment 8: The Commenter alleges that the proposed SO2 
infrastructure SIP does not include a submittal that addresses sources 
significantly contributing to nonattainment or interfering with 
maintenance of the 2010 1-hour SO2 NAAQS in other states as 
required by section 110(a)(2)(D)(i)(I) of the CAA, and asserts EPA must 
therefore disapprove the infrastructure SIP and impose a FIP. The 
Commenter states that ``Tennessee's submittal improperly cites to the 
D.C. Circuit Court's 2012 opinion in EME Homer City Generation v. EPA, 
696 F.3d 7, 31 (D.C. Cir. 2012), as concluding that a 
110(a)(2)(D)(i)(I) SIP submission cannot be considered a `required' SIP 
submission until EPA has defined a state's obligations pursuant to that 
section; incorrectly assuming that no action was required until EPA 
quantified the Good Neighbor obligation.'' The Commenter explains that 
the Supreme Court disapproved the view that states cannot address 
section 110(a)(2)(D)(i) until EPA resolves issues related to the Clean 
Air Interstate Rule (CAIR) or CSAPR, and that EPA is not required to 
provide any implementation guidance before states' interstate transport 
obligation can be addressed, citing to Order on Petition Number VI-
2014-04 (July 29, 2015), at 10 (citing EPA v. EME Homer City 
Generation, 134 S.Ct. 1584, 1601 (2014)) and also 81 FR 12630. The 
Commenter notes that regardless of whether Tennessee submitted a SIP 
revision to address CAA

[[Page 85416]]

section 110(a)(2)(D)(i)(I), the State ``long since passed the June 2013 
deadline to submit such provisions; rather than await some potential 
future submission, Tennessee's failure to satisfy its Good Neighbor 
obligations must be rectified now.''
    Response 8: This action does not address whether sources in 
Tennessee are significantly contributing to nonattainment or 
interfering with maintenance of the 2010 1-hour SO2 NAAQS in 
another state as required by section 110(a)(2)(D)(i)(I) of the CAA (the 
good neighbor provision). Thus, EPA disagrees with the Commenter's 
statement that EPA must disapprove the submitted 2010 1-hour 
SO2 infrastructure SIP due to Tennessee's failure to address 
section 110(a)(2)(D)(i)(I). In EPA's rulemaking proposing to approve 
Tennessee's infrastructure SIP for the 2010 1-hour SO2 
NAAQS, EPA clearly stated that it was not taking any action with 
respect to the good neighbor provision in section 110(a)(2)(D)(i)(I). 
Tennessee did not make a submission to address the requirements of 
section 110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 NAAQS, 
and thus there is no such submission upon which EPA proposed to take 
action on under section 110(k) of the CAA. Similarly, EPA disagrees 
with the Commenter's assertion that EPA cannot approve other elements 
of an infrastructure SIP submission without the good neighbor 
provision. There is no basis for the contention that EPA has triggered 
its obligation to issue a FIP to address the good neighbor obligation 
under section 110(c), as EPA has neither found that Tennessee failed to 
timely submit a required 110(a)(2)(D)(i)(I) SIP submission for the 2010 
1-hour SO2 NAAQS or found that such a submission was 
incomplete, nor has EPA disapproved a SIP submission addressing 
110(a)(2)(D)(i)(I) with respect to the 2010 1-hour SO2 
NAAQS.
    EPA acknowledges the Commenter's concern for the interstate 
transport of air pollutants and agrees in general with the Commenter 
that sections 110(a)(1) and (a)(2) of the CAA generally require states 
to submit, within three years of promulgation of a new or revised 
NAAQS, a plan which addresses cross-state air pollution under section 
110(a)(2)(D)(i)(I). However, EPA disagrees with the Commenter's 
argument that EPA cannot approve an infrastructure SIP submission 
without the good neighbor provision. Section 110(k)(3) of the CAA 
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 CAA. This authority to 
approve state 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)).
    EPA interprets its authority under section 110(k)(3) of the CAA, as 
affording EPA the discretion to approve, or conditionally approve, 
individual elements of Tennessee's infrastructure SIP submissions for 
the 2010 1-hour SO2 NAAQS, separate and apart from any 
action with respect to the requirements of section 110(a)(2)(D)(i)(I) 
of the CAA 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 Tennessee had made a SIP submission for section 
110(a)(2)(D)(i)(I) of the CAA for the 2010 1-hour SO2 NAAQS, 
which to date it has not, EPA would still have discretion under section 
110(k) of the CAA to act upon the various individual elements of the 
State's infrastructure SIP submission, separately or together, as 
appropriate.
    The Commenter raises no compelling legal or environmental rationale 
for an alternate interpretation. Nothing in the Supreme Court's April 
2014 decision in EME Homer City alters EPA's interpretation that EPA 
may act on individual severable measures, including the requirements of 
section 110(a)(2)(D)(i)(I), in a SIP submission. See EPA v. EME Homer 
City Generation, L.P., 134 S. Ct. 1584 (affirming a state's obligation 
to submit a SIP revision addressing section 110(a)(2)(D)(i)(I) 
independent of EPA's action finding significant contribution or 
interference with maintenance). In sum, the concerns raised by the 
Commenter do not establish that it is inappropriate or unreasonable for 
EPA to approve the portions of Tennessee's infrastructure SIP 
submission for the 2010 1-hour SO2 NAAQS.
    EPA has no obligation at this time to issue a FIP pursuant to 
110(c)(1) to address Tennessee's obligations under section 
110(a)(2)(D)(i)(I) until EPA first either finds Tennessee failed to 
make a required submission addressing the element or the State has made 
such a submission but it is incomplete, or EPA disapproves a SIP 
submission addressing that element. Until either occurs, EPA does not 
have the obligation to issue a FIP pursuant to section 110(c) with 
respect to the good neighbor provision. Therefore, EPA disagrees with 
the Commenter's contention that it must issue a FIP for Tennessee to 
address 110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 NAAQS at 
this time.

III. Final Action

    With the exception of the interstate transport requirements of 
section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), EPA is taking 
final action to approve Tennessee's infrastructure submission submitted 
on March 13, 2014, for the 2010 1-hour SO2 NAAQS for the 
above described infrastructure SIP requirements. EPA is taking final 
action to approve Tennessee's infrastructure SIP submission for the 
2010 1-hour SO2 NAAQS for the above described infrastructure 
SIP requirements because the submission is consistent with section 110 
of the CAA.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 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 
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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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

[[Page 85417]]

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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 
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 January 27, 2017. 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: November 7, 2016.
Heather McTeer Toney,
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. In Sec.  52.2220, the table in paragraph (e) is amended by adding 
the entry ``110(a)(1) and (2) Infrastructure Requirements for the 2010 
1-hour SO2 NAAQS'' at the end of the table to read as 
follows:


Sec.  52.2220  Identification of plan.

* * * * *
    (e) * * *

                                EPA-Approved Tennessee Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                     Applicable
   Name of non-regulatory SIP       geographic or    State effective   EPA approval date        Explanation
           provision             nonattainment area        date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
110 (a)(1) and (2)               Tennessee.........      03/13/2014   11/28/16, [insert   With the exception of
 Infrastructure Requirements                                           Federal Register    interstate transport
 for the 2010 1-hour SO2 NAAQS.                                        citation].          requirements of
                                                                                           section
                                                                                           110(a)(2)(D)(i)(I)
                                                                                           and (II) (prongs 1,
                                                                                           2, and 4).
----------------------------------------------------------------------------------------------------------------


[FR Doc. 2016-28429 Filed 11-25-16; 8:45 am]
 BILLING CODE 6560-50-P