[Federal Register Volume 84, Number 47 (Monday, March 11, 2019)]
[Proposed Rules]
[Pages 8643-8645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04390]
[[Page 8643]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2018-0759 FRL-9990-67-Region 4]
Air Plan Approval; Tennessee; Interstate Transport (Prongs 1 and
2) for the 2010 1-Hour NO2 Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a State Implementation Plan (SIP) revision submitted by the
State of Tennessee, through the Tennessee Department of Environment &
Conservation (TDEC), through a letter dated May 14, 2018, for the
purpose of addressing the Clean Air Act (CAA or Act) ``good neighbor''
interstate transport (prongs 1 and 2) infrastructure SIP requirements
for the 2010 1-hour Nitrogen Dioxide (NO2) 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, commonly referred to as an
``infrastructure SIP.'' Specifically, EPA is proposing to approve
Tennessee's May 14, 2018, SIP revision addressing prongs 1 and 2 to
ensure that air emissions in the State do not significantly contribute
to nonattainment or interfere with maintenance of the 2010 1-hour
NO2 NAAQS in any other state.
DATES: Comments must be received on or before April 10, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2018-0759 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Evan Adams of 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. Mr. Adams can be reached by phone at (404) 562-9009 or via
electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On January 22, 2010, EPA established a new 1-hour primary NAAQS for
NO2 at a level of 100 parts per billion (ppb), based on a 3-
year average of the 98th percentile of the yearly distribution of 1-
hour daily maximum concentrations.\1\ See 75 FR 6474 (February 9,
2010). This NAAQS is designed to protect against exposure to the entire
group of nitrogen oxides (NOX). NO2 is the
component of greatest concern and is used as the indicator for the
larger group of NOX. Emissions that lead to the formation of
NO2 generally also lead to the formation of other
NOX. Therefore, control measures that reduce NO2
can generally be expected to reduce population exposures to all gaseous
NOX which may have the co-benefit of reducing the formation
of ozone and fine particles both of which pose significant public
health threats. For comprehensive information on the 2010 1-hour
NO2 NAAQS, please refer to the February 9, 2010 Federal
Register notice. See 75 FR 6474.
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\1\ Subsequently, after careful consideration of the scientific
evidence and information available, on April 18, 2018, EPA published
a final action to retain the current NO2 standard at the
2010 level of 100 ppb. This action was taken after review of the
full body of available scientific evidence and information, giving
particular weight to the assessment of the evidence in the 2016
NOX Integrated Science Assessment; analyses and
considerations in the Policy Assessment; the advice and
recommendations of the Clean Air Scientific Advisory Committee; and
public comments. See 83 FR 17226 (April 18, 2018).
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Whenever EPA promulgates a new or revised NAAQS, CAA section
110(a)(1) requires states to make SIP submissions to provide for the
implementation, maintenance, and enforcement of the NAAQS.\2\ This
particular type of SIP submission is commonly referred to as an
``infrastructure SIP.'' These submissions must meet the various
requirements of CAA section 110(a)(2), as applicable. Due to ambiguity
in some of the language of CAA section 110(a)(2), EPA believes that it
is appropriate to interpret these provisions in the specific context of
acting on infrastructure SIP submissions. EPA has previously provided
comprehensive guidance on the application of these provisions through a
guidance document for infrastructure SIP submissions and through
regional actions on infrastructure submissions.\3\ Unless otherwise
noted below, EPA is following that existing approach in acting on this
submission. In addition, in the context of acting on such
infrastructure submissions, EPA evaluates the submitting state's SIP
for compliance with statutory and regulatory requirements, not for the
state's implementation of its SIP.\4\ EPA has other authority to
address any issues concerning a state's implementation of the rules,
regulations, consent orders, etc. that comprise its SIP.
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\2\ States were required to submit infrastructure SIPs for the
2010 1-hour NO2 NAAQS to EPA no later than January 22,
2013.
\3\ EPA explains and elaborates on these ambiguities and its
approach to address them in its September 13, 2013 Infrastructure
SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as well as in numerous agency actions, including EPA's prior
action on Tennessee's infrastructure SIP to address other 110(a)(2)
elements for the PM2.5 NAAQS entitled ``Air Quality
Plans; Tennessee; Infrastructure Requirements for the 2012
PM2.5 National Ambient Air Quality Standard;'' in the
section ``What is EPA's approach to the review of infrastructure SIP
submissions?'' See 82 FR 2295 at 2296-2299 (January 9, 2017).
\4\ See Montana Environmental Information Center v. Thomas, 902
F.3d 971 (9th Cir. 2018).
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Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct
components, commonly referred to as ``prongs,'' that must be addressed
in infrastructure SIPs. The first two prongs, which are codified in
section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or
other type of emissions activity in one state from contributing
significantly to nonattainment of the NAAQS in another state (prong 1)
and from interfering with maintenance of the NAAQS in another state
(prong 2). EPA sometimes refers to the prong 1 and prong 2 conjointly
as the ``good neighbor'' provision of the CAA. The third and fourth
prongs, which are codified in section 110(a)(2)(D)(i)(II), are
provisions that prohibit emissions activity in one state from
interfering with measures required to prevent significant deterioration
of air quality in another state (prong 3) and from interfering with
measures to protect visibility in another state (prong
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4). Section 110(a)(2)(D)(ii) requires SIPs to include provisions
ensuring compliance with sections 115 and 126 of the Act, relating to
interstate and international pollution abatement.
EPA's most recent infrastructure SIP guidance, the September 13,
2013, ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' did
not explicitly include criteria for how the Agency would evaluate
infrastructure SIP submissions intended to address section
110(a)(2)(D)(i)(I).\5\ With respect to certain pollutants, such as
ozone and particulate matter (PM), EPA has addressed interstate
transport in eastern states in the context of regional rulemaking
actions that quantify state emission reduction obligations.\6\ For
NO2, EPA has considered available information such as
current air quality, emissions data and trends, and regulatory
provisions that control source emissions to determine whether emissions
from one state interfere with the attainment or maintenance of the
NAAQS in another state. EPA's review and proposed action on Tennessee's
CAA section 110(a)(2)(D)(i)(I) interstate transport SIP revisions for
the 2010 NO2 NAAQS is informed by these considerations.
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\5\ At the time the September 13, 2013, guidance was issued, EPA
was litigating challenges raised with respect to its Cross-State Air
Pollution Rule (CSAPR), 76 FR 48208 (August 8, 2011), designed to
address the CAA section 110(a)(2)(D)(i)(I) interstate transport
requirements with respect to the 1997 ozone and the 1997 and 2006
PM2.5 NAAQS. CSAPR was vacated and remanded by the United
States Court of Appeals for the District of Columbia Circuit (D.C.
Circuit) in 2012 pursuant to EME Homer City Generation, L.P. v. EPA,
696 F.3d 7. EPA subsequently sought review of the D.C. Circuit's
decision by the Supreme Court, which was granted in June 2013. As
EPA was in the process of litigating the interpretation of section
110(a)(2)(D)(i)(I) at the time the infrastructure SIP guidance was
issued, EPA did not issue guidance specific to that provision. The
Supreme Court subsequently vacated the D.C. Circuit's decision and
remanded the case to that court for further review. 134 S. Ct. 1584
(2014). On July 28, 2015, the D.C. Circuit issued a decision
upholding CSAPR, but remanding certain elements for reconsideration.
795 F.3d 118.
\6\ Nitrogen Oxides (NOX) SIP Call, 63 FR 57371
(October 27, 1998); Clean Air Interstate Rule (CAIR), 70 FR 25172
(May 12, 2005); CSAPR, 76 FR 48208 (August 8, 2011).
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Through this proposed action, EPA is proposing to approve
Tennessee's May 14, 2018, SIP revision addressing prong 1 and prong 2
requirements for the 2010 1-hour NO2 NAAQS.\7\ The State
addressed CAA section 110(a)(2)(D)(i)(I) by providing information
supporting its conclusion that emissions from Tennessee do not
significantly contribute to nonattainment or interfere with maintenance
of the 2010 1-hour NO2 NAAQS. All other applicable
infrastructure SIP requirements for Tennessee for the 2010 1-hour
NO2 NAAQS have been addressed in separate rulemakings. See
80 FR 14019 (March 18, 2015) and 82 FR 27428 (June 15, 2017).
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\7\ EPA received this SIP revision on May 16, 2018.
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II. What is EPA's analysis of how Tennessee addressed prongs 1 and 2?
In Tennessee's May 14, 2018, SIP revision, the State concluded that
its SIP adequately addresses prongs 1 and 2 with respect to the 2010 1-
hour NO2 NAAQS. Tennessee provides the following reasons for
its determination: (1) The most recent valid design values for the 1-
hour NO2 standard in Tennessee and the neighboring states of
Arkansas, Georgia, Kentucky, Missouri, North Carolina, South Carolina,
and Virginia are below the 2010 standard; (2) total emissions of
NOX in the State have trended downward since 2008; and (3)
the SIP contains state regulations that directly or indirectly control
NOX emissions. EPA preliminarily agrees with the State's
conclusion based on the rationale discussed below.
First, EPA notes that there are no designated nonattainment areas
for the 2010 1-hour NO2 NAAQS in Tennessee or the
neighboring states. On February 17, 2012 (77 FR 9532), EPA designated
the entire country as ``unclassifiable/attainment'' for the 2010 1-hour
NO2 NAAQS, stating that ``available information does not
indicate that the air quality in these areas exceeds the 2010 1-hour
NO2 NAAQS.''
Second, the 2015-2017 NO2 design values in Tennessee and
neighboring states are well below the 2010 1-hour NO2 NAAQS
standard of 100 ppb. The highest monitored 2015-2017 valid design
values for the neighboring states of Arkansas, Georgia, Kentucky,
Missouri, North Carolina, South Carolina, and Virginia are below the
2010 standard (at 42, 56, 49, 49, 38, 42, and 45 ppb, respectively).\8\
The design values in Tennessee, and neighboring states, during this
time period were 44 to 62 percent below the NAAQS. During the 2015-2017
time period, Georgia recorded the highest monitored 98th percentile
concentration value in the neighboring states (61.1 ppb in 2016).
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\8\ Monitoring sites must meet the data completeness
requirements listed in Appendix S to 40 CFR part 50 in order to have
a valid design value. Table 1 in Tennessee's submittal and EPA's air
quality design value website--https://www.epa.gov/air-trends/air-quality-design-values--indicate that not all design values are valid
for the neighboring states of Kentucky (41), Missouri (45), North
Carolina (39), South Carolina (38), and Virginia (38) (the
parentheses contain the highest invalid design value in ppb for each
state as reported in EPA's air quality design value website).
Additionally, Alabama and Mississippi have no valid 2015-2017
NO2 design values.
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Third, total NOX emissions data provided by the State
shows that NOX emissions in Tennessee decreased from 430,384
tons in 2008 to 271,383 tons in 2014, a reduction of approximately 37
percent.\9\ The area, nonroad, onroad, and point sources are all
considered in the total emissions data provided by the State. Onroad
vehicles continue to be the largest emitters of NOX in
Tennessee, emitting 131,422 tons according to the 2014 data. Despite
onroad mobile sources being the primary contributors to NOX
emissions, the data from Tennessee's submittal shows a 35 percent
decrease in onroad mobile emissions from 2008 to 2014.
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\9\ See Table 2 in Tennessee's submittal, which is based on
emissions trends data extracted from the EPA website at https://www.epa.gov/air-emissions-inventories/air-pullutants-emissions-trends-data.
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Finally, Tennessee identifies the following SIP-approved State
rules that directly or indirectly control NOX emissions:
Rule 1200-03-09-.01--Construction Permits (regulating the construction
of new sources and the modification of existing sources); Rule 1200-03-
06-.03--General Provisions and Rule 1200-03-07-.07--General Provisions
and Applicability for Process Gaseous Emission Standards (both
regulating gaseous emissions from non-process and process emission
sources); and Rule 1200-03-13-.01--Violation Statement (providing for
enforcement actions for failure to comply with Tennessee air
regulations).
For all the reasons discussed above, EPA has preliminarily
determined that Tennessee does not contribute significantly to
nonattainment or interfere with maintenance of the 2010 1-hour
NO2 NAAQS in any other state and that Tennessee's SIP
includes adequate provisions to prevent emissions sources within the
State from significantly contributing to nonattainment or interfering
with maintenance of this standard in any other state.
III. Proposed Action
As described above, EPA is proposing to approve Tennessee's May 14,
2018, SIP revision addressing prongs 1 and 2 of CAA section
110(a)(2)(D)(i) for the 2010 1-hour NO2 NAAQS.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
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Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. This action
merely proposes to approve 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 Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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).
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.
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.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 27, 2019.
Mary S. Walker,
Acting Regional Administrator, Region 4.
[FR Doc. 2019-04390 Filed 3-8-19; 8:45 am]
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