[Federal Register Volume 84, Number 96 (Friday, May 17, 2019)]
[Rules and Regulations]
[Pages 22374-22376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10187]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2018-0720, EPA-R04-OAR-2018-0759; FRL-9993-71-Region 4]


Air Plan Approval; GA and TN; Interstate Transport (Prongs 1 and 
2) for the 2010 1-Hour NO2 Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving State 
Implementation Plan (SIP) revisions submitted by the State of Georgia, 
through the Georgia Environmental Protection Division (Georgia EPD), 
via a letter dated July 24, 2018, and the State of Tennessee, through 
the Tennessee Department of Environment & Conservation (TDEC), via 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 
approving these SIP revisions addressing prongs 1 and 2 to ensure that 
air emissions in each of these two states do not significantly 
contribute to nonattainment or interfere with maintenance of the 2010 
1-hour NO2 NAAQS in any other state.

DATES: This rule is effective June 17, 2019.

ADDRESSES: EPA has established dockets for these actions under Docket 
Identification Nos. EPA-R04-OAR-2018-0720 and EPA-R04-OAR-2018-0759. 
All documents in these dockets are listed on the www.regulations.gov 
website. Although listed in the index, some information may not be 
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 and Radiation 
Division (formerly the 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: Evan Adams of the Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air and 
Radiation 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. 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.
    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. 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. 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 
implementation plan for compliance with statutory and regulatory 
requirements, not for the state's implementation of its SIP. EPA has 
other authority to address any issues concerning a state's 
implementation of the regulations that comprise its SIP.
    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

[[Page 22375]]

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 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). 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. For NO2, EPA 
has considered available information from states 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 actions on Georgia's and Tennessee's CAA section 
110(a)(2)(D)(i)(I) interstate transport SIP revisions for the 2010 
NO2 NAAQS are informed by these considerations.
    In notices of proposed rulemaking (NPRMs) for Georgia (published on 
March 11, 2019, at 84 FR 8645), and Tennessee (published on March 11, 
2019, at 84 FR 8643), EPA proposed to approve the Georgia and Tennessee 
SIP submissions on the basis that their SIPs adequately address prong 1 
and prong 2 requirements for the 2010 1-hour NO2 NAAQS. The 
details of the Georgia and Tennessee submissions and the rationale for 
EPA's actions are explained in the NPRMs.\1\
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    \1\ EPA notes that it is only making a determination that the 
States' already-approved SIPs meet certain CAA requirements. EPA is 
not approving or removing any rules from the Georgia or Tennessee 
SIP.
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    Comments on both proposed rulemakings were due on or before April 
10, 2019. EPA received no comments on the NPRM related to the Georgia 
submittal and one comment on the NPRM related to the Tennessee 
submittal.\2\ The sole comment on the Tennessee submittal is not a 
significant comment requiring a response because it is generalized and 
unsupported.\3\
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    \2\ The comment on the Tennessee submittal is located in the 
docket for this action.
    \3\ See, e.g., Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 n.58 
(D.C. Cir. 1977) (citing Portland Cement Ass'n v. Ruckelshaus, 486 
F.2d 375, 393-94 (D.C. Cir. 1973) (``In determining what points are 
significant, the `arbitrary and capricious' standard of review must 
be kept in mind. Thus only comments which, if true, raise points 
relevant to the agency's decision and which, if adopted, would 
require a change in an agency's proposed rule cast doubt on the 
reasonableness of a position taken by the agency. Moreover, comments 
which themselves are purely speculative and do not disclose the 
factual or policy basis on which they rest require no response. 
There must be some basis for thinking a position taken in opposition 
to the agency is true.''); Public Citizen, Inc. v. FAA, 988 F.2d. 
186, 197 (D.C. Cir. 1993) (citing Home Box Office, Inc. v. FCC, 567 
F.2d 9, 35 n.58 (D.C. Cir. 1977)) (``We reiterate that to require 
response by the agency, comments must do more than simply state that 
the agency's premises or conclusions are wrong; they must explain 
why and on what basis the agency assertedly has erred.'').
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II. Final Actions

    As described above, EPA is approving the infrastructure SIP 
submissions transmitted under cover letter by the Georgia EPD on July 
24, 2018, and TDEC on May 14, 2018, addressing prongs 1 and 2 of 
section 110(a)(2)(D)(i)(I) for the 2010 1-hour NO2 NAAQS. 
EPA is approving these infrastructure SIP revisions because they are 
consistent with section 110 of the CAA.

III. 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. These actions merely 
approve state law as meeting Federal requirements and do not impose 
additional requirements beyond those imposed by state law. For that 
reason, these actions:
     Are not significant regulatory actions 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);
     Are not Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory actions because SIP approvals are exempted under 
Executive Order 12866;
     Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are 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.);
     Do 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);
     Do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not economically significant regulatory actions based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Are not significant regulatory actions subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Are 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
     Do 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 SIPs are 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, these rules 
do not have tribal implications as specified by Executive Order 13175 
(65 FR 67249, November 9, 2000), nor will they 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 these actions 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. These actions are not ``major rules'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of these actions must be filed in the United

[[Page 22376]]

States Court of Appeals for the appropriate circuit by July 16, 2019. 
Filing a petition for reconsideration by the Administrator of these 
final rules does not affect the finality of these actions 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 rules or actions. These actions may not be 
challenged later in proceedings to enforce their 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.

    Dated: May 6, 2019.
Mary S. Walker,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart L--Georgia

0
2. In Sec.  52.570, paragraph (e) is amended by adding an entry for 
``110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour 
NO2 NAAQS'' at the end of the table to read as follows:


Sec.  52.570   Identification of plan.

* * * * *
    (e) * * *

                                                     EPA-Approved Georgia Non-Regulatory Provisions
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                                                                State
     Name of nonregulatory SIP      Applicable geographic  submittal date/            EPA approval date                         Explanation
             provision              or nonattainment area  effective date
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                                                                      * * * * * * *
110(a)(1) and (2) Infrastructure    Georgia..............        07/24/18  5/17/19 [Insert citation of             Addressing Prongs 1 and 2 of section
 Requirements for the 2010 1-hour                                           publication].                           110(a)(2)(D)(i) only.
 NO2 NAAQS.
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Subpart RR--Tennessee

0
3. In Sec.  52.2220, paragraph (e) is amended by adding an entry for 
``110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour 
NO2 NAAQS'' at the end of the table to read as follows:


Sec.  52.2220   Identification of plan.

* * * * *
    (e) * * *

                                                    EPA-Approved Tennessee Non-Regulatory Provisions
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    Name of non-regulatory SIP      Applicable geographic       State
             provision              or nonattainment area  effective date             EPA approval date                         Explanation
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110(a)(1) and (2) Infrastructure    Tennessee............        05/14/18  5/17/19 [Insert citation of             Addressing Prongs 1 and 2 of section
 Requirements for the 2010 1-hour                                           publication].                           110(a)(2)(D)(i) only.
 NO2 NAAQS.
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[FR Doc. 2019-10187 Filed 5-16-19; 8:45 am]
 BILLING CODE 6560-50-P