[Federal Register Volume 87, Number 163 (Wednesday, August 24, 2022)]
[Proposed Rules]
[Pages 51944-51946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18199]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2021-0569; FRL-10136-01-R4]


Air Plan Approval; TN; Updates to References to Appendix W 
Modeling Guideline

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 
Tennessee, on April 9, 2021. Specifically, EPA is proposing to approve 
updates to the incorporation by reference of federal guidelines on air 
quality modeling in the Tennessee SIP. Based on its proposal to approve 
this revision, EPA is also proposing to convert the previous 
conditional approval regarding infrastructure SIP prevention of 
significant deterioration (PSD) elements for the 2015 Ozone National 
Ambient Air Quality Standard (NAAQS) for Tennessee to a full approval. 
EPA is proposing to approve this revision pursuant to the Clean Air Act 
(CAA or Act).

DATES: Comments must be received on or before September 23, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2021-0569 at 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 www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Josue Ortiz Borrero, 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. The telephone number is 
(404) 562-8085. Mr. Ortiz Borrero can also be reached via electronic 
mail at staff email [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On October 1, 2015, EPA promulgated a revised primary and secondary 
NAAQS for ozone, revising the 8-hour ozone standards from 0.075 parts 
per million (ppm) to a new more protective level of 0.070 ppm. See 80 
FR 65292 (October 26, 2015). Pursuant to section 110(a)(1) of the CAA, 
states are required to submit SIP revisions 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. This particular type of SIP is 
commonly referred to as an ``infrastructure SIP'' or ``iSIP.'' States 
were required to submit such SIP revisions for the 2015 8-hour ozone 
NAAQS to EPA no later than October 1, 2018.\1\
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    \1\ In infrastructure SIP submissions, states generally certify 
evidence of compliance with sections 110(a)(1) and (2) of the CAA 
through a combination of state regulations and statutes, some of 
which have been incorporated into the SIP. In addition, certain 
federally-approved, non-SIP regulations may also be appropriate for 
demonstrating compliance with sections 110(a)(1) and (2).
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    On September 13, 2018, Tennessee met the requirement to submit an 
iSIP for the 2015 8-hour ozone NAAQS by the October 1, 2018, deadline. 
Through previous rulemakings, EPA approved most of the infrastructure 
SIP elements for the 2015 Ozone NAAQS for Tennessee.2 3 
However, regarding the PSD elements of section 110(a)(2)(C), (D)(i)(II) 
(prong 3), and (J) (herein referred to as element C, Prong 3, and 
element J, respectively), EPA conditionally approved \4\ these portions

[[Page 51945]]

of Tennessee's iSIP submission because of outdated references to the 
federal guideline on air quality modeling found in Appendix W of 40 CFR 
part 51.\5\ As previously mentioned, all other applicable iSIP 
requirements for Tennessee for the 2015 8-hour ozone NAAQS were 
addressed or will be addressed in separate rulemakings.
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    \2\ EPA approved most elements for Tennessee, except for the 
Interstate Transport provisions (Prongs 1 & 2), and the PSD 
provisions (element C, Prong 3, and J), on December 26, 2019. See 84 
FR 70895.
    \3\ The Interstate Transport provisions (Prongs 1 & 2) for 
Tennessee have been proposed for disapproval but that action has not 
been finalized at this time. See 87 FR 9545 (February 22, 2022).
    \4\ Under CAA section 110(k)(4), EPA may conditionally approve a 
SIP revision based on a commitment from a state to adopt specific 
enforceable measures by a date certain, but not later than one year 
from the date of approval. If the state fails to meet the commitment 
within one year of the final conditional approval, the conditional 
approval will be treated as a disapproval and EPA will issue a 
finding of disapproval.
    \5\ For the state of Tennessee, EPA conditionally approved the 
PSD provisions of element C, Prong 3, and element J, on April 9, 
2020. See 85 FR 19888.
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    For elements C and J to be approved for PSD, a state needs to 
demonstrate that its SIP meets the PSD-related infrastructure 
requirements of these sections. These requirements are met if the 
state's implementation plan includes a PSD program that meets current 
federal requirements. Prong 3 is also approvable when a state's 
implementation plan contains a fully approved, up-to-date PSD program. 
EPA's PSD regulations at 40 CFR 51.166(l) require that modeling be 
conducted in accordance with Appendix W, Guideline on Air Quality 
Models. EPA promulgated the most current version of Appendix W on 
January 17, 2017 (82 FR 5182). Therefore, in order to approve the iSIP 
PSD elements for the 2015 8-hour ozone NAAQS, PSD regulations in SIPs 
are required to reference the most current version of Appendix W.
    As discussed in the conditional approval for the 2015 ozone iSIP 
PSD elements, Tennessee's SIP contained outdated references to Appendix 
W and the State committed to update the outdated references and submit 
a SIP revision within one year of EPA's final rule conditionally 
approving these PSD elements. Accordingly, Tennessee was required to 
submit a SIP revision by April 9, 2021. Tennessee met its commitment by 
submitting a SIP revision to correct the deficiencies on or before the 
deadline. Through this Notice of Proposed Rulemaking (NPRM), EPA is now 
proposing to approve changes to the Tennessee SIP and to convert the 
conditional approval to a full approval for Tennessee regarding element 
C, Prong 3, and element J, for the 2015 8-hour ozone NAAQS 
infrastructure SIP.

II. What is EPA's approach to the review of infrastructure SIP 
submissions?

    As discussed above, whenever EPA promulgates a new or revised 
NAAQS, CAA section 110(a)(1) requires states to submit infrastructure 
SIPs that 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.\6\ 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 facial 
compliance with statutory and regulatory requirements, not for the 
state's implementation of its SIP.\7\ 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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    \6\ 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 the Tennessee infrastructure SIP to address the 2010 
Sulfur Dioxide NAAQS. See 81 FR 8540 (November 28, 2016).
    \7\ See Mont. Envtl. Info. Ctr. v. Thomas, 902 F.3d 971 (9th 
Cir. 2018).
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III. EPA's Analysis of Tennessee's April 9, 2021, Submittal

    On April 9, 2021, Tennessee submitted a SIP revision to address 
outdated references to EPA's modeling guidelines in order to meet the 
PSD iSIP requirements for the 2015 8-hour ozone NAAQS. The SIP revision 
includes changes to two SIP-approved rules to update the incorporation 
by reference date for Appendix W and a request to convert the April 9, 
2020, Conditional Approval of element C, Prong 3, and element J of 
Tennessee's 2015 8-hour ozone NAAQS infrastructure SIP to a full 
approval. Specifically, the April 9, 2021, SIP revision makes changes 
to Tennessee Rules 1200-03-09-.01, Construction Permits, and 1200-03-
21-.01, General Alternate Emission Standard.
    Paragraph 1200-03-09-.01(1) is a set of general construction 
permitting requirements that apply to new or modified sources, 
including sources subject to PSD, and subparagraph (f) requires 
estimates of ambient concentration to be based on air quality models. 
Previously, this provision referenced EPA publication No. 450/2-78-
027R, ``Guidelines on Air Quality Models (revised)'' (1986), and 
certain specified supplements for modeling. However, the April 9, 2021, 
SIP revision deletes this reference to EPA publication No. 450/2-78-
027R and replaces it with a specific incorporation by reference of 40 
CFR part 51 Appendix W, as published in the July 1, 2019, edition of 
the Code of Federal Regulations (CFR). This provision currently allows 
the Technical Secretary to approve the use of a modified or substitute 
model on a case-by-case basis after consultation with and written 
approval by EPA, and is revised to limit the use of a modified or 
substitute model to incidences where the air quality model in Appendix 
W is inappropriate, which is consistent with 40 CFR 51.166(l)(2) for 
PSD. Tennessee also changed the word ``another'' to ``substituted'' in 
the model substitution provision. The changes to Paragraph 1200-03-
09-.01(1)(f) align with federal requirements to make use of the most 
current version of Appendix W.
    In addition, modeling requirements under the State's PSD rule at 
Paragraph 1200-03-09-.01(4)(k) are revised to similarly include an 
incorporation by reference date for Appendix W of the July 1, 2019, CFR 
publication edition, and includes the same minor edit to change 
``another'' to ``substituted''.
    Lastly, Paragraph 1200-03-21-.01(2)(c), which provides procedures 
for alternative emission standards, is also revised to delete a 
reference to EPA publication No. 450/2-78-027R and replace it with a 
specific incorporation by reference of 40 CFR part 51 Appendix W, as 
published in the July 1, 2019, edition of the CFR, as in Rule 1200-03-
09-.01 described above.
    As explained in the April 9, 2020, conditional approval, Tennessee 
committed to update its PSD regulations to reference the most current 
version of Appendix W. EPA approved the most current version of 
Appendix W on January 17, 2017 (82 FR 5182), so by incorporating by 
reference the July 1, 2019, version of Appendix W into the SIP, 
Tennessee is meeting the commitment of the conditional approval, as 
well as the requirements of the PSD elements for the 2015 8-hour ozone 
infrastructure SIP.
    For the reasons stated above, EPA is proposing to approve the 
changes into the Tennessee SIP and convert the April 9, 2020, 
conditional approval of element C, Prong 3, and element J, of 
Tennessee's 2015 8-hour ozone NAAQS infrastructure SIP to a full 
approval.

[[Page 51946]]

IV. Incorporation by Reference

    In this document, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference Tennessee Rules 1200-03-09-.01, Construction Permits,\8\ and 
1200-03-21-.01, General Alternate Emission Standard, state effective on 
April 22, 2021. EPA has made, and will continue to make, these 
materials generally available through www.regulations.gov and at the 
EPA Region 4 office (please contact the person identified in the For 
Further Information Contact section of this preamble for more 
information).
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    \8\ EPA is not proposing to incorporate the April 22, 2021, 
state effective version of: 1200-03-09-.01(1)(a); 1200-03-
09-.01(1)(d); 1200-03-09-.01(1)(h); 1200-03-09-.01(1)(j); 1200-03-
09-.01(4)(a)7(vi); 1200-03-09-.01(4)(b)24(XVII); 1200-03-
09-.01(4)(b)29; 1200-03-09-.01(4)(b)47(i)(IV); 1200-03-
09-.01(4)(j)3; 1200-03-09-.01(4)(l)2(iii); 1200-03-
09-.01(5)(b)1(x)(VII); the PM2.5 annual and 24-hour 
averaging time as part of subparagraph 1200-03-09-.01(5)(b)(1)(xix); 
1200-03-09-.01(5)(b)2(viii)(III); 1200-03-09-.01(5)2(iii)(II); and 
1200-03-09-.01(5)(b)3(i)(III). These provisions are either not 
approved into the SIP or the April 22, 2021, version of the rule 
contains language changes that are not before EPA for approval into 
the SIP. If EPA finalizes this action, the Agency will update the 
SIP table at 40 CFR 52.2220(c) to reflect these exceptions.
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V. Proposed Action

    EPA is proposing to approve changes to the Tennessee SIP, and 
convert the conditional approval for element C, Prong 3, and element J, 
for the 2015 8-hour ozone Infrastructure SIP to a full approval. 
Specifically, EPA is proposing to approve changes to Tennessee Rules 
1200-03-09-.01, Construction and Operating Permits, and 1200-03-21-.01, 
General Alternate Emission Standard.

VI. 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. 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);
     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 proposed 
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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: August 18, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022-18199 Filed 8-23-22; 8:45 am]
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