Approval and Promulgation of Implementation Plans; Tennessee; 110(a)(1) and (2) Infrastructure Requirements for the 2008 8-Hour Ozone National Ambient Air Quality Standards, 14450-14457 [2013-05112]
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Federal Register / Vol. 78, No. 44 / Wednesday, March 6, 2013 / Rules and Regulations
circumstances listed in 43 CFR 46.215
that would require further analysis of
the selected action for the Vickery Creek
unit under NEPA. A copy of the EA and
FONSI can be downloaded from the
park’s planning Web site, https://
www.nps.gov/chat/parkmgmt/
planning.htm, then clicking on the link
entitled ‘‘Chattahoochee River Trail
Connection Plan.’’
Effects on the Energy Supply (Executive
Order 13211)
This rule is not a significant energy
action under the definition in Executive
Order 13211. A Statement of Energy
Effects in not required.
Drafting Information
The primary authors of this regulation
were Joel Brumm, Chattahoochee River
National Recreation Area, and Jay P.
Calhoun, Regulations and Special Park
Uses, National Park Service.
List of Subjects in 36 CFR Part 7
National parks, Reporting and
recordkeeping requirements.
In consideration of the foregoing, the
National Park Service amends 36 CFR
part 7 as set forth below:
available in the office of the
Superintendent and online at
www.nps.gov/chat/planyourvisit/bikemaps.htm.
(4) How will the Superintendent
manage the designated bicycle routes?
(i) The Superintendent may open or
close designated bicycle routes, or
portions thereof, or impose conditions
or restrictions for bicycle use after
taking into consideration public health
and safety, natural and cultural resource
protection, carrying capacity and other
management activities and objectives.
(ii) Following a rain event, the
Superintendent may exercise discretion
to temporarily close the trails in the
Johnson Ferry South and Cochran
Shoals units to mitigate soil erosion and
water quality impacts from bicycle use.
(iii) The Superintendent will provide
public notice of all such actions through
one or more of the methods listed in
§ 1.7 of this chapter.
(iv) Violating a closure, condition, or
restriction is prohibited.
(b) [Reserved]
Dated: February 21, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish
and Wildlife and Parks.
PART 7—SPECIAL REGULATIONS,
AREAS OF THE NATIONAL PARK
SYSTEM
[FR Doc. 2013–05250 Filed 3–5–13; 8:45 am]
1. The authority for part 7 continues
to read as follows:
ENVIRONMENTAL PROTECTION
AGENCY
BILLING CODE 4312–EJ–P
■
Authority: 16 U.S.C. 1, 3, 9a, 462(k); Sec.
7.96 also issued under 36 U.S.C. 501–511,
D.C. Code 10–137 (2001) and D.C. Code 50–
2201.07 (2001).
■
2. Add § 7.90 to read as follows:
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§ 7.90 Chattahoochee River National
Recreation Area.
(a) Bicycling. (1) Where may I ride a
bicycle within Chattahoochee River
National Recreation Area? The
following routes are designated for
bicycle use:
(i) The approximately 500-foot-long
segment of paved multi-use trail along
the Chattahoochee River located within
the boundary of the Vickery Creek unit.
(ii) The approximately 2.2-mile-long
multi-use trail in the Johnson Ferry
South unit that connects to the bridge
underpass at Johnson Ferry Road.
(iii) The approximately 6.7-mile-long
loop-style multi-use trail in the Cochran
Shoals unit.
(2) Will the routes be identified on the
ground? Yes, the three trails will be
posted at trail junctions indicating they
are open to bicycle use.
(3) Where can I find maps depicting
routes designated for bicycle use? Maps
depicting designated bicycle routes are
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40 CFR Part 52
[EPA–R04–OAR–2012–0237; FRL–9787–6]
Approval and Promulgation of
Implementation Plans; Tennessee;
110(a)(1) and (2) Infrastructure
Requirements for the 2008 8-Hour
Ozone National Ambient Air Quality
Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
SUMMARY: EPA is taking final action to
approve in part, and conditionally
approve in part, the State
Implementation Plan (SIP) submission,
submitted by the State of Tennessee,
through the Tennessee Department of
Environment and Conservation (TDEC),
to demonstrate that the State meets the
infrastructure requirements of Clean Air
Act (CAA or Act) for the 2008 8-hour
ozone national ambient air quality
standards (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
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commonly referred to as an
‘‘infrastructure’’ SIP. On October 19,
2009, TDEC made a SIP submission to
certify that the Tennessee SIP already
contains provisions that ensure the 2008
8-hour ozone NAAQS are implemented,
enforced, and maintained in Tennessee
(hereafter referred to as ‘‘infrastructure
submission’’). On March 23, 2012, TDEC
submitted a letter requesting conditional
approval of the infrastructure
submission with respect to the
requirements in its SIP applicable to
state boards. On October 4, 2012,
Tennessee submitted a letter requesting
conditional approval of infrastructure
submission with respect to requirements
in its SIP with respect to requirements
applicable to its permitting program for
prevention of significant deterioration
(PSD) increments. With the exception of
elements pertaining to PSD increments
and state board requirements,
Tennessee’s infrastructure submission,
provided to EPA on October 19, 2009,
addresses all the applicable
infrastructure SIP requirements for the
2008 8-hour ozone NAAQS. At this
time, there are no outstanding
infrastructure submission requirements
for Tennessee with respect to significant
contribution to nonattainment or
interference with maintenance of the
2008 8-hour ozone NAAQS.
DATES: Effective Date: This rule will be
effective April 5, 2013.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2012–0237. 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 Regulatory Development Section,
Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. EPA
requests that if at all possible, you
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 a.m. to
4:30 p.m. excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Nacosta C. Ward, Regulatory
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Development Section, Air Planning
Branch, Air, Pesticides and Toxics
Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. The
telephone number is (404) 562–9140.
Ms. Ward can be reached via electronic
mail at ward.nacosta@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
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I. Background
II. Response to Comments
III. This Action
IV. Final Action
V. Statutory and Executive Order Reviews
I. Background
Upon promulgation of a new or
revised NAAQS, sections 110(a)(1) and
(2) of the CAA require states to address
basic SIP requirements, including
emissions inventories, monitoring, and
modeling to assure attainment and
maintenance for that new NAAQS.
Section 110(a) of the CAA generally
requires states to make a SIP submission
to meet applicable requirements in
order to provide for the implementation,
maintenance, and enforcement of a new
or revised NAAQS within 3 years
following the promulgation of such
NAAQS, or within such shorter period
as EPA may prescribe. These SIP
submissions are commonly referred to
as ‘‘infrastructure’’ SIP submissions.
Section 110(a) imposes the obligation
upon states to make an infrastructure
SIP submission to EPA for a new or
revised NAAQS, but the contents of that
submission may vary depending upon
the facts and circumstances. In
particular, the data and analytical tools
available at the time the state develops
and submits the infrastructure SIP for a
new or revised NAAQS affect the
content of the submission. The contents
of such infrastructure SIP submissions
may also vary depending upon what
provisions the state’s existing SIP
already contains. In the case of the 2008
8-hour ozone NAAQS, states typically
have met the basic program elements
required in section 110(a)(2) through
earlier SIP submissions in connection
with previous ozone NAAQS.
More specifically, section 110(a)(1)
provides the procedural and timing
requirements for SIPs. Section 110(a)(2)
lists specific elements that states must
meet for infrastructure SIP requirements
related to a newly established or revised
NAAQS. As mentioned above, these
requirements include basic structural
SIP elements such as modeling,
monitoring, and emissions inventories
that are designed to assure attainment
and maintenance of the NAAQS. The
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applicable infrastructure SIP
requirements that are the subject of this
rulemaking are listed below.1
• 110(a)(2)(A): Emission limits and
other control measures.
• 110(a)(2)(B): Ambient air quality
monitoring/data system.
• 110(a)(2)(C): Program for
enforcement of control measures.2
• 110(a)(2)(D)(i)(II): Interstate
transport (PSD and visibility prongs).3
• 110(a)(2)(E): Adequate resources.
• 110(a)(2)(F): Stationary source
monitoring system.
• 110(a)(2)(G): Emergency power.
• 110(a)(2)(H): Future SIP revisions.
• 110(a)(2)(I): Areas designated
nonattainment and meet the applicable
requirements of part D.4
• 110(a)(2)(J): Consultation with
government officials; public
notification; and PSD and visibility
protection.
• 110(a)(2)(K): Air quality modeling/
data.
• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/
participation by affected local entities.
On August 22, 2012, EPA proposed to
approve Tennessee’s October 19, 2009,
2008 8-hour ozone NAAQS
infrastructure SIP submission except as
it related to section 110(a)(2)(E)(ii),
1 Two elements identified in section 110(a)(2) are
not governed by the three year submission deadline
of section 110(a)(1) because SIPs incorporating
necessary local nonattainment area controls are not
due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the
nonattainment area plan requirements are due
pursuant to other provisions of the CAA for
submission of SIP revisions specifically applicable
for attainment planning purposes. These
requirements are: (1) Submissions required by
section 110(a)(2)(C) to the extent that subsection
refers to a permit program as required in part D
Title I of the CAA; and (2) submissions required by
section 110(a)(2)(I) which pertain to the
nonattainment planning requirements of part D,
Title I of the CAA. Today’s proposed rulemaking
does not address infrastructure elements related to
section 110(a)(2)(I) or the nonattainment planning
requirements of 110(a)(2)(C).
2 This rulemaking only addresses requirements
for this element as they relate to attainment areas.
3 Today’s final rule does not address section
110(a)(2)(D)(i)(I) (the significant contribution to
nonattainment prong or the interfere with
maintenance prong) for the 2008 8-hour Ozone
NAAQS, which as described in greater detail below,
EPA does not presently view as a ‘‘required
submission’’ consistent with the D.C. Circuit
Court’s recent opinion in EME City Generation v.
EPA, 696 F.3d 7, 31 (D.C. Cir. 2012). In that
opinion, the D.C. Circuit Court concluded that a SIP
submission to address section 110(a)(2)(D)(i)(I) for
a new or revised NAAQS cannot be considered a
‘‘required’’ SIP submission until EPA has first
defined a state’s obligations pursuant to that
section. See EME Homer City, 696 F.3d at 32 (‘‘A
SIP logically cannot be deemed to lack a ‘required
submission’ or deemed to be deficient for failure to
meet the good neighbor obligation before EPA
quantifies the good neighbor obligation.’’)
4 This requirement as mentioned above is not
relevant to today’s proposed rulemaking.
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which EPA proposed to approve in part,
and conditionally approve in part.5 See
77 FR 50651.
EPA proposed conditional approval in
part for element 110(a)(2)(E)(ii) because,
while Tennessee’s SIP does not
currently contain provisions to address
the requirements of CAA section
128(a)(1), the State committed in a letter
dated March 28, 2012, to submit, within
one year, specific enforceable measures
to EPA for incorporation into the SIP to
address these requirements. EPA
proposed approval of the state’s
infrastructure SIP submission in part,
for section 110(a)(2)(E)(ii) because the
State’s implementation plan already
contains adequate provisions to address
the requirements of CAA section
128(a)(2). See 77 FR 50651; August 22,
2012.
With respect to the PSD requirements
of sections 110(a)(2)(C),
110(a)(2)(D)(i)(II) (hereafter referred to
as prong 3 of 110(a)(2)(D)(i)),6 and
110(a)(2)(J) for the 2008 8-hour ozone
NAAQS, EPA published a supplemental
proposal on December 3, 2012. In this
supplemental notice, EPA proposed
conditional approval of Tennessee’s
infrastructure SIP submission for these
elements of section 110(a)(2) for the
2008 8-hour ozone NAAQS.7 See 77 FR
71568, December 3, 2012. As described
in the supplemental proposal, on
October 4, 2012, Tennessee submitted a
request for conditional approval of the
State’s infrastructure SIP submission
with respect to sections 110(a)(2)(C),
prong 3 of 110(a)(2)(D)(i), and
110(a)(2)(J), specifically as they relate to
PSD program requirements and the State
committed to address the SIP
deficiencies by submitting specific
5 As discussed in the proposed rule for today’s
action, section 110(a)(2)(E)(ii) requires that the SIP
include provisions necessary to meet the
requirements of section 128 of the CAA. See 77 FR
50651.
6 Section 110(a)(2)(D)(i) includes four
requirements referred to as prongs 1 through 4.
Prongs 1 and 2 are provided at section
110(a)(2)(D)(i)(I); prongs 3 and 4 are provided at
section 110(a)(2)(D)(i)(II). Today’s conditional
approval only relates to the PSD requirements of
section 110(a)(2)(D)(i)(II), also known as prong 3.
7 EPA originally proposed approval of these
elements as they related to PSD requirements. See
77 FR 50651. EPA is not taking action to finalize
the proposed approvals for these elements, rather,
EPA is today taking action to finalize conditional
approval for these elements as they relate to PSD
requirements based upon the December 3, 2012,
supplement proposal. See 77 FR 71568. As
described in the December 3, 2012, supplemental
proposal, Tennessee’s SIP currently does not
contain the requisite PM2.5 PSD increments
necessary to satisfy these requirements.
Accordingly, EPA is finalizing a conditional
approval of Tennessee’s infrastructure SIP
submission based upon the state’s commitment to
rectify this concern with respect to this structural
deficiency in Tennessee’s current PSD program.
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enforceable SIP revisions to address
PM2.5 PSD increments. This letter of
commitment meets the requirements of
section 110(k)(4) of the CAA.
Tennessee’s October 4, 2012, letter can
be accessed at www.regulations.gov
using Docket ID No. EPA–R04–OAR–
2012–0237.
Finally, EPA notes that this final
action on Tennessee’s infrastructure SIP
submission for the 2008 8-hour ozone
NAAQS is required not only by section
110(k), but also by order issued by the
U.S. District Court for the Northern
District of California in WildEarth
Guardians v. Jackson, Case No. 11–CV–
5651 YGR. In an October 17, 2012, order
granting partial summary judgment in
the case, as modified in a December 7,
2012, order granting in part EPA’s
motion for an amended order, that court
directed EPA to take final action upon
the infrastructure SIP at issue in this
action by March 4, 2013. With respect
to Tennessee, the court specifically
ordered EPA to act upon the
infrastructure SIP submission made by
the state on October 19, 2009, as
revised/withdrawn in part on July 3,
2012. The court specifically explained
in the December 7, 2012, amended order
that ‘‘EPA is being ordered to assess the
remaining submissions, i.e., the revised
SIP from Kentucky and the nonwithdrawn portion of the Tennessee
SIP.’’ (emphasis in the original).
Accordingly, EPA is taking final action
upon Tennessee’s infrastructure SIP for
the 2008 8-hour ozone NAAQS in its
revised form, which reflects Tennessee’s
withdrawal of the portion of the original
submission intended to address section
110(a)(2)(D)(i)(I). As explained in more
detail in response to relevant comments,
EPA is addressing the requirements of
section 110(a)(2)(D)(i)(I) consistent with
the opinion of the D.C. Circuit Court’s
opinion in EPA Homer City Generation
v. EPA, 696 F.3d 7 (D.C. Cir. 2012).
II. Response to Comments
EPA received no comments on the
initial August 22, 2012, notice
proposing action on Tennessee’s
infrastructure SIP submission for the
2008 8-hour ozone NAAQS. EPA
received two sets of comments on the
December 3, 2012, supplemental
proposed rulemaking in which EPA
proposed conditional approval of the
State’s infrastructure SIP submission as
meeting the applicable requirements of
CAA sections 110(a)(2)(C) and (J), and
prong 3 of section 110(a)(2)(D)(i) for the
2008 8-hour ozone NAAQS. A summary
of the comments and EPA’s responses
are provided below.
EPA notes that the majority of the
comments received are well beyond the
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scope of the supplemental proposal
which addressed only certain issues
associated with PSD rules as they
impacted Tennessee’s infrastructure
submittal for CAA sections 110(a)(2)(C)
and (J), and prong 3 of 110(a)(2)(D)(i),
for the 2008 8-hour ozone NAAQS.
Instead, the comments primarily
concerned the interstate transport
requirements of section 110(a)(2)(D)(i)(I)
(prongs 1 and 2). These requirements
were not at issue in either the original
August 22, 2012, proposal notice, or the
December 3, 2012, supplemental notice,
because the State had by this point
already withdrawn that portion of the
infrastructure SIP submission that was
intended to address section
110(a)(2)(D)(i)(I) for the 2008 8-hour
ozone NAAQS. As the supplemental
proposal specifically provided at
footnote 5, EPA is not addressing
section 110(a)(2)(D(i)(I) requirements
through this action. See 77 FR 71568,
71570. Even though EPA may not be
obligated to respond to the comments
outside the scope of the December 3,
2012, supplemental proposal, EPA
nonetheless provides the following
responses in order to assist in the public
understanding of EPA’s final action.
Comment 1: The Commenters contend
that under section 110(k) of the Act,
EPA must make a finding that
Tennessee has failed to submit an
interstate transport SIP to meet the
requirements of infrastructure element
110(a)(2)(D)(i)(I) (prongs 1 and 2).
Response 1: EPA does not agree with
the Commenter. As noted above, this
comment is beyond the scope of the
supplemental action proposed in the
December 3, 2012, rulemaking, which
was limited to the above-described PSDrelated elements. Moreover, the D.C.
Circuit Court’s recent opinion in EME
City Generation v. EPA, 696 F.3d 7, 31
(D.C. Cir. 2012), concluded that a SIP
submission to address section
110(a)(2)(D)(i)(I) for a new or revised
NAAQS cannot be considered a
‘‘required’’ SIP submission until EPA
has first defined a state’s obligations
pursuant to that section. See EME
Homer City, 696 F.3d at 32 (‘‘A SIP
logically cannot be deemed to lack a
‘required submission’ or deemed to be
deficient for failure to meet the good
neighbor obligation before EPA
quantifies the good neighbor
obligation.’’) On January 24, 2013, the
D.C. Circuit issued an order denying all
petitions for rehearing of the EME
Homer City decision. At this time,
however, the deadline for asking the
Supreme Court to review the D.C.
Circuit’s decision has not passed and
the United States has not yet decided
whether to seek further appeal. In the
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meantime, and unless the EME Homer
City decision is reversed or otherwise
modified, EPA intends to act in
accordance with the panel opinion in
the EME Homer City opinion. Thus,
although EPA historically has
interpreted section 110(a)(1) of the CAA
as establishing the required submittal
date for infrastructure SIP submissions
to address all of the ‘‘interstate
transport’’ requirements in section
110(a)(2)(D), including the provisions in
section 110(a)(2)(D)(i)(I) regarding
significant contribution to
nonattainment and interference with
maintenance, it would not be consistent
with the EME Homer City opinion for
EPA to make a finding that Tennessee
has failed to make a SIP submission to
address section 110(a)(2)(D)(i)(I) for the
2008 ozone NAAQS at this time. See 78
FR 2882, 2884–85 (January 15, 2012)
(explaining why EPA did not make
findings of failure to submit with
respect to 110(a)(2)(D)(i)(I) for the 2008
ozone NAAQS). Accordingly, EPA is not
making a finding of failure to submit for
section 110(a)(2)(D)(i)(I) for Tennessee
for the 2008 8-hour ozone NAAQS at
this time.
Comment 2: One Commenter
contends that EPA must disapprove the
section 110(a)(2)(D)(i)(I) portion of
Tennessee’s submittal (referred to by the
Commenter as the ‘‘good neighbor’’
provisions) because it fails to include
adequate provisions to meet the
requirements of this subsection.
Response 2: EPA does not agree with
the Commenter. First, this comment is
beyond the scope of the supplemental
action proposed in the December 3,
2012, rulemaking, which was limited to
the above-described PSD-related
elements. Second, the element of the
SIP submission to which the
Commenter refers was withdrawn by
Tennessee. On July 3, 2012, Tennessee
withdrew the portion of its SIP
submittal addressing 110(a)(2)(D)(i)(I).
Thus, this portion of the submittal is no
longer before EPA and the Agency does
not interpret the CAA as requiring that
EPA take action, either to approve or
disapprove under section 110(k), on
submissions not before EPA. EPA does
not interpret the CAA to mandate that
EPA take action on a submission that a
state has withdrawn (i.e., withdrawing
the request that EPA take action on the
submittal). Third, as a result of the
decision of the D.C. Circuit in EME
Homer City, that court has concluded
that states, including Tennessee, have
no obligation to make a SIP submission
to address section 110(a)(2)(D)(i)(I) for a
new or revised NAAQS until EPA has
first defined a state’s obligations
pursuant to that section.
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As a result, EPA does not agree with
the Commenter that EPA has an
obligation to disapprove the
110(a)(2)(D)(i)(I) portion of the
Tennessee SIP submittal that was
withdrawn. The Commenter does not
point to any statutory authority which
requires EPA to disapprove a nonrequired SIP submission not presently
before EPA, and for which a state has
specifically requested that EPA not take
action (by formally withdrawing the
voluntary submission from EPA review).
In situations where all or a portion of
a required state submission has been
withdrawn following a section
110(k)(1)(B) completeness
determination, the Agency has the
authority to issue a finding that a state
has failed to submit such required
submission pursuant to section
110(k)(1)(B). In accordance with the
requirements of section 110(c)(1)(A),
such a finding of failure to submit a
complete required SIP submission
would trigger EPA’s obligation to
promulgate a federal implementation
plan unless the state corrected the
deficiency. As discussed above in the
response to comment 1, however, it
would not be consistent with the EME
Homer City decision for EPA to make a
finding of failure to submit for
Tennessee with respect to section
110(a)(2)(D)(i)(I) for the 2008 8-hour
ozone NAAQS at this time.
Comment 3: The Commenters contend
that EPA lacks authority to approve or
conditionally approve the balance of
Tennessee’s infrastructure SIP
submission despite the State’s
withdrawal of the portion of the SIP
originally submitted to comply with
section 110(a)(2)(D)(i)(I). One
Commenter contends that the ‘‘Clean
Air Act gives EPA no discretion to
approve a SIP without the good
neighbor provision on the grounds that
it intends to address Tennessee’s
[section] 110(a)(2)(D)(i)(I) obligations in
a separate action. There is no separate
action available to EPA under the Clean
Air Act to address a state’s failure to
satisfy its good neighbor obligations
aside from the promulgation of a
Federal Implementation Plan within
two-years pursuant to section 110(c)(1)
of the Clean Air Act.’’
Response 3: EPA does not agree with
the Commenter. Section 110(k)(3) of the
Act 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 Act.
Section 110(k)(4) of the Act explicitly
authorizes EPA to use conditional
approval, consistent with the
parameters for such conditional
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approvals stipulated in that section.
This authority to approve the States’ 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)).
As such, the Agency interprets its
authority under sections 110(k)(3) and
(k)(4), as affording EPA the discretion to
approve or conditionally approve
individual elements of Tennessee’s
infrastructure submission for the 2008
8-hour ozone NAAQS, separate and
apart from any action with respect to the
requirements of section 110(a)(2)(D)(i)(I)
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 the SIP
submission for section 110(a)(2)(D)(i)(I)
were now relevant, which it is not, it
would still have discretion under
section 110(k) to act upon the various
individual elements of the state’s
infrastructure SIP submission,
separately or together, as appropriate.
The Commenters raise no compelling
legal or environmental rationale for an
alternate interpretation.
Comment 4: The Commenters contend
that compliance with the Clean Air
Interstate Rule (CAIR) is not relevant to
Tennessee’s obligation under the CAA
to submit a SIP addressing the
requirements of section 110(a)(2)(D)(i)(I)
with respect to the 2008 ozone NAAQS.
Response 4: EPA agrees with the
substance of this comment, but does not
agree that it is relevant for this action.
As described above, and in the
supplemental proposal associated with
today’s action, EPA is not taking any
action through this rulemaking with
respect to Tennessee’s obligations
pursuant to section 110(a)(2)(D)(i)(I) for
the 2008 8-hour ozone NAAQS;
therefore, this comment is not relevant
to today’s action. As a general matter,
however, EPA agrees that compliance
with CAIR is not relevant to a state’s
obligations under section
110(a)(2)(D)(i)(I) for purposes of the
2008 8-hour ozone NAAQS. CAIR was
promulgated by EPA in 2005 to address,
for certain states, the requirements of
CAA section 110(a)(2)(D)(i)(I) with
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respect to the 1997 ozone and 1997
annual PM2.5 NAAQS. See 70 FR 25162.
EPA promulgated CAIR long before it
promulgated the 2008 8-hour ozone
NAAQS, and CAIR did not, in any way,
address interstate transport
requirements related to the 2008 8-hour
ozone NAAQS.8 For these reasons CAIR
is not relevant to Tennessee’s section
110(a)(2)(D)(i)(I) obligation with respect
to the 2008 ozone NAAQS.
Comment 5: One Commenter notes
that EPA proposed to conditionally
approve certain portions of Tennessee’s
infrastructure SIP, while leaving other
infrastructure elements to be addressed
in a separate rulemaking. The
Commenter contends that EPA ‘‘does
not have the authority to approve some
provisions of a SIP while deferring
action on other mandatory provisions
once the 12-month mandatory
determination deadline to act on an
administratively complete SIP submittal
has run.’’ The Commenter asserts that
because Tennessee has withdrawn the
‘‘good neighbor’’ provisions of its SIP
submittal, the submittal ‘‘fails to include
adequate provisions ‘prohibiting* * *
any source or other type of emissions
activity within the State from emitting
any air pollutant in amounts which will
contribute significantly to
nonattainment, or interfere with
maintenance by, any other State’ with
respect to the 2008 8-hour ozone
NAAQS.’’ Therefore, the Commenter
concludes, ‘‘EPA is required to
disapprove the ‘good neighbor’ portions
of the Tennessee SIP.’’ The Commenter
asserts that ‘‘[s]ince the statutory
deadline has past under which EPA is
required to act on the 2008 8-hour ozone
NAAQS SIP submittals, EPA has no
authority to indefinitely postpone ruling
on all the required infrastructure SIP
elements, including the 110(a)(2)(D)(i)(I)
portions of Tennessee’s SIP submittal.’’
The Commenter asserts that this
approach is consistent with the logic
espoused in an October 17, 2012, court
order granting partial summary
judgment to the plaintiffs in the case
WildEarth Guardians v. Jackson, Case
No. 11–CV–5651 YGR.
Response 5: As an initial matter, EPA
does not agree with the Commenter that
it is prohibited from acting on portions
of an infrastructure SIP submission on
an element by element basis, or in
whatever combination of elements that
8 Moreover, in its decision granting the petitions
for review of CAIR, the DC Circuit held that
compliance with CAIR did not constitute
compliance with section 110(a)(2)(D)(i)(I) even for
the NAAQS that were addressed by CAIR—namely
the 1997 ozone and 1997 annual PM2.5 NAAQS. See
North Carolina v. EPA, 531 F.3d 896 (D.C. Cir.
2008).
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may be appropriate in a given action. As
noted above, the language which
Congress ultimately included in section
110(k) allowing EPA to approve a plan
in full, disapprove it in full, or approve
it in part and disapprove it in part was
added to overrule the portion of the
decision Abramowitz v. EPA, 832 F. 2d
1071 (9th Cir. 1987), which held 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 (1989), reprinted at 1990
U.S.C.C.A.N. 3385, 3402.
Further, the Commenter appears to
misunderstand what actions EPA is now
taking. EPA does not intend to
‘‘indefinitely postpone’’ action with
respect to the other required elements of
Tennessee’s infrastructure SIP
submission for the 2008 8-hour ozone
NAAQS. In the December 3, 2012,
supplemental proposal, EPA explained
that it had previously proposed
approval, on August 22, 2012, for the
majority of other sections of Tennessee’s
2008 8-hour ozone infrastructure SIP
submission relevant to the applicable
elements of section 110(a)(2). See 77 FR
50651. EPA is today finalizing its
proposed approval of the infrastructure
SIP submission for those other elements.
Notably, the Commenter did not
comment on the timing of EPA’s action
with respect to these other sections of
the Tennessee 2008 8-hour ozone
infrastructure SIP submission at the
time EPA proposed action on those
sections. Therefore, the Commenter’s
concerns regarding the timing of EPA’s
action on these other elements are not
properly raised in comments to the
December 3, 2012, rulemaking which
was limited to the PSD elements
contained sections 110(a)(2)(C) and (J),
and prong 3 of 110(a)(2)(D)(i).
In addition, EPA notes that the
October 17, 2012, court order referenced
by the Commenter was subsequently
amended by the court on December 7,
2012, to extend EPA’s deadline for
action on the Tennessee submittal
through March 4, 2013. In that amended
order, the court also clarified that it
intended EPA to act on Tennessee’s
October 19, 2009, as revised/withdrawn
in part on July 3, 2012. The court
specifically explained in the December
7, 2012, amended order that ‘‘EPA is
being ordered to assess the remaining
submissions, i.e., the revised SIP from
Kentucky and the non-withdrawn
portion of the Tennessee SIP.’’
(emphasis in the original). Today’s final
action, approving in part and
conditionally approving in part
Tennessee’s infrastructure SIP
submission, in conjunction with the
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aforementioned determination not to
issue a finding of failure to submit for
section 110(a)(2)(D)(i)(I) at this time,
consistent with the decision in EME
Homer City, fully satisfy the Agency’s
obligations under the December 7, 2012,
court order in WildEarth Guardians v.
Jackson, with respect to the Tennessee
SIP submittal at issue.
Comment 6: One Commenter argued
that EPA should disapprove the SIP
submission from Tennessee with respect
to section 110(a)(2)(D)(i) for the 2008
ozone NAAQS because ‘‘EPA’s own
modeling conducted in support of the
Cross State Air Pollution Rule
* * *identified Tennessee as a state
which contributes at least one percent of
the 2008 8-hour ozone NAAQS to
Maryland’s nonattainment.’’ Thus, the
Commenter argued that EPA’s ‘‘delay in
disapproving’’ the submission would
adversely impact the ability of the State
of Maryland to provide for attainment of
the 2008 ozone NAAQS within that
state, consistent with the statutory
schedule for attainment of the NAAQS.
Response 6: EPA acknowledges the
Commenter’s concern that interstate
transport of ozone and ozone precursors
from upwind states to downwind states
may have adverse consequences on the
ability of downwind areas to attain the
NAAQS in a timely fashion. It is for this
reason that EPA attempted, through the
Cross State Air Pollution Rule (CSAPR),
to address emissions found to contribute
significantly to nonattainment of, or
interfere with maintenance of, the 1997
ozone NAAQS. The modeling done for
CSAPR, however, did not address the
2008 ozone NAAQS and EPA did not,
in the CSAPR itself or in the modeling
done during development of the rule,
draw any conclusions regarding
interstate transport with respect to the
2008 ozone NAAQS. Moreover, the D.C.
Circuit, in its recent decision vacating
the CSAPR, held that states are not
required to submit SIPs addressing the
requirements of section 110(a)(2)(D)(i)(I)
until EPA has quantified their obligation
under that provision. See EME Homer
City, 696 F.3d 7 (D.C. Cir. 2012). The
EME Homer City decision was issued in
August of 2012, and on January 24,
2013, the court denied all petitions for
rehearing. At this time, however, the
deadline for asking the Supreme Court
to review the D.C. Circuit’s decision has
not passed and the United States has not
yet decided whether to seek further
appeal. In the mean time, and unless the
EME Homer City decision is reversed or
otherwise modified, EPA intends to act
in accordance with the D.C. Circuit’s
opinion.
Finally, as the EME Homer City
decision establishes that the Tennessee
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110(a)(2)(D)(i)(I) SIP submission was
optional, Tennessee remains free not to
make such a SIP submission or to
withdraw such a submission without
penalty. Moreover, EPA has no
authority to disapprove an
infrastructure SIP submission which is
no longer pending before the Agency or
to find that a state failed to submit a SIP
submission to meet the requirements of
section 110(a)(2)(D)(i)(I) at this time
under the EME Homer City decision.
III. This Action
In this rulemaking, EPA is taking final
action to approve Tennessee’s
infrastructure submission as
demonstrating that the State meets the
applicable requirements of sections
110(a)(1) and (2) of the CAA for the
2008 8-hour ozone NAAQS, with the
exception of sections 110(a)(2)(C), prong
3 of 110(a)(2)(D)(i), and 110(a)(2)(J)
pertaining to PSD increments, and the
portion of section 110(a)(2)(E)(ii)
pertaining to section 128(a)(1)
requirements. EPA is taking no action
with respect to section 110(a)(2)(D)(i)(I)
for the 2008 ozone NAAQS in this
rulemaking because no such action is
required at this time for this State. EPA
will be taking action on
110(a)(2)(D)(i)(I), if required, in a
separate future action.
With respect to section 110(a)(2)(E)(ii)
specifically pertaining to section
128(a)(1) requirements, EPA is finalizing
a conditional approval for this portion
of Tennessee’s infrastructure SIP
submission for the 2008 8-hour ozone
NAAQS.
Today’s final action to conditionally
approve of the portion of element
110(a)(2)(E)(ii) related to the section
128(a)(1) requirements is based upon a
March 28, 2012, commitment letter
submitted by Tennessee to EPA.
Tennessee’s March 28, 2012, letter can
be accessed at www.regulations.gov
using Docket ID No. EPA–R04–OAR–
2011–0353. Through this letter,
Tennessee committed to adopt specific
enforceable measures to address current
deficiencies in its SIP related to section
128(a)(1) requirements. This letter of
commitment meets the requirements of
section 110(k)(4) of the CAA, and as
such, EPA is relying upon this
commitment to conditionally approve
section 110(a)(2)(E)(ii) as it relates to the
requirements of section 128(a)(1) of the
CAA. For more information, see EPA’s
proposal for today’s rulemaking. See 77
FR 50651. EPA has previously relied
upon Tennessee’s March 28, 2012,
commitment to conditionally approve
section 110(a)(2)(E)(ii) as it relates to the
section 128(a)(1) for purposes of the
1997 8-hour ozone NAAQS. See 77 FR
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42997 July 23, 2012. Pursuant to that
earlier conditional approval, Tennessee
is committed to providing EPA with the
specified SIP revision by no later than
July 23, 2013.
Accordingly, for purposes of today’s
conditional approval of section
110(a)(2)(E)(ii) as it relates to the
requirements of section 128(a)(1),
Tennessee must submit to EPA by July
23, 2013 (within one year from the date
of publication for the final rule that EPA
published on July 23, 2012, for the 1997
8-hour ozone NAAQS), a SIP revision
adopting the specific enforceable
measures related to CAA section
128(a)(1) as described in the State’s
commitment letter described above. If
the State fails to submit this promised
SIP revision by July 23, 2013, today’s
conditional approval will automatically
become a disapproval on that date and
EPA will issue a finding of disapproval.
With respect to the PSD requirements
of elements 110(a)(2)(C), prong 3 of
110(a)(2)(D)(i) and 110(a)(2)(J) for the
2008 8-hour ozone NAAQS, EPA
published a supplemental proposal to
conditionally approve Tennessee’s
infrastructure SIP submission, based
upon the October 4, 2012, conditional
approval request related to these
elements for the 2008 8-hour ozone
NAAQS. See 77 FR 71568. As described
in the supplemental proposal, on
October 4, 2012, Tennessee submitted a
request for conditional approval of
sections 110(a)(2)(C), prong 3 of
110(a)(2)(D)(i), and 110(a)(2)(J) as they
relate to PSD requirements and
committed to address the SIP
deficiencies by submitting specific
enforceable SIP revisions to address
PM2.5 PSD increments within one year.
This commitment letter meets the
requirements of section 110(k)(4) of the
CAA. Tennessee’s October 4, 2012,
letter can be accessed at
www.regulations.gov using Docket ID
No. EPA–R04–OAR–2012–0237.
Today’s action finalizes conditional
approval of the infrastructure SIP
submission for these sections of section
110(a)(2), based upon a commitment by
Tennessee to submit the necessary SIP
revisions to address PM2.5 PSD
increments. If the State fails to submit
these promised SIP revisions by March
6, 2014 today’s conditional approval
will automatically become a disapproval
on that date and EPA will issue a
finding of disapproval.
8-hour ozone NAAQS with exception of
sections 110(a)(2)(C), prong 3 of
110(a)(2)(D)(i), and 110(a)(2)(J) as they
relate to PSD requirements, section
110(a)(2)(E)(ii) as it relates to section
128(a)(1) requirements, and section
110(a)(2)(D)(i)(I) as it relates to interstate
transport.9 With the exceptions noted
above TDEC has addressed the elements
of the CAA 110(a)(1) and (2) SIP
requirements pursuant to section 110 of
the CAA to ensure that the 2008 8-hour
ozone NAAQS are implemented,
enforced, and maintained in Tennessee.
With respect to sections 110(a)(2)(C),
prong 3 of 110(a)(2)(D)(i), and
110(a)(2)(J) as they relate to PSD
requirements, EPA is taking final action
to conditionally approve Tennessee’s
infrastructure SIP in part, based on an
October 4, 2012, commitment that TDEC
will adopt specific enforceable measures
related to PSD increments and submit
these revisions as a SIP submission to
EPA for approval into the Tennessee’s
SIP by March 6, 2014.
With respect to section 110(a)(2)(E)(ii)
related to section 128(a)(1)
requirements, EPA is taking final action
to conditionally approve Tennessee’s
infrastructure SIP in part, based on a
March 28, 2012, commitment that TDEC
will adopt specific enforceable measures
and submit these as a SIP submission to
EPA for approval into the Tennessee’s
SIP by July 23, 2013, to address the
applicable portions of section 128(a)(1).
If the State fails to submit these
promised SIP revisions by the
applicable dates described above,
today’s conditional approval of
Tennessee’s infrastructure SIP for the
2008 8-hour ozone NAAQS will
automatically be disapproved for the
element or elements that the state fails
to address on that date and EPA will
issue a corresponding finding of
disapproval.
IV. Final Action
EPA is taking final action to approve
Tennessee’s infrastructure submission,
provided to EPA on October 19, 2009,
because it addresses the required
infrastructure elements for the 2008
9 As described in the response to comment 1 in
Section II above, EPA does not presently view
section 110(a)(2)(D)(i)(I) (significant contribution to
nonattainment prong and interference with
maintenance prong) for the 2008 8-hour Ozone
NAAQS, as a ‘‘required submission’’ based upon
the opinion of the D.C. Circuit in the EME Homer
case.
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V. 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.
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
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14455
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 Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not 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
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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 May 6, 2013. 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: February 27, 2013.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PSD increments as described in the
State’s letter of commitment.
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart RR—Tennessee
2. Section 52.2219 is amended by
adding paragraphs (c) and (d) to read as
follows:
■
§ 52.2219
Conditional approval.
*
*
*
*
*
(c) Conditional Approval—Submittal
from the State of Tennessee, through the
Department of Environment and
Conservation (TDEC), dated October 4,
2012, to address the Clean Air Act
(CAA) sections 110(a)(2)(C), prong 3 of
110(a)(2)(D)(i), and 110(a)(2)(J) for the
2008 8-hour Ozone National Ambient
Air Quality Standards. EPA is
conditionally approving TDEC’s
submittal with respect to the PSD
requirements of CAA sections
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i),
and 110(a)(2)(J), specifically related to
the adoption of enforceable provisions
for PSD increments as detailed in
TDEC’s October 4, 2012, commitment
letter. Tennessee must submit to EPA by
March 6, 2014, a SIP revision adopting
specific enforceable measures related to
(d) Conditional Approval—Submittal
from the State of Tennessee, through the
Department of Environment and
Conservation (TDEC), dated October 19,
2009, to address the Clean Air Act
(CAA) section 110(a)(2)(E)(ii) for the
2008 8-hour Ozone National Ambient
Air Quality Standards. With respect to
CAA section 110(a)(2)(E)(ii), specifically
related to the adoption of enforceable
measures contained in CAA section
128(a)(1), EPA published in the Federal
Register a final rulemaking to
conditionally approve TDEC’s March
28, 2012, commitment on July 23, 2012.
Tennessee must submit to EPA by July
23, 2013, SIP revisions adopting specific
enforceable measures related to CAA
sections 128(a)(1) as described in the
State’s letter of commitment.
3. Section 52.2220(e) is amended by
adding a new entry ‘‘110(a)(1) and (2)
Infrastructure Requirements for the 2008
8-Hour Ozone National Ambient Air
Quality Standards’’ at the end of the
table to read as follows:
■
§ 52.2220
Identification of plan.
*
*
*
*
*
(e) * * *
EPA-APPROVED TENNESSEE NON-REGULATORY PROVISIONS
Name of nonregulatory SIP provision
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*
*
110(a)(1) and (2) Infrastructure Requirements for the 2008 8-Hour
Ozone National Ambient Air Quality
Standards.
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Applicable
geographic or
nonattainment
area
State
effective
date
*
Tennessee ...
*
10/19/2009
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EPA approval date
Explanation
*
3/6/2013 [Insert citation of
publication].
*
*
With
the
exception
of
section
110(a)(2)(D)(i)(I) concerning interstate
transport; the portions of sections
110(a)(2)(C),
prong
3
of
110(a)(2)(D)(i), and 110(a)(2)(J) related to PSD , which are being conditionally
approved;
and
section
110(a)(2)(E)(ii) as it relates to section
128(a)(1), which is being conditionally
approved.
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ENVIRONMENTAL PROTECTION
AGENCY
[FR Doc. 2013–05112 Filed 3–5–13; 8:45 am]
BILLING CODE 6560–50–P
40 CFR Part 136
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OW–2010–0192; FRL–9787–7]
Guidelines Establishing Test
Procedures for the Analysis of
Pollutants Under the Clean Water Act;
Analysis and Sampling Procedures;
Notice
40 CFR Parts 60 and 63
[EPA–HQ–OAR–2008–0708, FRL–9756–4]
RIN 2060–AQ58
Environmental Protection
Agency (EPA).
ACTION: Notice of final decision.
AGENCY:
National Emission Standards for
Hazardous Air Pollutants for
Reciprocating Internal Combustion
Engines; New Source Performance
Standards for Stationary Internal
Combustion Engines
Correction
In rule document 2013–01288,
appearing on pages 6674–6724 in the
issue of Wednesday, January 30, 2013,
make the following corrections:
§ 63.6655
[Corrected]
1. On page 6708, the heading in Table
2c to Subpart ZZZZ of Part 63 is
corrected read as follows:
Table 2c to Subpart ZZZZ of Part 63.
Requirements for Existing Compression
Ignition Stationary RICE Located at a
Major Source of HAP Emissions and
Existing Spark Ignition Stationary RICE
≤500 HP Located at a Major Source of
HAP Emissions
■
2. On page 6708, in the first column
of Table 2c to Subpart ZZZZ of Part 63,
the entry reading ‘‘4. Non-Emergency,
non-black start CI stationary RICE
300>HP≤500.’’ is corrected to read ‘‘4.
Non-Emergency, non-black start CI
stationary RICE 300<HP≤500.’’
■ 3. On page 6709, the heading in Table
2c to Subpart ZZZZ of Part 63 is
corrected read as follows:
Table 2c to Subpart ZZZZ of Part 63.
Requirements for Existing Compression
Ignition Stationary RICE Located at a
Major Source of HAP Emissions and
Existing Spark Ignition Stationary RICE
≤500 HP Located at a Major Source of
HAP Emissions—Continued
■
[FR Doc. C1–2013–01288 Filed 3–5–13; 8:45 am]
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SUMMARY: EPA discussed, but did not
propose, a new method, ASTM D7575,
for oil and grease in the 2010 proposed
Methods Update Rule (MUR). Oil and
grease is a method-defined parameter.
That is, the nature and amount of
material determined by the method is
defined in terms of the method. EPA
subsequently published a Notice of Data
Availability (NODA) on this method
that provided new data and requested
comment on whether and how EPA
should approve the method in Part 136
as an alternative oil and grease method.
This document provides EPA’s final
decision on its reconsideration of this
method.
DATES: March 6, 2013.
FOR FURTHER INFORMATION CONTACT: Jan
Matuszko, Office of Science and
Technology, Office of Water (4303–T),
Environmental Protection Agency, 1200
Pennsylvania Avenue NW.; Washington,
DC 20460; telephone number: 202–566–
1035; fax number: 202–566–1053; email
address: matuszko.jan@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
A. CWA Analytical Methods and
Limited Use Alternate Test Procedures
(ATP) Program
EPA establishes test procedures (also
referred to as analytical methods)
codified in 40 CFR Part 136 under its
authority in section 304(h) of the CWA
to promulgate guidelines establishing
test procedures for the analysis of
pollutants. EPA’s regulations provide
that, when EPA has promulgated a test
procedure for analysis of a specific
pollutant in 40 CFR Part 136, an NPDES
permittee must use an approved test
procedure for the specific pollutant
when measuring the pollutant for an
application submitted to EPA or to a
State with an approved NPDES program
and for reports required to be submitted
by dischargers under the NPDES
program. See 40 CFR § 136.1(a). This
approach simplifies the permitting
process for hundreds of thousands of
PO 00000
Frm 00021
Fmt 4700
Sfmt 4700
14457
NPDES and indirect discharging
permittees and permitting authorities. In
the absence of an approved test
procedure for a specific pollutant (or
when an approved test procedure does
not work in a specific matrix, e.g.,
because of a matrix interference),
generally, a permit applicant may use
any suitable method but must provide
the permitting authority a description of
the method for evaluation of its
suitability. See 40 CFR 122.21(g)(7).
However, 40 CFR Part 136 also
recognizes that new technologies and
approaches are constantly being
developed, including methods for
pollutants for which EPA already has an
approved test procedure. As such, Part
136.5 allows for use of an alternate
method for a specific pollutant or
parameter in a regulated CWA matrix
that is different from the approved test
procedure (i.e., limited use approval).
Requests for such uses, along with
supporting data, are made to the
applicable Regional Alternate Test
Procedure (ATP) Coordinator for
consideration and approval.
B. Oil and Grease
Unlike many parameters, oil and
grease is not a unique chemical entity,
but is a mixture of chemical species that
varies from source to source. Common
substances that may contribute to oil
and grease include petroleum based
compounds such as fuels, motor oil,
lubricating oil, soaps, waxes, and
hydraulic oil and vegetable based
compounds such as cooking oil and
other fats. Oil and grease is defined by
the method used to measure it (i.e., it is
a method-defined analyte). The CWA
defines oil and grease as a conventional
parameter and hundreds of thousands of
NPDES permits and indirect discharging
permits contain oil and grease
numerical limits. Currently, Part 136
lists two analytical methodologies for
the measurement of oil and grease in
such discharge permits. Permittees have
been using EPA Method 1664A to
measure compliance with such
discharge limits. Method 1664A is a
liquid/liquid extraction (LLE),
gravimetric procedure that employs
normal hexane (n-hexane) as the
extraction solvent that is applicable for
measuring oil and grease in
concentrations from 5 mg/L to 1,000
mg/L. This method also allows the use
of solid-phase extraction (SPE) provided
that the results obtained by SPE are
equivalent to the results obtained by
LLE.
C. Method-Defined Analytes
The measurement results obtained for
a method-defined analyte are both
E:\FR\FM\06MRR1.SGM
06MRR1
]]>Agencies
[Federal Register Volume 78, Number 44 (Wednesday, March 6, 2013)]
[Rules and Regulations]
[Pages 14450-14457]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-05112]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2012-0237; FRL-9787-6]
Approval and Promulgation of Implementation Plans; Tennessee;
110(a)(1) and (2) Infrastructure Requirements for the 2008 8-Hour Ozone
National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to approve in part, and
conditionally approve in part, the State Implementation Plan (SIP)
submission, submitted by the State of Tennessee, through the Tennessee
Department of Environment and Conservation (TDEC), to demonstrate that
the State meets the infrastructure requirements of Clean Air Act (CAA
or Act) for the 2008 8-hour ozone national ambient air quality
standards (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. On October 19, 2009, TDEC made a SIP submission
to certify that the Tennessee SIP already contains provisions that
ensure the 2008 8-hour ozone NAAQS are implemented, enforced, and
maintained in Tennessee (hereafter referred to as ``infrastructure
submission''). On March 23, 2012, TDEC submitted a letter requesting
conditional approval of the infrastructure submission with respect to
the requirements in its SIP applicable to state boards. On October 4,
2012, Tennessee submitted a letter requesting conditional approval of
infrastructure submission with respect to requirements in its SIP with
respect to requirements applicable to its permitting program for
prevention of significant deterioration (PSD) increments. With the
exception of elements pertaining to PSD increments and state board
requirements, Tennessee's infrastructure submission, provided to EPA on
October 19, 2009, addresses all the applicable infrastructure SIP
requirements for the 2008 8-hour ozone NAAQS. At this time, there are
no outstanding infrastructure submission requirements for Tennessee
with respect to significant contribution to nonattainment or
interference with maintenance of the 2008 8-hour ozone NAAQS.
DATES: Effective Date: This rule will be effective April 5, 2013.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2012-0237. 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 Regulatory Development Section, Air Planning Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. EPA requests that if at all possible, you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Regulatory
[[Page 14451]]
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number
is (404) 562-9140. Ms. Ward can be reached via electronic mail at
ward.nacosta@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Response to Comments
III. This Action
IV. Final Action
V. Statutory and Executive Order Reviews
I. Background
Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and
(2) of the CAA require states to address basic SIP requirements,
including emissions inventories, monitoring, and modeling to assure
attainment and maintenance for that new NAAQS.
Section 110(a) of the CAA generally requires states to make a SIP
submission to meet applicable requirements in order to provide for the
implementation, maintenance, and enforcement of a new or revised NAAQS
within 3 years following the promulgation of such NAAQS, or within such
shorter period as EPA may prescribe. These SIP submissions are commonly
referred to as ``infrastructure'' SIP submissions. Section 110(a)
imposes the obligation upon states to make an infrastructure SIP
submission to EPA for a new or revised NAAQS, but the contents of that
submission may vary depending upon the facts and circumstances. In
particular, the data and analytical tools available at the time the
state develops and submits the infrastructure SIP for a new or revised
NAAQS affect the content of the submission. The contents of such
infrastructure SIP submissions may also vary depending upon what
provisions the state's existing SIP already contains. In the case of
the 2008 8-hour ozone NAAQS, states typically have met the basic
program elements required in section 110(a)(2) through earlier SIP
submissions in connection with previous ozone NAAQS.
More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for infrastructure SIP requirements related to a
newly established or revised NAAQS. As mentioned above, these
requirements include basic structural SIP elements such as modeling,
monitoring, and emissions inventories that are designed to assure
attainment and maintenance of the NAAQS. The applicable infrastructure
SIP requirements that are the subject of this rulemaking are listed
below.\1\
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\1\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the nonattainment area
plan requirements are due pursuant to other provisions of the CAA
for submission of SIP revisions specifically applicable for
attainment planning purposes. These requirements are: (1)
Submissions required by section 110(a)(2)(C) to the extent that
subsection refers to a permit program as required in part D Title I
of the CAA; and (2) submissions required by section 110(a)(2)(I)
which pertain to the nonattainment planning requirements of part D,
Title I of the CAA. Today's proposed rulemaking does not address
infrastructure elements related to section 110(a)(2)(I) or the
nonattainment planning requirements of 110(a)(2)(C).
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110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control
measures.\2\
---------------------------------------------------------------------------
\2\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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110(a)(2)(D)(i)(II): Interstate transport (PSD and
visibility prongs).\3\
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\3\ Today's final rule does not address section
110(a)(2)(D)(i)(I) (the significant contribution to nonattainment
prong or the interfere with maintenance prong) for the 2008 8-hour
Ozone NAAQS, which as described in greater detail below, EPA does
not presently view as a ``required submission'' consistent with the
D.C. Circuit Court's recent opinion in EME City Generation v. EPA,
696 F.3d 7, 31 (D.C. Cir. 2012). In that opinion, the D.C. Circuit
Court concluded that a SIP submission to address section
110(a)(2)(D)(i)(I) for a new or revised NAAQS cannot be considered a
``required'' SIP submission until EPA has first defined a state's
obligations pursuant to that section. See EME Homer City, 696 F.3d
at 32 (``A SIP logically cannot be deemed to lack a `required
submission' or deemed to be deficient for failure to meet the good
neighbor obligation before EPA quantifies the good neighbor
obligation.'')
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110(a)(2)(E): Adequate resources.
110(a)(2)(F): Stationary source monitoring system.
110(a)(2)(G): Emergency power.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(I): Areas designated nonattainment and meet the
applicable requirements of part D.\4\
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\4\ This requirement as mentioned above is not relevant to
today's proposed rulemaking.
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110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
On August 22, 2012, EPA proposed to approve Tennessee's October 19,
2009, 2008 8-hour ozone NAAQS infrastructure SIP submission except as
it related to section 110(a)(2)(E)(ii), which EPA proposed to approve
in part, and conditionally approve in part.\5\ See 77 FR 50651.
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\5\ As discussed in the proposed rule for today's action,
section 110(a)(2)(E)(ii) requires that the SIP include provisions
necessary to meet the requirements of section 128 of the CAA. See 77
FR 50651.
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EPA proposed conditional approval in part for element
110(a)(2)(E)(ii) because, while Tennessee's SIP does not currently
contain provisions to address the requirements of CAA section
128(a)(1), the State committed in a letter dated March 28, 2012, to
submit, within one year, specific enforceable measures to EPA for
incorporation into the SIP to address these requirements. EPA proposed
approval of the state's infrastructure SIP submission in part, for
section 110(a)(2)(E)(ii) because the State's implementation plan
already contains adequate provisions to address the requirements of CAA
section 128(a)(2). See 77 FR 50651; August 22, 2012.
With respect to the PSD requirements of sections 110(a)(2)(C),
110(a)(2)(D)(i)(II) (hereafter referred to as prong 3 of
110(a)(2)(D)(i)),\6\ and 110(a)(2)(J) for the 2008 8-hour ozone NAAQS,
EPA published a supplemental proposal on December 3, 2012. In this
supplemental notice, EPA proposed conditional approval of Tennessee's
infrastructure SIP submission for these elements of section 110(a)(2)
for the 2008 8-hour ozone NAAQS.\7\ See 77 FR 71568, December 3, 2012.
As described in the supplemental proposal, on October 4, 2012,
Tennessee submitted a request for conditional approval of the State's
infrastructure SIP submission with respect to sections 110(a)(2)(C),
prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J), specifically as they
relate to PSD program requirements and the State committed to address
the SIP deficiencies by submitting specific
[[Page 14452]]
enforceable SIP revisions to address PM2.5 PSD increments.
This letter of commitment meets the requirements of section 110(k)(4)
of the CAA. Tennessee's October 4, 2012, letter can be accessed at
www.regulations.gov using Docket ID No. EPA-R04-OAR-2012-0237.
---------------------------------------------------------------------------
\6\ Section 110(a)(2)(D)(i) includes four requirements referred
to as prongs 1 through 4. Prongs 1 and 2 are provided at section
110(a)(2)(D)(i)(I); prongs 3 and 4 are provided at section
110(a)(2)(D)(i)(II). Today's conditional approval only relates to
the PSD requirements of section 110(a)(2)(D)(i)(II), also known as
prong 3.
\7\ EPA originally proposed approval of these elements as they
related to PSD requirements. See 77 FR 50651. EPA is not taking
action to finalize the proposed approvals for these elements,
rather, EPA is today taking action to finalize conditional approval
for these elements as they relate to PSD requirements based upon the
December 3, 2012, supplement proposal. See 77 FR 71568. As described
in the December 3, 2012, supplemental proposal, Tennessee's SIP
currently does not contain the requisite PM2.5 PSD
increments necessary to satisfy these requirements. Accordingly, EPA
is finalizing a conditional approval of Tennessee's infrastructure
SIP submission based upon the state's commitment to rectify this
concern with respect to this structural deficiency in Tennessee's
current PSD program.
---------------------------------------------------------------------------
Finally, EPA notes that this final action on Tennessee's
infrastructure SIP submission for the 2008 8-hour ozone NAAQS is
required not only by section 110(k), but also by order issued by the
U.S. District Court for the Northern District of California in
WildEarth Guardians v. Jackson, Case No. 11-CV-5651 YGR. In an October
17, 2012, order granting partial summary judgment in the case, as
modified in a December 7, 2012, order granting in part EPA's motion for
an amended order, that court directed EPA to take final action upon the
infrastructure SIP at issue in this action by March 4, 2013. With
respect to Tennessee, the court specifically ordered EPA to act upon
the infrastructure SIP submission made by the state on October 19,
2009, as revised/withdrawn in part on July 3, 2012. The court
specifically explained in the December 7, 2012, amended order that
``EPA is being ordered to assess the remaining submissions, i.e., the
revised SIP from Kentucky and the non-withdrawn portion of the
Tennessee SIP.'' (emphasis in the original). Accordingly, EPA is taking
final action upon Tennessee's infrastructure SIP for the 2008 8-hour
ozone NAAQS in its revised form, which reflects Tennessee's withdrawal
of the portion of the original submission intended to address section
110(a)(2)(D)(i)(I). As explained in more detail in response to relevant
comments, EPA is addressing the requirements of section
110(a)(2)(D)(i)(I) consistent with the opinion of the D.C. Circuit
Court's opinion in EPA Homer City Generation v. EPA, 696 F.3d 7 (D.C.
Cir. 2012).
II. Response to Comments
EPA received no comments on the initial August 22, 2012, notice
proposing action on Tennessee's infrastructure SIP submission for the
2008 8-hour ozone NAAQS. EPA received two sets of comments on the
December 3, 2012, supplemental proposed rulemaking in which EPA
proposed conditional approval of the State's infrastructure SIP
submission as meeting the applicable requirements of CAA sections
110(a)(2)(C) and (J), and prong 3 of section 110(a)(2)(D)(i) for the
2008 8-hour ozone NAAQS. A summary of the comments and EPA's responses
are provided below.
EPA notes that the majority of the comments received are well
beyond the scope of the supplemental proposal which addressed only
certain issues associated with PSD rules as they impacted Tennessee's
infrastructure submittal for CAA sections 110(a)(2)(C) and (J), and
prong 3 of 110(a)(2)(D)(i), for the 2008 8-hour ozone NAAQS. Instead,
the comments primarily concerned the interstate transport requirements
of section 110(a)(2)(D)(i)(I) (prongs 1 and 2). These requirements were
not at issue in either the original August 22, 2012, proposal notice,
or the December 3, 2012, supplemental notice, because the State had by
this point already withdrawn that portion of the infrastructure SIP
submission that was intended to address section 110(a)(2)(D)(i)(I) for
the 2008 8-hour ozone NAAQS. As the supplemental proposal specifically
provided at footnote 5, EPA is not addressing section 110(a)(2)(D(i)(I)
requirements through this action. See 77 FR 71568, 71570. Even though
EPA may not be obligated to respond to the comments outside the scope
of the December 3, 2012, supplemental proposal, EPA nonetheless
provides the following responses in order to assist in the public
understanding of EPA's final action.
Comment 1: The Commenters contend that under section 110(k) of the
Act, EPA must make a finding that Tennessee has failed to submit an
interstate transport SIP to meet the requirements of infrastructure
element 110(a)(2)(D)(i)(I) (prongs 1 and 2).
Response 1: EPA does not agree with the Commenter. As noted above,
this comment is beyond the scope of the supplemental action proposed in
the December 3, 2012, rulemaking, which was limited to the above-
described PSD-related elements. Moreover, the D.C. Circuit Court's
recent opinion in EME City Generation v. EPA, 696 F.3d 7, 31 (D.C. Cir.
2012), concluded that a SIP submission to address section
110(a)(2)(D)(i)(I) for a new or revised NAAQS cannot be considered a
``required'' SIP submission until EPA has first defined a state's
obligations pursuant to that section. See EME Homer City, 696 F.3d at
32 (``A SIP logically cannot be deemed to lack a `required submission'
or deemed to be deficient for failure to meet the good neighbor
obligation before EPA quantifies the good neighbor obligation.'') On
January 24, 2013, the D.C. Circuit issued an order denying all
petitions for rehearing of the EME Homer City decision. At this time,
however, the deadline for asking the Supreme Court to review the D.C.
Circuit's decision has not passed and the United States has not yet
decided whether to seek further appeal. In the meantime, and unless the
EME Homer City decision is reversed or otherwise modified, EPA intends
to act in accordance with the panel opinion in the EME Homer City
opinion. Thus, although EPA historically has interpreted section
110(a)(1) of the CAA as establishing the required submittal date for
infrastructure SIP submissions to address all of the ``interstate
transport'' requirements in section 110(a)(2)(D), including the
provisions in section 110(a)(2)(D)(i)(I) regarding significant
contribution to nonattainment and interference with maintenance, it
would not be consistent with the EME Homer City opinion for EPA to make
a finding that Tennessee has failed to make a SIP submission to address
section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS at this time. See
78 FR 2882, 2884-85 (January 15, 2012) (explaining why EPA did not make
findings of failure to submit with respect to 110(a)(2)(D)(i)(I) for
the 2008 ozone NAAQS). Accordingly, EPA is not making a finding of
failure to submit for section 110(a)(2)(D)(i)(I) for Tennessee for the
2008 8-hour ozone NAAQS at this time.
Comment 2: One Commenter contends that EPA must disapprove the
section 110(a)(2)(D)(i)(I) portion of Tennessee's submittal (referred
to by the Commenter as the ``good neighbor'' provisions) because it
fails to include adequate provisions to meet the requirements of this
subsection.
Response 2: EPA does not agree with the Commenter. First, this
comment is beyond the scope of the supplemental action proposed in the
December 3, 2012, rulemaking, which was limited to the above-described
PSD-related elements. Second, the element of the SIP submission to
which the Commenter refers was withdrawn by Tennessee. On July 3, 2012,
Tennessee withdrew the portion of its SIP submittal addressing
110(a)(2)(D)(i)(I). Thus, this portion of the submittal is no longer
before EPA and the Agency does not interpret the CAA as requiring that
EPA take action, either to approve or disapprove under section 110(k),
on submissions not before EPA. EPA does not interpret the CAA to
mandate that EPA take action on a submission that a state has withdrawn
(i.e., withdrawing the request that EPA take action on the submittal).
Third, as a result of the decision of the D.C. Circuit in EME Homer
City, that court has concluded that states, including Tennessee, have
no obligation to make a SIP submission to address section
110(a)(2)(D)(i)(I) for a new or revised NAAQS until EPA has first
defined a state's obligations pursuant to that section.
[[Page 14453]]
As a result, EPA does not agree with the Commenter that EPA has an
obligation to disapprove the 110(a)(2)(D)(i)(I) portion of the
Tennessee SIP submittal that was withdrawn. The Commenter does not
point to any statutory authority which requires EPA to disapprove a
non-required SIP submission not presently before EPA, and for which a
state has specifically requested that EPA not take action (by formally
withdrawing the voluntary submission from EPA review).
In situations where all or a portion of a required state submission
has been withdrawn following a section 110(k)(1)(B) completeness
determination, the Agency has the authority to issue a finding that a
state has failed to submit such required submission pursuant to section
110(k)(1)(B). In accordance with the requirements of section
110(c)(1)(A), such a finding of failure to submit a complete required
SIP submission would trigger EPA's obligation to promulgate a federal
implementation plan unless the state corrected the deficiency. As
discussed above in the response to comment 1, however, it would not be
consistent with the EME Homer City decision for EPA to make a finding
of failure to submit for Tennessee with respect to section
110(a)(2)(D)(i)(I) for the 2008 8-hour ozone NAAQS at this time.
Comment 3: The Commenters contend that EPA lacks authority to
approve or conditionally approve the balance of Tennessee's
infrastructure SIP submission despite the State's withdrawal of the
portion of the SIP originally submitted to comply with section
110(a)(2)(D)(i)(I). One Commenter contends that the ``Clean Air Act
gives EPA no discretion to approve a SIP without the good neighbor
provision on the grounds that it intends to address Tennessee's
[section] 110(a)(2)(D)(i)(I) obligations in a separate action. There is
no separate action available to EPA under the Clean Air Act to address
a state's failure to satisfy its good neighbor obligations aside from
the promulgation of a Federal Implementation Plan within two-years
pursuant to section 110(c)(1) of the Clean Air Act.''
Response 3: EPA does not agree with the Commenter. Section
110(k)(3) of the Act 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 Act. Section 110(k)(4) of the Act explicitly authorizes EPA to use
conditional approval, consistent with the parameters for such
conditional approvals stipulated in that section. This authority to
approve the States' 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)).
As such, the Agency interprets its authority under sections
110(k)(3) and (k)(4), as affording EPA the discretion to approve or
conditionally approve individual elements of Tennessee's infrastructure
submission for the 2008 8-hour ozone NAAQS, separate and apart from any
action with respect to the requirements of section 110(a)(2)(D)(i)(I)
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 the SIP submission
for section 110(a)(2)(D)(i)(I) were now relevant, which it is not, it
would still have discretion under section 110(k) to act upon the
various individual elements of the state's infrastructure SIP
submission, separately or together, as appropriate. The Commenters
raise no compelling legal or environmental rationale for an alternate
interpretation.
Comment 4: The Commenters contend that compliance with the Clean
Air Interstate Rule (CAIR) is not relevant to Tennessee's obligation
under the CAA to submit a SIP addressing the requirements of section
110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS.
Response 4: EPA agrees with the substance of this comment, but does
not agree that it is relevant for this action. As described above, and
in the supplemental proposal associated with today's action, EPA is not
taking any action through this rulemaking with respect to Tennessee's
obligations pursuant to section 110(a)(2)(D)(i)(I) for the 2008 8-hour
ozone NAAQS; therefore, this comment is not relevant to today's action.
As a general matter, however, EPA agrees that compliance with CAIR is
not relevant to a state's obligations under section 110(a)(2)(D)(i)(I)
for purposes of the 2008 8-hour ozone NAAQS. CAIR was promulgated by
EPA in 2005 to address, for certain states, the requirements of CAA
section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone and 1997
annual PM2.5 NAAQS. See 70 FR 25162. EPA promulgated CAIR
long before it promulgated the 2008 8-hour ozone NAAQS, and CAIR did
not, in any way, address interstate transport requirements related to
the 2008 8-hour ozone NAAQS.\8\ For these reasons CAIR is not relevant
to Tennessee's section 110(a)(2)(D)(i)(I) obligation with respect to
the 2008 ozone NAAQS.
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\8\ Moreover, in its decision granting the petitions for review
of CAIR, the DC Circuit held that compliance with CAIR did not
constitute compliance with section 110(a)(2)(D)(i)(I) even for the
NAAQS that were addressed by CAIR--namely the 1997 ozone and 1997
annual PM2.5 NAAQS. See North Carolina v. EPA, 531 F.3d
896 (D.C. Cir. 2008).
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Comment 5: One Commenter notes that EPA proposed to conditionally
approve certain portions of Tennessee's infrastructure SIP, while
leaving other infrastructure elements to be addressed in a separate
rulemaking. The Commenter contends that EPA ``does not have the
authority to approve some provisions of a SIP while deferring action on
other mandatory provisions once the 12-month mandatory determination
deadline to act on an administratively complete SIP submittal has
run.'' The Commenter asserts that because Tennessee has withdrawn the
``good neighbor'' provisions of its SIP submittal, the submittal
``fails to include adequate provisions `prohibiting* * * any source or
other type of emissions activity within the State from emitting any air
pollutant in amounts which will contribute significantly to
nonattainment, or interfere with maintenance by, any other State' with
respect to the 2008 8-hour ozone NAAQS.'' Therefore, the Commenter
concludes, ``EPA is required to disapprove the `good neighbor' portions
of the Tennessee SIP.'' The Commenter asserts that ``[s]ince the
statutory deadline has past under which EPA is required to act on the
2008 8-hour ozone NAAQS SIP submittals, EPA has no authority to
indefinitely postpone ruling on all the required infrastructure SIP
elements, including the 110(a)(2)(D)(i)(I) portions of Tennessee's SIP
submittal.'' The Commenter asserts that this approach is consistent
with the logic espoused in an October 17, 2012, court order granting
partial summary judgment to the plaintiffs in the case WildEarth
Guardians v. Jackson, Case No. 11-CV-5651 YGR.
Response 5: As an initial matter, EPA does not agree with the
Commenter that it is prohibited from acting on portions of an
infrastructure SIP submission on an element by element basis, or in
whatever combination of elements that
[[Page 14454]]
may be appropriate in a given action. As noted above, the language
which Congress ultimately included in section 110(k) allowing EPA to
approve a plan in full, disapprove it in full, or approve it in part
and disapprove it in part was added to overrule the portion of the
decision Abramowitz v. EPA, 832 F. 2d 1071 (9th Cir. 1987), which held
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 (1989), reprinted at 1990 U.S.C.C.A.N. 3385, 3402.
Further, the Commenter appears to misunderstand what actions EPA is
now taking. EPA does not intend to ``indefinitely postpone'' action
with respect to the other required elements of Tennessee's
infrastructure SIP submission for the 2008 8-hour ozone NAAQS. In the
December 3, 2012, supplemental proposal, EPA explained that it had
previously proposed approval, on August 22, 2012, for the majority of
other sections of Tennessee's 2008 8-hour ozone infrastructure SIP
submission relevant to the applicable elements of section 110(a)(2).
See 77 FR 50651. EPA is today finalizing its proposed approval of the
infrastructure SIP submission for those other elements. Notably, the
Commenter did not comment on the timing of EPA's action with respect to
these other sections of the Tennessee 2008 8-hour ozone infrastructure
SIP submission at the time EPA proposed action on those sections.
Therefore, the Commenter's concerns regarding the timing of EPA's
action on these other elements are not properly raised in comments to
the December 3, 2012, rulemaking which was limited to the PSD elements
contained sections 110(a)(2)(C) and (J), and prong 3 of
110(a)(2)(D)(i).
In addition, EPA notes that the October 17, 2012, court order
referenced by the Commenter was subsequently amended by the court on
December 7, 2012, to extend EPA's deadline for action on the Tennessee
submittal through March 4, 2013. In that amended order, the court also
clarified that it intended EPA to act on Tennessee's October 19, 2009,
as revised/withdrawn in part on July 3, 2012. The court specifically
explained in the December 7, 2012, amended order that ``EPA is being
ordered to assess the remaining submissions, i.e., the revised SIP from
Kentucky and the non-withdrawn portion of the Tennessee SIP.''
(emphasis in the original). Today's final action, approving in part and
conditionally approving in part Tennessee's infrastructure SIP
submission, in conjunction with the aforementioned determination not to
issue a finding of failure to submit for section 110(a)(2)(D)(i)(I) at
this time, consistent with the decision in EME Homer City, fully
satisfy the Agency's obligations under the December 7, 2012, court
order in WildEarth Guardians v. Jackson, with respect to the Tennessee
SIP submittal at issue.
Comment 6: One Commenter argued that EPA should disapprove the SIP
submission from Tennessee with respect to section 110(a)(2)(D)(i) for
the 2008 ozone NAAQS because ``EPA's own modeling conducted in support
of the Cross State Air Pollution Rule * * *identified Tennessee as a
state which contributes at least one percent of the 2008 8-hour ozone
NAAQS to Maryland's nonattainment.'' Thus, the Commenter argued that
EPA's ``delay in disapproving'' the submission would adversely impact
the ability of the State of Maryland to provide for attainment of the
2008 ozone NAAQS within that state, consistent with the statutory
schedule for attainment of the NAAQS.
Response 6: EPA acknowledges the Commenter's concern that
interstate transport of ozone and ozone precursors from upwind states
to downwind states may have adverse consequences on the ability of
downwind areas to attain the NAAQS in a timely fashion. It is for this
reason that EPA attempted, through the Cross State Air Pollution Rule
(CSAPR), to address emissions found to contribute significantly to
nonattainment of, or interfere with maintenance of, the 1997 ozone
NAAQS. The modeling done for CSAPR, however, did not address the 2008
ozone NAAQS and EPA did not, in the CSAPR itself or in the modeling
done during development of the rule, draw any conclusions regarding
interstate transport with respect to the 2008 ozone NAAQS. Moreover,
the D.C. Circuit, in its recent decision vacating the CSAPR, held that
states are not required to submit SIPs addressing the requirements of
section 110(a)(2)(D)(i)(I) until EPA has quantified their obligation
under that provision. See EME Homer City, 696 F.3d 7 (D.C. Cir. 2012).
The EME Homer City decision was issued in August of 2012, and on
January 24, 2013, the court denied all petitions for rehearing. At this
time, however, the deadline for asking the Supreme Court to review the
D.C. Circuit's decision has not passed and the United States has not
yet decided whether to seek further appeal. In the mean time, and
unless the EME Homer City decision is reversed or otherwise modified,
EPA intends to act in accordance with the D.C. Circuit's opinion.
Finally, as the EME Homer City decision establishes that the
Tennessee 110(a)(2)(D)(i)(I) SIP submission was optional, Tennessee
remains free not to make such a SIP submission or to withdraw such a
submission without penalty. Moreover, EPA has no authority to
disapprove an infrastructure SIP submission which is no longer pending
before the Agency or to find that a state failed to submit a SIP
submission to meet the requirements of section 110(a)(2)(D)(i)(I) at
this time under the EME Homer City decision.
III. This Action
In this rulemaking, EPA is taking final action to approve
Tennessee's infrastructure submission as demonstrating that the State
meets the applicable requirements of sections 110(a)(1) and (2) of the
CAA for the 2008 8-hour ozone NAAQS, with the exception of sections
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J) pertaining
to PSD increments, and the portion of section 110(a)(2)(E)(ii)
pertaining to section 128(a)(1) requirements. EPA is taking no action
with respect to section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS in
this rulemaking because no such action is required at this time for
this State. EPA will be taking action on 110(a)(2)(D)(i)(I), if
required, in a separate future action.
With respect to section 110(a)(2)(E)(ii) specifically pertaining to
section 128(a)(1) requirements, EPA is finalizing a conditional
approval for this portion of Tennessee's infrastructure SIP submission
for the 2008 8-hour ozone NAAQS.
Today's final action to conditionally approve of the portion of
element 110(a)(2)(E)(ii) related to the section 128(a)(1) requirements
is based upon a March 28, 2012, commitment letter submitted by
Tennessee to EPA. Tennessee's March 28, 2012, letter can be accessed at
www.regulations.gov using Docket ID No. EPA-R04-OAR-2011-0353. Through
this letter, Tennessee committed to adopt specific enforceable measures
to address current deficiencies in its SIP related to section 128(a)(1)
requirements. This letter of commitment meets the requirements of
section 110(k)(4) of the CAA, and as such, EPA is relying upon this
commitment to conditionally approve section 110(a)(2)(E)(ii) as it
relates to the requirements of section 128(a)(1) of the CAA. For more
information, see EPA's proposal for today's rulemaking. See 77 FR
50651. EPA has previously relied upon Tennessee's March 28, 2012,
commitment to conditionally approve section 110(a)(2)(E)(ii) as it
relates to the section 128(a)(1) for purposes of the 1997 8-hour ozone
NAAQS. See 77 FR
[[Page 14455]]
42997 July 23, 2012. Pursuant to that earlier conditional approval,
Tennessee is committed to providing EPA with the specified SIP revision
by no later than July 23, 2013.
Accordingly, for purposes of today's conditional approval of
section 110(a)(2)(E)(ii) as it relates to the requirements of section
128(a)(1), Tennessee must submit to EPA by July 23, 2013 (within one
year from the date of publication for the final rule that EPA published
on July 23, 2012, for the 1997 8-hour ozone NAAQS), a SIP revision
adopting the specific enforceable measures related to CAA section
128(a)(1) as described in the State's commitment letter described
above. If the State fails to submit this promised SIP revision by July
23, 2013, today's conditional approval will automatically become a
disapproval on that date and EPA will issue a finding of disapproval.
With respect to the PSD requirements of elements 110(a)(2)(C),
prong 3 of 110(a)(2)(D)(i) and 110(a)(2)(J) for the 2008 8-hour ozone
NAAQS, EPA published a supplemental proposal to conditionally approve
Tennessee's infrastructure SIP submission, based upon the October 4,
2012, conditional approval request related to these elements for the
2008 8-hour ozone NAAQS. See 77 FR 71568. As described in the
supplemental proposal, on October 4, 2012, Tennessee submitted a
request for conditional approval of sections 110(a)(2)(C), prong 3 of
110(a)(2)(D)(i), and 110(a)(2)(J) as they relate to PSD requirements
and committed to address the SIP deficiencies by submitting specific
enforceable SIP revisions to address PM2.5 PSD increments
within one year. This commitment letter meets the requirements of
section 110(k)(4) of the CAA. Tennessee's October 4, 2012, letter can
be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-
2012-0237. Today's action finalizes conditional approval of the
infrastructure SIP submission for these sections of section 110(a)(2),
based upon a commitment by Tennessee to submit the necessary SIP
revisions to address PM2.5 PSD increments. If the State
fails to submit these promised SIP revisions by March 6, 2014 today's
conditional approval will automatically become a disapproval on that
date and EPA will issue a finding of disapproval.
IV. Final Action
EPA is taking final action to approve Tennessee's infrastructure
submission, provided to EPA on October 19, 2009, because it addresses
the required infrastructure elements for the 2008 8-hour ozone NAAQS
with exception of sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i),
and 110(a)(2)(J) as they relate to PSD requirements, section
110(a)(2)(E)(ii) as it relates to section 128(a)(1) requirements, and
section 110(a)(2)(D)(i)(I) as it relates to interstate transport.\9\
With the exceptions noted above TDEC has addressed the elements of the
CAA 110(a)(1) and (2) SIP requirements pursuant to section 110 of the
CAA to ensure that the 2008 8-hour ozone NAAQS are implemented,
enforced, and maintained in Tennessee.
---------------------------------------------------------------------------
\9\ As described in the response to comment 1 in Section II
above, EPA does not presently view section 110(a)(2)(D)(i)(I)
(significant contribution to nonattainment prong and interference
with maintenance prong) for the 2008 8-hour Ozone NAAQS, as a
``required submission'' based upon the opinion of the D.C. Circuit
in the EME Homer case.
---------------------------------------------------------------------------
With respect to sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i),
and 110(a)(2)(J) as they relate to PSD requirements, EPA is taking
final action to conditionally approve Tennessee's infrastructure SIP in
part, based on an October 4, 2012, commitment that TDEC will adopt
specific enforceable measures related to PSD increments and submit
these revisions as a SIP submission to EPA for approval into the
Tennessee's SIP by March 6, 2014.
With respect to section 110(a)(2)(E)(ii) related to section
128(a)(1) requirements, EPA is taking final action to conditionally
approve Tennessee's infrastructure SIP in part, based on a March 28,
2012, commitment that TDEC will adopt specific enforceable measures and
submit these as a SIP submission to EPA for approval into the
Tennessee's SIP by July 23, 2013, to address the applicable portions of
section 128(a)(1).
If the State fails to submit these promised SIP revisions by the
applicable dates described above, today's conditional approval of
Tennessee's infrastructure SIP for the 2008 8-hour ozone NAAQS will
automatically be disapproved for the element or elements that the state
fails to address on that date and EPA will issue a corresponding
finding of disapproval.
V. 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. 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 Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not 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
[[Page 14456]]
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 May 6, 2013. 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: February 27, 2013.
A. Stanley Meiburg,
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 RR--Tennessee
0
2. Section 52.2219 is amended by adding paragraphs (c) and (d) to read
as follows:
Sec. 52.2219 Conditional approval.
* * * * *
(c) Conditional Approval--Submittal from the State of Tennessee,
through the Department of Environment and Conservation (TDEC), dated
October 4, 2012, to address the Clean Air Act (CAA) sections
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J) for the 2008
8-hour Ozone National Ambient Air Quality Standards. EPA is
conditionally approving TDEC's submittal with respect to the PSD
requirements of CAA sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i),
and 110(a)(2)(J), specifically related to the adoption of enforceable
provisions for PSD increments as detailed in TDEC's October 4, 2012,
commitment letter. Tennessee must submit to EPA by March 6, 2014, a SIP
revision adopting specific enforceable measures related to PSD
increments as described in the State's letter of commitment.
(d) Conditional Approval--Submittal from the State of Tennessee,
through the Department of Environment and Conservation (TDEC), dated
October 19, 2009, to address the Clean Air Act (CAA) section
110(a)(2)(E)(ii) for the 2008 8-hour Ozone National Ambient Air Quality
Standards. With respect to CAA section 110(a)(2)(E)(ii), specifically
related to the adoption of enforceable measures contained in CAA
section 128(a)(1), EPA published in the Federal Register a final
rulemaking to conditionally approve TDEC's March 28, 2012, commitment
on July 23, 2012. Tennessee must submit to EPA by July 23, 2013, SIP
revisions adopting specific enforceable measures related to CAA
sections 128(a)(1) as described in the State's letter of commitment.
0
3. Section 52.2220(e) is amended by adding a new entry ``110(a)(1) and
(2) Infrastructure Requirements for the 2008 8-Hour Ozone National
Ambient Air Quality Standards'' at the end of the table to read as
follows:
Sec. 52.2220 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Tennessee Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
Applicable State
Name of nonregulatory SIP geographic or effective EPA approval date Explanation
provision nonattainment area date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
110(a)(1) and (2) Infrastructure Tennessee........... 10/19/2009 3/6/2013 [Insert With the exception
Requirements for the 2008 8- citation of of section
Hour Ozone National Ambient Air publication]. 110(a)(2)(D)(i)(I)
Quality Standards. concerning
interstate
transport; the
portions of
sections
110(a)(2)(C),
prong 3 of
110(a)(2)(D)(i),
and 110(a)(2)(J)
related to PSD ,
which are being
conditionally
approved; and
section
110(a)(2)(E)(ii)
as it relates to
section 128(a)(1),
which is being
conditionally
approved.
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[[Page 14457]]
[FR Doc. 2013-05112 Filed 3-5-13; 8:45 am]
BILLING CODE 6560-50-P
