Air Quality Plans; Tennessee; Infrastructure Requirements for the 2012 PM2.5, 2295-2305 [2017-00162]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2014–0430; FRL–9957–91–
Region 4]
Air Quality Plans; Tennessee;
Infrastructure Requirements for the
2012 PM2.5 National Ambient Air
Quality Standard
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
the State Implementation Plan (SIP)
submission, submitted by the State of
Tennessee, through the Tennessee
Department of Environment and
Conservation (TDEC), on December 16,
2015, for inclusion into the Tennessee
SIP. This proposal pertains to the
infrastructure requirements of the Clean
Air Act (CAA or Act) for the 2012
Annual Fine Particulate Matter (PM2.5)
national ambient air quality standard
(NAAQS). The CAA requires that each
state adopt and submit a SIP for the
implementation, maintenance and
enforcement of each NAAQS
promulgated by EPA, which is
commonly referred to as an
‘‘infrastructure SIP submission.’’ TDEC
certified that the Tennessee SIP contains
provisions that ensure the 2012 Annual
PM2.5 NAAQS is implemented,
enforced, and maintained in Tennessee.
EPA is proposing to determine that
portions of Tennessee’s infrastructure
SIP submission, provided to EPA on
December 16, 2015, satisfy certain
required infrastructure elements for the
2012 Annual PM2.5 NAAQS.
DATES: Written comments must be
received on or before February 8, 2017.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2014–0430 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
submit electronically any information
you consider to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
SUMMARY:
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contents located outside of the primary
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other file sharing system). For
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EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Tiereny Bell, Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW., Atlanta
30303–8960. Ms. Bell can be reached via
electronic mail at bell.tiereny@epa.gov
or via telephone at (404) 562–9088.
SUPPLEMENTARY INFORMATION:
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I. Background and Overview
On December 14, 2012 (78 FR 3086,
January 15, 2013), EPA promulgated a
revised primary annual PM2.5 NAAQS.
The standard was strengthened from
15.0 micrograms per cubic meter (mg/
m3) to 12.0 mg/m3. Pursuant to section
110(a)(1) of the CAA, states are required
to submit SIPs meeting the applicable
requirements of section 110(a)(2) within
three years after promulgation of a new
or revised NAAQS or within such
shorter period as EPA may prescribe.
Section 110(a)(2) requires states to
address basic SIP elements such as
requirements for monitoring, basic
program requirements and legal
authority that are designed to assure
attainment and maintenance of the
NAAQS. States were required to submit
such SIPs for the 2012 Annual PM2.5
NAAQS to EPA no later than December
14, 2015.1
This rulemaking is proposing to
approve portions of Tennessee’s
December 16, 2015 PM2.5 infrastructure
SIP submission for the applicable
requirements of the 2012 Annual PM2.5
NAAQS, with the exception of the
interstate transport requirements of
section 110(a)(2)(D)(i)(I) and (II) (prongs
1, 2, and 4), for which EPA is not
proposing any action in this rulemaking
regarding these requirements. For the
aspects of Tennessee’s submittal
proposed for approval in this
1 In these infrastructure SIP submissions States
generally certify evidence of compliance with
sections 110(a)(1) and (2) of the CAA through a
combination of state regulations and statutes, some
of which have been incorporated into the federallyapproved SIP. In addition, certain federallyapproved, non-SIP regulations may also be
appropriate for demonstrating compliance with
sections 110(a)(1) and (2). Throughout this
rulemaking, the cited regulation has either been
approved, or submitted for approval into
Tennessee’s federally-approved SIP.
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rulemaking, EPA notes that the Agency
is not approving any specific rule, but
rather proposing that Tennessee’s
already approved SIP meets certain
CAA requirements.
II. What elements are required under
sections 110(a)(1) and (2)?
Section 110(a) of the CAA requires
states to submit SIPs to provide for the
implementation, maintenance, and
enforcement of a new or revised
NAAQS within three years following
the promulgation of such NAAQS, or
within such shorter period as EPA may
prescribe. Section 110(a) imposes the
obligation upon states to make a 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 SIP for a new or revised
NAAQS affects the content of the
submission. The contents of such SIP
submissions may also vary depending
upon what provisions the state’s
existing SIP already contains.
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 SIP elements such as
requirements for monitoring, basic
program requirements and legal
authority that are designed to assure
attainment and maintenance of the
NAAQS. The requirements are
summarized below and in EPA’s
September 13, 2013, memorandum
entitled ‘‘Guidance on Infrastructure
State Implementation Plan (SIP)
Elements under Clean Air Act Sections
110(a)(1) and 110(a)(2).’’ 2
• 110(a)(2)(A): Emission Limits and
Other Control Measures
• 110(a)(2)(B): Ambient Air Quality
Monitoring/Data System
2 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 are due at the time
the nonattainment area plan requirements are due
pursuant to section 172. 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. This 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)(C): Programs for
Enforcement of Control Measures and
for Construction or Modification of
Stationary Sources
• 110(a)(2)(D)(i)(I) and (II): Interstate
Pollution Transport
• 110(a)(2)(D)(ii): Interstate Pollution
Abatement and International Air
Pollution
• 110(a)(2)(E): Adequate Resources and
Authority, Conflict of Interest, and
Oversight of Local Governments and
Regional Agencies
• 110(a)(2)(F): Stationary Source
Monitoring and Reporting
• 110(a)(2)(G): Emergency Powers
• 110(a)(2)(H): SIP Revisions
• 110(a)(2)(I): Plan Revisions for
Nonattainment Areas 3
• 110(a)(2)(J): Consultation with
Government Officials, Public
Notification, and Prevention of
Significant Deterioration (PSD) and
Visibility Protection
• 110(a)(2)(K): Air Quality Modeling
and Submission of Modeling Data
• 110(a)(2)(L): Permitting fees
• 110(a)(2)(M): Consultation and
Participation by Affected Local
Entities
III. What is EPA’s approach to the
review of infrastructure SIP
submissions?
EPA is acting upon the SIP
submission from Tennessee that
addresses the infrastructure
requirements of CAA sections 110(a)(1)
and 110(a)(2) for the 2012 Annual PM2.5
NAAQS. The requirement for states to
make a SIP submission of this type
arises out of CAA section 110(a)(1).
Pursuant to section 110(a)(1), states
must make SIP submissions ‘‘within 3
years (or such shorter period as the
Administrator may prescribe) after the
promulgation of a national primary
ambient air quality standard (or any
revision thereof),’’ and these SIP
submissions are to provide for the
‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
EPA’s taking any action other than
promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of
specific elements that ‘‘[e]ach such
plan’’ submission must address.
EPA has historically referred to these
SIP submissions made for the purpose
of satisfying the requirements of CAA
sections 110(a)(1) and 110(a)(2) as
‘‘infrastructure SIP’’ submissions.
3 As mentioned above, this element is not
relevant to this proposed rulemaking.
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Although the term ‘‘infrastructure SIP’’
does not appear in the CAA, EPA uses
the term to distinguish this particular
type of SIP submission from
submissions that are intended to satisfy
other SIP requirements under the CAA,
such as ‘‘nonattainment SIP’’ or
‘‘attainment plan SIP’’ submissions to
address the nonattainment planning
requirements of part D of title I of the
CAA, ‘‘regional haze SIP’’ submissions
required by EPA rule to address the
visibility protection requirements of
CAA section 169A, and nonattainment
new source review (NNSR) permit
program submissions to address the
permit requirements of CAA, title I, part
D.
Section 110(a)(1) addresses the timing
and general requirements for
infrastructure SIP submissions, and
section 110(a)(2) provides more details
concerning the required contents of
these submissions. The list of required
elements provided in section 110(a)(2)
contains a wide variety of disparate
provisions, some of which pertain to
required legal authority, some of which
pertain to required substantive program
provisions, and some of which pertain
to requirements for both authority and
substantive program provisions.4 EPA
therefore believes that while the timing
requirement in section 110(a)(1) is
unambiguous, some of the other
statutory provisions are ambiguous. In
particular, EPA believes that the list of
required elements for infrastructure SIP
submissions provided in section
110(a)(2) contains ambiguities
concerning what is required for
inclusion in an infrastructure SIP
submission.
The following examples of
ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and
section 110(a)(2) requirements with
respect to infrastructure SIP
submissions for a given new or revised
NAAQS. One example of ambiguity is
that section 110(a)(2) requires that
‘‘each’’ SIP submission must meet the
list of requirements therein, while EPA
has long noted that this literal reading
of the statute is internally inconsistent
and would create a conflict with the
nonattainment provisions in part D of
title I of the Act, which specifically
address nonattainment SIP
4 For example: Section 110(a)(2)(E)(i) provides
that states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; section 110(a)(2)(C) provides
that states must have a SIP-approved program to
address certain sources as required by part C of title
I of the CAA; and section 110(a)(2)(G) provides that
states must have legal authority to address
emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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requirements.5 Section 110(a)(2)(I)
pertains to nonattainment SIP
requirements and part D addresses
when attainment plan SIP submissions
to address nonattainment area
requirements are due. For example,
section 172(b) requires EPA to establish
a schedule for submission of such plans
for certain pollutants when the
Administrator promulgates the
designation of an area as nonattainment,
and section 107(d)(1)(B) allows up to
two years, or in some cases three years,
for such designations to be
promulgated.6 This ambiguity illustrates
that rather than apply all the stated
requirements of section 110(a)(2) in a
strict literal sense, EPA must determine
which provisions of section 110(a)(2)
are applicable for a particular
infrastructure SIP submission.
Another example of ambiguity within
sections 110(a)(1) and 110(a)(2) with
respect to infrastructure SIPs pertains to
whether states must meet all of the
infrastructure SIP requirements in a
single SIP submission, and whether EPA
must act upon such SIP submission in
a single action. Although section
110(a)(1) directs states to submit ‘‘a
plan’’ to meet these requirements, EPA
interprets the CAA to allow states to
make multiple SIP submissions
separately addressing infrastructure SIP
elements for the same NAAQS. If states
elect to make such multiple SIP
submissions to meet the infrastructure
SIP requirements, EPA can elect to act
on such submissions either individually
or in a larger combined action.7
Similarly, EPA interprets the CAA to
5 See, e.g., ‘‘Rule To Reduce Interstate Transport
of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,’’ 70 FR
25162, at 25163–65 (May 12, 2005) (explaining
relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
6 EPA notes that this ambiguity within section
110(a)(2) is heightened by the fact that various
subparts of part D set specific dates for submission
of certain types of SIP submissions in designated
nonattainment areas for various pollutants. Note,
e.g., that section 182(a)(1) provides specific dates
for submission of emissions inventories for the
ozone NAAQS. Some of these specific dates are
necessarily later than three years after promulgation
of the new or revised NAAQS.
7 See, e.g., ‘‘Approval and Promulgation of
Implementation Plans; New Mexico; Revisions to
the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of
Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR) Permitting,’’ 78 FR
4339 (January 22, 2013) (EPA’s final action
approving the structural PSD elements of the New
Mexico SIP submitted by the State separately to
meet the requirements of EPA’s 2008 PM2.5 NSR
rule), and ‘‘Approval and Promulgation of Air
Quality Implementation Plans; New Mexico;
Infrastructure and Interstate Transport
Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR
4337) (January 22, 2013) (EPA’s final action on the
infrastructure SIP for the 2006 PM2.5 NAAQS).
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allow it to take action on the individual
parts of one larger, comprehensive
infrastructure SIP submission for a
given NAAQS without concurrent
action on the entire submission. For
example, EPA has sometimes elected to
act at different times on various
elements and sub-elements of the same
infrastructure SIP submission.8
Ambiguities within sections 110(a)(1)
and 110(a)(2) may also arise with
respect to infrastructure SIP submission
requirements for different NAAQS.
Thus, EPA notes that not every element
of section 110(a)(2) would be relevant,
or as relevant, or relevant in the same
way, for each new or revised NAAQS.
The states’ attendant infrastructure SIP
submissions for each NAAQS therefore
could be different. For example, the
monitoring requirements that a state
might need to meet in its infrastructure
SIP submission for purposes of section
110(a)(2)(B) could be very different for
different pollutants because the content
and scope of a state’s infrastructure SIP
submission to meet this element might
be very different for an entirely new
NAAQS than for a minor revision to an
existing NAAQS.9
EPA notes that interpretation of
section 110(a)(2) is also necessary when
EPA reviews other types of SIP
submissions required under the CAA.
Therefore, as with infrastructure SIP
submissions, EPA also has to identify
and interpret the relevant elements of
section 110(a)(2) that logically apply to
these other types of SIP submissions.
For example, section 172(c)(7) requires
that attainment plan SIP submissions
required by part D have to meet the
‘‘applicable requirements’’ of section
110(a)(2). Thus, for example, attainment
plan SIP submissions must meet the
requirements of section 110(a)(2)(A)
regarding enforceable emission limits
and control measures and section
110(a)(2)(E)(i) regarding air agency
resources and authority. By contrast, it
is clear that attainment plan SIP
submissions required by part D would
not need to meet the portion of section
110(a)(2)(C) that pertains to the PSD
8 On December 14, 2007, the State of Tennessee,
through the Tennessee Department of Environment
and Conservation, made a SIP revision to EPA
demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action
for infrastructure SIP elements (C) and (J) on
January 23, 2012 (77 FR 3213) and took final action
on March 14, 2012 (77 FR 14976). On April 16,
2012 (77 FR 22533) and July 23, 2012 (77 FR
42997), EPA took separate proposed and final
actions on all other section 110(a)(2) infrastructure
SIP elements of Tennessee’s December 14, 2007,
submittal.
9 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
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program required in part C of title I of
the CAA, because PSD does not apply
to a pollutant for which an area is
designated nonattainment and thus
subject to part D planning requirements.
As this example illustrates, each type of
SIP submission may implicate some
elements of section 110(a)(2) but not
others.
Given the potential for ambiguity in
some of the statutory language of section
110(a)(1) and section 110(a)(2), EPA
believes that it is appropriate to
interpret the ambiguous portions of
section 110(a)(1) and section 110(a)(2)
in the context of acting on a particular
SIP submission. In other words, EPA
assumes that Congress could not have
intended that each and every SIP
submission, regardless of the NAAQS in
question or the history of SIP
development for the relevant pollutant,
would meet each of the requirements, or
meet each of them in the same way.
Therefore, EPA has adopted an
approach under which it reviews
infrastructure SIP submissions against
the list of elements in section 110(a)(2),
but only to the extent each element
applies for that particular NAAQS.
Historically, EPA has elected to use
guidance documents to make
recommendations to states for
infrastructure SIPs, in some cases
conveying needed interpretations on
newly arising issues and in some cases
conveying interpretations that have
already been developed and applied to
individual SIP submissions for
particular elements.10 EPA most
recently issued guidance for
infrastructure SIPs on September 13,
2013 (2013 Guidance).11 EPA developed
this document to provide states with upto-date guidance for infrastructure SIPs
for any new or revised NAAQS. Within
this guidance, EPA describes the duty of
states to make infrastructure SIP
submissions to meet basic structural SIP
requirements within three years of
promulgation of a new or revised
NAAQS. EPA also made
recommendations about many specific
subsections of section 110(a)(2) that are
relevant in the context of infrastructure
10 EPA notes, however, that nothing in the CAA
requires EPA to provide guidance or to promulgate
regulations for infrastructure SIP submissions. The
CAA directly applies to states and requires the
submission of infrastructure SIP submissions,
regardless of whether or not EPA provides guidance
or regulations pertaining to such submissions. EPA
elects to issue such guidance in order to assist
states, as appropriate.
11 ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act sections 110(a)(1) and 110(a)(2),’’
Memorandum from Stephen D. Page, September 13,
2013.
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SIP submissions.12 The guidance also
discusses the substantively important
issues that are germane to certain
subsections of section 110(a)(2).
Significantly, EPA interprets sections
110(a)(1) and 110(a)(2) such that
infrastructure SIP submissions need to
address certain issues and need not
address others. Accordingly, EPA
reviews each infrastructure SIP
submission for compliance with the
applicable statutory provisions of
section 110(a)(2), as appropriate.
As an example, section 110(a)(2)(E)(ii)
is a required element of section
110(a)(2) for infrastructure SIP
submissions. Under this element, a state
must meet the substantive requirements
of section 128, which pertain to state
boards that approve permits or
enforcement orders and heads of
executive agencies with similar powers.
Thus, EPA reviews infrastructure SIP
submissions to ensure that the state’s
implementation plan appropriately
addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The
2013 Guidance explains EPA’s
interpretation that there may be a
variety of ways by which states can
appropriately address these substantive
statutory requirements, depending on
the structure of an individual state’s
permitting or enforcement program (e.g.,
whether permits and enforcement
orders are approved by a multi-member
board or by a head of an executive
agency). However they are addressed by
the state, the substantive requirements
of section 128 are necessarily included
in EPA’s evaluation of infrastructure SIP
submissions because section
110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section
128.
As another example, EPA’s review of
infrastructure SIP submissions with
respect to the PSD program
requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the
12 EPA’s September 13, 2013, guidance did not
make recommendations with respect to
infrastructure SIP submissions to address section
110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the
D.C. Circuit decision in EME Homer City, 696 F.3d7
(D.C. Cir. 2012) which had interpreted the
requirements of section 110(a)(2)(D)(i)(I). In light of
the uncertainty created by ongoing litigation, EPA
elected not to provide additional guidance on the
requirements of section 110(a)(2)(D)(i)(I) at that
time. As the guidance is neither binding nor
required by statute, whether EPA elects to provide
guidance on a particular section has no impact on
a state’s CAA obligations. On March 17, 2016, EPA
released a memorandum titled, ‘‘Information on the
Interstate Transport ‘Good Neighbor’ Provision for
the 2012 Fine Particulate Matter National Ambient
Air Quality Standards under Clean Air Act Section
110(a)(2)(D)(i)(I)’’ to provide guidance to states for
interstate transport requirements specific to the
PM2.5 NAAQS.
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structural PSD program requirements
contained in part C and EPA’s PSD
regulations. Structural PSD program
requirements include provisions
necessary for the PSD program to
address all regulated sources and new
source review (NSR) pollutants,
including greenhouse gases (GHG). By
contrast, structural PSD program
requirements do not include provisions
that are not required under EPA’s
regulations at 40 CFR 51.166 but are
merely available as an option for the
state, such as the option to provide
grandfathering of complete permit
applications with respect to the 2012
PM2.5 NAAQS. Accordingly, the latter
optional provisions are types of
provisions EPA considers irrelevant in
the context of an infrastructure SIP
action.
For other section 110(a)(2) elements,
however, EPA’s review of a state’s
infrastructure SIP submission focuses
on assuring that the state’s SIP meets
basic structural requirements. For
example, section 110(a)(2)(C) includes,
inter alia, the requirement that states
have a program to regulate minor new
sources. Thus, EPA evaluates whether
the state has an EPA-approved minor
NSR program and whether the program
addresses the pollutants relevant to that
NAAQS. In the context of acting on an
infrastructure SIP submission, however,
EPA does not think it is necessary to
conduct a review of each and every
provision of a state’s existing minor
source program (i.e., already in the
existing SIP) for compliance with the
requirements of the CAA and EPA’s
regulations that pertain to such
programs.
With respect to certain other issues,
EPA does not believe that an action on
a state’s infrastructure SIP submission is
necessarily the appropriate type of
action in which to address possible
deficiencies in a state’s existing SIP.
These issues include: (i) Existing
provisions related to excess emissions
from sources during periods of startup,
shutdown, or malfunction that may be
contrary to the CAA and EPA’s policies
addressing such excess emissions
(‘‘SSM’’); (ii) existing provisions related
to ‘‘director’s variance’’ or ‘‘director’s
discretion’’ that may be contrary to the
CAA because they purport to allow
revisions to SIP-approved emissions
limits while limiting public process or
not requiring further approval by EPA;
and (iii) existing provisions for PSD
programs that may be inconsistent with
current requirements of EPA’s ‘‘Final
NSR Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (‘‘NSR
Reform’’). Thus, EPA believes it may
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approve an infrastructure SIP
submission without scrutinizing the
totality of the existing SIP for such
potentially deficient provisions and may
approve the submission even if it is
aware of such existing provisions.13 It is
important to note that EPA’s approval of
a state’s infrastructure SIP submission
should not be construed as explicit or
implicit re-approval of any existing
potentially deficient provisions that
relate to the three specific issues just
described.
EPA’s approach to review of
infrastructure SIP submissions is to
identify the CAA requirements that are
logically applicable to that submission.
EPA believes that this approach to the
review of a particular infrastructure SIP
submission is appropriate, because it
would not be reasonable to read the
general requirements of section
110(a)(1) and the list of elements in
110(a)(2) as requiring review of each
and every provision of a state’s existing
SIP against all requirements in the CAA
and EPA regulations merely for
purposes of assuring that the state in
question has the basic structural
elements for a functioning SIP for a new
or revised NAAQS. Because SIPs have
grown by accretion over the decades as
statutory and regulatory requirements
under the CAA have evolved, they may
include some outmoded provisions and
historical artifacts. These provisions,
while not fully up to date, nevertheless
may not pose a significant problem for
the purposes of ‘‘implementation,
maintenance, and enforcement’’ of a
new or revised NAAQS when EPA
evaluates adequacy of the infrastructure
SIP submission. EPA believes that a
better approach is for states and EPA to
focus attention on those elements of
section 110(a)(2) of the CAA most likely
to warrant a specific SIP revision due to
the promulgation of a new or revised
NAAQS or other factors.
For example, EPA’s 2013 Guidance
gives simpler recommendations with
respect to carbon monoxide than other
NAAQS pollutants to meet the visibility
requirements of section
110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As
a result, an infrastructure SIP
submission for any future new or
revised NAAQS for carbon monoxide
need only state this fact in order to
13 By contrast, EPA notes that if a state were to
include a new provision in an infrastructure SIP
submission that contained a legal deficiency, such
as a new exemption for excess emissions during
SSM events, then EPA would need to evaluate that
provision for compliance against the rubric of
applicable CAA requirements in the context of the
action on the infrastructure SIP.
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address the visibility prong of section
110(a)(2)(D)(i)(II).
Finally, EPA believes that its
approach with respect to infrastructure
SIP requirements is based on a
reasonable reading of sections 110(a)(1)
and 110(a)(2) because the CAA provides
other avenues and mechanisms to
address specific substantive deficiencies
in existing SIPs. These other statutory
tools allow EPA to take appropriately
tailored action, depending upon the
nature and severity of the alleged SIP
deficiency. Section 110(k)(5) authorizes
EPA to issue a ‘‘SIP call’’ whenever the
Agency determines that a state’s SIP is
substantially inadequate to attain or
maintain the NAAQS, to mitigate
interstate transport, or to otherwise
comply with the CAA.14 Section
110(k)(6) authorizes EPA to correct
errors in past actions, such as past
approvals of SIP submissions.15
Significantly, EPA’s determination that
an action on a state’s infrastructure SIP
submission is not the appropriate time
and place to address all potential
existing SIP deficiencies does not
preclude EPA’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action to correct those
deficiencies at a later time. For example,
although it may not be appropriate to
require a state to eliminate all existing
inappropriate director’s discretion
provisions in the course of acting on an
infrastructure SIP submission, EPA
believes that section 110(a)(2)(A) may be
among the statutory bases that EPA
relies upon in the course of addressing
such deficiency in a subsequent
action.16
14 For example, EPA issued a SIP call to Utah to
address specific existing SIP deficiencies related to
the treatment of excess emissions during SSM
events. See ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revisions,’’ 74 FR 21639
(April 18, 2011).
15 EPA has used this authority to correct errors in
past actions on SIP submissions related to PSD
programs. See ‘‘Limitation of Approval of
Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in
State Implementation Plans; Final Rule,’’ 75 FR
82536 (December 30, 2010). EPA has previously
used its authority under CAA section 110(k)(6) to
remove numerous other SIP provisions that the
Agency determined it had approved in error. See,
e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641
(June 27, 1997) (corrections to American Samoa,
Arizona, California, Hawaii, and Nevada SIPs); 69
FR 67062 (November 16, 2004) (corrections to
California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
16 See, e.g., EPA’s disapproval of a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344
(July 21, 2010) (proposed disapproval of director’s
discretion provisions); 76 FR 4540 (Jan. 26, 2011)
(final disapproval of such provisions).
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IV. What is EPA’s analysis of how
Tennessee addressed the elements of
the sections 110(a)(1) and (2)
‘‘infrastructure’’ provisions?
The Tennessee infrastructure
submission addresses the provisions of
sections 110(a)(1) and (2) as described
below.
1. 110(a)(2)(A) Emission Limits and
Other Control Measures: Section
110(a)(2)(A) requires that each
implementation plan include
enforceable emission limitations and
other control measures, means, or
techniques (including economic
incentives such as fees, marketable
permits, and auctions of emissions
rights), as well as schedules and
timetables for compliance, as may be
necessary or appropriate to meet the
applicable requirements. Several
regulations within Tennessee’s SIP are
relevant to air quality control
regulations. The regulations described
below include enforceable emission
limitations and other control measures.
SIP-approved Tennessee Air Pollution
Control Regulations (TAPCR) 1200–03–
03, Ambient Air Quality Standards,
1200–03–04, Open Burning, 1200–03–
06, Non-process Emission Standards,
1200–03–07, Process Emission
Standards, 1200–03–09, Construction
and Operating Permits, 1200–03–14,
Control of Sulfur Dioxide Emission,
1200–03–19, Emission Standards and
Monitoring Requirements for Additional
Control Areas, 1200–03–21, General
Alternate Emission Standards, 1200–
03–24, Good Engineering Practice Stack
Height Regulations, and 1200–03–27,
NOX emissions from designated source
categories collectively establish
enforceable emissions limitations and
other control measures, means or
techniques, for activities that contribute
to PM2.5 concentrations in the ambient
air, and provide authority for TDEC to
establish such limits and measures as
well as schedules for compliance to
meet the applicable requirements of the
CAA. Additionally, State statutes
established in the Tennessee Air Quality
Act and adopted in the Tennessee Code
Annotated (TCA) section 68–201–
105(a), Powers and duties of board—
Notification of vacancy—Termination
due to vacancy, provide the Tennessee
Air Pollution Control Board and TDEC’s
Division of Air Pollution Control the
authority to take actions in support of
this infrastructure element such as issue
permits, promulgate regulations, and
issue orders to implement the
Tennessee Air Quality Act and the CAA,
as relevant. EPA has made the
preliminary determination that the
provisions contained in these State
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regulations and State statute satisfy
Section 110(a)(2)(A) for the 2012
Annual PM2.5 NAAQS in the State.
In this action, EPA is not proposing to
approve or disapprove any existing state
provisions with regard to excess
emissions during start up, shut down,
and malfunction (SSM) operations at a
facility. EPA believes that a number of
states have SSM provisions which are
contrary to the CAA and existing EPA
guidance, ‘‘State Implementation Plans:
Policy Regarding Excess Emissions
During Malfunctions, Startup, and
Shutdown’’ (September 20, 1999), and
the Agency is addressing such state
regulations in a separate action.17
Additionally, in this action, EPA is
not proposing to approve or disapprove
any existing state rules with regard to
director’s discretion or variance
provisions. EPA believes that a number
of states have such provisions which are
contrary to the CAA and existing EPA
guidance (52 FR 45109 (November 24,
1987)), and the Agency plans to take
action in the future to address such state
regulations. In the meantime, EPA
encourages any state having a director’s
discretion or variance provision which
is contrary to the CAA and EPA
guidance to take steps to correct the
deficiency as soon as possible.
2. 110(a)(2)(B) Ambient Air Quality
Monitoring/Data System: Section
110(a)(2)(B) requires SIPs to provide for
establishment and operation of
appropriate devices, methods, systems,
and procedures necessary to (i) monitor,
compile, and analyze data on ambient
air quality, and (ii) upon request, make
such data available to the
Administrator. TCA 68–201–105(b)(4)
gives TDEC the authority to provide
technical, scientific and other services
as may be required to implement the
provisions of the Tennessee Air Quality
Act. Annually, states develop and
submit to EPA for approval statewide
ambient monitoring network plans
consistent with the requirements of 40
CFR parts 50, 53, and 58. The annual
network plan involves an evaluation of
any proposed changes to the monitoring
network, includes the annual ambient
monitoring network design plan, and
includes a certified evaluation of the
agency’s ambient monitors and auxiliary
support equipment.18 On June 30, 2015,
17 On June 12, 2015, EPA published a final action
entitled, ‘‘State Implementation Plans: Response to
Petition for Rulemaking; Restatement and Update of
EPA’s SSM Policy Applicable to SIPs; Findings of
Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During
Periods of Startup, Shutdown, and Malfunction.’’
See 80 FR 33840.
18 The annual network plans are approved by EPA
in accordance with 40 CFR part 58, and, on
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Tennessee submitted its most recent
plan to EPA, which was approved by
EPA on October 26, 2015. Tennessee’s
monitoring network plan can be
accessed at www.regulations.gov using
Docket ID No. EPA–R04–OAR–2014–
0430. EPA has made the preliminary
determination that Tennessee’s SIP and
practices are adequate for the ambient
air quality monitoring and data system
related to the 2012 Annual PM2.5
NAAQS.
3. 110(a)(2)(C) Programs for
Enforcement of Control Measures and
for Construction or Modification of
Stationary Sources: This element
consists of three sub-elements:
Enforcement, state-wide regulation of
new and modified minor sources and
minor modifications of major sources,
and preconstruction permitting of major
sources and major modifications in
areas designated attainment or
unclassifiable for the subject NAAQS as
required by CAA title I part C (i.e., the
major source PSD program). TDEC’s
2012 Annual PM2.5 NAAQS
infrastructure SIP submission cites a
number of SIP provisions to address
these requirements. EPA’s rationale for
its proposed action regarding each subelement is described below.
Enforcement: The following SIPapproved regulation provides TDEC
with authority for enforcement of PM2.5
emission limits and control measures.
TAPCR 1200–03–13–.01, Violation
Statement, states that, ‘‘Failure to
comply with any of the provisions of
these regulations shall constitute a
violation thereof and shall subject the
person or persons responsible therefore
to any and all the penalties provided by
law.’’ Also note, under TCA 68–201–
116, Orders and assessments of
damages and civil penalty—Appeal, the
State’s Technical Secretary is authorized
to issue orders requiring correction of
violations of any part of the Tennessee
Air Quality Act, or of any regulation
promulgated under this State statute.
Violators are subject to civil penalties of
up to 25,000 dollars per day for each
day of violation and for any damages to
the State resulting from the violations.
Preconstruction PSD Permitting for
Major Sources: EPA interprets the PSD
sub-element to require that a state’s
infrastructure SIP submission for a
particular NAAQS demonstrate that the
state has a complete PSD permitting
program in place covering the structural
PSD requirements for all regulated NSR
pollutants. A state’s PSD permitting
occasion, proposed changes to the monitoring
network are evaluated outside of the network plan
approval process in accordance with 40 CFR part
58.
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program is complete for this subelement (and prong 3 of D(i) and J
related to PSD) if EPA has already
approved or is simultaneously
approving the state’s implementation
plan with respect to all structural PSD
requirements that are due under the
EPA regulations or the CAA on or before
the date of the EPA’s proposed action on
the infrastructure SIP submission. For
the, 2012 Annual PM2.5 NAAQS,
Tennessee’s authority to regulate
construction of new and modified
stationary sources to assist in the
protection of air quality in attainment or
unclassifiable areas is established in
TAPCR 1200–03–09–.01(4), Prevention
of Significant Deterioration of Air
Quality. Tennessee’s infrastructure SIP
submission demonstrates that new
major sources and major modifications
in areas of the State designated
attainment or unclassifiable for the
specified NAAQS are subject to a
federally-approved PSD permitting
program meeting all the current
structural requirements of part C of title
I of the CAA to satisfy the infrastructure
SIP PSD elements.19
Regulation of minor sources and
modifications: Section 110(a)(2)(C) also
requires the SIP to include provisions
that govern the minor source program
that regulates emissions of the 2012
Annual PM2.5 NAAQS. TAPCR 1200–
03–09–.01, Construction Permits, and
TAPCR 1200–03–09–.03, General
Provisions, collectively govern the
preconstruction permitting of
modifications and construction of minor
stationary sources, and minor
modifications of major stationary
sources.
EPA has made the preliminary
determination that Tennessee’s SIP is
adequate for program enforcement of
control measures, regulation of minor
sources and modifications, and
preconstruction permitting of major
sources and major modifications related
to the 2012 Annual PM2.5 NAAQS.
4. 110(a)(2)(D)(i)(I) and (II) Interstate
Pollution Transport: Section
110(a)(2)(D)(i) has two components:
110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II).
Each of these components has two
subparts resulting in four distinct
components, commonly referred to as
‘‘prongs,’’ that must be addressed in
infrastructure SIP submissions. The first
two prongs, which are codified in
section 110(a)(2)(D)(i)(I), are provisions
that prohibit any source or other type of
19 More information concerning how the
Tennessee infrastructure SIP submission currently
meets applicable requirements for the PSD elements
(110(a)(2)(C); (D)(i)(I), prong 3; and (J)) can be found
in the technical support document in the docket for
today’s rulemaking.
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emissions activity in one state from
contributing significantly to
nonattainment of the NAAQS in another
state (‘‘prong 1’’), and interfering with
maintenance of the NAAQS in another
state (‘‘prong 2’’). The third and fourth
prongs, which are codified in section
110(a)(2)(D)(i)(II), are provisions that
prohibit emissions activity in one state
from interfering with measures required
to prevent significant deterioration of air
quality in another state (‘‘prong 3’’), or
to protect visibility in another state
(‘‘prong 4’’).
110(a)(2)(D)(i)(I)—prongs 1 and 2:
EPA is not proposing any action in this
rulemaking related to the interstate
transport provisions pertaining to the
contribution to nonattainment or
interference with maintenance in other
states of section 110(a)(2)(D)(i)(I)
(prongs 1 and 2). EPA will consider
these requirements in relation to
Tennessee’s 2012 Annual PM2.5 NAAQS
infrastructure submission in a separate
rulemaking.
110(a)(2)(D)(i)(II)—prong 3: With
regard to section 110(a)(2)(D)(i)(II), the
PSD element, referred to as prong 3,
may be met by a state’s confirmation in
an infrastructure SIP submission that
new major sources and major
modifications in the state are subject to
a PSD program meeting all the current
structural requirements of part C of title
I of the CAA, or (if the state contains a
nonattainment area that has the
potential to impact PSD in another
state), a NNSR program. As discussed in
more detail above under section
110(a)(2)(C), Tennessee’s SIP contains
provisions for the State’s PSD program
that reflects the required structural PSD
requirements to satisfy prong 3 of
section 110(a)(2)(D)(i)(II). Tennessee
addresses prong 3 through TAPCR
1200–03–09–.01(4), Prevention of
Significant Deterioration of Air Quality,
and TAPCR 1200–03–09–.01(5), Growth
Policy, for the PSD and NNSR programs,
respectively. EPA has made the
preliminary determination that
Tennessee’s SIP is adequate for PSD
permitting of major sources and major
modifications for interstate transport
related to the 2012 Annual PM2.5
NAAQS for section 110(a)(2)(D)(i)(II)
(prong 3).
110(a)(2)(D)(i)(II)—prong 4: EPA is
not proposing any action in this
rulemaking related to the interstate
transport provisions pertaining to
visibility in other states of section
110(a)(2)(D)(i)(II) (prong 4) and will
consider these requirements in relation
to Tennessee’s 2012 Annual PM2.5
NAAQS infrastructure submission in a
separate rulemaking.
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5. 110(a)(2)(D)(ii): Interstate Pollution
Abatement and International Air
Pollution: Section 110(a)(2)(D)(ii)
requires SIPs to include provisions
ensuring compliance with sections 115
and 126 of the Act, relating to interstate
and international pollution abatement.
Regulation 1200–03–09 03, General
Provisions, requires the permitting
authority to notify air agencies whose
areas may be affected by emissions from
a source. Additionally, Tennessee does
not have any pending obligation under
sections 115 and 126 of the CAA
relating to international or interstate
pollution abatement. EPA has made the
preliminary determination that
Tennessee’s SIP and practices are
adequate for ensuring compliance with
the applicable requirements relating to
interstate and international pollution
abatement for the 2012 Annual PM2.5
NAAQS.
6. 110(a)(2)(E) Adequate Resources
and Authority, Conflict of Interest, and
Oversight of Local Governments and
Regional Agencies: Section 110(a)(2)(E)
requires that each implementation plan
provide: (i) Necessary assurances that
the state will have adequate personnel,
funding, and authority under state law
to carry out its implementation plan, (ii)
that the state comply with the
requirements respecting state boards
pursuant to section 128 of the Act, and
(iii) necessary assurances that, where
the state has relied on a local or regional
government, agency, or instrumentality
for the implementation of any plan
provision, the state has responsibility
for ensuring adequate implementation
of such plan provisions. EPA is
proposing to approve Tennessee’s
infrastructure SIP submission as
meeting the requirements of subelements 110(a)(2)(E)(i), (ii), and (iii).
EPA’s rationale for today’s proposal
respecting each section of 110(a)(2)(E) is
described in turn below.
In support of EPA’s proposal to
approve sub-elements 110(a)(2)(E)(i) and
(iii), TCA 68–201–105, Powers and
duties of board—Notification of
vacancy—Termination due to vacancy,
gives the Tennessee Air Pollution
Control Board the power and duty to
promulgate rules and regulations to
implement the Tennessee Air Quality
Act. The Board may define ambient air
quality standards, set emission
standards, set forth general policies or
plans, establish a system of permits, and
identify a schedule of fees for review of
plans and specifications, issuance or
renewal of permits or inspection of air
contaminant sources.
TAPCR 1200–03–26, Administrative
Fees Schedule, establishes construction
fees, annual emission fees, and permit
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2301
review fees sufficient to supplement
existing State and Federal funding and
to cover reasonable costs associated
with the administration of Tennessee’s
air pollution control program. These
costs include costs associated with the
review of permit applications and
reports, issuance of permits, source
inspections and emission unit
observations, review and evaluation of
stack and/or ambient monitoring results,
modeling, and costs associated with
enforcement actions.
TCA 68–201–115, Local pollution
control programs—Exemption from
state supervision—Applicability of part
to air contaminant sources burning
wood waste—Open burning of wood
waste, states that ‘‘Any municipality or
county in this state may enact, by
ordinance or resolution respectively, air
pollution control regulations not less
stringent than the standards adopted for
the state pursuant to this part, or any
such municipality or county may also
adopt or repeal an ordinance or
resolution which incorporates by
reference any or all of the regulations of
the board, or any federal regulations
including any changes in such
regulations, when such regulations are
properly identified as to date and
source.’’ Before such ordinances or
resolutions become effective, the
municipality or county must receive a
certificate of exemption from the Board
to enact local regulations in the State. In
granting any certificate of exemption,
the State of Tennessee reserves the right
to enforce any applicable resolution,
ordinance, or regulation of the local
program.
TCA 68–201–115 also directs TDEC to
‘‘frequently determine whether or not
any exempted municipality or county
meets the terms of the exemption
granted and continues to comply with
this section.’’ If TDEC determines that
the local program does not meet the
terms of the exemption or does not
otherwise comply with the law, the
Board may suspend the exemption in
whole or in part until the local program
complies with the State standards.
As evidence of the adequacy of
TDEC’s resources with respect to subelements (i) and (iii), EPA submitted a
letter to Tennessee on June 30, 2015,
outlining section 105 grant
commitments and the current status of
these commitments for fiscal year 2015.
The letter EPA submitted to Tennessee
can be accessed at www.regulations.gov
using Docket ID No. EPA–R04–OAR–
2014–0430. Annually, states update
these grant commitments based on
current SIP requirements, air quality
planning, and applicable requirements
related to the NAAQS. Tennessee
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satisfactorily met all commitments
agreed to in the Air Planning Agreement
for fiscal year 2015, therefore
Tennessee’s grants were finalized and
closed out. EPA has made the
preliminary determination that
Tennessee has adequate resources and
authority for implementation of the
2012 Annual PM2.5 NAAQS.
Section 110(a)(2)(E)(ii) requires that
the state comply with section 128 of the
CAA. Section 128 requires that the SIP
provide: (a)(1) the majority of members
of the state board or body which
approves permits or enforcement orders
represent the public interest and do not
derive any significant portion of their
income from persons subject to
permitting or enforcement orders under
the CAA; and (a)(2) any potential
conflicts of interest by such board or
body, or the head of an executive agency
with similar powers be adequately
disclosed. Section 110(a)(2)(E)(ii)
obligations for the 2012 Annual PM2.5
NAAQS and the requirements of CAA
section 128 are met in Regulation 0400–
30–17, Conflict of Interest. Under this
regulation, the Tennessee board with
authority over air permits and
enforcement orders is required to
determine annually and after receiving
a new member that at least a majority
of its members represent to public
interest and do not derive any
significant portion of income from
persons subject to such permits and
enforcement orders. Further, the board
cannot act to hear contested cases until
it has determined it can do so consistent
with CAA section 128. The regulation
also requires TDEC’s Technical
Secretary and board members to declare
any conflict-of-interest in writing prior
to the issuance of any permit, variance
or enforcement order that requires
action on their part.
EPA has made the preliminary
determination that the State has
adequately addressed the requirements
of section 128, and accordingly has met
the requirements of section
110(a)(2)(E)(ii) with respect to
infrastructure SIP requirements.
Therefore, EPA is proposing to approve
Tennessee’s infrastructure SIP
submission as meeting the requirements
of sub-elements 110(a)(2)(E)(i), (ii) and
(iii).
7. 110(a)(2)(F) Stationary Source
Monitoring and Reporting: Section
110(a)(2)(F) requires SIPs to meet
applicable requirements addressing: (i)
The installation, maintenance, and
replacement of equipment, and the
implementation of other necessary
steps, by owners or operators of
stationary sources to monitor emissions
from such sources, (ii) periodic reports
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on the nature and amounts of emissions
and emissions related data from such
sources, and (iii) correlation of such
reports by the state agency with any
emission limitations or standards
established pursuant to this section,
which reports shall be available at
reasonable times for public inspection.
TDEC’s infrastructure SIP submission
identifies requirements for compliance
testing by emissions sampling and
analysis, and for emissions and
operation monitoring to ensure the
quality of data in the State, and also the
collection of source emission data
throughout the State and the assurance
of the quality of such data. These data
are used to compare against current
emission limits and to meet
requirements of EPA’s Air Emissions
Reporting Rule (AERR). Specifically,
TAPCR 1200–03–10, Required
Sampling, Recording, and Reporting,
gives the State’s Technical Secretary the
authority to monitor emissions at
stationary sources, and to require these
sources to conduct emissions
monitoring and to submit periodic
emissions reports. This rule requires
owners or operators of stationary
sources to compute emissions, submit
periodic reports of such emissions and
maintain records as specified by various
regulations and permits, and to evaluate
reports and records for consistency with
the applicable emission limitation or
standard on a continuing basis over
time. The monitoring data collected and
records of operations serve as the basis
for a source to certify compliance, and
can be used by Tennessee as direct
evidence of an enforceable violation of
the underlying emission limitation or
standard.
Additionally, Tennessee is required to
submit emissions data to EPA for
purposes of the National Emissions
Inventory (NEI). The NEI is EPA’s
central repository for air emissions data.
EPA published the AERR on December
5, 2008, which modified the
requirements for collecting and
reporting air emissions data (73 FR
76539). The AERR shortened the time
states had to report emissions data from
17 to 12 months, giving states one
calendar year to submit emissions data.
All states are required to submit a
comprehensive emissions inventory
every three years and report emissions
for certain larger sources annually
through EPA’s online Emissions
Inventory System. States report
emissions data for the six criteria
pollutants and the precursors that form
them—nitrogen oxides, sulfur dioxides,
ammonia, lead, carbon monoxide,
particulate matter, and volatile organic
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compounds. Many states also
voluntarily report emissions of
hazardous air pollutants. Tennessee
made its latest update to the 2011 NEI
on April 9, 2014. EPA compiles the
emissions data, supplementing it where
necessary, and releases it to the general
public through the Web site https://
www.epa.gov/ttn/chief/
eiinformation.html. EPA has made the
preliminary determination that
Tennessee’s SIP and practices are
adequate for the stationary source
monitoring systems related to the 2012
Annual PM2.5 NAAQS.
Regarding credible evidence, TAPCR
1200–3–10–04, Sampling, Recording,
and Reporting Required for Major
Stationary Sources, states that: ‘‘the
Technical Secretary is authorized to
require by permit condition any
periodic or enhanced monitoring,
recording and reporting that he deems
necessary for the verification of the
source’s compliance with the applicable
requirements as defined in paragraph
1200–03–09–02(11).’’ EPA is unaware of
any provision preventing the use of
credible evidence in the Tennessee SIP.
EPA has made the preliminary
determination that Tennessee’s SIP and
practices are adequate for the stationary
source monitoring systems related to the
Annual PM2.5 NAAQS. Accordingly,
EPA is proposing to approve
Tennessee’s infrastructure SIP
submission with respect to section
110(a)(2)(F).
8. 110(a)(2)(G): Emergency Powers:
Section 110(a)(2)(G) of the Act requires
that states demonstrate authority
comparable with section 303 of the CAA
and adequate contingency plans to
implement such authority. Tennessee’s
emergency powers are outlined in
TAPCR 1200–03–15, Emergency
Episode Plan, which establishes the
criteria for declaring an air pollution
episode (air pollution alert, air pollution
warning, or air pollution emergency),
specific emissions reductions for each
episode level, and emergency episode
plan requirements for major sources
located in or significantly impacting a
nonattainment area. Additional
emergency powers are codified in TCA
68–201–109, Emergency Stop Orders for
Air Contaminant Sources. Under TCA
68–201–109, if the Commissioner of
TDEC finds that emissions from the
operation of one or more sources are
causing imminent danger to human
health and safety, the Commissioner
may, with the approval of the Governor,
order the source(s) responsible to reduce
or discontinue immediately its (their)
air emissions. Additionally, this State
law requires a hearing to be held before
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the Commissioner within 24 hours of
any such order.
Regarding the public welfare and
environment, TCA 68–201–106, Matters
to be considered in exercising powers,
states that ‘‘In exercising powers to
prevent, abate and control air pollution,
the board or department shall give due
consideration to all pertinent facts,
including, but not necessarily limited
to: (1) The character and degree of
injury to, or interference with, the
protection of the health, general
welfare and physical property of the
people. . .’’ Also, TCA 68–201–116,
Orders and assessments of damages and
civil penalty Appeal, provides in
subsection (a) that if the Tennessee
technical secretary discovers that any
State air quality regulation has been
violated, the Tennessee technical
secretary may issue an order to correct
the violation, and this order shall be
complied with within the time limit
specified in the order. EPA has made
the preliminary determination that
Tennessee’s SIP and practices are
adequate for emergency powers related
to the 2012 Annual PM2.5 NAAQS.
Accordingly, EPA is proposing to
approve Tennessee’s infrastructure SIP
submission with respect to section
110(a)(2)(G).
9. 110(a)(2)(H) SIP Revisions: Section
110(a)(2)(H), in summary, requires each
SIP to provide for revisions of such plan
(i) as may be necessary to take account
of revisions of such national primary or
secondary ambient air quality standard
or the availability of improved or more
expeditious methods of attaining such
standard, and (ii) whenever the
Administrator finds that the plan is
substantially inadequate to attain the
NAAQS or to otherwise comply with
any additional applicable requirements.
As previously discussed, TDEC is
responsible for adopting air quality
rules and revising SIPs as needed to
attain or maintain the NAAQS in
Tennessee.
Section 68–201–105(a) of the
Tennessee Air Quality Act authorizes
the Tennessee Air Pollution Control
Board to promulgate rules and
regulations to implement this State
statute, including setting and
implementing ambient air quality
standards, emission standards, general
policies or plans, a permits system, and
a schedule of fees for review of plans
and specifications, issuance or renewal
of permits, and inspection of sources.
EPA has made the preliminary
determination that Tennessee’s SIP and
practices adequately demonstrate a
commitment to provide future SIP
revisions related to the 2012 Annual
PM2.5 NAAQS when necessary.
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Accordingly, EPA is proposing to
approve Tennessee’s infrastructure SIP
submission with respect to section
110(a)(2)(H).
10. 110(a)(2)(J) Consultation with
Government Officials, Public
Notification, and PSD and Visibility
Protection: EPA is proposing to approve
Tennessee’s infrastructure SIP
submission for the 2012 Annual PM2.5
NAAQS with respect to the general
requirement in section 110(a)(2)(J) to
include a program in the SIP that
complies with the applicable
consultation requirements of section
121, the public notification
requirements of section 127, PSD and
visibility protection. EPA’s rationale for
each sub-element is described below.
Consultation with government
officials (121 consultation): Section
110(a)(2)(J) of the CAA requires states to
provide a process for consultation with
local governments, designated
organizations and Federal Land
Managers (FLMs) carrying out NAAQS
implementation requirements pursuant
to section 121 relative to consultation.
The following State rule, as well as the
State’s Regional Haze Implementation
Plan (which allows for consultation
between appropriate state, local, and
tribal air pollution control agencies as
well as the corresponding FLMs),
provide for consultation with
government officials whose jurisdictions
might be affected by SIP development
activities: TAPCR 1200–03–34,
Conformity, provides for interagency
consultation on transportation and
general conformity issues. Tennessee
adopted state-wide consultation
procedures for the implementation of
transportation conformity which
includes the development of mobile
inventories for SIP development. These
consultation procedures were developed
in coordination with the transportation
partners in the State and are consistent
with the approaches used for
development of mobile inventories for
SIPs. Required partners covered by
Tennessee’s consultation procedures
include Federal, state and local
transportation and air quality agency
officials. EPA has made the preliminary
determination that Tennessee’s SIP and
practices adequately demonstrate
consultation with government officials
related to the 2012 Annual PM2.5
NAAQS when necessary. Accordingly,
EPA is proposing to approve
Tennessee’s infrastructure SIP
submission with respect to section
110(a)(2)(J) consultation with
government officials.
Public notification: These
requirements are met through the State’s
existing Air Quality Index and Air
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2303
Quality Forecasting programs, which
provide a method to alert the public if
any NAAQS is exceeded in an area.
Additionally, the State’s annual
monitoring plan update is sent out each
year for public review and comment.
EPA has made the preliminary
determination that Tennessee’s SIP and
practices adequately demonstrate the
State’s ability to provide public
notification related to the 2012 Annual
PM2.5 NAAQS when necessary.
Accordingly, EPA is proposing to
approve Tennessee’s infrastructure SIP
submission with respect to section
110(a)(2)(J) public notification.
PSD: With regard to the PSD element
of section 110(a)(2)(J), this requirement
is met by a state’s confirmation in an
infrastructure SIP submission that it has
a PSD program meeting all the current
structural requirements of part C of title
I of the CAA. As discussed in more
detail above under section 110(a)(2)(C),
Tennessee’s SIP contains a PSD program
that includes the required structural
PSD requirements to satisfy the
requirement of the PSD element of
section 110(a)(2)(J). EPA has made the
preliminary determination that
Tennessee’s SIP and practices are
adequate for PSD permitting of major
sources and major modifications related
to the 2012 Annual PM2.5 NAAQS for
the PSD element of section 110(a)(2)(J).
Accordingly, EPA is proposing to
approve Tennessee’s infrastructure SIP
submission with respect to the PSD
element of section 110(a)(2)(J).
Visibility protection: EPA’s 2013
Guidance notes that it does not treat the
visibility protection aspects of section
110(a)(2)(J) as applicable for purposes of
the infrastructure SIP approval process.
EPA recognizes that states are subject to
visibility protection and regional haze
program requirements under part C of
the Act (which includes sections 169A
and 169B). However, there are no newly
applicable visibility protection
obligations after the promulgation of a
new or revised NAAQS. Thus, EPA has
determined that states do not need to
address the visibility component of
110(a)(2)(J) in infrastructure SIP
submittals. As such, EPA has made the
preliminary determination that it does
not need to address the visibility
protection element of section
110(a)(2)(J) in Tennessee’s infrastructure
SIP submission related to the 2012
Annual PM2.5 NAAQS.
11. 110(a)(2)(K) Air Quality Modeling
and Submission of Modeling Data:
Section 110(a)(2)(K) of the CAA requires
that SIPs provide for performing air
quality modeling so that effects on air
quality of emissions from NAAQS
pollutants can be predicted and
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submission of such data to the EPA can
be made. TAPCR 1200–03–09–.01(4),
Prevention of Significant Air Quality
Deterioration, specifies when modeling
and when monitoring (pre- or postconstruction) must be performed and
that the resulting data be made available
for review to EPA. Tennessee also states
that it has personnel with training and
experience to conduct dispersion
modeling consistent with models
approved by EPA protocols. Also note
that TCA 68–201–105(b)(7) grants TDEC
the power and duty to collect and
disseminate information relative to air
pollution. Additionally, Tennessee
participates in a regional effort to
coordinate the development of
emissions inventories and conduct
regional modeling for several NAAQS,
including the 2012 Annual PM2.5
NAAQS, for the Southeastern states.
Taken as a whole, Tennessee’s air
quality regulations and practices
demonstrate that TDEC has the
authority to provide relevant data for
the purpose of predicting the effect on
ambient air quality of the Annual PM2.5
NAAQS. EPA has made the preliminary
determination that Tennessee’s SIP and
practices adequately demonstrate the
State’s ability to provide for air quality
modeling, along with analysis of the
associated data, related to the 2012
Annual PM2.5 NAAQS. Accordingly,
EPA is proposing to approve
Tennessee’s infrastructure SIP
submission with respect to section
110(a)(2)(K).
12. 110(a)(2)(L) Permitting fees:
Section 110(a)(2)(L) requires the owner
or operator of each major stationary
source to pay to the permitting
authority, as a condition of any permit
required under the CAA, a fee sufficient
to cover: (i) The reasonable costs of
reviewing and acting upon any
application for such a permit, and (ii) if
the owner or operator receives a permit
for such source, the reasonable costs of
implementing and enforcing the terms
and conditions of any such permit (not
including any court costs or other costs
associated with any enforcement
action), until such fee requirement is
superseded with respect to such sources
by the Administrator’s approval of a fee
program under title V.
In Tennessee, funding for review of
PSD and NNSR permits comes from
permit-specific fees that are charged to
new applicants and from annual
emission fees charged to existing title V
emission sources that are applying for
major modifications under PSD or
NNSR. The cost of reviewing,
approving, implementing, and enforcing
PSD and major NNSR permits are
covered under the following State
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regulations: (1) TAPCR 1200–03–26–
.02(5) requires each new major
stationary source to pay a construction
permit application filing/processing fee
and (2) TAPCR 1200–03–26–.02(9),
Annual Emission Fees for Major
Sources,20 mandates that existing major
stationary sources pay annual title V
emission fees, which are used to cover
the permitting costs for any new
construction or modifications at these
facilities as well as implementation and
enforcement of PSD and NNSR permits
after they have been issued. EPA has
made the preliminary determination
that Tennessee adequately provides for
permitting fees related to the 2012
Annual PM2.5 NAAQS when necessary.
Accordingly, EPA is proposing to
approve Tennessee’s infrastructure SIP
submission with respect to section
110(a)(2)(L).
13. 110(a)(2)(M) Consultation/
participation by affected local entities:
Section 110(a)(2)(M) of the Act requires
states to provide for consultation and
participation in SIP development by
local political subdivisions affected by
the SIP. TCA 68–201–105, Powers and
duties of board Notification of vacancy
Termination due to vacancy, authorizes
and requires the Tennessee Air
Pollution Control Board to promulgate
rules and regulations related to
consultation under the provisions of the
State’s Uniform Administrative
Procedures Act. TCA 4–5–202, When
hearings required, requires agencies to
precede all rulemaking with a notice
and public hearing, except for
exemptions. TCA 4–5–203, Notice of
hearing, states that whenever an agency
is required by law to hold a public
hearing as part of its rulemaking
process, the agency shall: ‘‘(1) Transmit
written notice of the hearings to the
secretary of state for publication in the
notice section of the administrative
register Web site . . . and (2) Take such
other steps as it deems necessary to
convey effective notice to persons who
are likely to have an interest in the
proposed rulemaking.’’ TCA 68–201–
105(b)(7) authorizes and requires TDEC
to ‘‘encourage voluntary cooperation of
affected persons or groups in preserving
and restoring a reasonable degree of air
purity; advise, consult and cooperate
with other agencies, persons or groups
in matters pertaining to air pollution;
and encourage authorized air pollution
agencies of political subdivisions to
handle air pollution problems within
their respective jurisdictions to the
greatest extent possible and to provide
20 Title V program regulations are federallyapproved but not incorporated into the federallyapproved SIP.
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technical assistance to political
subdivisions. . .’’. TAPCR 1200–03–34,
Conformity, requires interagency
consultation on transportation and
general conformity issues. Additionally,
TDEC has, in practice, consulted with
local entities for the development of its
transportation conformity SIP and has
worked with the FLMs as a requirement
of EPA’s regional haze rule. EPA has
made the preliminary determination
that Tennessee’s SIP and practices
adequately demonstrate consultation
with affected local entities related to the
2012 Annual PM2.5 NAAQS.
Accordingly, EPA is proposing to
approve Tennessee’s infrastructure SIP
submission with respect to section
110(a)(2)(M).
V. Proposed Action
With the exception of interstate
transport provisions pertaining to the
contribution to nonattainment or
interference with maintenance in other
states and visibility protection
requirements of section 110(a)(2)(D)(i)(I)
and (II) (prongs 1, 2, and 4), EPA is
proposing to approve Tennessee’s
infrastructure submission submitted on
December 16, 2015, for the 2012 Annual
PM2.5 NAAQS for the above described
infrastructure SIP requirements. EPA is
proposing to approve Tennessee’s
infrastructure SIP submission for the
2012 Annual PM2.5 NAAQS because the
submission is consistent with section
110 of the CAA.
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable federal regulations.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
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 proposed action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• is certified as not having a
significant economic impact on a
substantial number of small entities
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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, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), nor will it impose
substantial direct costs on tribal
governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 20, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR- 2016–0702; FRL–9957–95Region 9]
Approval of Arizona Air Plan
Revisions, Arizona Department of
Environmental Quality and Pinal
County Air Quality Control District
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
revisions to the Arizona State
Implementation Plan (SIP). These
revisions include a state statute and
certain state rules that govern air
pollution sources under the Arizona
Department of Environmental Quality
(ADEQ) and the Pinal County Air
Quality Control District (PCAQCD).
These revisions concern emissions of
particulate matter (PM) from
construction sites, agricultural activity
and other fugitive dust sources. We are
proposing to approve local rules to
regulate these emission sources under
the Clean Air Act (CAA or the Act). We
are taking comments on this proposal
and plan to follow with a final action.
DATES: Any comments must arrive by
February 8, 2017.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R09–
OAR–2016–0702 at https://
www.regulations.gov, or via email to
Steckel.Andrew@epa.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. For either manner of
submission, the EPA may publish any
comment received to its public docket.
Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
SUMMARY:
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official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
additional submission methods, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
For the full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Christine Vineyard, EPA Region IX,
(415) 947–4125, vineyard.christine@
epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us’’
and ‘‘our’’ refer to the EPA.
Table of Contents
I. The State’s Submittal
A. What statute and rules did the State
submit?
B. Are there other versions of the statute
and rules?
C. What is the purpose of the submitted
rules and statute revisions?
II. The EPA’s Evaluation and Action
A. How is the EPA evaluating the rules and
statute?
B. Do the rules and statute meet the
evaluation criteria?
C. EPA Recommendations To Further
Improve the Rules
D. Public Comment and Proposed Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
I. The State’s Submittal
A. What statute and rules did the State
submit?
Table 1 lists the statute and rules
addressed by this proposal with the
dates that they were adopted by the
state or local air agency and submitted
by the ADEQ.
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[Federal Register Volume 82, Number 5 (Monday, January 9, 2017)]
[Proposed Rules]
[Pages 2295-2305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00162]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2014-0430; FRL-9957-91-Region 4]
Air Quality Plans; Tennessee; Infrastructure Requirements for the
2012 PM2.5 National Ambient Air Quality Standard
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve the State Implementation Plan (SIP) submission, submitted by
the State of Tennessee, through the Tennessee Department of Environment
and Conservation (TDEC), on December 16, 2015, for inclusion into the
Tennessee SIP. This proposal pertains to the infrastructure
requirements of the Clean Air Act (CAA or Act) for the 2012 Annual Fine
Particulate Matter (PM2.5) national ambient air quality
standard (NAAQS). The CAA requires that each state adopt and submit a
SIP for the implementation, maintenance and enforcement of each NAAQS
promulgated by EPA, which is commonly referred to as an
``infrastructure SIP submission.'' TDEC certified that the Tennessee
SIP contains provisions that ensure the 2012 Annual PM2.5
NAAQS is implemented, enforced, and maintained in Tennessee. EPA is
proposing to determine that portions of Tennessee's infrastructure SIP
submission, provided to EPA on December 16, 2015, satisfy certain
required infrastructure elements for the 2012 Annual PM2.5
NAAQS.
DATES: Written comments must be received on or before February 8, 2017.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0430 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment
[[Page 2296]]
contents located outside of the primary submission (i.e., on the web,
cloud, or other file sharing system). For additional submission
methods, the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Tiereny Bell, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta 30303-8960.
Ms. Bell can be reached via electronic mail at bell.tiereny@epa.gov or
via telephone at (404) 562-9088.
SUPPLEMENTARY INFORMATION:
I. Background and Overview
On December 14, 2012 (78 FR 3086, January 15, 2013), EPA
promulgated a revised primary annual PM2.5 NAAQS. The
standard was strengthened from 15.0 micrograms per cubic meter ([mu]g/
m\3\) to 12.0 [mu]g/m\3\. Pursuant to section 110(a)(1) of the CAA,
states are required to submit SIPs meeting the applicable requirements
of section 110(a)(2) within three years after promulgation of a new or
revised NAAQS or within such shorter period as EPA may prescribe.
Section 110(a)(2) requires states to address basic SIP elements such as
requirements for monitoring, basic program requirements and legal
authority that are designed to assure attainment and maintenance of the
NAAQS. States were required to submit such SIPs for the 2012 Annual
PM2.5 NAAQS to EPA no later than December 14, 2015.\1\
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\1\ In these infrastructure SIP submissions States generally
certify evidence of compliance with sections 110(a)(1) and (2) of
the CAA through a combination of state regulations and statutes,
some of which have been incorporated into the federally-approved
SIP. In addition, certain federally-approved, non-SIP regulations
may also be appropriate for demonstrating compliance with sections
110(a)(1) and (2). Throughout this rulemaking, the cited regulation
has either been approved, or submitted for approval into Tennessee's
federally-approved SIP.
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This rulemaking is proposing to approve portions of Tennessee's
December 16, 2015 PM2.5 infrastructure SIP submission for
the applicable requirements of the 2012 Annual PM2.5 NAAQS,
with the exception of the interstate transport requirements of section
110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), for which EPA is not
proposing any action in this rulemaking regarding these requirements.
For the aspects of Tennessee's submittal proposed for approval in this
rulemaking, EPA notes that the Agency is not approving any specific
rule, but rather proposing that Tennessee's already approved SIP meets
certain CAA requirements.
II. What elements are required under sections 110(a)(1) and (2)?
Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a 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 SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains.
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 SIP elements such as requirements for
monitoring, basic program requirements and legal authority that are
designed to assure attainment and maintenance of the NAAQS. The
requirements are summarized below and in EPA's September 13, 2013,
memorandum entitled ``Guidance on Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2).'' \2\
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\2\ 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 are due at the time the nonattainment
area plan requirements are due pursuant to section 172. 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. This proposed rulemaking
does not address infrastructure elements related to section
110(a)(2)(I) or the nonattainment planning requirements of
110(a)(2)(C).
110(a)(2)(A): Emission Limits and Other Control Measures
110(a)(2)(B): Ambient Air Quality Monitoring/Data System
110(a)(2)(C): Programs for Enforcement of Control Measures and
for Construction or Modification of Stationary Sources
110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
110(a)(2)(D)(ii): Interstate Pollution Abatement and
International Air Pollution
110(a)(2)(E): Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies
110(a)(2)(F): Stationary Source Monitoring and Reporting
110(a)(2)(G): Emergency Powers
110(a)(2)(H): SIP Revisions
110(a)(2)(I): Plan Revisions for Nonattainment Areas \3\
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\3\ As mentioned above, this element is not relevant to this
proposed rulemaking.
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110(a)(2)(J): Consultation with Government Officials, Public
Notification, and Prevention of Significant Deterioration (PSD) and
Visibility Protection
110(a)(2)(K): Air Quality Modeling and Submission of Modeling
Data
110(a)(2)(L): Permitting fees
110(a)(2)(M): Consultation and Participation by Affected Local
Entities
III. What is EPA's approach to the review of infrastructure SIP
submissions?
EPA is acting upon the SIP submission from Tennessee that addresses
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2)
for the 2012 Annual PM2.5 NAAQS. The requirement for states
to make a SIP submission of this type arises out of CAA section
110(a)(1). Pursuant to section 110(a)(1), states must make SIP
submissions ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof),'' and
these SIP submissions are to provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS. The statute directly
imposes on states the duty to make these SIP submissions, and the
requirement to make the submissions is not conditioned upon EPA's
taking any action other than promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of specific elements that ``[e]ach
such plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions.
[[Page 2297]]
Although the term ``infrastructure SIP'' does not appear in the CAA,
EPA uses the term to distinguish this particular type of SIP submission
from submissions that are intended to satisfy other SIP requirements
under the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP''
submissions to address the nonattainment planning requirements of part
D of title I of the CAA, ``regional haze SIP'' submissions required by
EPA rule to address the visibility protection requirements of CAA
section 169A, and nonattainment new source review (NNSR) permit program
submissions to address the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\4\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
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\4\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of title I of the
Act, which specifically address nonattainment SIP requirements.\5\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years, or in some cases three years, for such designations to be
promulgated.\6\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
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\5\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\6\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
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Another example of ambiguity within sections 110(a)(1) and
110(a)(2) with respect to infrastructure SIPs pertains to whether
states must meet all of the infrastructure SIP requirements in a single
SIP submission, and whether EPA must act upon such SIP submission in a
single action. Although section 110(a)(1) directs states to submit ``a
plan'' to meet these requirements, EPA interprets the CAA to allow
states to make multiple SIP submissions separately addressing
infrastructure SIP elements for the same NAAQS. If states elect to make
such multiple SIP submissions to meet the infrastructure SIP
requirements, EPA can elect to act on such submissions either
individually or in a larger combined action.\7\ Similarly, EPA
interprets the CAA to allow it to take action on the individual parts
of one larger, comprehensive infrastructure SIP submission for a given
NAAQS without concurrent action on the entire submission. For example,
EPA has sometimes elected to act at different times on various elements
and sub-elements of the same infrastructure SIP submission.\8\
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\7\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
\8\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007, submittal.
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Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise
with respect to infrastructure SIP submission requirements for
different NAAQS. Thus, EPA notes that not every element of section
110(a)(2) would be relevant, or as relevant, or relevant in the same
way, for each new or revised NAAQS. The states' attendant
infrastructure SIP submissions for each NAAQS therefore could be
different. For example, the monitoring requirements that a state might
need to meet in its infrastructure SIP submission for purposes of
section 110(a)(2)(B) could be very different for different pollutants
because the content and scope of a state's infrastructure SIP
submission to meet this element might be very different for an entirely
new NAAQS than for a minor revision to an existing NAAQS.\9\
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\9\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires that attainment plan SIP
submissions required by part D have to meet the ``applicable
requirements'' of section 110(a)(2). Thus, for example, attainment plan
SIP submissions must meet the requirements of section 110(a)(2)(A)
regarding enforceable emission limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it is clear that attainment plan SIP submissions required by
part D would not need to meet the portion of section 110(a)(2)(C) that
pertains to the PSD
[[Page 2298]]
program required in part C of title I of the CAA, because PSD does not
apply to a pollutant for which an area is designated nonattainment and
thus subject to part D planning requirements. As this example
illustrates, each type of SIP submission may implicate some elements of
section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\10\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\11\ EPA developed this document to provide states
with up-to-date guidance for infrastructure SIPs for any new or revised
NAAQS. Within this guidance, EPA describes the duty of states to make
infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
SIP submissions.\12\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and
110(a)(2) such that infrastructure SIP submissions need to address
certain issues and need not address others. Accordingly, EPA reviews
each infrastructure SIP submission for compliance with the applicable
statutory provisions of section 110(a)(2), as appropriate.
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\10\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
\11\ ``Guidance on Infrastructure State Implementation Plan
(SIP) Elements under Clean Air Act sections 110(a)(1) and
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
\12\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations. On
March 17, 2016, EPA released a memorandum titled, ``Information on
the Interstate Transport `Good Neighbor' Provision for the 2012 Fine
Particulate Matter National Ambient Air Quality Standards under
Clean Air Act Section 110(a)(2)(D)(i)(I)'' to provide guidance to
states for interstate transport requirements specific to the
PM2.5 NAAQS.
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As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's
implementation plan appropriately addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's
interpretation that there may be a variety of ways by which states can
appropriately address these substantive statutory requirements,
depending on the structure of an individual state's permitting or
enforcement program (e.g., whether permits and enforcement orders are
approved by a multi-member board or by a head of an executive agency).
However they are addressed by the state, the substantive requirements
of section 128 are necessarily included in EPA's evaluation of
infrastructure SIP submissions because section 110(a)(2)(E)(ii)
explicitly requires that the state satisfy the provisions of section
128.
As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and new source review (NSR)
pollutants, including greenhouse gases (GHG). By contrast, structural
PSD program requirements do not include provisions that are not
required under EPA's regulations at 40 CFR 51.166 but are merely
available as an option for the state, such as the option to provide
grandfathering of complete permit applications with respect to the 2012
PM2.5 NAAQS. Accordingly, the latter optional provisions are
types of provisions EPA considers irrelevant in the context of an
infrastructure SIP action.
For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's SIP meets basic structural requirements. For example, section
110(a)(2)(C) includes, inter alia, the requirement that states have a
program to regulate minor new sources. Thus, EPA evaluates whether the
state has an EPA-approved minor NSR program and whether the program
addresses the pollutants relevant to that NAAQS. In the context of
acting on an infrastructure SIP submission, however, EPA does not think
it is necessary to conduct a review of each and every provision of a
state's existing minor source program (i.e., already in the existing
SIP) for compliance with the requirements of the CAA and EPA's
regulations that pertain to such programs.
With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction that may be contrary to the CAA and EPA's
policies addressing such excess emissions (``SSM''); (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for PSD programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR
Reform''). Thus, EPA believes it may
[[Page 2299]]
approve an infrastructure SIP submission without scrutinizing the
totality of the existing SIP for such potentially deficient provisions
and may approve the submission even if it is aware of such existing
provisions.\13\ It is important to note that EPA's approval of a
state's infrastructure SIP submission should not be construed as
explicit or implicit re-approval of any existing potentially deficient
provisions that relate to the three specific issues just described.
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\13\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then EPA would need to evaluate that provision
for compliance against the rubric of applicable CAA requirements in
the context of the action on the infrastructure SIP.
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EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in 110(a)(2) as requiring review of
each and every provision of a state's existing SIP against all
requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may include some outmoded
provisions and historical artifacts. These provisions, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP
submission. EPA believes that a better approach is for states and EPA
to focus attention on those elements of section 110(a)(2) of the CAA
most likely to warrant a specific SIP revision due to the promulgation
of a new or revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
Finally, EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow EPA to take appropriately
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or to otherwise comply with the CAA.\14\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\15\ Significantly, EPA's
determination that an action on a state's infrastructure SIP submission
is not the appropriate time and place to address all potential existing
SIP deficiencies does not preclude EPA's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action to
correct those deficiencies at a later time. For example, although it
may not be appropriate to require a state to eliminate all existing
inappropriate director's discretion provisions in the course of acting
on an infrastructure SIP submission, EPA believes that section
110(a)(2)(A) may be among the statutory bases that EPA relies upon in
the course of addressing such deficiency in a subsequent action.\16\
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\14\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
\15\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under CAA section 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\16\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how Tennessee addressed the elements of
the sections 110(a)(1) and (2) ``infrastructure'' provisions?
The Tennessee infrastructure submission addresses the provisions of
sections 110(a)(1) and (2) as described below.
1. 110(a)(2)(A) Emission Limits and Other Control Measures: Section
110(a)(2)(A) requires that each implementation plan include enforceable
emission limitations and other control measures, means, or techniques
(including economic incentives such as fees, marketable permits, and
auctions of emissions rights), as well as schedules and timetables for
compliance, as may be necessary or appropriate to meet the applicable
requirements. Several regulations within Tennessee's SIP are relevant
to air quality control regulations. The regulations described below
include enforceable emission limitations and other control measures.
SIP-approved Tennessee Air Pollution Control Regulations (TAPCR) 1200-
03-03, Ambient Air Quality Standards, 1200-03-04, Open Burning, 1200-
03-06, Non-process Emission Standards, 1200-03-07, Process Emission
Standards, 1200-03-09, Construction and Operating Permits, 1200-03-14,
Control of Sulfur Dioxide Emission, 1200-03-19, Emission Standards and
Monitoring Requirements for Additional Control Areas, 1200-03-21,
General Alternate Emission Standards, 1200-03-24, Good Engineering
Practice Stack Height Regulations, and 1200-03-27, NOX emissions from
designated source categories collectively establish enforceable
emissions limitations and other control measures, means or techniques,
for activities that contribute to PM2.5 concentrations in
the ambient air, and provide authority for TDEC to establish such
limits and measures as well as schedules for compliance to meet the
applicable requirements of the CAA. Additionally, State statutes
established in the Tennessee Air Quality Act and adopted in the
Tennessee Code Annotated (TCA) section 68-201-105(a), Powers and duties
of board--Notification of vacancy--Termination due to vacancy, provide
the Tennessee Air Pollution Control Board and TDEC's Division of Air
Pollution Control the authority to take actions in support of this
infrastructure element such as issue permits, promulgate regulations,
and issue orders to implement the Tennessee Air Quality Act and the
CAA, as relevant. EPA has made the preliminary determination that the
provisions contained in these State
[[Page 2300]]
regulations and State statute satisfy Section 110(a)(2)(A) for the 2012
Annual PM2.5 NAAQS in the State.
In this action, EPA is not proposing to approve or disapprove any
existing state provisions with regard to excess emissions during start
up, shut down, and malfunction (SSM) operations at a facility. EPA
believes that a number of states have SSM provisions which are contrary
to the CAA and existing EPA guidance, ``State Implementation Plans:
Policy Regarding Excess Emissions During Malfunctions, Startup, and
Shutdown'' (September 20, 1999), and the Agency is addressing such
state regulations in a separate action.\17\
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\17\ On June 12, 2015, EPA published a final action entitled,
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs;
Findings of Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown, and Malfunction.'' See 80 FR 33840.
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Additionally, in this action, EPA is not proposing to approve or
disapprove any existing state rules with regard to director's
discretion or variance provisions. EPA believes that a number of states
have such provisions which are contrary to the CAA and existing EPA
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to
take action in the future to address such state regulations. In the
meantime, EPA encourages any state having a director's discretion or
variance provision which is contrary to the CAA and EPA guidance to
take steps to correct the deficiency as soon as possible.
2. 110(a)(2)(B) Ambient Air Quality Monitoring/Data System: Section
110(a)(2)(B) requires SIPs to provide for establishment and operation
of appropriate devices, methods, systems, and procedures necessary to
(i) monitor, compile, and analyze data on ambient air quality, and (ii)
upon request, make such data available to the Administrator. TCA 68-
201-105(b)(4) gives TDEC the authority to provide technical, scientific
and other services as may be required to implement the provisions of
the Tennessee Air Quality Act. Annually, states develop and submit to
EPA for approval statewide ambient monitoring network plans consistent
with the requirements of 40 CFR parts 50, 53, and 58. The annual
network plan involves an evaluation of any proposed changes to the
monitoring network, includes the annual ambient monitoring network
design plan, and includes a certified evaluation of the agency's
ambient monitors and auxiliary support equipment.\18\ On June 30, 2015,
Tennessee submitted its most recent plan to EPA, which was approved by
EPA on October 26, 2015. Tennessee's monitoring network plan can be
accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-
0430. EPA has made the preliminary determination that Tennessee's SIP
and practices are adequate for the ambient air quality monitoring and
data system related to the 2012 Annual PM2.5 NAAQS.
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\18\ The annual network plans are approved by EPA in accordance
with 40 CFR part 58, and, on occasion, proposed changes to the
monitoring network are evaluated outside of the network plan
approval process in accordance with 40 CFR part 58.
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3. 110(a)(2)(C) Programs for Enforcement of Control Measures and
for Construction or Modification of Stationary Sources: This element
consists of three sub-elements: Enforcement, state-wide regulation of
new and modified minor sources and minor modifications of major
sources, and preconstruction permitting of major sources and major
modifications in areas designated attainment or unclassifiable for the
subject NAAQS as required by CAA title I part C (i.e., the major source
PSD program). TDEC's 2012 Annual PM2.5 NAAQS infrastructure
SIP submission cites a number of SIP provisions to address these
requirements. EPA's rationale for its proposed action regarding each
sub-element is described below.
Enforcement: The following SIP-approved regulation provides TDEC
with authority for enforcement of PM2.5 emission limits and
control measures. TAPCR 1200-03-13-.01, Violation Statement, states
that, ``Failure to comply with any of the provisions of these
regulations shall constitute a violation thereof and shall subject the
person or persons responsible therefore to any and all the penalties
provided by law.'' Also note, under TCA 68-201-116, Orders and
assessments of damages and civil penalty--Appeal, the State's Technical
Secretary is authorized to issue orders requiring correction of
violations of any part of the Tennessee Air Quality Act, or of any
regulation promulgated under this State statute. Violators are subject
to civil penalties of up to 25,000 dollars per day for each day of
violation and for any damages to the State resulting from the
violations.
Preconstruction PSD Permitting for Major Sources: EPA interprets
the PSD sub-element to require that a state's infrastructure SIP
submission for a particular NAAQS demonstrate that the state has a
complete PSD permitting program in place covering the structural PSD
requirements for all regulated NSR pollutants. A state's PSD permitting
program is complete for this sub-element (and prong 3 of D(i) and J
related to PSD) if EPA has already approved or is simultaneously
approving the state's implementation plan with respect to all
structural PSD requirements that are due under the EPA regulations or
the CAA on or before the date of the EPA's proposed action on the
infrastructure SIP submission. For the, 2012 Annual PM2.5
NAAQS, Tennessee's authority to regulate construction of new and
modified stationary sources to assist in the protection of air quality
in attainment or unclassifiable areas is established in TAPCR 1200-03-
09-.01(4), Prevention of Significant Deterioration of Air Quality.
Tennessee's infrastructure SIP submission demonstrates that new major
sources and major modifications in areas of the State designated
attainment or unclassifiable for the specified NAAQS are subject to a
federally-approved PSD permitting program meeting all the current
structural requirements of part C of title I of the CAA to satisfy the
infrastructure SIP PSD elements.\19\
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\19\ More information concerning how the Tennessee
infrastructure SIP submission currently meets applicable
requirements for the PSD elements (110(a)(2)(C); (D)(i)(I), prong 3;
and (J)) can be found in the technical support document in the
docket for today's rulemaking.
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Regulation of minor sources and modifications: Section 110(a)(2)(C)
also requires the SIP to include provisions that govern the minor
source program that regulates emissions of the 2012 Annual
PM2.5 NAAQS. TAPCR 1200-03-09-.01, Construction Permits, and
TAPCR 1200-03-09-.03, General Provisions, collectively govern the
preconstruction permitting of modifications and construction of minor
stationary sources, and minor modifications of major stationary
sources.
EPA has made the preliminary determination that Tennessee's SIP is
adequate for program enforcement of control measures, regulation of
minor sources and modifications, and preconstruction permitting of
major sources and major modifications related to the 2012 Annual
PM2.5 NAAQS.
4. 110(a)(2)(D)(i)(I) and (II) Interstate Pollution Transport:
Section 110(a)(2)(D)(i) has two components: 110(a)(2)(D)(i)(I) and
110(a)(2)(D)(i)(II). Each of these components has two subparts
resulting in four distinct components, commonly referred to as
``prongs,'' that must be addressed in infrastructure SIP submissions.
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I),
are provisions that prohibit any source or other type of
[[Page 2301]]
emissions activity in one state from contributing significantly to
nonattainment of the NAAQS in another state (``prong 1''), and
interfering with maintenance of the NAAQS in another state (``prong
2''). The third and fourth prongs, which are codified in section
110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in
one state from interfering with measures required to prevent
significant deterioration of air quality in another state (``prong
3''), or to protect visibility in another state (``prong 4'').
110(a)(2)(D)(i)(I)--prongs 1 and 2: EPA is not proposing any action
in this rulemaking related to the interstate transport provisions
pertaining to the contribution to nonattainment or interference with
maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and
2). EPA will consider these requirements in relation to Tennessee's
2012 Annual PM2.5 NAAQS infrastructure submission in a
separate rulemaking.
110(a)(2)(D)(i)(II)--prong 3: With regard to section
110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, may be
met by a state's confirmation in an infrastructure SIP submission that
new major sources and major modifications in the state are subject to a
PSD program meeting all the current structural requirements of part C
of title I of the CAA, or (if the state contains a nonattainment area
that has the potential to impact PSD in another state), a NNSR program.
As discussed in more detail above under section 110(a)(2)(C),
Tennessee's SIP contains provisions for the State's PSD program that
reflects the required structural PSD requirements to satisfy prong 3 of
section 110(a)(2)(D)(i)(II). Tennessee addresses prong 3 through TAPCR
1200-03-09-.01(4), Prevention of Significant Deterioration of Air
Quality, and TAPCR 1200-03-09-.01(5), Growth Policy, for the PSD and
NNSR programs, respectively. EPA has made the preliminary determination
that Tennessee's SIP is adequate for PSD permitting of major sources
and major modifications for interstate transport related to the 2012
Annual PM2.5 NAAQS for section 110(a)(2)(D)(i)(II) (prong
3).
110(a)(2)(D)(i)(II)--prong 4: EPA is not proposing any action in
this rulemaking related to the interstate transport provisions
pertaining to visibility in other states of section 110(a)(2)(D)(i)(II)
(prong 4) and will consider these requirements in relation to
Tennessee's 2012 Annual PM2.5 NAAQS infrastructure
submission in a separate rulemaking.
5. 110(a)(2)(D)(ii): Interstate Pollution Abatement and
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to
include provisions ensuring compliance with sections 115 and 126 of the
Act, relating to interstate and international pollution abatement.
Regulation 1200-03-09 03, General Provisions, requires the permitting
authority to notify air agencies whose areas may be affected by
emissions from a source. Additionally, Tennessee does not have any
pending obligation under sections 115 and 126 of the CAA relating to
international or interstate pollution abatement. EPA has made the
preliminary determination that Tennessee's SIP and practices are
adequate for ensuring compliance with the applicable requirements
relating to interstate and international pollution abatement for the
2012 Annual PM2.5 NAAQS.
6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies:
Section 110(a)(2)(E) requires that each implementation plan provide:
(i) Necessary assurances that the state will have adequate personnel,
funding, and authority under state law to carry out its implementation
plan, (ii) that the state comply with the requirements respecting state
boards pursuant to section 128 of the Act, and (iii) necessary
assurances that, where the state has relied on a local or regional
government, agency, or instrumentality for the implementation of any
plan provision, the state has responsibility for ensuring adequate
implementation of such plan provisions. EPA is proposing to approve
Tennessee's infrastructure SIP submission as meeting the requirements
of sub-elements 110(a)(2)(E)(i), (ii), and (iii). EPA's rationale for
today's proposal respecting each section of 110(a)(2)(E) is described
in turn below.
In support of EPA's proposal to approve sub-elements
110(a)(2)(E)(i) and (iii), TCA 68-201-105, Powers and duties of board--
Notification of vacancy--Termination due to vacancy, gives the
Tennessee Air Pollution Control Board the power and duty to promulgate
rules and regulations to implement the Tennessee Air Quality Act. The
Board may define ambient air quality standards, set emission standards,
set forth general policies or plans, establish a system of permits, and
identify a schedule of fees for review of plans and specifications,
issuance or renewal of permits or inspection of air contaminant
sources.
TAPCR 1200-03-26, Administrative Fees Schedule, establishes
construction fees, annual emission fees, and permit review fees
sufficient to supplement existing State and Federal funding and to
cover reasonable costs associated with the administration of
Tennessee's air pollution control program. These costs include costs
associated with the review of permit applications and reports, issuance
of permits, source inspections and emission unit observations, review
and evaluation of stack and/or ambient monitoring results, modeling,
and costs associated with enforcement actions.
TCA 68-201-115, Local pollution control programs--Exemption from
state supervision--Applicability of part to air contaminant sources
burning wood waste--Open burning of wood waste, states that ``Any
municipality or county in this state may enact, by ordinance or
resolution respectively, air pollution control regulations not less
stringent than the standards adopted for the state pursuant to this
part, or any such municipality or county may also adopt or repeal an
ordinance or resolution which incorporates by reference any or all of
the regulations of the board, or any federal regulations including any
changes in such regulations, when such regulations are properly
identified as to date and source.'' Before such ordinances or
resolutions become effective, the municipality or county must receive a
certificate of exemption from the Board to enact local regulations in
the State. In granting any certificate of exemption, the State of
Tennessee reserves the right to enforce any applicable resolution,
ordinance, or regulation of the local program.
TCA 68-201-115 also directs TDEC to ``frequently determine whether
or not any exempted municipality or county meets the terms of the
exemption granted and continues to comply with this section.'' If TDEC
determines that the local program does not meet the terms of the
exemption or does not otherwise comply with the law, the Board may
suspend the exemption in whole or in part until the local program
complies with the State standards.
As evidence of the adequacy of TDEC's resources with respect to
sub-elements (i) and (iii), EPA submitted a letter to Tennessee on June
30, 2015, outlining section 105 grant commitments and the current
status of these commitments for fiscal year 2015. The letter EPA
submitted to Tennessee can be accessed at www.regulations.gov using
Docket ID No. EPA-R04-OAR-2014-0430. Annually, states update these
grant commitments based on current SIP requirements, air quality
planning, and applicable requirements related to the NAAQS. Tennessee
[[Page 2302]]
satisfactorily met all commitments agreed to in the Air Planning
Agreement for fiscal year 2015, therefore Tennessee's grants were
finalized and closed out. EPA has made the preliminary determination
that Tennessee has adequate resources and authority for implementation
of the 2012 Annual PM2.5 NAAQS.
Section 110(a)(2)(E)(ii) requires that the state comply with
section 128 of the CAA. Section 128 requires that the SIP provide:
(a)(1) the majority of members of the state board or body which
approves permits or enforcement orders represent the public interest
and do not derive any significant portion of their income from persons
subject to permitting or enforcement orders under the CAA; and (a)(2)
any potential conflicts of interest by such board or body, or the head
of an executive agency with similar powers be adequately disclosed.
Section 110(a)(2)(E)(ii) obligations for the 2012 Annual
PM2.5 NAAQS and the requirements of CAA section 128 are met
in Regulation 0400-30-17, Conflict of Interest. Under this regulation,
the Tennessee board with authority over air permits and enforcement
orders is required to determine annually and after receiving a new
member that at least a majority of its members represent to public
interest and do not derive any significant portion of income from
persons subject to such permits and enforcement orders. Further, the
board cannot act to hear contested cases until it has determined it can
do so consistent with CAA section 128. The regulation also requires
TDEC's Technical Secretary and board members to declare any conflict-
of-interest in writing prior to the issuance of any permit, variance or
enforcement order that requires action on their part.
EPA has made the preliminary determination that the State has
adequately addressed the requirements of section 128, and accordingly
has met the requirements of section 110(a)(2)(E)(ii) with respect to
infrastructure SIP requirements. Therefore, EPA is proposing to approve
Tennessee's infrastructure SIP submission as meeting the requirements
of sub-elements 110(a)(2)(E)(i), (ii) and (iii).
7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section
110(a)(2)(F) requires SIPs to meet applicable requirements addressing:
(i) The installation, maintenance, and replacement of equipment, and
the implementation of other necessary steps, by owners or operators of
stationary sources to monitor emissions from such sources, (ii)
periodic reports on the nature and amounts of emissions and emissions
related data from such sources, and (iii) correlation of such reports
by the state agency with any emission limitations or standards
established pursuant to this section, which reports shall be available
at reasonable times for public inspection. TDEC's infrastructure SIP
submission identifies requirements for compliance testing by emissions
sampling and analysis, and for emissions and operation monitoring to
ensure the quality of data in the State, and also the collection of
source emission data throughout the State and the assurance of the
quality of such data. These data are used to compare against current
emission limits and to meet requirements of EPA's Air Emissions
Reporting Rule (AERR). Specifically, TAPCR 1200-03-10, Required
Sampling, Recording, and Reporting, gives the State's Technical
Secretary the authority to monitor emissions at stationary sources, and
to require these sources to conduct emissions monitoring and to submit
periodic emissions reports. This rule requires owners or operators of
stationary sources to compute emissions, submit periodic reports of
such emissions and maintain records as specified by various regulations
and permits, and to evaluate reports and records for consistency with
the applicable emission limitation or standard on a continuing basis
over time. The monitoring data collected and records of operations
serve as the basis for a source to certify compliance, and can be used
by Tennessee as direct evidence of an enforceable violation of the
underlying emission limitation or standard.
Additionally, Tennessee is required to submit emissions data to EPA
for purposes of the National Emissions Inventory (NEI). The NEI is
EPA's central repository for air emissions data. EPA published the AERR
on December 5, 2008, which modified the requirements for collecting and
reporting air emissions data (73 FR 76539). The AERR shortened the time
states had to report emissions data from 17 to 12 months, giving states
one calendar year to submit emissions data. All states are required to
submit a comprehensive emissions inventory every three years and report
emissions for certain larger sources annually through EPA's online
Emissions Inventory System. States report emissions data for the six
criteria pollutants and the precursors that form them--nitrogen oxides,
sulfur dioxides, ammonia, lead, carbon monoxide, particulate matter,
and volatile organic compounds. Many states also voluntarily report
emissions of hazardous air pollutants. Tennessee made its latest update
to the 2011 NEI on April 9, 2014. EPA compiles the emissions data,
supplementing it where necessary, and releases it to the general public
through the Web site https://www.epa.gov/ttn/chief/eiinformation.html.
EPA has made the preliminary determination that Tennessee's SIP and
practices are adequate for the stationary source monitoring systems
related to the 2012 Annual PM2.5 NAAQS.
Regarding credible evidence, TAPCR 1200-3-10-04, Sampling,
Recording, and Reporting Required for Major Stationary Sources, states
that: ``the Technical Secretary is authorized to require by permit
condition any periodic or enhanced monitoring, recording and reporting
that he deems necessary for the verification of the source's compliance
with the applicable requirements as defined in paragraph 1200-03-09-
02(11).'' EPA is unaware of any provision preventing the use of
credible evidence in the Tennessee SIP. EPA has made the preliminary
determination that Tennessee's SIP and practices are adequate for the
stationary source monitoring systems related to the Annual
PM2.5 NAAQS. Accordingly, EPA is proposing to approve
Tennessee's infrastructure SIP submission with respect to section
110(a)(2)(F).
8. 110(a)(2)(G): Emergency Powers: Section 110(a)(2)(G) of the Act
requires that states demonstrate authority comparable with section 303
of the CAA and adequate contingency plans to implement such authority.
Tennessee's emergency powers are outlined in TAPCR 1200-03-15,
Emergency Episode Plan, which establishes the criteria for declaring an
air pollution episode (air pollution alert, air pollution warning, or
air pollution emergency), specific emissions reductions for each
episode level, and emergency episode plan requirements for major
sources located in or significantly impacting a nonattainment area.
Additional emergency powers are codified in TCA 68-201-109, Emergency
Stop Orders for Air Contaminant Sources. Under TCA 68-201-109, if the
Commissioner of TDEC finds that emissions from the operation of one or
more sources are causing imminent danger to human health and safety,
the Commissioner may, with the approval of the Governor, order the
source(s) responsible to reduce or discontinue immediately its (their)
air emissions. Additionally, this State law requires a hearing to be
held before
[[Page 2303]]
the Commissioner within 24 hours of any such order.
Regarding the public welfare and environment, TCA 68-201-106,
Matters to be considered in exercising powers, states that ``In
exercising powers to prevent, abate and control air pollution, the
board or department shall give due consideration to all pertinent
facts, including, but not necessarily limited to: (1) The character and
degree of injury to, or interference with, the protection of the
health, general welfare and physical property of the people. . .''
Also, TCA 68-201-116, Orders and assessments of damages and civil
penalty Appeal, provides in subsection (a) that if the Tennessee
technical secretary discovers that any State air quality regulation has
been violated, the Tennessee technical secretary may issue an order to
correct the violation, and this order shall be complied with within the
time limit specified in the order. EPA has made the preliminary
determination that Tennessee's SIP and practices are adequate for
emergency powers related to the 2012 Annual PM2.5 NAAQS.
Accordingly, EPA is proposing to approve Tennessee's infrastructure SIP
submission with respect to section 110(a)(2)(G).
9. 110(a)(2)(H) SIP Revisions: Section 110(a)(2)(H), in summary,
requires each SIP to provide for revisions of such plan (i) as may be
necessary to take account of revisions of such national primary or
secondary ambient air quality standard or the availability of improved
or more expeditious methods of attaining such standard, and (ii)
whenever the Administrator finds that the plan is substantially
inadequate to attain the NAAQS or to otherwise comply with any
additional applicable requirements. As previously discussed, TDEC is
responsible for adopting air quality rules and revising SIPs as needed
to attain or maintain the NAAQS in Tennessee.
Section 68-201-105(a) of the Tennessee Air Quality Act authorizes
the Tennessee Air Pollution Control Board to promulgate rules and
regulations to implement this State statute, including setting and
implementing ambient air quality standards, emission standards, general
policies or plans, a permits system, and a schedule of fees for review
of plans and specifications, issuance or renewal of permits, and
inspection of sources. EPA has made the preliminary determination that
Tennessee's SIP and practices adequately demonstrate a commitment to
provide future SIP revisions related to the 2012 Annual
PM2.5 NAAQS when necessary. Accordingly, EPA is proposing to
approve Tennessee's infrastructure SIP submission with respect to
section 110(a)(2)(H).
10. 110(a)(2)(J) Consultation with Government Officials, Public
Notification, and PSD and Visibility Protection: EPA is proposing to
approve Tennessee's infrastructure SIP submission for the 2012 Annual
PM2.5 NAAQS with respect to the general requirement in
section 110(a)(2)(J) to include a program in the SIP that complies with
the applicable consultation requirements of section 121, the public
notification requirements of section 127, PSD and visibility
protection. EPA's rationale for each sub-element is described below.
Consultation with government officials (121 consultation): Section
110(a)(2)(J) of the CAA requires states to provide a process for
consultation with local governments, designated organizations and
Federal Land Managers (FLMs) carrying out NAAQS implementation
requirements pursuant to section 121 relative to consultation. The
following State rule, as well as the State's Regional Haze
Implementation Plan (which allows for consultation between appropriate
state, local, and tribal air pollution control agencies as well as the
corresponding FLMs), provide for consultation with government officials
whose jurisdictions might be affected by SIP development activities:
TAPCR 1200-03-34, Conformity, provides for interagency consultation on
transportation and general conformity issues. Tennessee adopted state-
wide consultation procedures for the implementation of transportation
conformity which includes the development of mobile inventories for SIP
development. These consultation procedures were developed in
coordination with the transportation partners in the State and are
consistent with the approaches used for development of mobile
inventories for SIPs. Required partners covered by Tennessee's
consultation procedures include Federal, state and local transportation
and air quality agency officials. EPA has made the preliminary
determination that Tennessee's SIP and practices adequately demonstrate
consultation with government officials related to the 2012 Annual
PM2.5 NAAQS when necessary. Accordingly, EPA is proposing to
approve Tennessee's infrastructure SIP submission with respect to
section 110(a)(2)(J) consultation with government officials.
Public notification: These requirements are met through the State's
existing Air Quality Index and Air Quality Forecasting programs, which
provide a method to alert the public if any NAAQS is exceeded in an
area. Additionally, the State's annual monitoring plan update is sent
out each year for public review and comment. EPA has made the
preliminary determination that Tennessee's SIP and practices adequately
demonstrate the State's ability to provide public notification related
to the 2012 Annual PM2.5 NAAQS when necessary. Accordingly,
EPA is proposing to approve Tennessee's infrastructure SIP submission
with respect to section 110(a)(2)(J) public notification.
PSD: With regard to the PSD element of section 110(a)(2)(J), this
requirement is met by a state's confirmation in an infrastructure SIP
submission that it has a PSD program meeting all the current structural
requirements of part C of title I of the CAA. As discussed in more
detail above under section 110(a)(2)(C), Tennessee's SIP contains a PSD
program that includes the required structural PSD requirements to
satisfy the requirement of the PSD element of section 110(a)(2)(J). EPA
has made the preliminary determination that Tennessee's SIP and
practices are adequate for PSD permitting of major sources and major
modifications related to the 2012 Annual PM2.5 NAAQS for the
PSD element of section 110(a)(2)(J). Accordingly, EPA is proposing to
approve Tennessee's infrastructure SIP submission with respect to the
PSD element of section 110(a)(2)(J).
Visibility protection: EPA's 2013 Guidance notes that it does not
treat the visibility protection aspects of section 110(a)(2)(J) as
applicable for purposes of the infrastructure SIP approval process. EPA
recognizes that states are subject to visibility protection and
regional haze program requirements under part C of the Act (which
includes sections 169A and 169B). However, there are no newly
applicable visibility protection obligations after the promulgation of
a new or revised NAAQS. Thus, EPA has determined that states do not
need to address the visibility component of 110(a)(2)(J) in
infrastructure SIP submittals. As such, EPA has made the preliminary
determination that it does not need to address the visibility
protection element of section 110(a)(2)(J) in Tennessee's
infrastructure SIP submission related to the 2012 Annual
PM2.5 NAAQS.
11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for
performing air quality modeling so that effects on air quality of
emissions from NAAQS pollutants can be predicted and
[[Page 2304]]
submission of such data to the EPA can be made. TAPCR 1200-03-
09-.01(4), Prevention of Significant Air Quality Deterioration,
specifies when modeling and when monitoring (pre- or post-construction)
must be performed and that the resulting data be made available for
review to EPA. Tennessee also states that it has personnel with
training and experience to conduct dispersion modeling consistent with
models approved by EPA protocols. Also note that TCA 68-201-105(b)(7)
grants TDEC the power and duty to collect and disseminate information
relative to air pollution. Additionally, Tennessee participates in a
regional effort to coordinate the development of emissions inventories
and conduct regional modeling for several NAAQS, including the 2012
Annual PM2.5 NAAQS, for the Southeastern states. Taken as a
whole, Tennessee's air quality regulations and practices demonstrate
that TDEC has the authority to provide relevant data for the purpose of
predicting the effect on ambient air quality of the Annual
PM2.5 NAAQS. EPA has made the preliminary determination that
Tennessee's SIP and practices adequately demonstrate the State's
ability to provide for air quality modeling, along with analysis of the
associated data, related to the 2012 Annual PM2.5 NAAQS.
Accordingly, EPA is proposing to approve Tennessee's infrastructure SIP
submission with respect to section 110(a)(2)(K).
12. 110(a)(2)(L) Permitting fees: Section 110(a)(2)(L) requires the
owner or operator of each major stationary source to pay to the
permitting authority, as a condition of any permit required under the
CAA, a fee sufficient to cover: (i) The reasonable costs of reviewing
and acting upon any application for such a permit, and (ii) if the
owner or operator receives a permit for such source, the reasonable
costs of implementing and enforcing the terms and conditions of any
such permit (not including any court costs or other costs associated
with any enforcement action), until such fee requirement is superseded
with respect to such sources by the Administrator's approval of a fee
program under title V.
In Tennessee, funding for review of PSD and NNSR permits comes from
permit-specific fees that are charged to new applicants and from annual
emission fees charged to existing title V emission sources that are
applying for major modifications under PSD or NNSR. The cost of
reviewing, approving, implementing, and enforcing PSD and major NNSR
permits are covered under the following State regulations: (1) TAPCR
1200-03-26-.02(5) requires each new major stationary source to pay a
construction permit application filing/processing fee and (2) TAPCR
1200-03-26-.02(9), Annual Emission Fees for Major Sources,\20\ mandates
that existing major stationary sources pay annual title V emission
fees, which are used to cover the permitting costs for any new
construction or modifications at these facilities as well as
implementation and enforcement of PSD and NNSR permits after they have
been issued. EPA has made the preliminary determination that Tennessee
adequately provides for permitting fees related to the 2012 Annual
PM2.5 NAAQS when necessary. Accordingly, EPA is proposing to
approve Tennessee's infrastructure SIP submission with respect to
section 110(a)(2)(L).
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\20\ Title V program regulations are federally-approved but not
incorporated into the federally-approved SIP.
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13. 110(a)(2)(M) Consultation/participation by affected local
entities: Section 110(a)(2)(M) of the Act requires states to provide
for consultation and participation in SIP development by local
political subdivisions affected by the SIP. TCA 68-201-105, Powers and
duties of board Notification of vacancy Termination due to vacancy,
authorizes and requires the Tennessee Air Pollution Control Board to
promulgate rules and regulations related to consultation under the
provisions of the State's Uniform Administrative Procedures Act. TCA 4-
5-202, When hearings required, requires agencies to precede all
rulemaking with a notice and public hearing, except for exemptions. TCA
4-5-203, Notice of hearing, states that whenever an agency is required
by law to hold a public hearing as part of its rulemaking process, the
agency shall: ``(1) Transmit written notice of the hearings to the
secretary of state for publication in the notice section of the
administrative register Web site . . . and (2) Take such other steps as
it deems necessary to convey effective notice to persons who are likely
to have an interest in the proposed rulemaking.'' TCA 68-201-105(b)(7)
authorizes and requires TDEC to ``encourage voluntary cooperation of
affected persons or groups in preserving and restoring a reasonable
degree of air purity; advise, consult and cooperate with other
agencies, persons or groups in matters pertaining to air pollution; and
encourage authorized air pollution agencies of political subdivisions
to handle air pollution problems within their respective jurisdictions
to the greatest extent possible and to provide technical assistance to
political subdivisions. . .''. TAPCR 1200-03-34, Conformity, requires
interagency consultation on transportation and general conformity
issues. Additionally, TDEC has, in practice, consulted with local
entities for the development of its transportation conformity SIP and
has worked with the FLMs as a requirement of EPA's regional haze rule.
EPA has made the preliminary determination that Tennessee's SIP and
practices adequately demonstrate consultation with affected local
entities related to the 2012 Annual PM2.5 NAAQS.
Accordingly, EPA is proposing to approve Tennessee's infrastructure SIP
submission with respect to section 110(a)(2)(M).
V. Proposed Action
With the exception of interstate transport provisions pertaining to
the contribution to nonattainment or interference with maintenance in
other states and visibility protection requirements of section
110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), EPA is proposing to
approve Tennessee's infrastructure submission submitted on December 16,
2015, for the 2012 Annual PM2.5 NAAQS for the above
described infrastructure SIP requirements. EPA is proposing to approve
Tennessee's infrastructure SIP submission for the 2012 Annual
PM2.5 NAAQS because the submission is consistent with
section 110 of the CAA.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed 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 proposed action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities
[[Page 2305]]
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, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it
impose substantial direct costs on tribal governments or preempt tribal
law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 20, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2017-00162 Filed 1-6-17; 8:45 am]
BILLING CODE 6560-50-P
