[Federal Register Volume 78, Number 44 (Wednesday, March 6, 2013)]
[Rules and Regulations]
[Pages 14450-14457]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-05112]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2012-0237; FRL-9787-6]
Approval and Promulgation of Implementation Plans; Tennessee;
110(a)(1) and (2) Infrastructure Requirements for the 2008 8-Hour Ozone
National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to approve in part, and
conditionally approve in part, the State Implementation Plan (SIP)
submission, submitted by the State of Tennessee, through the Tennessee
Department of Environment and Conservation (TDEC), to demonstrate that
the State meets the infrastructure requirements of Clean Air Act (CAA
or Act) for the 2008 8-hour ozone national ambient air quality
standards (NAAQS). The CAA requires that each state adopt and submit a
SIP for the implementation, maintenance, and enforcement of each NAAQS
promulgated by EPA, which is commonly referred to as an
``infrastructure'' SIP. On October 19, 2009, TDEC made a SIP submission
to certify that the Tennessee SIP already contains provisions that
ensure the 2008 8-hour ozone NAAQS are implemented, enforced, and
maintained in Tennessee (hereafter referred to as ``infrastructure
submission''). On March 23, 2012, TDEC submitted a letter requesting
conditional approval of the infrastructure submission with respect to
the requirements in its SIP applicable to state boards. On October 4,
2012, Tennessee submitted a letter requesting conditional approval of
infrastructure submission with respect to requirements in its SIP with
respect to requirements applicable to its permitting program for
prevention of significant deterioration (PSD) increments. With the
exception of elements pertaining to PSD increments and state board
requirements, Tennessee's infrastructure submission, provided to EPA on
October 19, 2009, addresses all the applicable infrastructure SIP
requirements for the 2008 8-hour ozone NAAQS. At this time, there are
no outstanding infrastructure submission requirements for Tennessee
with respect to significant contribution to nonattainment or
interference with maintenance of the 2008 8-hour ozone NAAQS.
DATES: Effective Date: This rule will be effective April 5, 2013.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2012-0237. All documents in the docket
are listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy at the Regulatory Development Section, Air Planning Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. EPA requests that if at all possible, you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Regulatory
[[Page 14451]]
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number
is (404) 562-9140. Ms. Ward can be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Response to Comments
III. This Action
IV. Final Action
V. Statutory and Executive Order Reviews
I. Background
Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and
(2) of the CAA require states to address basic SIP requirements,
including emissions inventories, monitoring, and modeling to assure
attainment and maintenance for that new NAAQS.
Section 110(a) of the CAA generally requires states to make a SIP
submission to meet applicable requirements in order to provide for the
implementation, maintenance, and enforcement of a new or revised NAAQS
within 3 years following the promulgation of such NAAQS, or within such
shorter period as EPA may prescribe. These SIP submissions are commonly
referred to as ``infrastructure'' SIP submissions. Section 110(a)
imposes the obligation upon states to make an infrastructure SIP
submission to EPA for a new or revised NAAQS, but the contents of that
submission may vary depending upon the facts and circumstances. In
particular, the data and analytical tools available at the time the
state develops and submits the infrastructure SIP for a new or revised
NAAQS affect the content of the submission. The contents of such
infrastructure SIP submissions may also vary depending upon what
provisions the state's existing SIP already contains. In the case of
the 2008 8-hour ozone NAAQS, states typically have met the basic
program elements required in section 110(a)(2) through earlier SIP
submissions in connection with previous ozone NAAQS.
More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for infrastructure SIP requirements related to a
newly established or revised NAAQS. As mentioned above, these
requirements include basic structural SIP elements such as modeling,
monitoring, and emissions inventories that are designed to assure
attainment and maintenance of the NAAQS. The applicable infrastructure
SIP requirements that are the subject of this rulemaking are listed
below.\1\
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\1\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the nonattainment area
plan requirements are due pursuant to other provisions of the CAA
for submission of SIP revisions specifically applicable for
attainment planning purposes. These requirements are: (1)
Submissions required by section 110(a)(2)(C) to the extent that
subsection refers to a permit program as required in part D Title I
of the CAA; and (2) submissions required by section 110(a)(2)(I)
which pertain to the nonattainment planning requirements of part D,
Title I of the CAA. Today's proposed rulemaking does not address
infrastructure elements related to section 110(a)(2)(I) or the
nonattainment planning requirements of 110(a)(2)(C).
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110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control
measures.\2\
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\2\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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110(a)(2)(D)(i)(II): Interstate transport (PSD and
visibility prongs).\3\
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\3\ Today's final rule does not address section
110(a)(2)(D)(i)(I) (the significant contribution to nonattainment
prong or the interfere with maintenance prong) for the 2008 8-hour
Ozone NAAQS, which as described in greater detail below, EPA does
not presently view as a ``required submission'' consistent with the
D.C. Circuit Court's recent opinion in EME City Generation v. EPA,
696 F.3d 7, 31 (D.C. Cir. 2012). In that opinion, the D.C. Circuit
Court concluded that a SIP submission to address section
110(a)(2)(D)(i)(I) for a new or revised NAAQS cannot be considered a
``required'' SIP submission until EPA has first defined a state's
obligations pursuant to that section. See EME Homer City, 696 F.3d
at 32 (``A SIP logically cannot be deemed to lack a `required
submission' or deemed to be deficient for failure to meet the good
neighbor obligation before EPA quantifies the good neighbor
obligation.'')
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110(a)(2)(E): Adequate resources.
110(a)(2)(F): Stationary source monitoring system.
110(a)(2)(G): Emergency power.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(I): Areas designated nonattainment and meet the
applicable requirements of part D.\4\
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\4\ This requirement as mentioned above is not relevant to
today's proposed rulemaking.
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110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
On August 22, 2012, EPA proposed to approve Tennessee's October 19,
2009, 2008 8-hour ozone NAAQS infrastructure SIP submission except as
it related to section 110(a)(2)(E)(ii), which EPA proposed to approve
in part, and conditionally approve in part.\5\ See 77 FR 50651.
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\5\ As discussed in the proposed rule for today's action,
section 110(a)(2)(E)(ii) requires that the SIP include provisions
necessary to meet the requirements of section 128 of the CAA. See 77
FR 50651.
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EPA proposed conditional approval in part for element
110(a)(2)(E)(ii) because, while Tennessee's SIP does not currently
contain provisions to address the requirements of CAA section
128(a)(1), the State committed in a letter dated March 28, 2012, to
submit, within one year, specific enforceable measures to EPA for
incorporation into the SIP to address these requirements. EPA proposed
approval of the state's infrastructure SIP submission in part, for
section 110(a)(2)(E)(ii) because the State's implementation plan
already contains adequate provisions to address the requirements of CAA
section 128(a)(2). See 77 FR 50651; August 22, 2012.
With respect to the PSD requirements of sections 110(a)(2)(C),
110(a)(2)(D)(i)(II) (hereafter referred to as prong 3 of
110(a)(2)(D)(i)),\6\ and 110(a)(2)(J) for the 2008 8-hour ozone NAAQS,
EPA published a supplemental proposal on December 3, 2012. In this
supplemental notice, EPA proposed conditional approval of Tennessee's
infrastructure SIP submission for these elements of section 110(a)(2)
for the 2008 8-hour ozone NAAQS.\7\ See 77 FR 71568, December 3, 2012.
As described in the supplemental proposal, on October 4, 2012,
Tennessee submitted a request for conditional approval of the State's
infrastructure SIP submission with respect to sections 110(a)(2)(C),
prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J), specifically as they
relate to PSD program requirements and the State committed to address
the SIP deficiencies by submitting specific
[[Page 14452]]
enforceable SIP revisions to address PM2.5 PSD increments.
This letter of commitment meets the requirements of section 110(k)(4)
of the CAA. Tennessee's October 4, 2012, letter can be accessed at
www.regulations.gov using Docket ID No. EPA-R04-OAR-2012-0237.
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\6\ Section 110(a)(2)(D)(i) includes four requirements referred
to as prongs 1 through 4. Prongs 1 and 2 are provided at section
110(a)(2)(D)(i)(I); prongs 3 and 4 are provided at section
110(a)(2)(D)(i)(II). Today's conditional approval only relates to
the PSD requirements of section 110(a)(2)(D)(i)(II), also known as
prong 3.
\7\ EPA originally proposed approval of these elements as they
related to PSD requirements. See 77 FR 50651. EPA is not taking
action to finalize the proposed approvals for these elements,
rather, EPA is today taking action to finalize conditional approval
for these elements as they relate to PSD requirements based upon the
December 3, 2012, supplement proposal. See 77 FR 71568. As described
in the December 3, 2012, supplemental proposal, Tennessee's SIP
currently does not contain the requisite PM2.5 PSD
increments necessary to satisfy these requirements. Accordingly, EPA
is finalizing a conditional approval of Tennessee's infrastructure
SIP submission based upon the state's commitment to rectify this
concern with respect to this structural deficiency in Tennessee's
current PSD program.
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Finally, EPA notes that this final action on Tennessee's
infrastructure SIP submission for the 2008 8-hour ozone NAAQS is
required not only by section 110(k), but also by order issued by the
U.S. District Court for the Northern District of California in
WildEarth Guardians v. Jackson, Case No. 11-CV-5651 YGR. In an October
17, 2012, order granting partial summary judgment in the case, as
modified in a December 7, 2012, order granting in part EPA's motion for
an amended order, that court directed EPA to take final action upon the
infrastructure SIP at issue in this action by March 4, 2013. With
respect to Tennessee, the court specifically ordered EPA to act upon
the infrastructure SIP submission made by the state on October 19,
2009, as revised/withdrawn in part on July 3, 2012. The court
specifically explained in the December 7, 2012, amended order that
``EPA is being ordered to assess the remaining submissions, i.e., the
revised SIP from Kentucky and the non-withdrawn portion of the
Tennessee SIP.'' (emphasis in the original). Accordingly, EPA is taking
final action upon Tennessee's infrastructure SIP for the 2008 8-hour
ozone NAAQS in its revised form, which reflects Tennessee's withdrawal
of the portion of the original submission intended to address section
110(a)(2)(D)(i)(I). As explained in more detail in response to relevant
comments, EPA is addressing the requirements of section
110(a)(2)(D)(i)(I) consistent with the opinion of the D.C. Circuit
Court's opinion in EPA Homer City Generation v. EPA, 696 F.3d 7 (D.C.
Cir. 2012).
II. Response to Comments
EPA received no comments on the initial August 22, 2012, notice
proposing action on Tennessee's infrastructure SIP submission for the
2008 8-hour ozone NAAQS. EPA received two sets of comments on the
December 3, 2012, supplemental proposed rulemaking in which EPA
proposed conditional approval of the State's infrastructure SIP
submission as meeting the applicable requirements of CAA sections
110(a)(2)(C) and (J), and prong 3 of section 110(a)(2)(D)(i) for the
2008 8-hour ozone NAAQS. A summary of the comments and EPA's responses
are provided below.
EPA notes that the majority of the comments received are well
beyond the scope of the supplemental proposal which addressed only
certain issues associated with PSD rules as they impacted Tennessee's
infrastructure submittal for CAA sections 110(a)(2)(C) and (J), and
prong 3 of 110(a)(2)(D)(i), for the 2008 8-hour ozone NAAQS. Instead,
the comments primarily concerned the interstate transport requirements
of section 110(a)(2)(D)(i)(I) (prongs 1 and 2). These requirements were
not at issue in either the original August 22, 2012, proposal notice,
or the December 3, 2012, supplemental notice, because the State had by
this point already withdrawn that portion of the infrastructure SIP
submission that was intended to address section 110(a)(2)(D)(i)(I) for
the 2008 8-hour ozone NAAQS. As the supplemental proposal specifically
provided at footnote 5, EPA is not addressing section 110(a)(2)(D(i)(I)
requirements through this action. See 77 FR 71568, 71570. Even though
EPA may not be obligated to respond to the comments outside the scope
of the December 3, 2012, supplemental proposal, EPA nonetheless
provides the following responses in order to assist in the public
understanding of EPA's final action.
Comment 1: The Commenters contend that under section 110(k) of the
Act, EPA must make a finding that Tennessee has failed to submit an
interstate transport SIP to meet the requirements of infrastructure
element 110(a)(2)(D)(i)(I) (prongs 1 and 2).
Response 1: EPA does not agree with the Commenter. As noted above,
this comment is beyond the scope of the supplemental action proposed in
the December 3, 2012, rulemaking, which was limited to the above-
described PSD-related elements. Moreover, the D.C. Circuit Court's
recent opinion in EME City Generation v. EPA, 696 F.3d 7, 31 (D.C. Cir.
2012), concluded that a SIP submission to address section
110(a)(2)(D)(i)(I) for a new or revised NAAQS cannot be considered a
``required'' SIP submission until EPA has first defined a state's
obligations pursuant to that section. See EME Homer City, 696 F.3d at
32 (``A SIP logically cannot be deemed to lack a `required submission'
or deemed to be deficient for failure to meet the good neighbor
obligation before EPA quantifies the good neighbor obligation.'') On
January 24, 2013, the D.C. Circuit issued an order denying all
petitions for rehearing of the EME Homer City decision. At this time,
however, the deadline for asking the Supreme Court to review the D.C.
Circuit's decision has not passed and the United States has not yet
decided whether to seek further appeal. In the meantime, and unless the
EME Homer City decision is reversed or otherwise modified, EPA intends
to act in accordance with the panel opinion in the EME Homer City
opinion. Thus, although EPA historically has interpreted section
110(a)(1) of the CAA as establishing the required submittal date for
infrastructure SIP submissions to address all of the ``interstate
transport'' requirements in section 110(a)(2)(D), including the
provisions in section 110(a)(2)(D)(i)(I) regarding significant
contribution to nonattainment and interference with maintenance, it
would not be consistent with the EME Homer City opinion for EPA to make
a finding that Tennessee has failed to make a SIP submission to address
section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS at this time. See
78 FR 2882, 2884-85 (January 15, 2012) (explaining why EPA did not make
findings of failure to submit with respect to 110(a)(2)(D)(i)(I) for
the 2008 ozone NAAQS). Accordingly, EPA is not making a finding of
failure to submit for section 110(a)(2)(D)(i)(I) for Tennessee for the
2008 8-hour ozone NAAQS at this time.
Comment 2: One Commenter contends that EPA must disapprove the
section 110(a)(2)(D)(i)(I) portion of Tennessee's submittal (referred
to by the Commenter as the ``good neighbor'' provisions) because it
fails to include adequate provisions to meet the requirements of this
subsection.
Response 2: EPA does not agree with the Commenter. First, this
comment is beyond the scope of the supplemental action proposed in the
December 3, 2012, rulemaking, which was limited to the above-described
PSD-related elements. Second, the element of the SIP submission to
which the Commenter refers was withdrawn by Tennessee. On July 3, 2012,
Tennessee withdrew the portion of its SIP submittal addressing
110(a)(2)(D)(i)(I). Thus, this portion of the submittal is no longer
before EPA and the Agency does not interpret the CAA as requiring that
EPA take action, either to approve or disapprove under section 110(k),
on submissions not before EPA. EPA does not interpret the CAA to
mandate that EPA take action on a submission that a state has withdrawn
(i.e., withdrawing the request that EPA take action on the submittal).
Third, as a result of the decision of the D.C. Circuit in EME Homer
City, that court has concluded that states, including Tennessee, have
no obligation to make a SIP submission to address section
110(a)(2)(D)(i)(I) for a new or revised NAAQS until EPA has first
defined a state's obligations pursuant to that section.
[[Page 14453]]
As a result, EPA does not agree with the Commenter that EPA has an
obligation to disapprove the 110(a)(2)(D)(i)(I) portion of the
Tennessee SIP submittal that was withdrawn. The Commenter does not
point to any statutory authority which requires EPA to disapprove a
non-required SIP submission not presently before EPA, and for which a
state has specifically requested that EPA not take action (by formally
withdrawing the voluntary submission from EPA review).
In situations where all or a portion of a required state submission
has been withdrawn following a section 110(k)(1)(B) completeness
determination, the Agency has the authority to issue a finding that a
state has failed to submit such required submission pursuant to section
110(k)(1)(B). In accordance with the requirements of section
110(c)(1)(A), such a finding of failure to submit a complete required
SIP submission would trigger EPA's obligation to promulgate a federal
implementation plan unless the state corrected the deficiency. As
discussed above in the response to comment 1, however, it would not be
consistent with the EME Homer City decision for EPA to make a finding
of failure to submit for Tennessee with respect to section
110(a)(2)(D)(i)(I) for the 2008 8-hour ozone NAAQS at this time.
Comment 3: The Commenters contend that EPA lacks authority to
approve or conditionally approve the balance of Tennessee's
infrastructure SIP submission despite the State's withdrawal of the
portion of the SIP originally submitted to comply with section
110(a)(2)(D)(i)(I). One Commenter contends that the ``Clean Air Act
gives EPA no discretion to approve a SIP without the good neighbor
provision on the grounds that it intends to address Tennessee's
[section] 110(a)(2)(D)(i)(I) obligations in a separate action. There is
no separate action available to EPA under the Clean Air Act to address
a state's failure to satisfy its good neighbor obligations aside from
the promulgation of a Federal Implementation Plan within two-years
pursuant to section 110(c)(1) of the Clean Air Act.''
Response 3: EPA does not agree with the Commenter. Section
110(k)(3) of the Act authorizes EPA to approve a plan in full,
disapprove it in full, or approve it in part and disapprove it in part,
depending on the extent to which such plan meets the requirements of
the Act. Section 110(k)(4) of the Act explicitly authorizes EPA to use
conditional approval, consistent with the parameters for such
conditional approvals stipulated in that section. This authority to
approve the States' SIP revisions in separable parts was included in
the 1990 Amendments to the CAA to overrule a decision in the Court of
Appeals for the Ninth Circuit holding that EPA could not approve
individual measures in a plan submission without either approving or
disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990
U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of
Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).
As such, the Agency interprets its authority under sections
110(k)(3) and (k)(4), as affording EPA the discretion to approve or
conditionally approve individual elements of Tennessee's infrastructure
submission for the 2008 8-hour ozone NAAQS, separate and apart from any
action with respect to the requirements of section 110(a)(2)(D)(i)(I)
with respect to that NAAQS. EPA views discrete infrastructure SIP
requirements, such as the requirements of 110(a)(2)(D)(i)(I), as
severable from the other infrastructure elements and interprets section
110(k)(3) as allowing it to Act on individual severable measures in a
plan submission. In short, EPA believes that even if the SIP submission
for section 110(a)(2)(D)(i)(I) were now relevant, which it is not, it
would still have discretion under section 110(k) to act upon the
various individual elements of the state's infrastructure SIP
submission, separately or together, as appropriate. The Commenters
raise no compelling legal or environmental rationale for an alternate
interpretation.
Comment 4: The Commenters contend that compliance with the Clean
Air Interstate Rule (CAIR) is not relevant to Tennessee's obligation
under the CAA to submit a SIP addressing the requirements of section
110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS.
Response 4: EPA agrees with the substance of this comment, but does
not agree that it is relevant for this action. As described above, and
in the supplemental proposal associated with today's action, EPA is not
taking any action through this rulemaking with respect to Tennessee's
obligations pursuant to section 110(a)(2)(D)(i)(I) for the 2008 8-hour
ozone NAAQS; therefore, this comment is not relevant to today's action.
As a general matter, however, EPA agrees that compliance with CAIR is
not relevant to a state's obligations under section 110(a)(2)(D)(i)(I)
for purposes of the 2008 8-hour ozone NAAQS. CAIR was promulgated by
EPA in 2005 to address, for certain states, the requirements of CAA
section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone and 1997
annual PM2.5 NAAQS. See 70 FR 25162. EPA promulgated CAIR
long before it promulgated the 2008 8-hour ozone NAAQS, and CAIR did
not, in any way, address interstate transport requirements related to
the 2008 8-hour ozone NAAQS.\8\ For these reasons CAIR is not relevant
to Tennessee's section 110(a)(2)(D)(i)(I) obligation with respect to
the 2008 ozone NAAQS.
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\8\ Moreover, in its decision granting the petitions for review
of CAIR, the DC Circuit held that compliance with CAIR did not
constitute compliance with section 110(a)(2)(D)(i)(I) even for the
NAAQS that were addressed by CAIR--namely the 1997 ozone and 1997
annual PM2.5 NAAQS. See North Carolina v. EPA, 531 F.3d
896 (D.C. Cir. 2008).
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Comment 5: One Commenter notes that EPA proposed to conditionally
approve certain portions of Tennessee's infrastructure SIP, while
leaving other infrastructure elements to be addressed in a separate
rulemaking. The Commenter contends that EPA ``does not have the
authority to approve some provisions of a SIP while deferring action on
other mandatory provisions once the 12-month mandatory determination
deadline to act on an administratively complete SIP submittal has
run.'' The Commenter asserts that because Tennessee has withdrawn the
``good neighbor'' provisions of its SIP submittal, the submittal
``fails to include adequate provisions `prohibiting* * * any source or
other type of emissions activity within the State from emitting any air
pollutant in amounts which will contribute significantly to
nonattainment, or interfere with maintenance by, any other State' with
respect to the 2008 8-hour ozone NAAQS.'' Therefore, the Commenter
concludes, ``EPA is required to disapprove the `good neighbor' portions
of the Tennessee SIP.'' The Commenter asserts that ``[s]ince the
statutory deadline has past under which EPA is required to act on the
2008 8-hour ozone NAAQS SIP submittals, EPA has no authority to
indefinitely postpone ruling on all the required infrastructure SIP
elements, including the 110(a)(2)(D)(i)(I) portions of Tennessee's SIP
submittal.'' The Commenter asserts that this approach is consistent
with the logic espoused in an October 17, 2012, court order granting
partial summary judgment to the plaintiffs in the case WildEarth
Guardians v. Jackson, Case No. 11-CV-5651 YGR.
Response 5: As an initial matter, EPA does not agree with the
Commenter that it is prohibited from acting on portions of an
infrastructure SIP submission on an element by element basis, or in
whatever combination of elements that
[[Page 14454]]
may be appropriate in a given action. As noted above, the language
which Congress ultimately included in section 110(k) allowing EPA to
approve a plan in full, disapprove it in full, or approve it in part
and disapprove it in part was added to overrule the portion of the
decision Abramowitz v. EPA, 832 F. 2d 1071 (9th Cir. 1987), which held
that EPA could not approve individual measures in a plan submission
without either approving or disapproving the plan as a whole. See S.
Rep. No. 101-228 (1989), reprinted at 1990 U.S.C.C.A.N. 3385, 3402.
Further, the Commenter appears to misunderstand what actions EPA is
now taking. EPA does not intend to ``indefinitely postpone'' action
with respect to the other required elements of Tennessee's
infrastructure SIP submission for the 2008 8-hour ozone NAAQS. In the
December 3, 2012, supplemental proposal, EPA explained that it had
previously proposed approval, on August 22, 2012, for the majority of
other sections of Tennessee's 2008 8-hour ozone infrastructure SIP
submission relevant to the applicable elements of section 110(a)(2).
See 77 FR 50651. EPA is today finalizing its proposed approval of the
infrastructure SIP submission for those other elements. Notably, the
Commenter did not comment on the timing of EPA's action with respect to
these other sections of the Tennessee 2008 8-hour ozone infrastructure
SIP submission at the time EPA proposed action on those sections.
Therefore, the Commenter's concerns regarding the timing of EPA's
action on these other elements are not properly raised in comments to
the December 3, 2012, rulemaking which was limited to the PSD elements
contained sections 110(a)(2)(C) and (J), and prong 3 of
110(a)(2)(D)(i).
In addition, EPA notes that the October 17, 2012, court order
referenced by the Commenter was subsequently amended by the court on
December 7, 2012, to extend EPA's deadline for action on the Tennessee
submittal through March 4, 2013. In that amended order, the court also
clarified that it intended EPA to act on Tennessee's October 19, 2009,
as revised/withdrawn in part on July 3, 2012. The court specifically
explained in the December 7, 2012, amended order that ``EPA is being
ordered to assess the remaining submissions, i.e., the revised SIP from
Kentucky and the non-withdrawn portion of the Tennessee SIP.''
(emphasis in the original). Today's final action, approving in part and
conditionally approving in part Tennessee's infrastructure SIP
submission, in conjunction with the aforementioned determination not to
issue a finding of failure to submit for section 110(a)(2)(D)(i)(I) at
this time, consistent with the decision in EME Homer City, fully
satisfy the Agency's obligations under the December 7, 2012, court
order in WildEarth Guardians v. Jackson, with respect to the Tennessee
SIP submittal at issue.
Comment 6: One Commenter argued that EPA should disapprove the SIP
submission from Tennessee with respect to section 110(a)(2)(D)(i) for
the 2008 ozone NAAQS because ``EPA's own modeling conducted in support
of the Cross State Air Pollution Rule * * *identified Tennessee as a
state which contributes at least one percent of the 2008 8-hour ozone
NAAQS to Maryland's nonattainment.'' Thus, the Commenter argued that
EPA's ``delay in disapproving'' the submission would adversely impact
the ability of the State of Maryland to provide for attainment of the
2008 ozone NAAQS within that state, consistent with the statutory
schedule for attainment of the NAAQS.
Response 6: EPA acknowledges the Commenter's concern that
interstate transport of ozone and ozone precursors from upwind states
to downwind states may have adverse consequences on the ability of
downwind areas to attain the NAAQS in a timely fashion. It is for this
reason that EPA attempted, through the Cross State Air Pollution Rule
(CSAPR), to address emissions found to contribute significantly to
nonattainment of, or interfere with maintenance of, the 1997 ozone
NAAQS. The modeling done for CSAPR, however, did not address the 2008
ozone NAAQS and EPA did not, in the CSAPR itself or in the modeling
done during development of the rule, draw any conclusions regarding
interstate transport with respect to the 2008 ozone NAAQS. Moreover,
the D.C. Circuit, in its recent decision vacating the CSAPR, held that
states are not required to submit SIPs addressing the requirements of
section 110(a)(2)(D)(i)(I) until EPA has quantified their obligation
under that provision. See EME Homer City, 696 F.3d 7 (D.C. Cir. 2012).
The EME Homer City decision was issued in August of 2012, and on
January 24, 2013, the court denied all petitions for rehearing. At this
time, however, the deadline for asking the Supreme Court to review the
D.C. Circuit's decision has not passed and the United States has not
yet decided whether to seek further appeal. In the mean time, and
unless the EME Homer City decision is reversed or otherwise modified,
EPA intends to act in accordance with the D.C. Circuit's opinion.
Finally, as the EME Homer City decision establishes that the
Tennessee 110(a)(2)(D)(i)(I) SIP submission was optional, Tennessee
remains free not to make such a SIP submission or to withdraw such a
submission without penalty. Moreover, EPA has no authority to
disapprove an infrastructure SIP submission which is no longer pending
before the Agency or to find that a state failed to submit a SIP
submission to meet the requirements of section 110(a)(2)(D)(i)(I) at
this time under the EME Homer City decision.
III. This Action
In this rulemaking, EPA is taking final action to approve
Tennessee's infrastructure submission as demonstrating that the State
meets the applicable requirements of sections 110(a)(1) and (2) of the
CAA for the 2008 8-hour ozone NAAQS, with the exception of sections
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J) pertaining
to PSD increments, and the portion of section 110(a)(2)(E)(ii)
pertaining to section 128(a)(1) requirements. EPA is taking no action
with respect to section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS in
this rulemaking because no such action is required at this time for
this State. EPA will be taking action on 110(a)(2)(D)(i)(I), if
required, in a separate future action.
With respect to section 110(a)(2)(E)(ii) specifically pertaining to
section 128(a)(1) requirements, EPA is finalizing a conditional
approval for this portion of Tennessee's infrastructure SIP submission
for the 2008 8-hour ozone NAAQS.
Today's final action to conditionally approve of the portion of
element 110(a)(2)(E)(ii) related to the section 128(a)(1) requirements
is based upon a March 28, 2012, commitment letter submitted by
Tennessee to EPA. Tennessee's March 28, 2012, letter can be accessed at
www.regulations.gov using Docket ID No. EPA-R04-OAR-2011-0353. Through
this letter, Tennessee committed to adopt specific enforceable measures
to address current deficiencies in its SIP related to section 128(a)(1)
requirements. This letter of commitment meets the requirements of
section 110(k)(4) of the CAA, and as such, EPA is relying upon this
commitment to conditionally approve section 110(a)(2)(E)(ii) as it
relates to the requirements of section 128(a)(1) of the CAA. For more
information, see EPA's proposal for today's rulemaking. See 77 FR
50651. EPA has previously relied upon Tennessee's March 28, 2012,
commitment to conditionally approve section 110(a)(2)(E)(ii) as it
relates to the section 128(a)(1) for purposes of the 1997 8-hour ozone
NAAQS. See 77 FR
[[Page 14455]]
42997 July 23, 2012. Pursuant to that earlier conditional approval,
Tennessee is committed to providing EPA with the specified SIP revision
by no later than July 23, 2013.
Accordingly, for purposes of today's conditional approval of
section 110(a)(2)(E)(ii) as it relates to the requirements of section
128(a)(1), Tennessee must submit to EPA by July 23, 2013 (within one
year from the date of publication for the final rule that EPA published
on July 23, 2012, for the 1997 8-hour ozone NAAQS), a SIP revision
adopting the specific enforceable measures related to CAA section
128(a)(1) as described in the State's commitment letter described
above. If the State fails to submit this promised SIP revision by July
23, 2013, today's conditional approval will automatically become a
disapproval on that date and EPA will issue a finding of disapproval.
With respect to the PSD requirements of elements 110(a)(2)(C),
prong 3 of 110(a)(2)(D)(i) and 110(a)(2)(J) for the 2008 8-hour ozone
NAAQS, EPA published a supplemental proposal to conditionally approve
Tennessee's infrastructure SIP submission, based upon the October 4,
2012, conditional approval request related to these elements for the
2008 8-hour ozone NAAQS. See 77 FR 71568. As described in the
supplemental proposal, on October 4, 2012, Tennessee submitted a
request for conditional approval of sections 110(a)(2)(C), prong 3 of
110(a)(2)(D)(i), and 110(a)(2)(J) as they relate to PSD requirements
and committed to address the SIP deficiencies by submitting specific
enforceable SIP revisions to address PM2.5 PSD increments
within one year. This commitment letter meets the requirements of
section 110(k)(4) of the CAA. Tennessee's October 4, 2012, letter can
be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-
2012-0237. Today's action finalizes conditional approval of the
infrastructure SIP submission for these sections of section 110(a)(2),
based upon a commitment by Tennessee to submit the necessary SIP
revisions to address PM2.5 PSD increments. If the State
fails to submit these promised SIP revisions by March 6, 2014 today's
conditional approval will automatically become a disapproval on that
date and EPA will issue a finding of disapproval.
IV. Final Action
EPA is taking final action to approve Tennessee's infrastructure
submission, provided to EPA on October 19, 2009, because it addresses
the required infrastructure elements for the 2008 8-hour ozone NAAQS
with exception of sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i),
and 110(a)(2)(J) as they relate to PSD requirements, section
110(a)(2)(E)(ii) as it relates to section 128(a)(1) requirements, and
section 110(a)(2)(D)(i)(I) as it relates to interstate transport.\9\
With the exceptions noted above TDEC has addressed the elements of the
CAA 110(a)(1) and (2) SIP requirements pursuant to section 110 of the
CAA to ensure that the 2008 8-hour ozone NAAQS are implemented,
enforced, and maintained in Tennessee.
---------------------------------------------------------------------------
\9\ As described in the response to comment 1 in Section II
above, EPA does not presently view section 110(a)(2)(D)(i)(I)
(significant contribution to nonattainment prong and interference
with maintenance prong) for the 2008 8-hour Ozone NAAQS, as a
``required submission'' based upon the opinion of the D.C. Circuit
in the EME Homer case.
---------------------------------------------------------------------------
With respect to sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i),
and 110(a)(2)(J) as they relate to PSD requirements, EPA is taking
final action to conditionally approve Tennessee's infrastructure SIP in
part, based on an October 4, 2012, commitment that TDEC will adopt
specific enforceable measures related to PSD increments and submit
these revisions as a SIP submission to EPA for approval into the
Tennessee's SIP by March 6, 2014.
With respect to section 110(a)(2)(E)(ii) related to section
128(a)(1) requirements, EPA is taking final action to conditionally
approve Tennessee's infrastructure SIP in part, based on a March 28,
2012, commitment that TDEC will adopt specific enforceable measures and
submit these as a SIP submission to EPA for approval into the
Tennessee's SIP by July 23, 2013, to address the applicable portions of
section 128(a)(1).
If the State fails to submit these promised SIP revisions by the
applicable dates described above, today's conditional approval of
Tennessee's infrastructure SIP for the 2008 8-hour ozone NAAQS will
automatically be disapproved for the element or elements that the state
fails to address on that date and EPA will issue a corresponding
finding of disapproval.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and
[[Page 14456]]
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. A major rule cannot take effect until
60 days after it is published in the Federal Register. This action is
not a ``major rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 6, 2013. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: February 27, 2013.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart RR--Tennessee
0
2. Section 52.2219 is amended by adding paragraphs (c) and (d) to read
as follows:
Sec. 52.2219 Conditional approval.
* * * * *
(c) Conditional Approval--Submittal from the State of Tennessee,
through the Department of Environment and Conservation (TDEC), dated
October 4, 2012, to address the Clean Air Act (CAA) sections
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J) for the 2008
8-hour Ozone National Ambient Air Quality Standards. EPA is
conditionally approving TDEC's submittal with respect to the PSD
requirements of CAA sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i),
and 110(a)(2)(J), specifically related to the adoption of enforceable
provisions for PSD increments as detailed in TDEC's October 4, 2012,
commitment letter. Tennessee must submit to EPA by March 6, 2014, a SIP
revision adopting specific enforceable measures related to PSD
increments as described in the State's letter of commitment.
(d) Conditional Approval--Submittal from the State of Tennessee,
through the Department of Environment and Conservation (TDEC), dated
October 19, 2009, to address the Clean Air Act (CAA) section
110(a)(2)(E)(ii) for the 2008 8-hour Ozone National Ambient Air Quality
Standards. With respect to CAA section 110(a)(2)(E)(ii), specifically
related to the adoption of enforceable measures contained in CAA
section 128(a)(1), EPA published in the Federal Register a final
rulemaking to conditionally approve TDEC's March 28, 2012, commitment
on July 23, 2012. Tennessee must submit to EPA by July 23, 2013, SIP
revisions adopting specific enforceable measures related to CAA
sections 128(a)(1) as described in the State's letter of commitment.
0
3. Section 52.2220(e) is amended by adding a new entry ``110(a)(1) and
(2) Infrastructure Requirements for the 2008 8-Hour Ozone National
Ambient Air Quality Standards'' at the end of the table to read as
follows:
Sec. 52.2220 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Tennessee Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
Applicable State
Name of nonregulatory SIP geographic or effective EPA approval date Explanation
provision nonattainment area date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
110(a)(1) and (2) Infrastructure Tennessee........... 10/19/2009 3/6/2013 [Insert With the exception
Requirements for the 2008 8- citation of of section
Hour Ozone National Ambient Air publication]. 110(a)(2)(D)(i)(I)
Quality Standards. concerning
interstate
transport; the
portions of
sections
110(a)(2)(C),
prong 3 of
110(a)(2)(D)(i),
and 110(a)(2)(J)
related to PSD ,
which are being
conditionally
approved; and
section
110(a)(2)(E)(ii)
as it relates to
section 128(a)(1),
which is being
conditionally
approved.
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[[Page 14457]]
[FR Doc. 2013-05112 Filed 3-5-13; 8:45 am]
BILLING CODE 6560-50-P