[Federal Register Volume 79, Number 63 (Wednesday, April 2, 2014)]
[Rules and Regulations]
[Pages 18453-18456]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-07240]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0285; FRL-9909-01-Region-4]


Approval and Promulgation of Implementation Plans; Tennessee; 
Conflict of Interest

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is finalizing two 
actions pertaining to the Clean Air Act (CAA or Act) State 
Implementation Plan (SIP) requirements for the State of Tennessee. 
First, EPA is approving the SIP revision submitted by Tennessee, 
through the Tennessee Department of Environment and Conservation (TDEC) 
on October 9, 2013, as meeting the applicable requirements of the Act. 
This SIP revision addresses Tennessee's outstanding obligations related 
to the CAA State board and conflict of interest requirements. Second, 
EPA is fully approving the infrastructure SIP sub-element related to 
the State board and conflict of interest requirements for the 2008 Lead 
National Ambient Air Quality Standards (NAAQS), 1997 Annual Fine 
Particulate Matter (PM2.5) NAAQS, 2006 24-hour 
PM2.5 NAAQS and 1997 8-hour ozone NAAQS. EPA notes that all 
other applicable Tennessee infrastructure SIP elements for the 2008 
Lead, 1997 annual PM2.5, 2006 24-hour PM2.5, and 
1997 8-hour ozone NAAQS have been addressed in separate rulemakings.

DATES: This rule is effective on May 2, 2014.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2012-0285. 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

[[Page 18454]]

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: Sean Lakeman, 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. The telephone number is (404) 
562-9043. Mr. Lakeman can be reached via electronic mail at 
lakeman.sean@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    By statute, SIPs meeting the requirements of sections 110(a)(1) and 
(2) of the CAA are to be submitted by states within three years after 
promulgation of a new or revised NAAQS. Sections 110(a)(1) and (2) 
require states to address basic SIP requirements, including emissions 
inventories, monitoring, and modeling to assure attainment and 
maintenance of the 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 SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. On July 23, 2012 (77 FR 
42997), August 2, 2012 (77 FR 45958), and June 18, 2013 (78 FR 36440), 
EPA approved in part, and conditionally approved in part, Tennessee's 
infrastructure SIPs for the 1997 8-hour ozone NAAQS, 1997 annual 
PM2.5 NAAQS, 2006 24-hour PM2.5 NAAQS and 2008 
Lead NAAQS, respectively.
    Specifically, EPA conditionally approved the portion of section 
110(a)(2)(E)(ii) (hereafter ``sub-element 110(a)(2)(E)(ii)'') 
respecting the Act's section 128(a)(1) requirements for each of the 
above NAAQS. Sub-element 110(a)(2)(E)(ii) provides that each 
infrastructure SIP shall provide requirements ``that the State comply 
with the requirements respecting State boards under section [128 of the 
CAA]. . . .'' Section 128, in turn, provides that each SIP shall 
contain requirements that: (1) Any board or body which approves permits 
or enforcement orders under the CAA shall have at least a majority of 
members who represent the public interest and do not derive a 
significant portion of their income from persons subject to permits or 
enforcement orders under the Act (hereafter ``section 128(a)(1) 
requirements''); and, (2) any potential conflicts of interest by 
members of such board or body or the head of an executive agency with 
similar powers be adequately disclosed (hereafter ``section 128(a)(2) 
requirements.'') EPA was unable to fully-approve Tennessee's 
infrastructure submissions for the above NAAQS with respect to sub-
element 110(a)(2)(E)(ii) because, at the time, the SIP did not include 
provisions to address the section 128(a)(1) requirements.\1\
---------------------------------------------------------------------------

    \1\ The section 128(a)(2) conflict of interest disclosure 
requirements, however, were met by existing provisions in the 
Tennessee SIP. See 77 FR 42997, 42998; 77 FR 45958, 45960; and 78 FR 
36440, 36442.
---------------------------------------------------------------------------

    On March 28, 2012, TDEC transmitted a letter to EPA, committing to 
adopt specific enforceable measures into its SIP by July 23, 2013, to 
address section 128(a)(1). This commitment provided a basis for EPA to 
exercise the conditional approval authority provided at section 
110(k)(4) of the CAA. Consistent with this authority, Tennessee was 
required to adopt the specified enforceable provisions and submit a 
revision to EPA for approval by July 23, 2013 (one year following the 
conditional approval action).\2\ As described at section 110(k)(4), and 
as noted by EPA in its conditional approval actions, failure by the 
State to adopt the specified provisions and submit them to EPA for 
incorporation into the SIP by July 23, 2013, would result in the 
conditional approvals automatically converting to disapprovals. 
Tennessee failed to meet the July 23, 2013, commitment deadline, and 
instead, submitted the section 128(a)(1) revisions to EPA on October 9, 
2013. As a result, the sub-element 110(a)(2)(E)(ii) conditional 
approvals automatically converted to disapprovals on July 23, 2013.
---------------------------------------------------------------------------

    \2\ EPA's initial final action to conditionally approve sub-
element 110(a)(2)(E)(ii) occurred on July 23, 2012. Therefore, 
Tennessee's commitment to submit the specific enforceable measures 
necessary to comply with section 128(a)(1) requirements was due no 
later than July 23, 2013. See 77 FR 42997.
---------------------------------------------------------------------------

    On January 9, 2014, EPA provided notice of the conversion of the 
section 110(a)(2)(E)(ii) conditional approvals to disapprovals. 79 FR 
1608. In the same action, EPA also proposed to approve TDEC's October 
9, 2013 SIP revision as being sufficient to address Tennessee's 
outstanding obligations related to the CAA section 128(a)(1) 
requirements. In addition, EPA also proposed through the January 9, 
2014, action to approve infrastructure SIP sub-element 110(a)(2)(E)(ii) 
related to the State board and conflict of interest requirements for 
the 2008 Lead, 1997 annual PM2.5, 2006 24-hour 
PM2.5, and 1997 8-hour ozone NAAQS.\3\ EPA received no 
comments on these proposed actions.
---------------------------------------------------------------------------

    \3\ The proposed approval of the infrastructure SIP sub-element 
for these NAAQS was contingent upon EPA fully approving the TDEC 
October 9, 2013, revision to address the requirements of CAA section 
128(a)(1).
---------------------------------------------------------------------------

II. Tennessee's State Board and Conflict of Interest Submission

    TDEC's October 9, 2013, SIP revision revises the content Chapter 
1200-3-17 and moves it to a new chapter: Chapter 0400-30-17 Conflict of 
Interest. Chapter 1200-3-17 is reserved for future use. The revision 
further adds new sections 0400-30-17-.02 Protecting the Public 
Interests and 0400-30-17-.05 Policy of Ethics and the Avoidance of 
Conflicts of Interest. EPA is approving this revision because the 
Agency has determined that, once approved into the Tennessee SIP, this 
change will address the section 128(a)(1) requirements that any board 
or body which approves permits or enforcement orders under the CAA have 
at least a majority of members who represent the public interest and 
not derive a significant portion of their income from persons subject 
to permits or enforcement orders under the Act.
    Specifically, TDEC's revision incorporates a new rule into its SIP 
to address section 128(a)(1) requirements. Rule 0400-30-17-.02 
Protecting the Public Interests contains definitions and requirements 
that will enable the Tennessee Air Pollution Control Board (hereafter 
the ``Board'') to clearly determine if it has a majority of members who 
represent the public interest and do not derive a significant portion 
of their income from persons subject to permits or enforcement orders 
under the Act. The intent of rule 0400-30-17-.02 is to ensure that at 
least half of the Board serves in the public interest and does not 
derive any significant income from persons subject to permits or 
enforcement orders under the Act. Pursuant to these provisions, in the 
event the Board is unable to determine that it is comprised consistent 
with the requirements of section 128(a)(1), the revisions prevent the 
Board from hearing contested cases until such time as it complies with 
the requirements of section 128.
    TDEC is also revising sections 0400-30-17-.01 Purpose and Intent 
(formally 1200-3-17-.01), 0400-30-17-.03 Conflict of Interest on the 
Part of the

[[Page 18455]]

Board and Technical Secretary (formally 1200-3-17-.02) and 0400-30-
17-.04 Conflict of Interest in the Permitting of Municipal Solid Waste 
Incineration Units (formally 1200-3-17-.03) of the SIP. EPA has 
determined that these revisions, are sufficient to meet the State's 
obligations pursuant to the requirements of CAA section 128(a)(1).

III. Tennessee's Infrastructure SIP Submission

    Sub-element 110(a)(2)(E)(ii) requires compliance with the 
requirements respecting State boards and conflicts of interest pursuant 
to section 128 of the Act. EPA reviews infrastructure SIP sub-element 
110(a)(2)(E)(ii) submissions to ensure that the SIP includes provisions 
satisfying section 128 requirements. Today's final approval of the 
October 9, 2013, SIP revision to address section 128(a)(1) requirements 
results in the Tennessee SIP fully meeting the applicable section 128 
requirements.\4\ Accordingly, EPA is also hereby finalizing approval of 
sub-element 110(a)(2)(E)(ii) with respect to the applicable section 
128(a)(1) requirements for the 2008 Lead NAAQS, 1997 annual 
PM2.5 NAAQS, 2006 24-hour PM2.5 NAAQS and 1997 8- 
hour ozone NAAQS.
---------------------------------------------------------------------------

    \4\ As previously noted, the section 128(a)(2) conflict of 
interest disclosure requirements, were met by existing provisions in 
the Tennessee SIP. See 77 FR 42997, 42998; 77 FR 45958, 45960; and 
78 FR 36440, 36442.
---------------------------------------------------------------------------

IV. Final Action

    EPA is approving the SIP revision submitted by TDEC on October 9, 
2013, as meeting the applicable requirements of section 128(a)(1) the 
Act. Additionally, EPA is fully approving the infrastructure SIP sub-
element 110(a)(2)(E)(ii) related to the State board and conflict of 
interest requirements for the 2008 Lead NAAQS, 1997 Annual 
PM2.5 NAAQS, 2006 24-hour PM2.5 NAAQS and 1997 8-
hour ozone NAAQS. These actions are being taken pursuant to section 110 
of the CAA.
    EPA notes that the subject of this notice is limited to the section 
128(a)(1) requirements and the associated infrastructure SIP sub-
element 110(a)(2)(E)(ii). All other applicable Tennessee infrastructure 
SIP elements for the 2008 Lead NAAQS, 1997 annual PM2.5 
NAAQS, 2006 24-hour PM2.5 NAAQS and 1997 8-hour ozone NAAQS 
have been addressed in separate rulemakings.

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 action 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 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 June 2, 2014. 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, Lead, Nitrogen dioxide, Ozone, 
Particulate Matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: March 21, 2014.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    For the reasons set out in the preamble, 40 CFR part 52, is to be 
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


Sec.  52.2219  [Removed and Reserved]

0
2. Section 52.2219 is removed and reserved.

0
3. Section 52.2220(c) is amended by:

[[Page 18456]]

0
a. Removing the entry in Table 1 for ``CHAPTER 1200-3-17 CONFLICT OF 
INTEREST'' in its entirety; and
0
b. Adding in numerical order a new entry in Table 1 for ``CHAPTER 0400-
30-17 CONFLICT OF INTEREST''.
    The addition reads as follows:


Sec.  52.2220  Identification of plan.

* * * * *
    (c) * * *

                                   Table 1--EPA Approved Tennessee Regulations
----------------------------------------------------------------------------------------------------------------
                                                            State
         State citation              Title/subject     effective date   EPA approval date        Explanation
----------------------------------------------------------------------------------------------------------------
                                     CHAPTER 0400-03-17 CONFLICT OF INTEREST
----------------------------------------------------------------------------------------------------------------
Section 0400-30-17-.01..........  Purpose and Intent.       9/23/2013  4/2/2014 [Insert
                                                                        citation of
                                                                        publication].
Section 0400-30-17-.02..........  Protecting the            9/23/2013  4/2/2014 [Insert
                                   Public Interests.                    citation of
                                                                        publication].
Section 0400-30-17-.03..........  Conflict of               9/23/2013  4/2/2014 [Insert
                                   Interest on the                      citation of
                                   Part of the Board                    publication].
                                   and Technical
                                   Secretary.
Section 0400-30-17-.04..........  Conflict of               9/23/2013  4/2/2014 [Insert
                                   Interest in the                      citation of
                                   Permitting of                        publication].
                                   Municipal Solid
                                   Waste Incineration
                                   Units.
Section 0400-30-17-.05..........  Policy of Ethics          9/23/2013  4/2/2014 [Insert
                                   and the Avoidance                    citation of
                                   of Conflicts of                      publication].
                                   Interest.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2014-07240 Filed 4-1-14; 8:45 am]
BILLING CODE 6560-50-P