[Federal Register Volume 81, Number 47 (Thursday, March 10, 2016)]
[Proposed Rules]
[Pages 12627-12636]
[FR Doc No: 2016-05160]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2015-0154; FRL-9943-44-Region 4]

Air Quality Plans; Tennessee; Infrastructure Requirements for the
2010 Sulfur Dioxide National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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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 March 13, 2014, for inclusion into the
Tennessee SIP. This proposal pertains to the infrastructure
requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour
sulfur dioxide (SO2) 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 2010 1-hour SO2
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 March 13, 2014, satisfy certain required
infrastructure elements for the 2010 1-hour SO2 NAAQS.

DATES: Written comments must be received on or before April 11, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2015-0154 at http://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 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 http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni, 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, Georgia
30303-8960. Ms. Notarianni can be reached via electronic mail at
<EMAIL_ADDRESS>or via telephone at<PHONE_NUMBER>.

Table of Contents

I. Background and Overview
II. What elements are required under sections 110(a)(1) and (2)?
III. What is EPA's approach to the review of infrastructure SIP
submissions?
IV. What is EPA's analysis of how Tennessee addressed the elements
of the sections 110(a)(1) and (2) ``Infrastructure'' provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background and Overview

    On June 22, 2010 (75 FR 35520), EPA promulgated a revised primary
SO2 NAAQS to an hourly standard of 75 parts per billion
(ppb) based on a 3-year average of the annual 99th percentile of 1-hour
daily maximum concentrations. 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 2010 1-hour SO2 NAAQS to EPA no
later than June 22, 2013.\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, unless otherwise
indicated, the term ``Tennessee Air Pollution Control Regulations''
or ``TAPCR XXXX-XX-XX'' indicates that the cited regulation has been
approved into Tennessee's federally-approved SIP. The term
``Tennessee Air Quality Act'' or ``Tennessee Code Annotated'' or
``TCA XX-XX-XXXXX'' indicates cited Tennessee State statutes, which
are not a part of the SIP unless otherwise indicated.
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    Today's action is proposing to approve Tennessee's infrastructure
SIP submission for certain applicable requirements of the 2010 1-hour
SO2 NAAQS. With respect to the interstate transport
requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and
4), EPA is not proposing any action today regarding these requirements.
For the aspects of Tennessee's submittal proposed for approval today,
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. 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).

 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 \3\
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    \3\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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 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 \4\
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    \4\ As mentioned above, this element is not relevant to today's
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 2010 1-hour SO2 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. 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.\5\ 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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    \5\ 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.\6\
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.\7\ 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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    \6\ 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)).
    \7\ 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.\8\ 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.\9\
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    \8\ 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).
    \9\ 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.\10\
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    \10\ 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 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.\11\ EPA most
recently issued guidance for infrastructure SIPs on September 13, 2013
(2013 Guidance). \12\ 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.\13\ 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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    \11\ 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.
    \12\ ``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.
    \13\ 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.
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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
fine particulate matter (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 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.\14\ 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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    \14\ 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.\15\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\16\ 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.\17\
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    \15\ 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).
    \16\ 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).
    \17\ 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, and 1200-03-24, Good Engineering
Practice Stack Height Regulations, collectively establish enforceable
emissions limitations and other control measures, means or techniques,
for activities that contribute to SO2 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 regulations and State statute
satisfy Section 110(a)(2)(A) for the 2010 1-hour SO2 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.\18\
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    \18\ 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.\19\ On June 30, 2015, Tennessee submitted its most recent
plan to EPA, which was approved by EPA on October 26, 2015, with the
exception of two aspects--one related to a monitor for the
SO2 nonattainment area in Sullivan County, and the other
related to a monitor for ozone and fine particulate in Loudon
County.\20\ Tennessee's monitoring network plan can be accessed at
www.regulations.gov using Docket ID No. EPA-R04-OAR-2015-0154. 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 2010 1-hour SO2 NAAQS.
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    \19\ 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.
    \20\ Once EPA is in agreement with the proposed locations for
the monitoring sites in Sullivan and Loudon Counties, the State is
required to make the network plan updates available for public
inspection and submit an addendum to its network plan for EPA
approval 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 2010 1-hour SO2 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 SO2 emission limits and
control measures. TAPCR 1200-3-13-01, 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 2010 1-hour SO2
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.\21\
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    \21\ 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 2010 1-hour
SO2 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 and
practices are 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 2010
1-hour SO2 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 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) because Tennessee's 2010 1-hour
SO2 NAAQS infrastructure submission did not address prongs 1
and 2.
    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
interstate transport for PSD permitting of major sources and major
modifications related to the 2010 1-hour SO2 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 2010 1-hour SO2 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
2010 1-hour SO2 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
March 9, 2015, outlining section 105 grant commitments and the current
status of these commitments for fiscal year 2014. The letter EPA
submitted to Tennessee can be accessed at www.regulations.gov using
Docket ID No. EPA-R04-OAR-2015-0154. Annually, states update these
grant commitments based on current SIP requirements, air quality
planning, and applicable requirements related to the NAAQS. Tennessee
satisfactorily met all commitments agreed to in the Air Planning
Agreement for fiscal year 2014, 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 2010 1-hour SO2 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 2010 1-hour SO2
NAAQS and the requirements of CAA section 128 are met in Regulation
0400-30-17, Conflict of Interest.\22\
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    \22\ See 79 FR 18453 (April 2, 2014).
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    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--NOX,
SO2, 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 http://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 2010 1-hour SO2 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 1-hour
SO2 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 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 2010 1-hour SO2 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 2010 1-hour SO2 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 2010 1-hour
SO2 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 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 Federal
Land Managers), 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 2010 1-hour
SO2 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 2010 1-hour SO2 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 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. As discussed in more
detail above under section 110(a)(2)(C), Tennessee's SIP contains
provisions for the State's PSD program that reflect the relevant SIP
revisions pertaining to 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 2010 1-hour SO2 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 2010 1-hour SO2
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 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 has
personnel with training and experience to conduct source-oriented
dispersion modeling with models approved by EPA. Additionally,
Tennessee participates in a regional effort to coordinate the
development of emissions inventories and conduct regional modeling for
several NAAQS, including the 2010 1-hour SO2 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 1-hour SO2 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
2010 1-hour SO2 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,\23\ 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 2010
1-hour SO2 NAAQS when necessary. Accordingly, EPA is
proposing to approve Tennessee's infrastructure SIP submission with
respect to section 110(a)(2)(L).
---------------------------------------------------------------------------

    \23\ Title V program regulations are federally-approved but not
incorporated into the federally-approved SIP.
---------------------------------------------------------------------------

    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 Federal Land Managers 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 2010 1-hour SO2
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 March 13,
2014, for the 2010 1-hour SO2 NAAQS for the above described
infrastructure SIP requirements. EPA is proposing to approve
Tennessee's infrastructure SIP submission for the 2010 1-hour
SO2 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 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,
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: February 23, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-05160 Filed 3-9-16; 8:45 am]
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[Federal Register: February 26, 2008 (Volume 73, Number 38)]
[Notices]
[Page 10238-10239]
[DOCID:fr26fe08-43]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 77-187]

Pacific Gas and Electric Company; Notice of Application for
Temporary Amendment of License, Soliciting Comments, Motions To
Intervene and Protests

February 5, 2008.
    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection:
    a. Type of Application: Amendment of license request for temporary
withdrawal and restoration of water.
    b. Project No.: 77-187.
    c. Date Filed: January 31, 2008.
    d. Applicant: Pacific Gas and Electric Company.
    e. Name of Project: Potter Valley Hydroelectric Project.
    f. Location: On the Eel River and East Branch Russian River, in
Lake and Mendocino Counties, California.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791a-825r.
    h. Applicant Contact: Mr. David Moller, Director Hydro Licensing,
Pacific Gas and Electric Company, P.O. Box No. 770000, San Francisco,
CA 94177;<PHONE_NUMBER>.
    i. FERC Contact: CarLisa Linton-Peters, telephone<PHONE_NUMBER>;
e-mail<EMAIL_ADDRESS>    j. Deadline for filing comments, motions to intervene and protests
is February 26, 2008.
    Please include the project number (P-77) on any comments or motions
filed. All documents (an original and eight copies) must be filed with:
Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888
First Street, NE., Washington, DC 20426.
    Motions to intervene, protests, comments and recommendations may be
filed electronically via the Internet in lieu of paper filings, see 18
CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web
site (http://www.ferc.gov) under the ``e-filing'' link. The Commission
strongly encourages electronic filings.
    The Commission's Rules of Practice and Procedure require all
intervenors

filing documents with the Commission to serve a copy of that document
on each person whose name appears on the official service list for the
project. Further, if an intervenor files comments or documents with the
Commission relating to the merits of an issue that may affect the
responsibilities of a particular resource agency, they must also serve
a copy of the document on that resource agency. A copy of any motion to
intervene must also be served upon each representative of the Applicant
specified in the particular application.
    k. Description of Request: Pacific Gas and Electric Company
(licensee) is requesting that its license for the Potter Valley Project
be temporarily amended to allow the licensee to provide additional
water to applicant, Potter Valley Irrigation District (PVID) during the
period of March 15 to April 14, 2008. The PVID requests additional
water (up to 50 cubic feet per second) for frost protection of
commercial crops in Potter Valley. PG&E's request is subject to the
requirement that PVID timely and fully restore to Lake Pillsbury the
additional water used during this time period, resulting in a water-
neutral situation. The amount of water provided to PVID will be
restored starting April 15 and completed by June 1, 2008.
    l. Location of the Application: A copy of the filing is available
for inspection and reproduction at the Commission's Public Reference
Room, located at 888 First Street, NE., Room 2A, Washington, DC 20426,
or by calling<PHONE_NUMBER>. This filing may also be viewed on the
Commission's Web site at http://ferc.gov using the ``eLibrary'' link.
Enter the docket number excluding the last three digits in the docket
number field to access the document. You may also register online at:
http://www.ferc.gov/docsfiling/esubscription.asp to be notified via e-
mail of new filings and issuances related to this or other pending
projects. For assistance, call toll-free at 1-866-208-3676 or e-mail
<EMAIL_ADDRESS>or for TTY, call<PHONE_NUMBER>. A copy is
also available for inspection and reproduction at the address listed in
item (h) above.
    m. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    n. Comments, Protests, or Motions to Intervene: Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210,
385.211, and 385.214. In determining the appropriate action to take,
the Commission will consider all protests or other comments filed, but
only those who file a motion to intervene in accordance with the
Commission's Rules may become a party to the proceeding. Any comments,
protests, or motions to intervene must be received on or before the
specified comment date for the particular application (see item (j)
above).
    o. Any filing must bear in all capital letters the title
``COMMENTS'', ``PROTEST'', ``MOTION TO INTERVENE'', or
``RECOMMENDATIONS'', as applicable, and the Project Number of the
particular application to which the filing refers.
    p. Agency Comments: Federal, state, and local agencies are invited
to file comments on the described application. A copy of the
application may be obtained by agencies directly from the Applicant. If
an agency does not file comments within the time specified for filing
comments, it will be presumed to have no comments. One copy of an
agency's comments must also be sent to the Applicant's representatives.

 Kimberly D. Bose,
 Secretary.
 [FR Doc. E8-3546 Filed 2-25-08; 8:45 am]

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