[Federal Register Volume 81, Number 135 (Thursday, July 14, 2016)]
[Proposed Rules]
[Pages 45438-45447]
[FR Doc No: 2016-16514]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2015-0252; FRL-9948-96-Region 4]

Air Plan Approval; Tennessee Infrastructure Requirements for the
2010 Nitrogen 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 portions of 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, to
demonstrate that the State meets the infrastructure requirements of the
Clean Air Act (CAA or Act) for the 2010 nitrogen dioxide
(NO2) 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 NO2 NAAQS is implemented, enforced, and maintained in
Tennessee. With the exception of provisions pertaining to prevention of
significant deterioration (PSD) permitting, and interstate transport
provisions pertaining to the contribution to nonattainment or
interference with maintenance, and visibility in other states, for
which EPA is proposing no action through this rulemaking, EPA is
proposing to find that Tennessee's infrastructure SIP submission,
provided to EPA on March 13, 2014, satisfies the required
infrastructure elements for the 2010 NO2 NAAQS.

DATES: Written comments must be received on or before August 15, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2015-0252 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. 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. 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: Richard Wong, 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. Mr. Wong can be reached via electronic mail at
<EMAIL_ADDRESS>or via telephone at<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Background and Overview

    On February 9, 2010 (75 FR 6474), EPA published a new 1-hour
primary NAAQS for NO2 at a level of 100 parts per billion
(ppb), based on a 3-year average of the 98th percentile of the yearly
distribution of 1-hour daily maximum concentrations. See 75 FR 6474.
Pursuant to section 110(a)(1) of the CAA, states are required to submit
SIPs meeting the 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 requirements, including emissions inventories,
monitoring, and modeling to assure attainment and maintenance of the
NAAQS. States were required to submit such SIPs for the 2010 1-hour
NO2 NAAQS to EPA no later than January 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 ``Regulation'' indicates that the cited regulation has been
approved into Tennessee's federally-approved SIP. The term
``Tennessee Annotated Code'', or ``TCA'', indicates cited Tennessee
state statutes, which are not a part of the SIP unless otherwise
indicated.
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    This action is proposing to approve Tennessee's infrastructure SIP
submission for the applicable requirements of the 2010 1-hour
NO2 NAAQS, with the exception of the PSD permitting
requirements for major sources of sections 110(a)(2)(C), prong 3 of
D(i), and (J), and the interstate transport provisions of prongs 1, 2,
and 4 of section 110(a)(2)(D)(i). On March 18, 2015, EPA approved
Tennessee's March 13, 2014 infrastructure SIP submission regarding the
PSD permitting requirements for major sources of sections 110(a)(2)(C),
prong 3 of D(i), and (J) for the 2010 1-hour NO2

NAAQS. See 80 FR 14019. Therefore, EPA is not proposing any action
pertaining to these requirements. With respect to Tennessee's
infrastructure SIP submission related to the interstate transport
provisions of prongs 1, 2 and 4 of section 110(a)(2)(D)(i), EPA is not
proposing any action today. EPA will act on these provisions in a
separate action. 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. In the case of the 2010 1-hour NO2 NAAQS, states
typically have met the basic program elements required in section
110(a)(2) through earlier SIP submissions in connection with previous
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 previously, these
requirements include SIP infrastructure elements such as modeling,
monitoring, and emissions inventories that are designed to assure
attainment and maintenance of the NAAQS. The requirements that are the
subject of this proposed rulemaking are listed 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 (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 due at the time the nonattainment area
plan requirements are due pursuant to section 172. These
requirements are: (1) Submissions required by section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required
in part D Title I of the CAA; and (2) submissions required by
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, Title I of the CAA. This proposed rulemaking
does not address infrastructure elements related to section
110(a)(2)(I) or the nonattainment planning requirements of
110(a)(2)(C).
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 110(a)(2)(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 previously, this element is not relevant to
this proposed rulemaking.
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 110(a)(2)(J): Consultation with Government Officials, Public
Notification, and PSD and Visibility Protection
 110(a)(2)(K): Air Quality Modeling 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 NO2 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 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 NSR pollutants, including
GHGs. By contrast, structural PSD program requirements do not include
provisions that are not required under EPA's regulations at 40 CFR
51.166 but are merely available as an option for the state, such as the
option to provide grandfathering of complete permit applications with
respect to the 2012 PM2.5 NAAQS. Accordingly, the latter
optional provisions are types of provisions EPA considers irrelevant in
the context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's implementation plan 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 new source review
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 implementation
plan 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?

    Tennessee's 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. The Tennessee Code Annotated section 68-
201-105(a) provides TDEC authority to establish limits and measures as
well as schedules for compliance to meet the applicable requirements of
the CAA. Emission limits and other control measures, means, and
techniques as well as schedules and timetables for activities that
contribute to NO2 concentrations in the ambient air are
found in Regulations 1200-03-03, Ambient Air Quality Standards, 1200-
03-19, Emission Standards and Monitoring Requirements for Additional
Control Areas, and 1200-03-27, Nitrogen Oxides. EPA has made the
preliminary determination that the cited provisions adequately address
110(a)(2)(A) for the 2010 1-hour NO2 NAAQS.
    In this action, EPA is not proposing to approve or disapprove any
existing State provisions with regard to excess emissions during SSM of
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: SIPs
are required to provide for the establishment and operation of ambient
air quality monitors, the compilation and analysis of ambient air
quality data, and the submission of these data to EPA upon request. TCA
68-201-105(b)(4) provides TDEC with the authority to collect and
disseminate information relating to air quality and pollution and the
prevention, control, supervision, and abatement thereof. 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 a certified evaluation of
the agency's ambient monitors and auxiliary support equipment.\19\ On
June 30, 2015, Tennessee submitted its monitoring network plan to EPA,
and on October 26, 2015, EPA approved this plan. Tennessee's approved
monitoring network plan can be accessed at www.regulations.gov using
Docket ID No. EPA-R04-OAR-2015-0252. 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 NO2 NAAQS.
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    \19\ On occasion, proposed changes to the monitoring network are
evaluated outside of the network plan approval process in accordance
with 40 CFR part 58.
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    3. 110(a)(2)(C) Program 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). To satisfy the requirements of
110(a)(2)(C), Tennessee cites to Regulations 1200-03-09, Construction
and Operating Permits, and 1200-03-13, Violation. These provisions of
Tennessee's SIP pertain to the construction and modification of
stationary sources and the enforcement of air pollution control
regulations. As discussed further below, in this action EPA is only
proposing to approve the enforcement, and the regulation of minor
sources and minor modifications aspects of Tennessee's section
110(a)(2)(C) infrastructure SIP submission.
    Enforcement: Regulation 1200-03-13, Enforcement provides for
enforcement of emission limits and control measures and construction
permitting for new or modified stationary sources. 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: With respect to
Tennessee's March 13, 2014, infrastructure SIP submission related to
the PSD permitting requirements for major sources of section
110(a)(2)(C), EPA took final action to approve these provisions for the
2010 1-hour NO2 NAAQS on March 18, 2015 (80 FR 14019).
    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
NO2 NAAQS. Tennessee has a SIP-approved minor NSR permitting
program at Regulations 1200-03-09-.01, Construction Permits, and 1200-
03-09-.03, General Provisions, that regulates the preconstruction
permitting of minor modifications and construction of minor stationary
sources.
    EPA has made the preliminary determination that Tennessee's SIP and
practices are adequate for program enforcement of control measures and
regulation of minor sources and modifications related to the 2010 1-
hour NO2 NAAQS.
    4. 110(a)(2)(D)(i) 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 have 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 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 NO2 NAAQS infrastructure
submission did not address prongs 1 and 2.
    110(a)(2)(D)(i)(II)--prong 3: With respect to Tennessee's
infrastructure SIP submission related to the interstate transport
requirements for PSD of section 110(a)(2)(D)(i)(II) (prong 3), EPA took
final action to approve Tennessee's March 13, 2014, infrastructure SIP
submission regarding prong 3 of D(i) for the 2010 1-hour NO2
NAAQS on March 18, 2015. See 80 FR 14019.
    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 protection 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 NO2 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. EPA is unaware of any pending obligations for
the State of Tennessee pursuant to sections 115 or 126 of the CAA. EPA
has made the preliminary determination that Tennessee's SIP and
practices are adequate for insuring compliance with the applicable
requirements relating to interstate and international pollution
abatement for the 2010 1-hour NO2 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 SIP as meeting the requirements of sections 110(a)(2)(E).
EPA's rationale for this proposals 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, 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-2015-0252.
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. EPA has made the preliminary determination that
Tennessee has adequate authority and resources for implementation of
the 2010 1-hour NO2 NAAQS.
    Section 110(a)(2)(E)(ii) requires that the state to 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 NO2
NAAQS and the requirements of CAA section 128 are met in Regulation
0400-30-17, Conflict of Interest. Under this regulation, the Tennessee
board with authority over air permits and enforcement orders is
required to determine annually and after receiving a new member that at
least a majority of its members represent to public interest and do not
derive any significant portion of income from persons subject to such
permits and enforcement orders. Further, the board cannot act to hear
contested cases until it has determined it can do so consistent with
CAA section 128. The regulation also requires TDEC's Technical
Secretary and board members to declare any conflict-of-interest in
writing prior to the issuance of any permit, variance or enforcement
order that requires action on their part.
    EPA has made the preliminary determination that the State has
adequately addressed the requirements of section 128, and accordingly
has met the requirements of section 110(a)(2)(E)(ii) with respect to
infrastructure SIP requirements. Therefore, EPA is proposing to approve
Tennessee's infrastructure SIP submission as meeting the requirements
of sub-elements 110(a)(2)(E)(i), (ii) and (iii).
    7. 110(a)(2)(F) Stationary source monitoring system: 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. Tennessee's infrastructure
SIP submission describes how the State establishes requirements for
emissions compliance testing and utilizes emissions sampling and
analysis. It further describes how the State ensures the quality of its
data through observing emissions and monitoring operations. These
infrastructure SIP requirements are codified at Regulation 1200-03-10,
Required Sampling, Recording, and Reporting. 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.
Accordingly, EPA is unaware of any provision preventing the use of
credible evidence in the Tennessee SIP.
    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 Air
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the
requirements for collecting and reporting air emissions data (73 FR
76539). The AERR shortened the time states had to report emissions data
from 17 to 12 months, giving states one calendar year to submit
emissions data. All states are required to submit a comprehensive
emissions inventory every three years and report emissions for certain
larger sources annually through EPA's online Emissions Inventory
System. States report emissions data for the six criteria pollutants
and the precursors that form them--nitrogen oxides, sulfur dioxide,
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 NO2 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 NO2 NAAQS2010 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) Future 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, Tennessee
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 NO2
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
NO2 NAAQS with respect to the general requirement in section
110(a)(2)(J) to include a program in the SIP that provides for meeting
the applicable consultation requirements of section 121, the public
notification requirements of section 127; and visibility protection
requirements of part C of the Act. With respect to Tennessee's
infrastructure SIP submission related to the preconstruction PSD
permitting requirements of section 110(a)(2)(J), EPA took final action
to approve Tennessee's March 13, 2014, 2010 1-hour NO2 NAAQS
infrastructure SIP for these requirements on March 18, 2015. See 80 FR
14019. EPA's rationale for its proposed action regarding applicable
consultation requirements of section 121, the public notification
requirements of section 127, and visibility protection requirements is
described below.
    110(a)(2)(J) (121 consultation)--Consultation with government
officials: 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. Regulation 1200-03-34, Conformity, as well as Tennessee'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. 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 NO2 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.
    110(a)(2)(J) (127 public notification)--Public notification: These
requirements are met through Regulation 1200-03-15, Emergency Episode
Plan, which requires that TDEC notify the public of any air pollution
alert, warning, or emergency. The TDEC Web site also provides air
quality summary data, air quality index reports and links to more
information regarding public awareness of measures that can prevent
such exceedances and of ways in which the public can participate in
regulatory and other efforts to improve air quality. 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 NO2 NAAQS when necessary. Accordingly,
EPA is proposing to approve Tennessee's infrastructure SIP submissions
with respect to section 110(a)(2)(J) public notification.
    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 related to the 2010 1-hour
NO2 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. Regulation 1200-03-09-.01(4), Prevention
of Significant Air Quality Deterioration, specifies that air modeling
be conducted in accordance with 40 CFR part 51, Appendix W ``Guideline
on Air Quality Models.'' Tennessee also states that it has personnel
with training and experience to conduct dispersion modeling consistent
with models approved by EPA protocols. Also note that TCA 68-201-
105(b)(7) grants TDEC the power and duty to collect and disseminate
information relative to air pollution. Additionally, Tennessee supports
a regional effort to coordinate the development of emissions
inventories and conduct regional modeling for NOx, which includes
NO2. Taken as a whole, Tennessee's regulations, statutes and
practices demonstrate that Tennessee has the authority to collect and
provide relevant data for the purpose of predicting the effect on
ambient air quality of the 1-hour NO2 NAAQS. EPA has made
the preliminary determination that Tennessee's SIP and practices
adequately demonstrate the State's ability to provide for air quality
and modeling, along with analysis of the associated data, related to
the 2010 1-hour NO2 NAAQS when necessary.
    12. 110(a)(2)(L) Permitting fees: This element necessitates that
the SIP require 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.
    Funding for the Tennessee air permit program comes from a
processing fee, submitted by permit applicants, required by Regulations
1200-03-26.02(5), Construction Fee, and 1200-03-26.02(9), Annual
Emissions Fees for Major Sources. Tennessee ensures this is sufficient
for the reasonable cost of reviewing and acting upon PSD and NNSR
permits. Additionally, Tennessee has a fully approved title V operating
permit program at Regulation 1200-03-09 \20\ that covers the cost of
implementation and enforcement of PSD and NNSR permits after they have
been issued. EPA has made the preliminary determination that
Tennessee's SIP and practices adequately provide for permitting fees
related to the 2010 NO2 NAAQS, when necessary. Accordingly,
EPA is proposing to approve Tennessee's infrastructure SIP submission
with respect to section 110(a)(2)(L).
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    \20\ Title V program regulations are federally-approved but not
incorporated into the federally-approved SIP.
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    13. 110(a)(2)(M) Consultation/participation by affected local
entities: Section 110(a)(2)(M) of the Act requires states to provide
for consultation and participation in SIP development by local
political subdivisions affected by the SIP. TCA 68-201-105, Powers and
duties of board Notification of vacancy Termination due to vacancy,
authorizes and requires the Tennessee Air Pollution Control Board to
promulgate rules and regulations related to consultation under the
provisions of the State's Uniform Administrative Procedures Act. TCA 4-
5-202, When hearings required, requires agencies to precede all
rulemaking with a notice and public hearing, except for exemptions. TCA
4-5-203, Notice of hearing, states that whenever an agency is required
by law to hold a public hearing as part of its rulemaking process, the
agency shall: ``(1) Transmit written notice of the hearings to the
secretary of state for publication in the notice section of the
administrative register Web site . . . and (2) Take such other steps as
it deems necessary to convey effective notice to persons who are likely
to have an interest in the proposed rulemaking.'' TCA 68-201-105(b)(7)
authorizes and requires TDEC to ``encourage voluntary cooperation of
affected persons or groups in preserving and restoring a reasonable
degree of air purity; advise, consult and cooperate with other
agencies, persons or groups in matters pertaining to air pollution; and
encourage authorized air pollution agencies of political subdivisions
to handle air pollution problems within their respective jurisdictions
to the greatest extent possible and to provide technical assistance to
political subdivisions . . .''. TAPCR 1200-03-34, Conformity, requires
interagency consultation on transportation and general conformity
issues. Additionally, TDEC has, in practice, consulted with local
entities for the development of its transportation conformity SIP and
has worked with the 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 NO2 NAAQS
when necessary. 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 the preconstruction PSD permitting
requirements for major sources of section 110(a)(2)(C), prong 3 of
(D)(i), and (J) and the interstate transport provisions pertaining to
the contribution to nonattainment or interference with maintenance in
other states and visibility of prongs 1, 2, and 4 of section
110(a)(2)(D)(i), EPA is proposing to approve that Tennessee's March 13,
2014, SIP submission for the 2010 1-hour NO2 NAAQS has met
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. 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).
    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: June 30, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-16514 Filed 7-13-16; 8:45 am]
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[Federal Register Volume 76, Number 63 (Friday, April 1, 2011)]
[Notices]
[Pages 18211-18212]
[FR Doc No: 2011-7683]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 11910-016]

Symbiotics, LLC; Notice of Application for Amendment of License
and Soliciting Comments, Motions To Intervene, and Protests

    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection:
    a. Application Type: Non-Capacity Amendment of License.
    b. Project No.: 11910-016.
    c. Date Filed: March 21, 2011.
    d. Applicant: Symbiotics, LLC.
    e. Name of Project: Applegate Dam Project.
    f. Location: The project is located on the Applegate River, a
tributary to the Rogue River, in Jackson County, Oregon.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791(a)-825(r).
    h. Applicant Contact: Brent Smith, Chief Operating Officer,
Symbiotics, LLC, P.O. Box 535, Rigby, Idaho 83442; telephone (208) 745-
0834.
    i. FERC Contact: Any questions regarding this notice should be
directed to Mr. Anthony DeLuca<PHONE_NUMBER> or
<EMAIL_ADDRESS>    j. Deadline for filing comments, motions to intervene and protest:
April 25, 2011. All documents may be filed electronically via the
Internet. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the
Commission's Web site at http://www.ferc.gov/docs-filing/efiling.asp.
If unable to be filed electronically, documents may be paper-filed. To
paper-file, an original and seven copies should be mailed to:
Secretary, Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426. Commenters can submit brief comments up to 6,000
characters, without prior registration, using the eComment system at
http://www.ferc.gov/docs-filing/ecomment.asp. You must include your
name and contact information at the end of your comments.
    Please include the project number (P-11910-016) on any comments,
motions, or recommendations filed.
    k. Description of Request: Amendment to Transmission Line
Configuration and Project Boundary: Symbiotics, LLC proposes to bury
all 15 miles of transmission lines from the powerhouse to their
terminus at small substation in the community of Ruch, Oregon. The
proposal would adjust the project's existing right-of-way (ROW) for the
project's transmission lines from the above ground corridor to an
adjacent subsurface location along Jackson County's utility ROW that
follows Upper Applegate Road, Hamilton Road, and State Highway 238.
    l. Locations of the Application: A copy of the application 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://www.ferc.gov/docs-filing/efiling.asp. 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/docs-filing/esubscription.asp to be
notified via e-mail of new filings and issuances related to this or
other pending projects. For assistance, call 1-866-208-3676 or e-mail
<EMAIL_ADDRESS>for TTY, call<PHONE_NUMBER>. A copy is
also available for inspection and reproduction at the address 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, .211,
.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.
    o. Filing and Service of Responsive Documents: Any filing must (1)
bear in all capital letters the title ``COMMENTS'', ``PROTEST'', or
``MOTION TO INTERVENE'' as applicable; (2) set forth in the heading the
name of the applicant and the

project number of the application to which the filing responds; (3)
furnish the name, address, and telephone number of the person
protesting or intervening; and (4) otherwise comply with the
requirements of 18 CFR 385.2001 through 385.2005. All comments, motions
to intervene or protests must set forth their evidentiary basis and
otherwise comply with the requirements of 18 CFR 4.34(b). All comments,
motions to intervene or protests should relate to project works which
are the subject of the license amendment. Agencies may obtain copies of
the application directly from the applicant. A copy of any protest or
motion to intervene must be served upon each representative of the
applicant specified in the particular application. If an intervener
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 all other filings in reference to this
application must be accompanied by proof of service on all persons
listed in the service list prepared by the Commission in this
proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.

    Dated: March 25, 2011.
Kimberly D. Bose,
Secretary.
[FR Doc. 2011-7683 Filed 3-31-11; 8:45 am]
BILLING CODE 6717-01-P