[Federal Register Volume 77, Number 73 (Monday, April 16, 2012)]
[Proposed Rules]
[Pages 22533-22540]
[FR Doc No: 2012-9073]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2011-0353; FRL-9659-2]

Approval and Promulgation of Implementation Plans; Tennessee;
110(a)(1) and (2) Infrastructure Requirements for the 1997 8-Hour Ozone
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve in part, and conditionally approve
in part, the State Implementation Plan (SIP) submission, submitted by
the State of Tennessee, through the Tennessee Department of Environment
and Conservation (TDEC), to demonstrate that the State meets the
requirements of sections 110(a)(1) and (2) of the Clean Air Act (CAA or
Act) for the 1997 8-hour ozone national ambient air quality standards
(NAAQS). Section 110(a) of the CAA requires that each state adopt and
submit a SIP for the implementation, maintenance, and enforcement of
each NAAQS promulgated by the EPA, which is commonly referred to as an
``infrastructure'' SIP. TDEC certified that the Tennessee SIP contains
provisions that ensure the 1997 8-hour ozone NAAQS are implemented,
enforced, and maintained in Tennessee (hereafter referred to as
``infrastructure submission''). EPA is proposing to conditionally
approve sub-element 110(a)(2)(E)(ii) of Tennessee's December 14, 2007,
submission because the current Tennessee SIP does not include
provisions to comply with the requirements of this sub-element. With
the exception of sub-element 110(a)(2)(E)(ii), EPA is proposing to
determine that Tennessee's infrastructure submission, provided to EPA
on December 14, 2007, addressed all the required infrastructure
elements for the 1997 8-hour ozone NAAQS.

DATES: Written comments must be received on or before May 16, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2011-0353, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. Email<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: ``EPA-R04-OAR-2011-0353,'' Regulatory Development Section,
Air Planning Branch, Air, Pesticides and Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Lynorae Benjamin, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are
only accepted during the Regional Office's normal hours of operation.
The Regional Office's official hours of business are Monday through
Friday, 8:30 to 4:30, excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2011-0353. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit through www.regulations.gov or
email, information that you consider to be CBI or otherwise protected.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
comment directly to EPA without going through www.regulations.gov, your
email address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy at the Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
federal holidays.

FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number
is<PHONE_NUMBER>. Ms. Ward can be reached via electronic mail at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

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

I. Background

    On July 18, 1997, EPA promulgated a new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the
previous 1-hour averaging period, and the level of the NAAQS was
changed from 0.12 parts per million (ppm) to 0.08 ppm. See 62 FR 38856.
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. 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 1997 8-hour ozone NAAQS to EPA no later than June 2000. However,
intervening litigation over the 1997 8-hour ozone NAAQS created
uncertainty about how to proceed and many states did not provide the
required ``infrastructure'' SIP submission for these newly promulgated
NAAQS.
    On March 4, 2004, Earthjustice submitted a notice of intent to sue
related to EPA's failure to issue findings of failure to submit related
to the ``infrastructure'' requirements for the 1997 8-hour ozone NAAQS.
EPA entered into a consent decree with Earthjustice which required EPA,
among other things, to complete a Federal Register notice announcing
EPA's determinations pursuant to section 110(k)(1)(B) as to whether
each state had made complete submissions to meet the requirements of
section 110(a)(2) for the 1997 8-hour ozone NAAQS by December 15, 2007.
Subsequently, EPA received an extension of the date to complete this
Federal Register notice until March 17, 2008, based upon agreement to
make the findings with respect to submissions made by January 7, 2008.
In accordance with the consent decree, EPA made completeness findings
for each state based upon what the Agency received from each state as
of January 7, 2008.
    On March 27, 2008, EPA published a final rulemaking entitled,
``Completeness Findings for Section 110(a) State Implementation Plans;
8-Hour Ozone NAAQS,'' making a finding that each state had submitted or
failed to submit a complete SIP that provided the basic program
elements of section 110(a)(2) necessary to implement the 1997 8-hour
ozone NAAQS. See 73 FR 16205. For those states that did receive
findings, such as Tennessee, the findings of failure to submit for all
or a portion of a state's implementation plan established a 24-month
deadline for EPA to promulgate a Federal Implementation Plan (FIP) to
address the outstanding SIP elements unless, prior to that time, the
affected states submitted, and EPA approved, the required SIPs.
However, the findings of failure to submit did not impose sanctions or
set deadlines for imposing sanctions as described in section 179 of the
CAA, because these findings do not pertain to the elements contained in
the Title I part D plan for nonattainment areas as required under
section 110(a)(2)(I). Additionally, the findings of failure to submit
for the infrastructure submittals are not a SIP call pursuant to
section 110(k)(5).
    The findings that all or portions of a state's submission are
complete established a 12-month deadline for EPA to take action upon
the complete SIP elements in accordance with section 110(k).
Tennessee's infrastructure submission was received by EPA on December
14, 2007, and was determined to be complete on March 27, 2008, for all
elements with the exception of 110(a)(2)(C) and (J). Tennessee was
among other states that received a finding of failure to submit because
its infrastructure submission was not complete for elements (C) and (J)
for the 1997 8-hour ozone NAAQS by March 1, 2008. Tennessee has since
met the completeness requirements for 110(a)(2)(C) and (J) and these
infrastructure elements were federally approved on March 14, 2012. See
77 FR 14976.
    Today's action is proposing to approve in part, and conditionally
approve in part, Tennessee's infrastructure submission for which EPA
made the completeness determination on March 27, 2008. This action 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 1997 8-hour ozone NAAQS, states typically
have met the basic program elements required in section 110(a)(2)
through earlier SIP submissions in connection with previous ozone
NAAQS.
    More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. As mentioned above, these
requirements include 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 \1\ and in EPA's
October 2, 2007, memorandum entitled ``Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards.''
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    \1\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the nonattainment area
plan requirements are due pursuant to 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).
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     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control
measures.\2\
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    \2\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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     110(a)(2)(D): Interstate transport.\3\
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    \3\ Today's proposed rule does not address element
110(a)(2)(D)(i) (Interstate Transport) for the 1997 8-hour ozone
NAAQS. Interstate transport requirements were formerly addressed by
Tennessee consistent with the Clean Air Interstate Rule (CAIR). On
December 23, 2008, CAIR was remanded by the D.C. Circuit Court of
Appeals, without vacatur, back to EPA. See North Carolina v. EPA,
531 F.3d 896 (D.C. Cir. 2008). Prior to this remand, EPA took final
action to approve Tennessee's SIP revision, which was submitted to
comply with CAIR. See 72 FR 46388 (August 20, 2007). In so doing,
Tennessee's CAIR SIP revision addressed the interstate transport
provisions in section 110(a)(2)(D)(i) for the 1997 8-hour ozone
NAAQS. In response to the remand of CAIR, EPA has promulgated a new
rule to address interstate transport. See 76 FR 48208 (August 8,
2011) (``the Transport Rule''). That rule was recently stayed by the
D.C. Circuit Court of Appeals. EPA's action on element
110(a)(2)(D)(i) will be addressed in a separate action.

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     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the
applicable requirements of part D.\4\
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    \4\ This requirement was inadvertently omitted from EPA's
October 2, 2007, memorandum entitled ``Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone
and PM2.5 National Ambient Air Quality Standards,'' but
as mentioned above is not relevant to today's proposed rulemaking.
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     110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local
entities.

III. Scope of Infrastructure SIPs

    EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and fine
particulate matter (PM2.5) NAAQS for various states across
the country. Commenters on EPA's recent proposals for some states
raised concerns about EPA statements that it was not addressing certain
substantive issues in the context of acting on those infrastructure SIP
submissions.\5\ Those Commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements in other
proposals that it would address two issues separately and not as part
of actions on the infrastructure SIP submissions: (i) Existing
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction (SSM) at sources, that may be contrary to the
CAA and EPA's policies addressing such excess emissions; and (ii)
existing provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (director's
discretion). EPA notes that there are two other substantive issues for
which EPA likewise stated in other proposals that it would address the
issues separately: (i) Existing provisions for minor source new source
review programs that may be inconsistent with the requirements of the
CAA and EPA's regulations that pertain to such programs (minor source
NSR); and (ii) 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). In light of the comments, EPA believes
that its statements in various proposed actions on infrastructure SIPs
with respect to these four individual issues should be explained in
greater depth. It is important to emphasize that EPA is taking the same
position with respect to these four substantive issues in this action
on the infrastructure SIPs for the 1997 8-hour ozone NAAQS from
Tennessee.
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    \5\ See Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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    EPA intended the statements in the other proposals concerning these
four issues merely to be informational, and to provide general notice
of the potential existence of provisions within the existing SIPs of
some states that might require future corrective action. EPA did not
want states, regulated entities, or members of the public to be under
the misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a re-approval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing state provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
re-approval of any existing provisions that relate to these four
substantive issues. EPA is reiterating that position in this action on
the infrastructure SIP for Tennessee.
    Unfortunately, the Commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issues in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements in those other proposals, however, we want to explain
more fully the Agency's reasons for concluding that these four
potential substantive issues in existing SIPs may be addressed
separately from actions on infrastructure SIP submissions.
    The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``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
that these SIPs are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This

specific term does not appear in the statute, but EPA uses the term to
distinguish this particular type of SIP submission designed to address
basic structural requirements of a SIP from other types of SIP
submissions designed to address other different requirements, such as
``nonattainment SIP'' submissions required to address the nonattainment
planning requirements of part D, ``regional haze SIP'' submissions
required to address the visibility protection requirements of CAA
section 169A, NSR permitting program submissions required to address
the requirements of part D, and a host of other specific types of SIP
submissions that address other specific matters.
    Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, 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 provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\6\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\7\
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    \6\ For example, section 110(a)(2)(E) 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 substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
    \7\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's SIP contains adequate provisions to prevent
significant contribution to nonattainment of the NAAQS in other
states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. See ``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
(May 12, 2005) (defining, among other things, the phrase
``contribute significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) provides that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\8\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\9\ This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the state's
implementation plans. Finally, 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 and the attendant
infrastructure SIP submission for that NAAQS. For example, the
monitoring requirements that might be necessary for purposes of section
110(a)(2)(B) for one NAAQS could be very different than what might be
necessary for a different pollutant. Thus, the content of an
infrastructure SIP submission to meet this element from a state might
be very different for an entirely new NAAQS, versus a minor revision to
an existing NAAQS.\10\
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    \8\ See Id., 70 FR 25162, at 63-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
    \9\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See ``Guidance for State Implementation
Plan (SIP) Submissions to Meet Current Outstanding Obligations Under
Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division OAQPS, to Regional Air Division
Director, Regions I-X, dated August 15, 2006.
    \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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    Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
    Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these ozone and PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\11\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \12\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information

about the types of issues that EPA considered germane in the context of
such infrastructure SIPs. EPA emphasized that the description of the
basic requirements listed on attachment A was not intended ``to
constitute an interpretation of'' the requirements, and was merely a
``brief description of the required elements.'' \13\ EPA also stated
its belief that with one exception, these requirements were
``relatively self explanatory, and past experience with SIPs for other
NAAQS should enable States to meet these requirements with assistance
from EPA Regions.'' \14\ However, for the one exception to that general
assumption (i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS), EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
State would work with its corresponding EPA regional office to refine
the scope of a State's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the State's implementation plans for the NAAQS in
question.
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    \11\ See ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
    \12\ Id., at page 2.
    \13\ Id., at attachment A, page 1.
    \14\ Id., at page 4. In retrospect, the concerns raised by the
Commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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    On September 25, 2009, EPA issued guidance to make recommendations
to states with respect to the infrastructure SIPs for the 2006
PM2.5 NAAQS.\15\ In the 2009 Guidance, EPA addressed a
number of additional issues that were not germane to the infrastructure
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but
were germane to these SIP submissions for the 2006 PM2.5
NAAQS (e.g., the requirements of section 110(a)(2)(D)(i) that EPA had
bifurcated from the other infrastructure elements for those specific
1997 ozone and PM2.5 NAAQS). Significantly, neither the 2007
Guidance nor the 2009 Guidance explicitly referred to the SSM,
director's discretion, minor source NSR, or NSR Reform issues as among
specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance and the
2009 Guidance, however, EPA did not indicate to states that it intended
to interpret these provisions as requiring a substantive submission to
address these specific issues in existing SIP provisions in the context
of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007
Guidance merely indicated its belief that the states should make
submissions in which they established that they have the basic SIP
structure necessary to implement, maintain, and enforce the NAAQS. EPA
believes that states can establish that they have the basic SIP
structure, notwithstanding that there may be potential deficiencies
within the existing SIP. Thus, EPA's proposals for other states
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from the pending infrastructure SIP actions. The same holds
true for this action on the infrastructure SIPs for Tennessee.
---------------------------------------------------------------------------

    \15\ See ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
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    EPA believes that this approach to the infrastructure SIP
requirement is reasonable because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP 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 that, 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 considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
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 otherwise to comply with the CAA.\16\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\17\ Significantly, EPA's
determination that an action on the infrastructure SIP is not the
appropriate time and place to address all potential existing SIP
problems does not preclude the Agency's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action 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 the infrastructure SIP, EPA
believes that section 110(a)(2)(A) may be among the statutory bases
that the Agency cites in the course of addressing the issue in a
subsequent action.\18\
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    \16\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 76 FR 21639 (April 18, 2011).
    \17\ EPA has recently utilized 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 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See 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).
    \18\ EPA has recently disapproved 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 75 FR 42342, 42344 (July 21, 2010) (proposed
disapproval of director's discretion provisions); 76 FR 4540
(January 26, 2011) (final disapproval of such provisions).

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IV. What is EPA's analysis of how Tennessee addressed the elements of
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:
Several regulations within Tennessee's SIP provide Tennessee Air
Pollution Control Regulations relevant to air quality control
regulations. The regulations described below have been federally
approved in the Tennessee SIP and include enforceable emission
limitations and other control measures. Chapters 1200-3-1, General
Provisions; 1200-3-3, Air Quality Standards; 1200-3-4, Open Burning;
1200-3-18, Volatile Organic Compounds; and 1200-3-27, Nitrogen Oxides,
of the Tennessee SIP establish emission limits for ozone and address
the required control measures, means, and techniques for compliance
with the ozone NAAQS. EPA has made the preliminary determination that
the provisions contained in these chapters and Tennessee's practices
are adequate to protect the 1997 8-hour ozone 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 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 plans to address such state regulations in the future. In the
meantime, EPA encourages any state having a deficient SSM provision to
take steps to correct it as soon as possible.
    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:
Tennessee's Air Pollution Control Requirements, Chapter 1200-3-12,
Procedures for Ambient Sampling and Analysis, of the Tennessee SIP,
along with the Tennessee Network Description and Ambient Air Monitoring
Network Plan, provide for an ambient air quality monitoring system in
the State. Annually, EPA approves the ambient air monitoring network
plan for the state agencies. On July 1, 2011, Tennessee submitted its
plan to EPA. On October 24, 2011, EPA approved Tennessee's monitoring
network plan. Tennessee's approved monitoring network plan can be
accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2011-
0353. 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 1997 8-hour ozone NAAQS.
    3. 110(a)(2)(D)(ii) Interstate and International transport
provisions: Chapter 1200-9-.01(5) Growth Policy, of the Tennessee SIP
outlines how the State will notify neighboring states of potential
impacts from new or modified sources. Tennessee does not have any
pending obligation under sections 115 and 126 of the CAA. Additionally,
Tennessee has federally approved regulations in its SIP that satisfy
the requirements for the NOX SIP Call. See 70 FR 76408
(December 27, 2005). 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 1997 8-hour ozone NAAQS.
    4. 110(a)(2)(E) Adequate resources: EPA is proposing two separate
actions with respect to the sub-elements required pursuant to section
110(a)(2)(E). 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. As with the remainder
of the infrastructure elements addressed by this notice, EPA is
proposing to approve Tennessee's SIP as meeting the requirements of
sub-elements 110(a)(2)(E)(i) and (iii). With respect to sub-element
110(a)(2)(E)(ii) (regarding state boards), EPA is proposing to approve
in part, and conditionally approve in part, this sub-element. EPA's
rationale for today's proposals respecting each sub-element is
described in turn below.
    In support of EPA's proposal to approve sub-elements
110(a)(2)(E)(i) and (iii), EPA notes that TDEC, through the Tennessee
Air Pollution Control Board, is responsible for promulgating rules and
regulations for the NAAQS, emissions standards general policies, a
system of permits, fee schedules for the review of plans, and other
planning needs. 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 11, 2011, outlining 105 grant commitments and
current status of these commitments for fiscal year 2010. The letter
EPA submitted to Tennessee can be accessed at www.regulations.gov using
Docket ID No. EPA-R04-OAR-2011-0353. Annually, states update these
grant commitments based on current SIP requirements, air quality
planning, and applicable requirements related to the NAAQS. There were
no outstanding issues for fiscal year 2009, therefore, Tennessee's
grants were finalized and closed out. EPA has made the preliminary
determination that Tennessee has adequate resources for implementation
of the 1997 8-hour ozone NAAQS.
    With respect to sub-element 110(a)(2)(E)(ii), EPA is proposing to
approve in part, and to conditionally approve in part, Tennessee's
infrastructure SIP as to this requirement. Section 110(a)(2)(E)(ii)
provides that infrastructure SIPs must require compliance with section
128 of CAA requirements respecting State boards. Section 128, in turn,
provides at subsection (a)(1) that each SIP shall require that any
board or body which approves permits or enforcement orders shall be
subject to the described public interest and income restrictions
therein. Subsection 128(a)(2) requires that any board or body, or the
head of an executive agency with similar power to approve permits or
enforcement orders under the CAA, shall also be subject to conflict of
interest disclosure requirements. In this action, EPA is proposing to
conditionally approve Tennessee's infrastructure SIP for element
110(a)(2)(E)(ii) with respect to the applicable section 128(a)(1)
requirements, and to approve Tennessee's infrastructure SIP for element
110(a)(2)(E)(ii) with respect the

applicable section 128(a)(2) requirements.
    EPA's proposed conditional approval of this sub-element
110(a)(2)(E)(ii) respecting the 128(a)(1) requirements is based upon a
TDEC letter to EPA, dated March 28, 2012, which outlined TDEC's
commitment to adopt specific enforceable measures into its SIP within
one year to address the applicable portions of section 128(a)(1). The
March 28, 2012, letter from TDEC to EPA can be accessed at
www.regulations.gov using docket ID No. EPA-R04-OAR-2011-0353.
    In Tennessee's March 28, 2012, commitment letter, TDEC committed to
bring its SIP into conformity with section 128(a)(1) of the CAA by
submitting SIP revisions that designate at least a majority of the
positions on the State's Air Pollution Control Board \19\ as being
subject to the ``public interest'' requirement. In addition, TDEC has
committed to submitting SIP revisions establishing requirements to
ensure that at least a majority of the members on the State's Air
Pollution Control Board do not derive any significant portion of their
income from persons subject to permits or enforcement orders. In the
March 28, 2012 commitment letter, TDEC describes that its planned
restrictions related to the ``significant portion of income''
requirements of section 128 will include an exclusion for the official
salaries of mayors of counties and municipalities, and for faculty
members at institutions of higher learning.
---------------------------------------------------------------------------

    \19\ The composition of Tennessee's Air Pollution Control Board
is statutorily prescribed at Tennessee Code Annotated 68-201-104.
---------------------------------------------------------------------------

    In accordance with section 110(k)(4) of the CAA, the commitment
from Tennessee must provide that the State will adopt the specified
enforceable provisions and submit a revision to EPA for approval within
one year from EPA's final conditional approval action. In its March 28,
2012, letter, TDEC committed to adopt the above-specified enforceable
provisions and submit them to EPA for incorporation into the SIP by no
later than one year from the effective date of EPA's final conditional
approval action for this requirement. Failure by the State to adopt
these provisions and submit them to EPA for incorporation into the SIP
within one year from the effective date of EPA's final conditional
approval action would result in this proposed conditional approval
being treated as a disapproval. Should that occur, EPA would provide
the public with notice of such a disapproval in the Federal
Register.\20\
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    \20\ EPA notes that pursuant to section 110(k)(4), a conditional
approval is treated as a disapproval in the event that a State fails
to comply with its commitment. Notification of this disapproval
action in the Federal Register is not subject to public notice and
comment.
---------------------------------------------------------------------------

    As a result of Tennessee's formal commitment to correct
deficiencies contained in the Tennessee SIP pertaining to section 128,
EPA intends to move forward with finalizing the conditional approval of
110(a)(2)(E)(ii) with respect to the section 128(a)(1) requirements
consistent with section 110(k)(4) of the Act. With respect to the
remaining sub-elements of 110(a)(2)(E), EPA is proposing to approve
these portions of Tennessee's infrastructure SIP. As such, EPA has made
the preliminary determination that Tennessee has adequate resources for
implementation of the 1997 8-hour ozone NAAQS.
    5. 110(a)(2)(F) Stationary source monitoring system: Tennessee's
infrastructure submission describes how to establish requirements for
compliance testing by emissions sampling and analysis, and for
emissions and operation monitoring to ensure the quality of data in the
State. TDEC uses these data to track progress towards maintaining the
NAAQS, develop control and maintenance strategies, identify sources and
general emission levels, and determine compliance with emission
regulations and additional EPA requirements. These requirements are
provided in Chapter 1200-3-10, Required Sampling, Recording and
Reporting, of 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
(EIS). States report emissions data for the six criteria pollutants and
their associated precursors--NOX, sulfur dioxide, ammonia,
lead, carbon monoxide, particulate matter, and volatile organic
compounds (VOCs). Many states also voluntarily report emissions of
hazardous air pollutants. Tennessee made its latest update to the NEI
on December 31, 2011. 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
1997 8-hour ozone NAAQS.
    6. 110(a)(2)(G) Emergency power: Chapter 1200-3-15, Emergency
Episode Requirements, of the Tennessee SIP identifies air pollution
emergency episodes and preplanned abatement strategies. These criteria
have previously been approved by EPA. EPA has made the preliminary
determination that Tennessee's SIP and practices are adequate for
emergency powers related to the 1997 8-hour ozone NAAQS.
    7. 110(a)(2)(H) Future SIP revisions: As previously discussed, TDEC
is responsible for adopting air quality rules and revising SIPs as
needed to attain or maintain the NAAQS. Tennessee has the ability and
authority to respond to calls for SIP revisions, and has provided a
number of SIP revisions over the years for implementation of the NAAQS.
Specific to the 1997 8-hour ozone NAAQS, Tennessee has provided the
following submissions, including:
     August 10, 2005, SIP Revision--(EPA approval, 70 FR 55559,
September 22, 2005) Redesignation of the Montgomery County portion of
the Clarksville-Hopkinsville, TN-KY 8-hour Ozone Area;
     February 26, 2009, SIP Revision--(EPA approval, 75 FR 56,
January 4, 2010) Redesignation of the Memphis, TN 8-hour Ozone Area;
     July 14, 2010, SIP Revision--(EPA approval, 76 FR 12587,
March 8, 2011) Redesignation of the Knoxville, TN 8-hour Ozone Area;
and,
     October 13, 2010, SIP Revision (EPA approval, 76 FR 5078,
January 28, 2011) Nashville 110(a)(1) Maintenance Plan.
    Tennessee has no areas designated as nonattainment for the 1997 8-
hour ozone NAAQS. EPA has made the preliminary determination that
Tennessee's SIP and practices adequately demonstrate a commitment to
provide future SIP revisions related to the 1997 8-hour ozone NAAQS
when necessary.
    8. 110(a)(2)(K) Air quality and modeling/data: Chapter 1200-3-
9-.01(4)(k), Air Quality Models, of the Tennessee SIP specify that
required air modeling be conducted in accordance

with 40 CFR Part 51, Appendix W ``Guideline on Air Quality Models,'' as
incorporated into the Tennessee SIP. These standards demonstrate that
Tennessee has the authority to provide relevant data for the purpose of
predicting the effect on ambient air quality of the 8-hour ozone NAAQS.
Additionally, Tennessee supports a regional effort to coordinate the
development of emissions inventories and conduct regional modeling for
several NAAQS, including the 1997 8-hour ozone 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 8-hour ozone 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
1997 8-hour ozone NAAQS when necessary.
    9. 110(a)(2)(L) Permitting fees: As discussed above, Tennessee's
SIP provides for the review of construction permits. Permitting fees in
Tennessee are collected through the State's federally-approved title V
fees program and consistent with Chapter 1200-03-26-.02, Permit-Related
Fees, of the Tennessee Code. EPA has made the preliminary determination
that Tennessee's SIP and practices adequately provide for permitting
fees related to the 1997 8-hour ozone NAAQS when necessary.
    10. 110(a)(2)(M) Consultation/participation by affected local
entities: Chapter 1200-3-9-.01(4)(k), Public Participation, of the
Tennessee SIP requires that TDEC notify the public of an application,
preliminary determination, the activity or activities involved in the
permit action, any emissions change associated with any permit
modification, and the opportunity for comment prior to making a final
permitting decision. By way of example, TDEC has recently worked
closely with local political subdivisions during the development of its
Transportation Conformity SIP, Regional Haze Implementation Plan, and
Early Action Compacts. EPA has made the preliminary determination that
Tennessee's SIP and practices adequately demonstrate consultation with
affected local entities related to the 1997 8-hour ozone NAAQS when
necessary.

V. Proposed Action

    As described above, with the exception of sub-element
110(a)(2)(E)(ii), EPA is proposing to determine that Tennessee's
infrastructure submission, provided to EPA on December 14, 2007,
addressed the required infrastructure elements for the 1997 8-hour
ozone NAAQS. EPA is proposing to approve in part and conditionally
approve in part, Tennessee's SIP submission consistent with section
110(k)(3) of the CAA.
    As described above, with the exception of sub-element
110(a)(2)(E)(ii), TDEC has addressed the elements of the CAA 110(a)(1)
and (2) SIP requirements pursuant to EPA's October 2, 2007, guidance to
ensure that the 1997 8-hour ozone NAAQS are implemented, enforced, and
maintained in Tennessee. With respect to 110(a)(2)(E)(ii) (referencing
section 128 of the CAA), EPA is proposing to conditionally approve
Tennessee's infrastructure SIP. On March 28, 2012, Tennessee submitted
a letter requesting conditional approval of 110(a)(2)(E)(ii). In this
letter, TDEC committed to adopt specific enforceable measures into its
SIP and submit these revisions to EPA within one year of EPA's final
rulemaking to address the applicable portions of section 128. EPA is
also proposing to approve Tennessee's infrastructure submission for the
1997 8-hour ozone NAAQS, with the exception of sub-element
110(a)(2)(E)(ii) because its December 14, 2007, 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 Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.

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

    Dated: March 29, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-9073 Filed 4-13-12; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 81, Number 105 (Wednesday, June 1, 2016)]
[Rules and Regulations]
[Pages 34880-34882]
[FR Doc No: 2016-12638]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2016-0525; Airspace Docket No. 16-AGL-1]

Amendment of Class E Airspace for the Following South Dakota
Towns; Belle Fourche, SD; Madison, SD; Mobrigde, SD; and Vermillion, SD

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action modifies Class E airspace extending upward from
700 feet above the surface at Belle Fourche Municipal Airport, Belle
Fourche, SD; Madison Municipal Airport, Madison, SD; Mobridge Municipal
Airport, Mobridge, SD; and Harold Davidson Field, Vermillion, SD. The

decommissioning of non-directional radio beacons (NDB) and/or
cancellation of NDB approaches due to advances in Global Positioning
System (GPS) capabilities have made this action necessary for the
safety and management of Instrument Flight Rules (IFR) operations at
the above airports.

DATES: Effective 0901 UTC, September 15, 2016. The Director of the
Federal Register approves this incorporation by reference action under
Title 1, Code of Federal Regulations, part 51, subject to the annual
revision of FAA Order 7400.9 and publication of conforming amendments.

ADDRESSES: FAA Order 7400.9Z, Airspace Designations and Reporting
Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can
contact the Airspace Policy Group, Federal Aviation Administration, 800
Independence Avenue SW., Washington, DC, 20591; telephone: 202-267-
8783. The Order is also available for inspection at the National
Archives and Records Administration (NARA). For information on the
availability of FAA Order 7400.9Z at NARA, call<PHONE_NUMBER>, or go to
http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.
    FAA Order 7400.9, Airspace Designations and Reporting Points, is
published yearly and effective on September 15.

FOR FURTHER INFORMATION CONTACT: Jeffrey Claypool, Federal Aviation
Administration, Operations Support Group, Central Service Center, 10101
Hillwood Parkway, Fort Worth, TX, 76177; telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. This rulemaking is promulgated under the authority described
in Subtitle VII, Part A, Subpart I, Section 40103. Under that section,
the FAA is charged with prescribing regulations to assign the use of
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it amends Class E airspace at Belle Fourche Municipal Airport, Belle
Fourche, SD; Madison Municipal Airport, Madison, SD; Mobridge Municipal
Airport, Mobridge, SD; and Harold Davidson Field, Vermillion, SD.

History

    On February 17, 2016, the FAA published in the Federal Register a
notice of proposed rulemaking (NPRM) to modify Class E airspace
extending upward from 700 feet above the surface at Belle Fourche
Municipal Airport, Belle Fourche, SD; Madison Municipal Airport,
Madison, SD; Mobridge Municipal Airport, Mobridge, SD; and Harold
Davidson Field, Vermillion, SD (81 FR 8029). Interested parties were
invited to participate in this rulemaking effort by submitting written
comments on the proposal to the FAA. No comments were received.
    Class E airspace designations are published in paragraph 6005 of
FAA Order 7400.9Z, dated August 6, 2015, and effective September 15,
2015, which is incorporated by reference in 14 CFR part 71.1. The Class
E airspace designation listed in this document will be published
subsequently in the Order.

Availability and Summary of Documents for Incorporation by Reference

    This document amends FAA Order 7400.9Z, Airspace Designations and
Reporting Points, dated August 6, 2015, and effective September 15,
2015. FAA Order 7400.9Z is publicly available as listed in the
ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B,
C, D, and E airspace areas, air traffic service routes, and reporting
points.

The Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR)
part 71 modifies Class E airspace extending upward from 700 feet above
the surface at Belle Fourche Municipal Airport, Belle Fourche, SD;
Madison Municipal Airport, Madison, SD; Mobridge Municipal Airport,
Mobridge, SD; and Harold Davidson Field, Vermillion, SD. Airspace
reconfiguration is necessary due to the decommissioning of NDBs and/or
the cancellation of the NDB approach at each airport. As a result of
advances in GPS capabilities, controlled airspace is redesigned for the
safety and management of the standard instrument approach procedures
for IFR operations at the airports.

 Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current, is
non-controversial and unlikely to result in adverse or negative
comments. It, therefore: (1) Is not a ``significant regulatory action''
under Executive Order 12866; (2) is not a ``significant rule'' under
DOT Regulatory Policies and Procedures (44 FR 11034; February 26,
1979); and (3) does not warrant preparation of a Regulatory Evaluation
as the anticipated impact is so minimal. Since this is a routine matter
that only affects air traffic procedures and air navigation, it is
certified that this rule, when promulgated, does not have a significant
economic impact on a substantial number of small entities under the
criteria of the Regulatory Flexibility Act.

Environmental Review

    The FAA has determined that this action qualifies for categorical
exclusion under the National Environmental Policy Act in accordance
with FAA Order 1050.1F, ``Environmental Impacts: Policies and
Procedures,'' paragraph 5-6.5.a. This airspace action is not expected
to cause any potentially significant environmental impacts, and no
extraordinary circumstances exist that warrant preparation of an
environmental assessment.

Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (Air).

Adoption of the Amendment:

    In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for Part 71 continues to read as follows:

    Authority:  49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O.
10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z,
Airspace Designations and Reporting Points, dated August 6, 2015, and
effective September 15, 2015, is amended as follows:

Paragraph 6005 Class E Airspace Areas Extending Upward from 700
Feet or More Abovethe Surface of the Earth

* * * * *

AGL SD E5 Belle Fourche, SD [Amended]

Belle Fourche Municipal Airport, SD
    (Lat. 44[deg]44'04'' N., long. 103[deg]51'43'' W.)

    That airspace extending upward from 700 feet above the surface
within an 6.4-mile

radius of Belle Fourche Municipal Airport, and within 1 mile each
side of the 142[deg] bearing from Belle Fourche Municipal Airport
extending from the 6.4 mile radius to 7 miles southeast of the
airport.
* * * * *

AGL SD E5 Madison, SD [Amended]

Madison Municipal Airport, SD
    (Lat. 44[deg]00'59'' N., long. 97[deg]05'08'' W.)

    That airspace extending upward from 700 feet above the surface
within a 6.5-mile radius of Madison Municipal Airport, and within 2
miles each side of the 334[deg] bearing from the airport extending
from the 6.5-mile radius to 10.5 miles northwest of the airport.
* * * * *

AGL SD E5 Mobridge, SD [Amended]

Mobridge Municipal Airport, SD
    (Lat. 45[deg]32'47'' N., long. 100[deg]24'23'' W.)

    That airspace extending upward from 700 feet above the surface
within a 6.5-mile radius of Mobridge Municipal Airport.
* * * * *

AGL SD E5 Vermillion, SD [Amended]

Harold Davidson Field, SD
    (Lat. 42[deg]45'55'' N., long. 96[deg]56'03'' W.)

    That airspace extending upward from 700 feet above the surface
within a 6.4-mile radius of Harold Davidson Field.

    Issued in Fort Worth, Texas, on May 18, 2016.
Walter Tweedy,
Acting Manager, Operations Support Group, ATO Central Service Center.
[FR Doc. 2016-12638 Filed 5-31-16; 8:45 am]
 BILLING CODE 4910-13-P


[Federal Register Volume 82, Number 137 (Wednesday, July 19, 2017)]
[Proposed Rules]
[Pages 33026-33030]
[FR Doc No: 2017-15165]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2015-0496; FRL-9964-11-Region 6]

Approval and Promulgation of Implementation Plans; Texas;
Reasonably Available Control Technology for the 2008 8-Hour Ozone
National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: Pursuant to the Federal Clean Air Act (CAA or Act), the
Environmental Protection Agency (EPA) is proposing to conditionally
approve revisions to the Texas State Implementation Plan (SIP)
addressing Oxides of Nitrogen (NOX) Reasonably Available
Control Technology (RACT) for the Martin Marietta (formerly, Texas
Industries, Inc., or TXI) cement manufacturing plant in Ellis County.
We are proposing to fully approve revisions to the Texas SIP addressing
NOX RACT for all other affected sources in the ten county
Dallas Fort Worth (DFW) 2008 8-Hour ozone nonattainment area. We are
also proposing to approve NOX RACT negative declarations (a
finding that there are no emission sources in certain categories) for
the DFW 2008 8-Hour ozone nonattainment area. The DFW 2008 8-Hour ozone
nonattainment area consists of Collin, Dallas, Denton, Ellis, Johnson,
Kaufman, Parker, Rockwall, Tarrant, and Wise counties. The RACT
requirements apply to major sources of NOX in these ten
counties.

DATES: Comments must be received on or before August 18, 2017.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2015-0496 or via email to<EMAIL_ADDRESS>Follow the on-line
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, please contact Alan Shar,
(214) 665-6691<EMAIL_ADDRESS>For 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.
    Docket: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at the EPA
Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available at either location
(e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar (6MM-AA), (214) 665-
6691<EMAIL_ADDRESS>To inspect the hard copy materials, please
contact Alan Shar.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' refer to EPA.

Outline

I. Background
    A. What is RACT, and what are the RACT requirements relevant for
this action?
II. Evaluation
    A. What is the Texas Commission on Environmental Quality's
(TCEQ) approach and analysis to RACT?
    B. Is Texas' RACT determination for NOX sources
approvable?
    C. Are there negative declarations for categories of
NOX sources within this nonattainment area?
    D. RACT and Cement Manufacturing Plants
    E. Ellis County Cement Manufacturing Plants
    F. What is a conditional approval?
III. Proposed Action
IV. Statutory and Executive Order Reviews

I. Background

A. What is RACT and what are the RACT requirements relevant for this
action?

    Section 172(c)(1) of the Clean Air Act (CAA, Act) requires that
SIPs for nonattainment areas ``provide for the implementation of all
reasonably available control measures as expeditiously as practicable
(including such reductions in emissions from existing sources in the
area as may be obtained through the adoption, at a minimum, of
reasonably available control technology) and shall provide for
attainment of the primary National Ambient Air Quality Standards
(NAAQS).'' The EPA has defined RACT as the lowest emissions limitation
that a particular source is capable of meeting by the application of
control technology that is reasonably available, considering
technological and economic feasibility. See September 17, 1979 (44 FR
53761).
    Section 182(b)(2) of the Act requires states to submit a SIP
revision and implement RACT for major stationary sources in moderate
and above ozone nonattainment areas. For a Moderate, Serious, or Severe
area a major stationary source is one that emits, or has the potential
to emit, 100, 50, or 25 tons per year (tpy) or more of VOCs or
NOX, respectively. See CAA sections 182(b), 182(c), and
182(d). The EPA provides states with guidance concerning what types of
controls could constitute RACT for a given source category through the
issuance of Control Technique Guidelines (CTG) and Alternative Control
Techniques (ACT) documents. See http://www.epa.gov/airquality/ozonepollution/SIPToolkit/ctgs.html (URL dating August 17, 2014) for a
listing of EPA-issued CTGs and ACTs.
    The DFW nonattainment area was designated nonattainment for the
1997 8-Hour ozone standard and classified as Moderate with an
attainment deadline of June 15, 2010. See January 14, 2009 (74 FR
1903).
    The DFW area was later reclassified to Serious on December 20, 2010
(75 FR 79302) because it failed to attain the 1997 8-Hour standard by
its attainment deadline of June 15, 2010. Thus, per section 182(c) of
the CAA, a major stationary source in the DFW area, is one which emits,
or has the potential to emit, 50 tpy or more of VOCs or NOX.
The EPA approved NOX RACT for the DFW area classified as
Serious under the 1997 8-Hour Ozone standard on March 27, 2015 (80 FR
16291).
    The EPA designated the DFW area as nonattainment for the 2008 8-
Hour ozone NAAQS with a moderate classification. The designated area
for the 2008 standard includes Wise County, which was not included as
part of the nonattainment area for the 1997 8-Hour Ozone standard. See
May 21, 2012 (77 FR 30088), 40 CFR 81.344; and Mississippi Commission
on Environmental Quality vs. EPA, No. 12-1309 (D.C. Cir., June 2, 2015)
(upholding EPA's inclusion of Wise County in the DFW 2008 8-Hour ozone
nonattainment area).
    Thus, based on the moderate classification of the DFW area for the
2008 ozone standard, under section 182(b) of the CAA, a major
stationary source in Wise County is one that emits, or has the
potential to emit, 100 tpy or more of VOCs or NOX.

II. Evaluation

A. What is the TCEQ's approach and analysis to RACT?

    Sections 182(b)(2)(A) and (B) of the CAA require that states must
ensure RACT is in place for each source category for which EPA has
issued a CTG, and for any major source not covered by a CTG. The EPA
has not issued CTGs for sources of NOX, so the
NOX RACT requirement applies to all major sources of
NOX. As a part of its July 10, 2015 DFW SIP submittal, TCEQ
conducted RACT analyses to demonstrate that the RACT requirements for
affected NOX sources in the DFW 2008 8-Hour ozone
nonattainment area have been satisfied, relying on the NOX
RACT rules EPA had previously approved for the DFW area for its
classification as Serious for the 1997 8-Hour ozone standard. See March
27, 2015 (80 FR 16292), and 40 CFR 51.1112. The RACT analysis is
contained in Appendix F of the TCEQ July 10, 2015 SIP submittal as a
component of the DFW 2008 8-Hour ozone attainment demonstration plan.

B. Is Texas' RACT determination for NOX sources approvable?

    The requirements for RACT are included in 182(b)(2) of the Act and
further explained in our ``SIP Requirements Rule'' of March 6, 2015 (80
FR 12279), which explains States should refer to existing CTGs and ACTs
as well as all relevant technical information including recent
technical information received during the public comment period to
determine if RACT is being applied. States may conclude, in some cases,
that sources already addressed by RACT determinations to meet the 1-
Hour and/or the 1997 8-Hour ozone NAAQS do not need to implement
additional controls to meet the 2008 ozone NAAQS RACT requirement. The
EPA has previously found that Texas NOX rules meet RACT for
the 1-Hour and the 1997 8-Hour standards. See March 27, 2015 (80 FR
16291).
    Texas adopted new rules for wood-fired boilers in the DFW area, and
new rules for major sources in the added county, Wise County, and
determined they were RACT. We have reviewed the wood-fired boilers
rules and the rules for major sources in Wise County and

are proposing that those rules are RACT for the covered sources. In
addition, we are proposing to determine that the State's certification
that the applicable control requirements Texas has in place for all
other affected NOX sources as identified in Table F-4 of the
submittal (including the proposed conditional approval for the Martin
Marietta cement manufacturing plant in Ellis County) meet the RACT
requirement for the 2008 8-Hour ozone standard. See part 3, section 5
of the TSD.
    Table 1 below contains a list of affected source categories, EPA
reference documents, and the corresponding sections of 30 TAC Chapter
117 that TCEQ determined were RACT for sources of NOX in the
DFW area for the 2008 NAAQS. See Table F1, Appendix F of the July 10,
2015 DFW SIP submittal.

 Table 1--Source Categories, EPA reference Documents, and Corresponding Section of 30 TAC Chapter 117 Fulfilling
                                                      RACT
----------------------------------------------------------------------------------------------------------------
                                                                                30 TAC chapter 117
                Source category                         EPA reference documents              fulfilling RACT
----------------------------------------------------------------------------------------------------------------
Glass Manufacturing...........................  NOX Emissions from Glass Manufacturing       Sec.   117.400-Sec.
                                                 (EPA-453/R-94-037, June 1994).                          117.456
Industrial, Commercial, and Institutional       NOX Emissions from Industrial,               Sec.   117.400-Sec.
 Boilers.                                        Commercial and Institutional Boilers                    117.456
                                                 (EPA-453/R-94-022, March 1994).
Iron and Steel Mills..........................  NOX Emissions from Iron and Steel Mills      Sec.   117.400-Sec.
                                                 (EPA-453/R-94-065, September 1994).                     117.456
Process Heaters...............................  NOXEmissions from Process Heaters (EPA-      Sec.   117.400-Sec.
                                                 453/R-93-034, September 1993).                          117.456
Stationary Internal Combustion Engines........  NOX Emissions from Stationary Internal       Sec.   117.400-Sec.
                                                 Combustion Engines (EPA-453/R-93-032,                   117.456
                                                 July 1993, Updated September 2000).
Stationary Turbines...........................  NOX Emissions from Stationary                Sec.   117.400-Sec.
                                                 Combustion Turbines (EPA-453/R-93-007,                  117.456
                                                 January 1993).
Utility Boilers...............................  NOX Emissions from Utility Boilers (EPA-    Sec.   117.1300-Sec.
                                                 453/R-94-023, March 1994).                             117.1356
----------------------------------------------------------------------------------------------------------------

    On April 13, 2016 (81 FR 21747), we approved revisions to 30 TAC
Chapter 117 (NOX rules) for control of NOX
emissions for affected sources in the DFW area as part of the SIP, but
did not make the determination whether these rule revisions met RACT at
81 FR 21747. See docket No. EPA-R06-OAR-2015-0497 at
www.regulations.gov.
    We have reviewed the emission limitations and control requirements
for the above source categories, Table 1, in 30 TAC Chapter 117, and
compared them against EPA's ACT documents, available technical
information, and guidelines. Based on our review and evaluation we
found the emission limitations and control requirements in 30 TAC
Chapter 117 for the above source categories to be consistent with our
guidance and ACT documents, and based upon available technical
information that the corresponding sections in 30 TAC Chapter 117
provide for the lowest emission limitation through application of
control techniques that are reasonably available considering
technological and economic feasibility. For more information, see part
3, section 6 of the TSD prepared in conjunction with this action. Also,
see part 4 of the TSD for the March 27, 2015 (80 FR 16291) at
www.regulations.gov, docket ID No. EPA-R06-OAR-2013-0804.
    We are proposing to find that the control requirements for the
source categories identified in Table 1 are RACT for all affected
sources in the ten County DFW area under the 2008 8-Hour ozone NAAQS.
See part 3, sections 5-7 of the TSD.

C. Are there negative declarations for categories of NOX
sources within this nonattainment area?

    States are not required to adopt RACT limits for source categories
for which no sources exist in a nonattainment area and can submit a
negative declaration to that effect. Texas has reviewed its emissions
inventory and determined that there are no nitric and adipic acid
manufacturing operations in the DFW area. See Table F-1, page 8 of the
Appendix F, titled ``State Rules Addressing NOX RACT
Requirements in ACT Reference.'' We are also unaware of any such
facilities operating in the DFW nonattainment area, and thus we are
proposing to approve the negative declarations made for the nitric and
adipic acid manufacturing operations in the ten County DFW area under
the 2008 8-Hour ozone NAAQS.

D. RACT and Cement Manufacturing Plants

    As detailed in Table 2 below, EPA has issued guidance on
NOX emissions from Cement Manufacturing Plants and Texas has
adopted rules for the control of NOX emissions from Cement
Manufacturing Plants codified at 30 TAC Chapter 117. The rules
establish NOX emissions by adopting a NOX cap on
each of the cement manufacturing plants in the area.

     Table 2--Cement Manufacturing, EPA Reference Documents, and Corresponding Section of 30 TAC Chapter 117
                                                 Fulfilling RACT
----------------------------------------------------------------------------------------------------------------
                                                                                30 TAC chapter 117
                Source category                         EPA reference documents              fulfilling RACT
----------------------------------------------------------------------------------------------------------------
Cement Manufacturing..........................  NOX Emissions from Cement Manufacturing    Sec.   117.3100--Sec.
                                                 (EPA-453/R-94-004, 1994/03); and NOX                   117.3145
                                                 Control Technologies for the Cement
                                                 Industry: Final Report (EPA-457/R-00-
                                                 002, 2000/09).
----------------------------------------------------------------------------------------------------------------

    The source cap provision is a NOX emission limitation
expressed in tons per day (tpd) for cement kilns in Ellis County
(thereafter, Cap8hour, cap). The Cap8hour was
established based on a formula that included average annual tons of
clinker produced for the three-year period of 2003, 2004, and 2005 plus
one standard deviation. See 30 TAC Sec.  117.3123. The addition of one
standard deviation to the average annual clinker production rates was
intended to provide further operational flexibility for the sources as
they calculated their production rates for the wet and dry

kiln systems, ``NW'' and ``ND'', in order for
TCEQ to determine a tpd numerical value for the Cap8hour
emission limitation. See Equation 117.3123(b). The formula for
establishing the Cap8hour includes an emission factor of 3.4
lbs of NOX/ton of clinker produced for wet kilns, and an
emission factor of 1.7 lbs of NOX/ton of clinker produced
for dry kilns. Compliance with the 30-day rolling average cap must be
shown starting March 31st of each calendar year, and the NOX
cap limitation in section 117.3123 applies from March 1st through
October 31st of each calendar year. See part 4, sections 8 and 9 of the
TSD for more information. Each cement manufacturing plant in Ellis
County has been allocated a specific value in tons per day as its cap.
Once established based on 2003, 2004, and 2005 production rates the
calculated emission rate is not changed. We approved this rule on
January 14, 2009 (74 FR 1927) as part of the DFW SIP, and as meeting
the NOX RACT requirement for cement kilns operating in the
DFW 1997 8-Hour ozone nonattainment area. Since that time, there are no
longer any wet kilns in the area.

E. Ellis County Cement Manufacturing Plants

    Currently, three companies operate four cement kilns in Ellis
County. Below we evaluate whether RACT is in place for these plants.
    Ash Grove Cement Company (Ash Grove) operated three kilns in Ellis
County. A federally enforceable 2013 consent decree, not a part of this
SIP submittal, required by September 10, 2014 shutdown of two kilns and
reconstruction of kiln #3 with Selective Noncatalytic Reduction (SNCR)
with an emission limitation of 1.5 pounds of NOX per ton of
clinker produced (lb NOX/ton of clinker), and a 12-month
rolling tonnage limit for NOX of 975 tpy. A May 11, 2016
letter from Ash Grove to TCEQ confirms decommissioning of the kilns # 1
and 2. We have made this letter available in docket for this action.
The reconstructed kiln #3 is a dry kiln subject to the 1.5 lb
NOX/ton of clinker emission standard per 40 CFR 60 subpart F
(New Source Performance Standard--NSPS) for Portland Cement Plants. A
review of NOX emission limits in place across the country is
included with the TSD for this action, and it can be seen that this
limit is well within the range of the most stringent controls currently
in place. This NOX emission limit is the lowest emission
limitation through application of control techniques (SNCR) that is
reasonably available considering technological and economic
feasibility, and therefore the NSPS satisfies RACT for Ash Grove in
Ellis County. The TCEQ has the delegated authority to enforce this
federal standard through the agency's general NSPS delegation. The TCEQ
air permit for this plant is available in the docket for this action.
Further, we are proposing to remove our approval of the cap rules as
being RACT for Ash Grove and finding that the NSPS applicable to Ash
Grove meets RACT for the 2008 ozone NAAQS.
    Holcim U.S., Inc. (Holcim) currently has two dry preheater/
precalciner kilns equipped with SNCR. There has not been a long wet
cement kiln associated with the Holcim operations in Ellis County. The
current section 117.3123 source cap is established at 5.3 tpd
NOX for Holcim. As discussed above this cap was established
based on an emission factor of 1.7 lbs/ton of clinker. Again such an
emission rate is among the most stringent emission rates in place
across the country. We believe the NOX emission limitation
established by the section 117.3123 cap is the lowest emission
limitation through application of control techniques (SNCR) that is
reasonably available considering technological and economic feasibility
for this source, and therefore it satisfies RACT for Holcim.
Consequently, we are retaining the cap rules as meeting RACT for Holcim
for the 2008 ozone NAAQS.
    Martin Marietta (MM) currently operates one dry preheater/
precalciner kiln #5. The existing section 117.3123 source cap allocated
to this kiln is set at 7.9 tpd NOX. The permitted capacity
of this kiln is 2,800,000 tons of clinker per year, and it has a
permitted emissions limitation of 1.95 lb NOX/ton of
clinker. According to TCEQ, the kiln #5 typically operates well below
the source cap, at an average emission factor below 1.5 lbs/ton of
clinker. While the NOX limit of 1.95 lbs/ton of clinker is
somewhat higher than the limits in place at other cement plants in
Ellis County, it is still among the most stringent limits in the
country. We believe that it is reasonable for the limit to be less
stringent than Ash Grove's limit because Ash Grove (kiln #3) is a new
source and new sources generally can achieve a lower emission rate than
existing sources that must be retrofitted. We also believe it is
reasonable that MM's limit be somewhat higher than the emission factor
(1.7 lbs/ton of clinker) used to establish the emission cap at Holcim
because the emission cap allows for operational flexibility to balance
emissions between the two Holcim kilns.
    We are proposing to conditionally approve 1.95 lbs/ton of clinker
as RACT for MM following the State's written commitment to EPA. The
commitment letter states that through an agreed order between TCEQ and
MM, certain conditions of MM's air permit, concerning the
NOX emission limitation of 1.95 lb/ton of clinker produced
from kiln #5, will be incorporated into a future revision to the Texas
SIP. That particular future SIP revision will be submitted to EPA per
timeline described in section F below.
    We have reviewed the emission limitations and control requirements
for the source category listed in Table 2 above, the corresponding
sections in 30 TAC Chapter 117, and the Appendix F of the July 10, 2015
DFW SIP submittal, and compared them against EPA's ACT documents and
guidelines. Based on our review and evaluation we found the emission
limitations and control requirements in 30 TAC Chapter 117 and the
Appendix F of the July 10, 2015 DFW SIP submittal for the above source
category to be consistent with our guidance and ACT documents. We have
also found these limits are among the most stringent in place in the
country, at this time. As such, we are proposing that they provide for
the lowest emission limitation through application of control
techniques that are reasonably available considering technological and
economic feasibility. For more information, see parts 2 and 4 of the
TSD prepared in conjunction with this action.

F. What is a conditional approval?

    Under section 110(k)(4) of the Act the Administrator may approve a
plan revision based on a commitment of the State to adopt specific
enforceable measures by a date certain, but not later than 1 year after
the date of approval of the plan revision. Any such conditional
approval shall be treated as a disapproval, if the State fails to
comply with such commitment. If the State does not meet its commitment
within the specified time period by 1) not adopting and submitting
measures by the date it committed to, 2) not submitting anything, or 3)
EPA finding the submittal incomplete, the approval will be converted to
a disapproval. The Regional Administrator would send a letter to the
State finding that it did not meet its commitment or that the submittal
is incomplete and that the SIP submittal was therefore disapproved. The
18-month clock for sanctions and the two-year clock for a Federal
Implementation Plan would start as of the date of the letter.
Subsequently, a notice to that effect would be published in the Federal
Register, and appropriate language inserted in the CFR.

III. Proposed Action

    We are proposing to conditionally approve revisions to the Texas
SIP addressing NOX RACT for the Martin Marietta (formerly,
Texas Industries, Inc., or TXI) cement manufacturing plant in Ellis
County. We are proposing to approve revisions to the Texas SIP
addressing NOX RACT for all other affected sources in the
ten County DFW 2008 8-Hour ozone nonattainment area. We are also
proposing to approve NOX RACT negative declarations for the
DFW area under the 2008 8-Hour ozone NAAQS.

IV. 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, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Additional information
about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under
the PRA because this action does not impose additional requirements
beyond those imposed by state law.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities beyond those
imposed by state law.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action does not impose additional requirements
beyond those imposed by state law. Accordingly, no additional costs to
State, local, or tribal governments, or to the private sector, will
result from this action.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.

F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP is not approved to apply on any
Indian reservation land or in any other area where the EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction, and will not
impose substantial direct costs on tribal governments or preempt tribal
law. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not impose additional
requirements beyond those imposed by state law.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population

    The EPA lacks the discretionary authority to address environmental
justice in this rulemaking.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxides, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.

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

    Dated: July 11, 2017.
Samuel Coleman,
Acting Regional Administrator, Region 6.
[FR Doc. 2017-15165 Filed 7-18-17; 8:45 am]
BILLING CODE 6560-50-P