[Federal Register Volume 81, Number 80 (Tuesday, April 26, 2016)]
[Proposed Rules]
[Pages 24536-24544]
[FR Doc No: 2016-09600]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R04-OAR-2012-0323; FRL-9945-63-Region 4]

Air Plan Approval and Air Quality Designation; TN; Redesignation
of the Sullivan County Lead Nonattainment Area to Attainment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On July 15, 2015, the State of Tennessee, through the
Tennessee Department of Environment and Conservation (TDEC), submitted
a request for the Environmental Protection Agency (EPA) to redesignate
the Bristol, Tennessee 2008 lead nonattainment area (hereafter referred
to as the ``Bristol Area'' or the ``Area'') to attainment for the 2008
lead National Ambient Air Quality Standards (NAAQS) and an associated
State Implementation Plan (SIP) revision containing a maintenance plan
and a reasonably available control measures (RACM) determination for
the Area. EPA is proposing to determine that the Bristol Area is
continuing to attain the 2008 lead NAAQS; to approve the SIP revision
containing the State's maintenance plan for maintaining attainment of
the 2008 lead standard and the State's RACM determination; and to
redesignate the Bristol Area to attainment for the 2008 lead NAAQS.

DATES: Comments must be received on or before May 26, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0323 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video,

etc.) must be accompanied by a written comment. The written comment is
considered the official comment and should include discussion of all
points you wish to make. EPA will generally not consider comments or
comment contents located outside of the primary submission (i.e. on the
web, cloud, or other file sharing system). For additional submission
methods, the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman of the Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. Mr. Lakeman may be reached by phone at<PHONE_NUMBER> or
via electronic mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. What are the actions EPA is proposing to take?

    EPA is proposing to take the following four separate but related
actions: (1) To approve Tennessee's RACM determination for the Bristol
Area pursuant to Clean Air Act (CAA) section 172(c)(1) into the SIP;
(2) to determine that the Area is continuing to attain the 2008 lead
NAAQS; (3) to approve Tennessee's maintenance plan for maintaining the
2008 lead NAAQS in the Area into the SIP; and (4) to redesignate the
Area. The Bristol Area is comprised of the portion of Sullivan County,
Tennessee, bounded by a 1.25 kilometer radius surrounding the Universal
Transverse Mercator (UTM) coordinates 4042923 meters E., 386267 meters
N., Zone 17, which surrounds the lead acid-battery manufacturing and
lead oxide production facility owned by Exide Technologies (Exide
Facility).
    EPA's 2008 lead nonattainment designation for the Area triggered an
obligation for Tennessee to develop a nonattainment SIP revision
addressing certain CAA requirements under title I, part D, subpart 1
(hereinafter ``Subpart 1'') and to submit that SIP revision in
accordance with the deadlines in title I, part D, subpart 5. Subpart 1
contains the general requirements for nonattainment areas for criteria
pollutants, including requirements to develop a SIP that provides for
the implementation of RACM, requires reasonable further progress (RFP),
includes base-year and attainment-year emissions inventories, and
provides for the implementation of contingency measures. On August 29,
2012, EPA published a final determination that the Area had attained
the 2008 lead NAAQS by the attainment date based on quality-assured and
certified ambient air monitoring data for the 2007-2009 time period.
See 77 FR 52232. In that determination and in accordance with EPA's
clean data policy, EPA suspended the requirements for the Area to
submit a SIP revision addressing RACM, RFP plans, contingency measures,
and certain other Subpart 1 requirements so long as the Area continues
to attain the 2008 lead NAAQS.\1\ Although these requirements are
suspended, EPA is proposing to determine that the State's Subpart 1
RACM determination meets the requirements of section 172(c)(1) of the
CAA and is proposing to approve this RACM determination into the SIP
for the reasons discussed in Section V.A, below.
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    \1\ Following enactment of the CAA Amendments of 1990, EPA
promulgated its interpretation of the requirements for implementing
the NAAQS in the general preamble for the Implementation of Title I
of the CAA Amendments of 1990 (General Preamble) 57 FR 13498, 13564
(April 16, 1992). In 1995, based on the interpretation of CAA
sections 171 and 172, and section 182 in the General Preamble, EPA
set forth what has become known as its ``Clean Data Policy'' for the
1-hour ozone NAAQS. See Memorandum from John S. Seitz, Director,
Office of Air Quality Planning and Standards, ``RFP, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment
Areas Meeting the Ozone National Ambient Air Quality Standard'' (May
10, 1995). Since 1995, EPA has applied its interpretation under the
Clean Data Policy in many rulemakings, suspending certain
attainment-related planning requirements for individual areas, based
on a determination of attainment and that interpretation has been
upheld by federal courts. For more information on the Clean Data
Policy and its application to the 2008 lead NAAQS, see EPA's August
29, 2012, final action. See 77 FR 52232.
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    EPA is also making the preliminarily determination that the Bristol
Area is continuing to attain the 2008 lead NAAQS based on recent air
quality data, and proposing to approve Tennessee's maintenance plan for
the Bristol Area as meeting the requirements of section 175A (such
approval being one of the CAA criteria for redesignation to attainment
status). The maintenance plan is designed to keep the Bristol Area in
attainment of the 2008 lead NAAQS through 2025. As explained in Section
V.B, below, EPA is also proposing to determine that attainment can be
maintained through 2026.
    EPA is also proposing to determine that the Bristol Area has met
the requirements for redesignation under section 107(d)(3)(E) of the
CAA. Accordingly, in this action, EPA is proposing to approve a request
to change the legal designation of the Bristol Area from nonattainment
to attainment for the 2008 lead NAAQS.
    In summary, today's notice of proposed rulemaking is in response to
Tennessee's July 15, 2015, redesignation request and associated SIP
submission that address the specific issues summarized above and the
necessary elements described in section 107(d)(3)(E) of the CAA for
redesignation of the Bristol Area to attainment for the 2008 lead
NAAQS.\2\
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    \2\ The date of the transmittal letter for Tennessee's submittal
is July 10, 2015.
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II. What is the background for EPA's proposed actions?

    On November 12, 2008, EPA promulgated a revised primary and
secondary lead NAAQS of 0.15 micrograms per cubic meter ([micro]g/
m\3\). See 73 FR 66964. Under EPA's regulations at 40 CFR part 50, the
2008 lead NAAQS are met when the maximum arithmetic 3-month mean
concentration for a 3-year period, as determined in accordance with
appendix R of 40 CFR part 50, is less than or equal to 0.15 [micro]g/
m\3\. See 40 CFR 50.16. Ambient air quality monitoring data for the 3-
year period must meet a data completeness requirement.
    EPA designated the Bristol Area as a nonattainment area for the
2008 lead NAAQS on November 22, 2010 (effective December 31, 2010),
using 2007-2009 ambient air quality data. See 75 FR 71033. This
established an attainment date five years after the December 31, 2010,
effective date for the 2008 lead nonattainment designations pursuant to
CAA section 172(a)(2)(A). Therefore, the Bristol Area's attainment date
is December 31, 2015.
    As discussed above, EPA determined that Tennessee had attained the
2008 lead NAAQS prior to the attainment date and issued a Clean Data
Determination on August 29, 2012. See 77 FR 52232. Although a Clean
Data Determination waives the requirements for an attainment
demonstration, a state must submit, and EPA must approve, a
redesignation request and a maintenance plan SIP revision before an
area can be redesignated to attainment.

III. What are the criteria for redesignation?

    The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) of the CAA
allows for redesignation providing that: (1) The Administrator
determines that the area has attained the applicable NAAQS; (2) the
Administrator has fully approved the applicable implementation plan for

the area under section 110(k); (3) the Administrator determines that
the improvement in air quality is due to permanent and enforceable
reductions in emissions resulting from implementation of the applicable
SIP and applicable Federal air pollutant control regulations and other
permanent and enforceable reductions; (4) the Administrator has fully
approved a maintenance plan for the area as meeting the requirements of
section 175A; and (5) the state containing such area has met all
requirements applicable to the area for purposes of redesignation under
section 110 and part D of the CAA.
    On April 16, 1992, EPA provided guidance on redesignation in the
General Preamble for the Implementation of title I of the CAA
Amendments of 1990 (57 FR 13498), and supplemented this guidance on
April 28, 1992 (57 FR 18070). EPA has provided further guidance on
processing redesignation requests in the following documents:
    1. ``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992 (hereafter referred to as the
``Calcagni Memorandum'');
    2. ``State Implementation Plan (SIP) Actions Submitted in Response
to Clean Air Act (CAA) Deadlines,'' Memorandum from John Calcagni,
Director, Air Quality Management Division, October 28, 1992; and
    3. ``Part D New Source Review (Part D NSR) Requirements for Areas
Requesting Redesignation to Attainment,'' Memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, October 14,
1994.

IV. Why is EPA proposing these actions?

    On July 15, 2015, Tennessee requested that EPA redesignate the
Bristol Area to attainment for the 2008 lead NAAQS and submitted an
associated SIP revision containing a maintenance plan and a Subpart 1
RACM determination. EPA's evaluation indicates that the RACM
determination meets the requirements of CAA section 172(c)(1), the
Bristol Area continues to attain the 2008 lead NAAQS, and the Bristol
Area meets the requirements for redesignation as set forth in section
107(d)(3)(E)(i), including the maintenance plan requirements under
section 175A of the CAA. As a result, EPA is proposing to take the four
related actions summarized in section I of this notice.

V. What is EPA's analysis of the state's redesignation request and SIP
revision?

    As stated above, in accordance with the CAA, EPA proposes in this
action to: (1) Approve Tennessee's Subpart 1 RACM determination for the
Bristol Area into the Tennessee SIP; (2) determine that the Area is
continuing to attain the 2008 lead NAAQS; (3) approve the 2008 lead
NAAQS maintenance plan for the Area into the SIP; and (4) redesignate
the Area to attainment for the 2008 lead NAAQS.

A. RACM Determination

1. Relationship Between Subpart 1 RACM and the Redesignation Criteria
    EPA does not believe that Subpart 1 nonattainment planning
requirements, including RACM, are ``applicable'' for purposes of CAA
section 107(d)(3)(E)(ii) once an area is attaining the NAAQS and,
therefore, does not believe that these planning requirements must be
approved into the SIP before EPA can redesignate an area to attainment.
See 80 FR 16331 (March 27, 2015). However, on March 18, 2015, the
United States Court of Appeals for the Sixth Circuit (Sixth Circuit)
issued an opinion in Sierra Club v. EPA, 781 F.3d 299 (6th Cir. 2015),
that is inconsistent with this longstanding interpretation regarding
section 107(d)(3)(E)(ii). In its decision, the Court vacated EPA's
redesignation of the Indiana and Ohio portions of the Cincinnati-
Hamilton nonattainment area to attainment for the 1997 PM2.5
NAAQS because EPA had not yet approved Subpart 1 RACM for the
Cincinnati Area into the Indiana and Ohio SIPs.\3\ The Court concluded
that ``a State seeking redesignation `shall provide for the
implementation' of RACM/RACT, even if those measures are not strictly
necessary to demonstrate attainment with the PM2.5 NAAQS. .
. . If a State has not done so, EPA cannot `fully approve[]' the area's
SIP, and redesignation to attainment status is improper.'' Sierra Club,
781 F.3d at 313.
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    \3\ The Court issued an amended decision on July 14, 2015,
revising some of the legal aspects of the Court's analysis of the
relevant statutory provisions (section 107(d)(3)(E)(ii) and section
172(c)(1)) but maintaining its prior holding that section 172(c)(1)
``unambiguously requires implementation of RACM/RACT prior to
redesignation . . . even if those measures are not strictly
necessary to demonstrate attainment with the PM2.5
NAAQS.'' See Sierra Club v. EPA, 793 F.3d 656, 670 (6th Cir. 2015).
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    EPA is bound by the Sixth Circuit's decision in Sierra Club v. EPA
within the Court's jurisdiction.\4\ Although EPA continues to believe
that Subpart 1 RACM is not an applicable requirement under section
107(d)(3)(E) for an area that has already attained the 2008 lead NAAQS,
EPA is proposing to approve Tennessee's RACM determination into the SIP
pursuant to the Court's decision.5 6
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    \4\ The states of Kentucky, Michigan, Ohio, and Tennessee are
located within the Sixth Circuit's jurisdiction.
    \5\ Pursuant to 40 CFR 56.5(b), the EPA Region 4 Regional
Administrator signed a memorandum on July 20, 2015, seeking
concurrence from the Director of EPA's Air Quality Policy Division
(AQPD) in the Office of Air Quality Planning and Standards to act
inconsistent with EPA's interpretation of CAA sections 107(d)(3)(E)
and 172(c)(1) when taking action on pending and future redesignation
requests in Kentucky and Tennessee because the Region is bound by
the Sixth Circuit's decision in Sierra Club v. EPA. The AQPD
Director issued her concurrence on July 22, 2015. The July 20, 2015,
memorandum with AQPD concurrence is located in the docket for
today's proposed actions.
    \6\ On September 3, 2015, the Sixth Circuit denied the petitions
for rehearing en banc of this portion of its opinion that were filed
by EPA, the state of Ohio, and industry groups from Ohio. Sierra
Club v. EPA, Nos. 12-3169, 12-3182, 12-3420, Doc. 136-1 (6th Cir.
Sept. 3, 2015). On March 28, 2016, the United States Supreme Court
denied Ohio's petition for a writ of certiorari seeking review of
Sierra Club v. EPA.
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2. Subpart 1 RACM Requirements
    Subpart 1 requires that each attainment plan ``provide for the
implementation of all reasonably available control measures as
expeditiously as practicable (including such reductions in emissions
from the 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 national primary ambient air
quality standards.'' See CAA section 172(c)(1). EPA has consistently
interpreted this provision to require only implementation of potential
RACM measures that could advance attainment.\7\ Thus, where an area is
already attaining the standard, no additional RACM measures are
required. EPA's interpretation that Subpart 1 requires only the
implementation of RACM measures that would advance attainment was
upheld by the United States Court of Appeals for the Fifth Circuit \8\
and by the United States Court of Appeals for the DC Circuit.\9\
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    \7\ This interpretation was adopted in the General Preamble, see
57 FR 13498 (April 16, 1992), and has been upheld as applied to the
Clean Data Policy, as well as to nonattainment SIP submissions. See
NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009); Sierra Club v. EPA, 294
F.3d 155 (D.C. Cir. 2002).
    \8\ Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002).
    \9\ Sierra Club v. EPA, 294 F.3d 155, 162-163 (D.C. Cir. 2002);
NRDC v. EPA, 571 F.3d 1245, 1252 (D.C. Cir. 2009).

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3. Proposed Action on RACM Based on Attainment of the NAAQS
    In its July 15, 2015, SIP revision, the State determined that no
additional control measures are necessary in the Area to satisfy the
section 172(c)(1) RACM requirement. EPA is proposing to approve this
determination on the basis that the Area has attained the 2008 lead
NAAQS and, therefore, no emission reduction measures are necessary to
satisfy Subpart 1 RACM. As noted above, EPA has determined that the
Area has attaining data for the 2008 lead NAAQS and met the standard by
the December 31, 2015, attainment date. See 77 FR 52232. Because the
Area has attained the standard, there are no emissions controls that
could advance the attainment date; thus, no emissions controls are
necessary to satisfy Subpart 1 RACM.
4. Proposed Action on RACM Based on the State's Analysis
    Additionally, Tennessee's Subpart 1 RACM determination is
approvable on the basis that the SIP revision demonstrates that no
additional reasonably available controls would have advanced the
attainment date. In Tennessee's RACM analysis, the State notes that the
only source of lead emissions in the Area--the Exide Facility--
permanently shut down in 2014. In a letter to TDEC dated October 30,
2014, Exide Technologies surrendered its major source air operating
permit and stated that the lead oxide and lead acid-battery production
process equipment, constituting the potential sources of air emissions
covered by the air permit, had been decommissioned and largely removed
from the site. The State also notes that, by July 16, 2008, the Exide
Facility was operating fabric filters and wet scrubbers to comply with
EPA's maximum achievable control technology (MACT) standards in 40 CFR
part 63, subpart PPPPPP for lead-acid battery manufacturing facilities
and that these MACT standards satisfied RACM requirements for
controlling lead emissions. EPA has reviewed the RACM portion of
Tennessee's July 15, 2015, SIP revision and agrees with the State's
determination that it was not necessary to adopt or implement
additional lead control measures in the Area.

B. Redesignation Request and Maintenance Demonstration

    The five redesignation criteria provided under CAA section
107(d)(3)(E) are discussed in greater detail for the Area in the
following paragraphs of this section.
Criteria (1)--The Bristol Area Has Attained the 2008 Lead NAAQS
    For redesignating a nonattainment area to attainment, the CAA
requires EPA to determine that the area has attained the applicable
NAAQS. See CAA section 107(d)(3)(E)(i). For lead, an area may be
considered to be attaining the 2008 lead NAAQS if it meets the 2008
lead NAAQS, as determined in accordance with 40 CFR 50.16 and Appendix
R of part 50, based on three complete, consecutive calendar years of
quality-assured air quality monitoring data. To attain the NAAQS, the
maximum arithmetic 3-month mean concentration for a 3-year period lead
concentrations measured at each monitor within an area over each year
must not exceed 0.15 [micro]g/m\3\. Based on the data handling and
reporting convention described in 40 CFR part 50, Appendix R, the NAAQS
are attained if the design value is 0.15 [micro]g/m\3\ ppm or below.
The data must be collected and quality-assured in accordance with 40
CFR part 58 and recorded in the EPA Air Quality System (AQS). The
monitors generally should have remained at the same location for the
duration of the monitoring period required for demonstrating
attainment.
    On August 29, 2012, EPA determined that the Bristol Area was
attaining the 2008 lead NAAQS based on certified 2009-2011 data. See 77
FR 52232. In this proposed action, EPA is preliminarily determining
that the Bristol Area has continued to attain the 2008 lead NAAQS since
2011. EPA has reviewed quality-assured lead monitoring data, recorded
in AQS, for 2012-2014 from the state-run monitoring station in the
Bristol Area as well as preliminary data from this station for
2015.\10\ The 3-year design values for 2008-2014 from this monitoring
station are summarized in Table 1, below.
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    \10\ Data from the state-run monitor can be used for comparison
with the NAAQS because it is operated in accordance with 40 CFR part
58. In addition to the State-run monitor, Exide Technologies
operates three monitors in the Area. Although data from Exide's
monitors cannot be used for comparison with the NAAQS because
compliance with the quality assurance provisions in 40 CFR part 58
has not been verified, Tennessee provided the measurements from
these monitors as additional support information in the July 15,
2015, SIP submission.

                                   Table 1--2008-2014 Design Value Concentrations for the Bristol Area ([micro]g/m\3\)
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                         Monitoring station                             2008-2010        2009-2011        2010-2012        2011-2013        2012-2014
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47-163-3004........................................................            0.05             0.08             0.08             0.08             0.07
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    The 3-year design value for 2012-2014 for the Bristol Area is 0.07
[micro]g/m\3\ which meets the NAAQS. Although 2012-2014 data are the
most recent quality-assured and certified data, preliminary 2015 data
indicate that the Area continues to attain the standard. In today's
proposed action, EPA is proposing to determine that the Bristol Area is
continuing to attain the 2008 lead NAAQS. If the Area does not continue
to attain the standard before EPA finalizes the redesignation, EPA will
not go forward with the redesignation. As discussed in more detail
below, Tennessee has committed to continue monitoring ambient air lead
concentrations in this Area in accordance with 40 CFR part 58.
Criteria (2)--Tennessee has a Fully Approved SIP Under Section 110(k)
for the Bristol Area; and Criteria (5)--Tennessee Has Met all
Applicable Requirements Under Section 110 and Part D of Title I of the
CA
    For redesignating a nonattainment area to attainment, the CAA
requires EPA to determine that the state has met all applicable
requirements under section 110 and part D of title I of the CAA (CAA
section 107(d)(3)(E)(v)) and that the state has a fully approved SIP
under section 110(k) for the area (CAA section 107(d)(3)(E)(ii)). EPA
proposes to find that Tennessee has met all applicable SIP requirements
for the Bristol Area under section 110 of the CAA (general SIP
requirements) for purposes of redesignation. Additionally, EPA proposes
to find that Tennessee has met all applicable SIP requirements for
purposes of redesignation under part D of title I of the CAA in
accordance with section 107(d)(3)(E)(v) and that the SIP is fully
approved with respect to all requirements applicable for purposes of
redesignation in accordance with section 107(d)(3)(E)(ii) contingent
upon

approval of Tennessee's Subpart 1 RACM determination for the Area. In
making these proposed determinations, EPA ascertained which
requirements are applicable to the Area and, if applicable, that they
are fully approved under section 110(k). SIPs must be fully approved
only with respect to requirements that were applicable prior to
submittal of the complete redesignation request.
a. The Bristol Area Has Met All Applicable Requirements Under Section
110 and Part D of the CAA
    General SIP requirements. General SIP elements and requirements are
delineated in section 110(a)(2) of title I, part A of the CAA. These
requirements include, but are not limited to, the following: Submittal
of a SIP that has been adopted by the state after reasonable public
notice and hearing; provisions for establishment and operation of
appropriate procedures needed to monitor ambient air quality;
implementation of a source permit program; provisions for the
implementation of part C requirements (Prevention of Significant
Deterioration (PSD)) and provisions for the implementation of part D
requirements (New Source Review (NSR) permit programs); provisions for
air pollution modeling; and provisions for public and local agency
participation in planning and emission control rule development.
    Section 110(a)(2)(D) requires that SIPs contain certain measures to
prevent sources in a state from significantly contributing to air
quality problems in another state. To implement this provision, EPA has
required certain states to establish programs to address the interstate
transport of air pollutants. The section 110(a)(2)(D) requirements for
a state are not linked with a particular nonattainment area's
designation and classification in that state. EPA believes that the
requirements linked with a particular nonattainment area's designation
and classifications are the relevant measures to evaluate in reviewing
a redesignation request. The transport SIP submittal requirements,
where applicable, continue to apply to a state regardless of the
designation of any one particular area in the state. Thus, EPA does not
believe that the CAA's interstate transport requirements should be
construed to be applicable requirements for purposes of redesignation.
    In addition, EPA believes that other section 110 elements that are
neither connected with nonattainment plan submissions nor linked with
an area's attainment status are not applicable requirements for
purposes of redesignation. The area will still be subject to these
requirements after the area is redesignated. The section 110 and part D
requirements which are linked with a particular area's designation and
classification are the relevant measures to evaluate in reviewing a
redesignation request. This approach is consistent with EPA's existing
policy on applicability (i.e., for redesignations) of conformity and
oxygenated fuels requirements, as well as with section 184 ozone
transport requirements. See Reading, Pennsylvania, proposed and final
rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7,
2008); Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458,
May 7, 1996); and Tampa, Florida, final rulemaking at (60 FR 62748,
December 7, 1995). See also the discussion on this issue in the
Cincinnati, Ohio, redesignation (65 FR 37890, June 19, 2000), and in
the Pittsburgh, Pennsylvania, redesignation (66 FR 50399, October 19,
2001). Nonetheless, EPA has approved Tennessee's SIP revision related
to the section 110 requirements for the 2008 lead NAAQS. See 78 FR
36440 (June 18, 2013); and 78 FR 67307 (November 12, 2013).
    Title I, Part D, applicable SIP requirements. Subpart 1 of part D,
found in sections 172-176 of the CAA, sets forth the basic
nonattainment requirements applicable to all nonattainment areas. All
areas that were designated nonattainment for the 2008 lead NAAQS were
designated under Subpart 1 of the CAA in accordance with the deadlines
in subpart 5. For purposes of evaluating this redesignation request,
the applicable part D, Subpart 1 SIP requirements for all nonattainment
areas are contained in sections 172(c)(1)-(9) and in section 176. A
thorough discussion of the requirements contained in sections 172 and
176 can be found in the General Preamble for Implementation of title I.
See 57 FR 13498 (April 16, 1992).
    Subpart 1 Section 172 Requirements. Section 172 requires states
with nonattainment areas to submit attainment plans providing for
timely attainment and meeting a variety of other requirements. However,
EPA's final determination that the Area is attaining the lead standard
suspended Tennessee's obligation to submit most of the attainment
planning requirements that would otherwise apply.
    EPA's longstanding interpretation of the nonattainment planning
requirements of section 172 is that once an area is attaining the
NAAQS, those requirements are not ``applicable'' for purposes of CAA
section 107(d)(3)(E)(ii) and therefore need not be approved into the
SIP before EPA can redesignate the area. In the 1992 General Preamble
for Implementation of Title I, EPA set forth its interpretation of
applicable requirements for purposes of evaluating redesignation
requests when an area is attaining a standard. See 57 FR 13498, 13564
(April 16, 1992). EPA noted that the requirements for reasonable
further progress (RFP) and other measures designed to provide for
attainment do not apply in evaluating redesignation requests because
those nonattainment planning requirements ``have no meaning'' for an
area that has already attained the standard. Id. This interpretation
was also set forth in the Calcagni Memorandum. EPA's understanding of
section 172 also forms the basis of its Clean Data Policy, which
suspends a state's obligation to submit most of the attainment planning
requirements that would otherwise apply, including an attainment
demonstration and planning SIPs to provide for RFP, RACM, and
contingency measures under section 172(c)(9). However, as discussed
above, EPA is proposing to approve Tennessee's RACM determination into
the SIP in response to the Sixth Circuit's decision that section
172(c)(1) RACM is an applicable requirement under 107(d)(3)(E)(ii) and
must be approved into the SIP before EPA can redesignate an area that
is subject to section 172(c)(1) requirements.
    Because attainment has been reached in the Area, no additional
measures are needed to provide for attainment. Therefore, the section
172(c)(2) requirement that nonattainment plans contain provisions
promoting reasonable further progress toward attainment is not relevant
for purposes of redesignation because EPA has determined that the Area
has monitored attainment of the NAAQS. In addition, because the Area
has attained the standard and is no longer subject to a RFP
requirement, the requirement to submit the section 172(c)(9)
contingency measures is not applicable for purposes of redesignation.
Section 172(c)(6) requires the SIP to contain control measures
necessary to provide for attainment of the NAAQS. Because attainment
has been reached, no additional measures are needed to provide for
attainment.
    Section 172(c)(3) requires submission for approval a comprehensive,
accurate, and current inventory of actual emissions. On January 9,
2014, EPA approved Tennessee's 2010 base-year emissions inventory for
the Area. See 79 FR 1593.

    Section 172(c)(4) requires the identification and quantification of
allowable emissions for major new and modified stationary sources to be
allowed in an area, and section 172(c)(5) requires source permits for
the construction and operation of new and modified major stationary
sources anywhere in the nonattainment area. Tennessee currently has a
fully-approved part D NSR program in place. However, EPA has determined
that, since PSD requirements will apply after redesignation, areas
being redesignated need not comply with the requirement that a NSR
program be approved prior to redesignation, provided that the area
demonstrates maintenance of the NAAQS without part D NSR. A more
detailed rationale for this view is described in a memorandum from Mary
Nichols, Assistant Administrator for Air and Radiation, dated October
14, 1994, entitled ``Part D New Source Review Requirements for Areas
Requesting Redesignation to Attainment.'' Tennessee has demonstrated
that the Area will be able to maintain the NAAQS without part D NSR in
effect, and therefore Tennessee need not have fully approved part D NSR
programs prior to approval of the redesignation request. Tennessee's
PSD program will become effective in the Area upon redesignation to
attainment.
    Section 172(c)(7) requires the SIP to meet the applicable
provisions of section 110(a)(2). As noted above, EPA believes that the
Tennessee SIP meets the requirements of section 110(a)(2) applicable
for purposes of redesignation.
    Section 172(c)(8) allows a state to use equivalent modeling,
emission inventory, and planning procedures if such use is requested by
the state and approved by EPA. Tennessee has not requested the use of
equivalent techniques under section 172(c)(8).
    Section 176 Conformity Requirements. Section 176(c) of the CAA
requires states to establish criteria and procedures to ensure that
federally supported or funded projects conform to the air quality
planning goals in the applicable SIP. The requirement to determine
conformity applies to transportation plans, programs, and projects that
are developed, funded, or approved under title 23 of the United States
Code (U.S.C.) and the Federal Transit Act (transportation conformity)
as well as to all other federally supported or funded projects (general
conformity). State transportation conformity SIP revisions must be
consistent with Federal conformity regulations relating to
consultation, enforcement, and enforceability that EPA promulgated
pursuant to its authority under the CAA. In light of the elimination of
lead additives in gasoline, transportation conformity does not apply to
the lead NAAQS. See 73 FR 66964.
b. The Bristol Area Has a Fully Approved Applicable SIP Under Section
110(k) of the CAA
    EPA has fully approved the applicable Tennessee SIP for the Bristol
Area under section 110(k) of the CAA for all requirements applicable
for purposes of redesignation with the exception of the Subpart 1 RACM
requirements. EPA may rely on prior SIP approvals in approving a
redesignation request (see Calcagni Memorandum at p. 3; Southwestern
Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-90 (6th Cir.
1998); Wall, 265 F.3d 426) plus any additional measures it may approve
in conjunction with a redesignation action. See 68 FR 25426 (May 12,
2003) and citations therein. Following passage of the CAA of 1970,
Tennessee has adopted and submitted, and EPA has fully approved at
various times, provisions addressing various SIP elements applicable
for the 2008 lead NAAQS in the Bristol Area (e.g., 78 FR 36440 (June
18, 2013); and 78 FR 67307 (November 12, 2013)). In today's proposed
action, EPA is proposing to approve the State's Subpart 1 RACM
determination for the Area into the Tennessee SIP.
    As indicated above, EPA believes that the section 110 elements that
are neither connected with nonattainment plan submissions nor linked to
an area's nonattainment status are not applicable requirements for
purposes of redesignation. If EPA finalizes approval of the State's
Subpart 1 RACM determination, EPA will have approved all part D
requirements applicable for purposes of this redesignation pursuant to
the Sixth Circuit's decision.
Criteria (3)--The Air Quality Improvement in the Bristol Area Is Due to
Permanent and Enforceable Reductions in Emissions Resulting From
Implementation of the SIP and Applicable Federal Air Pollution Control
Regulations and Other Permanent and Enforceable Reductions
    For redesignating a nonattainment area to attainment, the CAA
requires EPA to determine that the air quality improvement in the area
is due to permanent and enforceable reductions in emissions resulting
from implementation of the SIP, applicable Federal air pollution
control regulations, and other permanent and enforceable reductions
(CAA section 107(d)(3)(E)(iii)). EPA has preliminarily determined that
Tennessee has demonstrated that the observed air quality improvement in
the Bristol Area is due to permanent and enforceable reductions in
emissions.
    When EPA designated the Bristol Area as a nonattainment for the
lead NAAQS, EPA determined that operations at the Exide Facility were
the primary cause of the 2008 lead NAAQS violation in the Area. The
Facility installed fabric filters and wet scrubbing systems to meet
federal MACT standards for lead-acid battery manufacturing facilities
by July 16, 2008. In an October 30, 2014, letter to TDEC, Exide
Technologies surrendered its air permits for the Facility and noted
that the lead oxide and lead acid-battery production process equipment
had been decommissioned and largely removed from the site. See Appendix
F of the State's submittal. EPA considers the emissions reductions from
the Exide Facility to be permanent and enforceable.
Criteria (4)--The Tennessee Portion of the Area Has a Fully Approved
Maintenance Plan Pursuant to Section 175A of the CAA
    For redesignating a nonattainment area to attainment, the CAA
requires EPA to determine that the area has a fully approved
maintenance plan pursuant to section 175A of the CAA. See CAA section
107(d)(3)(E)(iv). In conjunction with its request to redesignate the
Tennessee portion of the Bristol Area to attainment for the 2008 lead
NAAQS, TDEC submitted a SIP revision to provide for maintenance of the
2008 lead NAAQS for at least 10 years after the effective date of
redesignation to attainment. EPA believes that this maintenance plan
meets the requirements for approval under section 175A of the CAA.
a. What is required in a maintenance plan?
    Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
Under section 175A, the plan must demonstrate continued attainment of
the applicable NAAQS for at least 10 years after the Administrator
approves a redesignation to attainment. Eight years after the
redesignation, the state must submit a revised maintenance plan
demonstrating that attainment will continue to be maintained for the 10
years following the initial 10-year period. To address the possibility
of future NAAQS violations, the maintenance plan must contain such

contingency measures as EPA deems necessary to assure prompt correction
of any future 2008 lead violations. The Calcagni Memorandum provides
further guidance on the content of a maintenance plan, explaining that
a maintenance plan should address five requirements: The attainment
emissions inventory, maintenance demonstration, monitoring,
verification of continued attainment, and a contingency plan. As is
discussed more fully below, EPA has preliminarily determined that
Tennessee's maintenance plan includes all the necessary components and
is thus proposing to approve it as a revision to the Tennessee SIP.
b. Attainment Emissions Inventory
    As noted earlier, EPA previously determined that the Bristol Area
attained the 2008 lead NAAQS based on monitoring data for the 3-year
period from 2009-2011. Today, EPA is proposing to determine that the
Bristol Area continues to attain the 2008 lead NAAQS. In its
maintenance plan, the State selected 2010 as the base year and 2012 as
the attainment emission inventory year. The attainment inventory
identifies a level of emissions in the Area that is sufficient to
attain the 2008 lead NAAQS. Tennessee began development of the
attainment inventory by first generating a baseline emissions inventory
for the Bristol Area. As noted above, the year 2010 was chosen as the
base year for developing a comprehensive emissions inventory for lead.
To evaluate maintenance through 2025, Tennessee prepared emissions
projections for the years 2015 and 2025.
    Descriptions of how Tennessee developed the emissions inventory are
located in the Appendix D of the July 15, 2015, submittal, which can be
found in the docket for this action. The Exide Facility is the only
point source of lead emissions within the Area. The State calculated
lead emissions from Exide Facility operations using data collected
through stack tests and the application of emissions factors. Tennessee
obtained the area source category inventory from EPA's 2011 NEI ver.2
database. To estimate lead emissions from area sources in the Bristol
Area, Tennessee apportioned the county-level lead emissions from area
sources based on population and determined that lead emissions from
area sources total approximately 0.0001 tpy in the Area. The State
assumed that these area source emissions remain constant throughout the
maintenance period (i.e., 2010 through 2025). Tennessee determined that
there are no sources of lead emissions in the Area from non-road and
on-road sources based on EPA's 2008 NEI ver.2 database. Table 2, below,
identifies base year emissions, attainment year emissions and projected
emissions for 2010, 2012, 2015, and 2025.
c. Maintenance Demonstration
    The maintenance plan associated with the redesignation request
includes a maintenance demonstration that:
    (i) Shows compliance with and maintenance of the 2008 lead NAAQS by
providing information to support the demonstration that current and
future emissions of lead remain at or below 2012 emissions levels.
    (ii) Uses 2012 as the attainment year and includes future emissions
inventory projections for 2015 and 2025.
    (iii) Identifies an ``out year'' at least 10 years after the time
necessary for EPA to review and approve the maintenance plan.
    (iv) Provides actual (2010 and 2012) and projected emissions
inventories, in tons per year (tpy), for the Bristol Area, as shown in
Table 2, below.
---------------------------------------------------------------------------

    \11\ For 2015 and 2025, Tennessee included fugitive emissions of
0.01 tpy and area source emissions of 0.01 tpy (a conservative
approach given that the State calculated area source emissions of
0.0001 tpy).

    Table 2--Actual and Projected Annual Lead Emissions (tpy) for the
                            Bristol Area\11\
------------------------------------------------------------------------
                    2012 Attainment    2015 Interim     2025 Maintenance
  2010 Base year         year              year               year
------------------------------------------------------------------------
          0.7               0.5              0.02               0.02
------------------------------------------------------------------------

    In situations where local emissions are the primary contributor to
nonattainment, such as the Bristol Area, if the future projected
emissions in the nonattainment area remain at or below the baseline
emissions in the nonattainment area, then the related ambient air
quality standards should not be exceeded in the future. Tennessee has
projected emissions as described previously and determined that
emissions in the Tennessee portion of the Bristol Area will remain
below those in the attainment year inventory for the duration of the
maintenance plan.
    While the maintenance plan projects maintenance of the 2008 lead
NAAQS through 2025, EPA believes that the Bristol Area will continue to
maintain the standard at least through the year 2026 because the only
point source of lead emissions in the Area has permanently shut down;
the design values for the Area beginning in 2008-2010 have been well
below the NAAQS standard of 0.15 [micro]g/m\3\; and lead emissions from
all source categories are projected to be approximately one order of
magnitude below the NAAQS in 2025.
d. Monitoring Network
    There are currently four monitors measuring ambient air lead
concentrations in the Bristol Area. However, as noted above, only the
monitor operated by TDEC meets the requirements of 40 CFR part 58.
Therefore, only data from this monitor can be used to evaluate
compliance with the NAAQS. TDEC has committed to continue operation of
its lead monitor in the Bristol Area in compliance with 40 CFR part 58
and has thus addressed the requirement for monitoring. EPA approved
Tennessee's monitoring plan on October 26, 2015.
e. Verification of Continued Attainment
    Tennessee has the legal authority to enforce and implement the
maintenance plan for the Area. This includes the authority to adopt,
implement, and enforce any subsequent emissions control contingency
measures determined to be necessary to correct future lead attainment
problems.
    Large stationary sources are required to submit an emissions
inventory annually to TDEC. TDEC prepares a new periodic inventory for
all lead sources every three years. This lead inventory will be
prepared for future years as necessary to comply with the inventory
reporting requirements established in the CFR. Emissions information
will be compared to the 2010 base year and the 2025 projected
maintenance year inventory to assess emission trends, as necessary, and
to assure continued compliance with the lead standard. Additionally,
under the Air Emissions Reporting Requirements (AERR), TDEC

is required to develop a comprehensive, annual, statewide emissions
inventory every three years that is due twelve to eighteen months after
the completion of the inventory year. The AERR inventory years match
the base year and final year of the inventory for the maintenance plan,
and are within one or two years of the interim inventory years of the
maintenance plan. Therefore, TDEC commits to compare the AERR
inventories as they are developed with the 2010 and 2025 inventories in
the maintenance plan to evaluate compliance with the 2008 lead NAAQS in
this Area.
f. Contingency Measures in the Maintenance Plan
    Section 175A of the CAA requires that a maintenance plan include
such contingency measures as EPA deems necessary to assure that the
state will promptly correct a violation of the NAAQS that occurs after
redesignation. The maintenance plan should identify the contingency
measures to be adopted, a schedule and procedure for adoption and
implementation, and a time limit for action by the state. A state
should also identify specific indicators to be used to determine when
the contingency measures need to be implemented. The maintenance plan
must include a requirement that a state will implement all measures
with respect to control of the pollutant that were contained in the SIP
before redesignation of the area to attainment in accordance with
section 175A(d).
    In the July 15, 2015, submittal, Tennessee affirms that all
programs instituted by the State and EPA will remain enforceable. The
contingency plan included in the submittal includes a triggering
mechanism to determine when contingency measures are needed and a
process of developing and implementing appropriate control measures. A
warning level response is triggered when a 3-month rolling average lead
concentration of 0.135 [mu]g/m\3\ (i.e., 90 percent of the standard)
occurs within the Area. A warning level response will consist of a
study to determine whether the lead value indicates a trend toward
higher lead values. The study will evaluate whether the trend, if any,
is likely to continue and, if so, what control measures are necessary
to reverse the trend taking into consideration ease and timing for
implementation as well as economic and social considerations.
Implementation of necessary controls in response to a warning level
response trigger will take place as expeditiously as possible, but in
no event later than 12 months from the conclusion of the most recent
calendar year.
    An action level response is triggered whenever the 3-month rolling
average concentration of 0.143 [mu]g/m\3\ (i.e., 95 percent of the
standard) or greater occurs within the Area. A violation of the
standard (any 3-month rolling average over a 36-month rolling average
period (3-calendar years plus the preceding 2 months) exceeds 0.15
[mu]g/m\3\) shall also prompt an action level response. In the event
that the action level is triggered and is not found to be due to an
exceptional event, malfunction, or noncompliance with a permit
condition or rule requirement, TDEC in conjunction with the entity(ies)
believed to be responsible for the exceedance will evaluate additional
control measures needed to assure future attainment of the 2008 lead
NAAQS. Measures that can be implemented in a short time will be
selected in order to be in place within 18 months from the close of the
calendar year that prompted the action level. TDEC will also consider
the action level trigger and determine if additional, significant new
regulations not currently included as part of the maintenance
provisions will be implemented in a timely manner.
    At least one of the following contingency measures will be adopted
and implemented upon a triggering event:
     Improvements in applicable permitted control devices;
     Addition of secondary control devices or improvements in
housekeeping and maintenance; and
     Other measures based on the cause of the elevated lead
concentrations.
    Any contingency measure implemented for an operating permitted
source will require a compliance plan and expeditious compliance from
the entity(ies) involved.
    Based on the shutdown of the Exide Facility and the surrender of
its operating permit, TDEC believes that the 2008 lead NAAQS can be
achieved on a consistent basis in the Area. Because the Exide Facility
has shut down, any possible exceedances of the lead NAAQS during any
three month period after December 31, 2015 (the attainment date), are
likely to be a result of fugitive emissions. The contingency measures
discussed below will immediately take effect to offset any increase in
air quality concentrations that are expected to result from emission
increases due to the likelihood of fugitive soil dust disturbance and/
or entrainment from the Exide Facility.
    In the event of an exceedance, Exide will be required to conduct a
twelve minute EPA Method 9 visible emissions reading on each lead
source outlet by a certified reader every day, as well as a dye check
on every filtration system that was controlling a lead source. These
control measures will help to determine and detect the source of
fugitive emissions so that the exceedances can be addressed
immediately. Other contingency measures include restricting traffic to
and from the facility and the daily application of wet suppression
using a sprinkler frequency of 5 minutes every 30 minutes during
daylight hours and 5 minutes every 60 minutes during nighttime hours
twenty-four hours a day everyday which will serve to reduce fugitive
dust emissions. Each of the contingency measures will continue for at
least 90 days and remain in place until such time as TDEC has
determined that they are no longer needed. In addition to the
identified contingency measures, if an exceedance of the NAAQS occurs
during any three month period after December 31, 2015 (the attainment
date), within 120 days, the facility will submit an investigative study
identifying the source(s) contributing to the exceedance. Exide will
also develop and prepare a strategy to eliminate the likelihood of
another exceedance. The 120-day review period will consist of a 30-day
evaluation period immediately following a violation and then up to 90-
day consultation period with the facility to determine the best course
of action.
    EPA has preliminarily concluded that the maintenance plan
adequately addresses the five basic components of a maintenance plan:
The attainment emissions inventory, maintenance demonstration,
monitoring, verification of continued attainment, and a contingency
plan. Therefore, EPA proposes to determine that the maintenance plan
for the Area meets the requirements of section 175A of the CAA and
proposes to incorporate the maintenance plan into the Tennessee SIP.

VI. Proposed Actions

    EPA is taking four separate but related actions regarding the
redesignation request and associated SIP revision for the Bristol Area.
    First, EPA is proposing to determine that the State's Subpart 1
RACM determination for the Area meets the requirements of CAA section
172(c)(1) and to incorporate this RACM determination into the SIP.
    Second, EPA is proposing to determine, based upon review of
quality-assured and certified ambient monitoring data for the 2012-2014
period and upon review of preliminary

data in AQS for 2015, that the Area continues to attain the 2008 lead
NAAQS following EPA's determination of attainment.
    Third, EPA proposing to approve the maintenance plan for the Area
and to incorporate it into the SIP. As described above, the maintenance
plan demonstrates that the Area will continue to maintain the 2008 lead
NAAQS through 2026.
    Fourth, EPA is proposing to approve Tennessee's request for
redesignation of the Area from nonattainment to attainment for the 2008
lead NAAQS contingent upon final action approving the State's Subpart 1
RACM determination into the SIP. If finalized, approval of the
redesignation request for the Bristol Area would change the official
designation the portion of Sullivan County bounded by a 1.25 kilometer
radius surrounding the UTM coordinates 4042923 meters E, 386267 meters
N, Zone 17, which surrounds the Exide Facility, as found at 40 CFR part
81, from nonattainment to attainment for the 2008 lead NAAQS.

VII. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the
accompanying approval of a maintenance plan under section 107(d)(3)(E)
are actions that affect the status of a geographical area and do not
impose any additional regulatory requirements on sources beyond those
imposed by state law. A redesignation to attainment does not in and of
itself create any new requirements, but rather results in the
applicability of requirements contained in the CAA for areas that have
been redesignated to attainment. Moreover, 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, these proposed actions merely approve state law as meeting
federal requirements and do not impose additional requirements beyond
those imposed by State law. For that reason, these proposed actions:
     Are not significant regulatory actions subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     are 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.);
     do 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);
     do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     are 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
     will not have disproportionate human health or
environmental effects under Executive Order 12898 (59 FR 7629, February
16, 1994).
    In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it
impose substantial direct costs on tribal governments or preempt tribal
law.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Lead, Reporting and
recordkeeping requirements.

40 CFR Part 81

    Environmental protection, Air pollution control.

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

    Dated: April 14, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-09600 Filed 4-25-16; 8:45 am]
 BILLING CODE 6560-50-P