Daily Rules, Proposed Rules, and Notices of the Federal Government
On March 27, 2008, EPA promulgated a new NAAQS for ozone based on 8-hour average concentrations. EPA revised the level of the 8-hour standard to 0.075 parts per million (ppm).
Midwest Environmental Defense and Sierra Club submitted a complaint on November 20, 2011, related to EPA's failure to issue findings of failure to submit related to the infrastructure requirements for the 2008 8-hour ozone NAAQS. On December 13, 2011, and March 6, 2012, Midwest Environmental Defense and Sierra Club submitted amended complaints for failure to promulgate prevention of significant deterioration (PSD) regulations within two years and failure to approve or disapprove SIP submittals, and to remove claims regarding states that have submitted SIPs for the 2008 8-hour ozone NAAQS, respectively. Tennessee was among the states named in the November 2011 complaint, and the December 2011 and March 2012 amended complaints. Specifically, the plaintiffs claim that EPA has failed to perform its mandatory duty by not approving in full, disapproving in full, or approving in part and disapproving in part Tennessee's 2008 ozone infrastructure SIP addressing sections 110(a)(2)(A)-(H) and (J)-(M) by no later than April 19, 2011.
Tennessee's infrastructure submission was received by EPA on October 19, 2009, for the 2008 8-hour ozone NAAQS. The submission was determined to be complete on April 19, 2010. On July 3, 2012, Tennessee submitted a letter to EPA withdrawing the portion of its October 19, 2009, SIP submission that purported to address the requirements related to section 110(a)(2)(D)(i)(I) interstate transport. On August 22, 2012, EPA proposed approval of Tennessee's 2008 8-hour ozone infrastructure SIP, with the exception of section 110(a)(2)(D)(i)(I).
On October 4, 2012, Tennessee submitted a request for conditional approval of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) with respect to the PSD requirements (hereafter referred to as prong 3 of 110(a)(2)(D)(i)),
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
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.
* 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.
* 110(a)(2)(D): Interstate transport.
* 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.
* 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.
EPA notes that this rulemaking does not address four substantive issues that are not integral to the state's infrastructure SIP submission. These four issues are: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources (SSM), that may be contrary to the CAA and EPA's policies addressing such excess emissions; (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); (iii) existing provisions for minor source new source review (NSR) programs that may be inconsistent with the requirements of the CAA and EPA's regulations that pertain to such programs (minor source NSR); and, (iv) 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).
Instead, EPA has indicated that it has other authority to address any such existing SIP defects in other rulemakings, as appropriate. A detailed rationale for why these four substantive issues are not part of the scope of infrastructure SIP rulemakings can be found in EPA's June 11, 2012, proposed rule entitled, "Approval and Promulgation of Implementation Plans; Tennessee 110(a)(1) and (2) Infrastructure Requirements for the 1997 and 2006 Fine Particulate Matter National Ambient Air Quality Standards" in the section entitled, "Scope of Infrastructure SIPs" (
In this action, EPA is proposing to conditionally approve Tennessee's infrastructure SIP for the following infrastructure sections for the 2008 8-hour ozone NAAQS: (1) Section 110(a)(2)(C) to include a program in the SIP that regulates the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved, (2) prong 3 of section 110(a)(2)(D)(i) to include adequate provisions prohibiting any source or other type of emissions activity within the State from emitting any air pollutant in amount which will interfere with measure required to be include in the applicable SIP for any State necessary to prevent significant deterioration, and (3) section 110(a)(2)(J) to include a program in the SIP that regulates the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved.
There are four revisions to the Tennessee SIP that are necessary to meet the requirements of infrastructure requirements of sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J). These four revisions are related to (1) the Ozone Implementation NSR Update (November 29, 2005, 70 FR 71612), (2) the "Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule" (June 3, 2010, 75 FR 31514), (3) the NSR PM
Tennessee's Ozone Implementation NSR Update revision was submitted by TDEC on May 28, 2009, and approved by EPA on February 7, 2012.
In accordance with section 110(k)(4) of the CAA, EPA is proposing to conditionally approve these sections based upon a commitment from Tennessee that the State will submit a SIP revision addressing the increments associated with the PM
As a result of Tennessee's formal commitment to correct the deficiency contained in the Tennessee SIP pertaining to PM
As described above, EPA is proposing to conditionally approve Tennessee's infrastructure submissions pertaining to sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), 110(a)(2)(J) related to PSD, provided to EPA on October 4, 2012, as addressing the infrastructure requirements for the 2008 8-hour ozone NAAQS. Specifically, this conditional approval is based upon Tennessee's commitment that TDEC will provide the necessary SIP revision to address its SIP deficiencies related to the October 20, 2010, final rulemaking related to PSD PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
* 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
* 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
* 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).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401