[Federal Register Volume 77, Number 140 (Friday, July 20, 2012)]
[Proposed Rules]
[Pages 42682-42686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17768]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2012-0343; FRL-9701-8]
Approval and Promulgation of Air Quality Implementation Plan;
Alabama; Disapproval of 110(a)(2)(E)(ii) Infrastructure Requirement for
the 1997 Annual and 2006 24-Hour PM2.5 Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to disapprove a portion of the State
Implementation Plan (SIP) submissions, submitted by the State of
Alabama, through the Alabama Department of Environmental Management
(ADEM), on July 25, 2008, and on September 23, 2009, to demonstrate
that the State meets requirements of sections 110(a)(1) and (2) of the
Clean Air Act (CAA or Act) for the 1997 annual and 2006 24-hour fine
particulate matter (PM2.5) 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 EPA, which is commonly
referred to as an ``infrastructure'' SIP. Specifically, EPA is
proposing to disapprove sub-element 110(a)(2)(E)(ii) that requires the
State to comply with section 128 of the CAA. EPA is taking a separate
action to address all the other infrastructure elements for the 1997
annual and 2006 24-hour PM2.5 NAAQS.
DATES: Comments must be received on or before August 20, 2012.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0343 by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: [email protected].
3. Fax: (404) 562-9019.
4. Mail: EPA-R04-OAR-2012-0343, 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: Ms. Lynorae Benjamin, Chief,
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-
2012-0343.'' 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
[[Page 42683]]
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: Sean Lakeman, 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 (404)
562-9043. Mr. Lakeman can be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION: This section provides additional information
by addressing the following questions:
I. What action is EPA proposing in today's rulemaking?
II. What is the background for this proposed action?
III. What is EPA's analysis of Alabama's submission for section
110(a)(2)(E)(ii) for the 1997 annual and 2006 24-hour
PM2.5 NAAQS?
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. What action is EPA proposing in today's rulemaking?
On July 25, 2008, and on September 23, 2009, the State of Alabama,
through ADEM, provided submissions to EPA certifying that the Alabama
SIP meets the requirements of sections 110(a)(1) and (2) of the CAA for
the 1997 annual and 2006 24-hour PM2.5 NAAQS.\1\
Specifically, Alabama certified that its current SIP adequately
addresses the elements of CAA section 110(a)(2)(E)(ii) for the 1997
annual and 2006 24-hour PM2.5 NAAQS. CAA section
110(a)(2)(E)(ii) requires that states comply with the requirements
respecting state boards pursuant to section 128 of the Act. In today's
action, EPA is proposing to disapprove the portion of Alabama's July
25, 2008, and September 23, 2009, submissions related to the
requirements respecting state boards for the 1997 annual and 2006 24-
hour PM2.5 NAAQS because EPA has made the preliminary
determination that these submissions do not meet the requirements of
section 110(a)(2)(E)(ii) of the CAA for this NAAQS. EPA's rationale for
this proposed disapproval is provided in the Section III of this
rulemaking.
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\1\ Alabama's July 25, 2008, and September 23, 2009, submissions
explained that Alabama's current SIP sufficiently addresses
requirements of section 110(a)(2) for the 1997 annual and 2006 24-
hour PM2.5 NAAQS, however, today's proposed action only
relates to the section 110(a)(2)(E)(ii) requirements for the 1997
annual and 2006 24-hour PM2.5 NAAQS. EPA is addressing
the other section 110(a)(2) requirements for the 1997 annual and
2006 24-hour PM2.5 NAAQS in relation to Alabama's SIP in
rulemaking separate from today's proposed rulemaking.
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II. What is the background for this proposed action?
On July 18, 1997 (62 FR 38652), EPA established an annual
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\)
based on a 3-year average of annual mean PM2.5
concentrations. At that time, EPA also established a 24-hour NAAQS of
65 [mu]g/m\3\. See 40 CFR 50.7. On October 17, 2006 (71 FR 61144), EPA
retained the 1997 annual PM2.5 NAAQS at 15.0 [mu]g/m\3\
based on a 3-year average of annual mean PM2.5
concentrations, and promulgated a new 24-hour NAAQS of 35 [mu]g/m\3\
based on a 3-year average of the 98th percentile of 24-hour
concentrations. By statute, SIPs meeting the requirements of sections
110(a)(1) and (2) are to be submitted by states within three years
after promulgation of a new or revised NAAQS. Sections 110(a)(1) and
(2) require 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
to EPA no later than July 2000 for the 1997 annual PM2.5
NAAQS, no later than October 2009 for the 2006 24-hour PM2.5
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 annual
PM2.5 NAAQS. On March 10, 2005, 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 PM2.5 NAAQS by October 5, 2008. In accordance with
the consent decree, EPA made completeness findings for each state based
upon what the Agency received from each state for the 1997
PM2.5 NAAQS as of October 3, 2008.
On October 22, 2008, EPA published a final rulemaking entitled
``Completeness Findings for Section 110(a) State Implementation Plans
Pertaining to the Fine Particulate Matter (PM2.5) 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 PM2.5 NAAQS (see
73 FR 62902). For those states that did receive findings, 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. 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).
[[Page 42684]]
Alabama's infrastructure submissions were received by EPA on July
25, 2008, for the 1997 annual PM2.5 NAAQS, and on September
23, 2009, for the 2006 24-hour PM2.5 NAAQS. The submissions
were determined to be complete on January 25, 2009, and March 23, 2010,
respectively. Alabama was among other states that did not receive
findings of failure to submit because it had provided a complete
submission to EPA to address the infrastructure elements for the 1997
PM2.5 NAAQS by October 3, 2008.
On July 6, 2011, WildEarth Guardians and Sierra Club filed an
amended complaint related to EPA's failure to take action on the SIP
revision related to the ``infrastructure'' requirements for the 2006
24-hour PM2.5 NAAQS. On October 20, 2011, EPA entered into a
consent decree with WildEarth Guardians and Sierra Club which required
EPA, among other things, to complete a Federal Register notice of the
Agency's final action either approving, disapproving, or approving in
part and disapproving in part the Alabama 2006 24-hour PM2.5
NAAQS Infrastructure SIP revision addressing the applicable
requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for section
110(a)(2)(C), the nonattainment area requirements and section
110(a)(2)(D)(i), interstate transport requirements, by September 30,
2012.
Today's action is proposing to disapprove the portion of Alabama's
July 25, 2008, and September 23, 2009, submissions which was intended
to meet the requirement to address sub-element 110(a)(2)(E)(ii) for the
1997 annual and 2006 24-hour PM2.5 NAAQS.
III. What is EPA's analysis of Alabama's submission for section
110(a)(2)(E)(ii) for the 1997 annual and 2006 24-hour PM2.5
NAAQS?
On July 25, 2008, and on September 23, 2009, the State of Alabama,
through ADEM, provided letters to EPA certifying that Alabama's SIP
meets the requirements of sections 110(a)(1) and (2) of the CAA for the
1997 annual and 2006 24-hour PM2.5 NAAQS. Specifically, for
sub-element 110(a)(2)(E)(ii) Alabama's July 25, 2008, submission states
that ``Requirements dictating the roles of local or regional
governments (local programs) are derived from Ala Code Sec. 22-28-11
(2006 Rplc.Vol), as amended * * *'' and the September 23, 2009,
submission states that ``This requirement is met through Ala Code Sec.
22-22A-6(j) which ensures that the state comply with section 128 of the
CAA.''
Section 110(a)(2)(E)(ii) requires that each implementation plan
provide that states comply with the requirements respecting state
boards pursuant to section 128 of the Act. Section 128 requires that:
(1) The majority of members of the state board or body which approves
permits or enforcement orders represent the public interest and do not
derive any significant portion of their income from persons subject to
permitting or enforcement orders under the CAA; and (2) any potential
conflicts of interest by such board or body, or the head of an
executive agency with similar powers be adequately disclosed. After
reviewing Alabama's SIP, EPA has made the preliminary determination
that the State's implementation plan does not contain provisions to
comply with section 128 of the Act, and thus Alabama's July 25, 2008,
and on September 23, 2009, submissions do not meet the requirements of
the Act. While Alabama has state statutes that may address, in whole or
part, requirements related to state boards at the state level, these
provisions are not included in the SIP as required by the CAA.
Based on an evaluation of the federally-approved Alabama SIP, EPA
is proposing to disapprove Alabama's certification that its SIP meets
the requirements of 110(a)(2)(E)(ii) of the CAA for the 1997 annual and
2006 24-hour PM2.5 NAAQS. The submitted provisions which
purport to address 110(a)(2)(E)(ii) are severable from the other
infrastructure elements. Therefore, EPA is proposing to disapprove
those provisions which relate only to sub-element 110(a)(2)(E)(ii).
IV. Proposed Action
EPA is proposing to disapprove the portion of Alabama's July 25,
2008, and September 23, 2009, submissions, relating to section
110(a)(2)(E)(ii). This proposed disapproval is based on EPA's
preliminary determination that Alabama's SIP does not satisfy these
requirements for the 1997 annual and 2006 24-hour PM2.5
NAAQS because provisions required by section 128 of the CAA are not
approved in the Alabama SIP. Today's proposed action only relates to
the section 110(a)(2)(E)(ii) requirements for the 1997 annual and 2006
24-hour PM2.5 NAAQS. EPA is addressing the other section
110(a)(2) requirements for the 1997 annual and 2006 24-hour
PM2.5 NAAQS for Alabama's SIP in a rulemaking separate from
today's proposed rulemaking.
Under section 179(a) of the CAA, final disapproval of a submittal
that addresses a requirement of a CAA Part D Plan or is required in
response to a finding of substantial inadequacy as described in CAA
section 110(k)(5) (SIP call) starts a sanctions clock. Section
110(a)(2)(E)(ii) provisions (the provisions being proposed for
disapproval in today's notice) were not submitted to meet requirements
for Part D or a SIP call, and therefore, if EPA takes final action to
disapprove this submittal, no sanctions will be triggered. However, if
this disapproval action is finalized, that final action will trigger
the requirement under section 110(c) that EPA promulgate a FIP no later
than 2 years from the date of the disapproval unless the State corrects
the deficiency, and EPA approves the plan or plan revision before EPA
promulgates such FIP.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to act on state law as meeting
federal requirements and does not impose additional requirements beyond
those imposed by state law.
A. Executive Order 12866, Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive Order.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq,
because this proposed SIP disapproval under section 110 of the CAA will
not in-and-of itself create any new information collection burdens but
simply disapproves certain state requirements for inclusion into the
SIP. Burden is defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act (RFA)
The RFA generally requires an agency to conduct a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and small governmental jurisdictions. For purposes of
assessing the impacts of today's rule on small entities, small entity
is defined as: (1) A small business as defined by the Small Business
Administration's regulations at
[[Page 42685]]
13 CFR 121.201; (2) a small governmental jurisdiction that is a
government of a city, county, town, school district or special district
with a population of less than 50,000; and (3) a small organization
that is any not-for-profit enterprise which is independently owned and
operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
impact on a substantial number of small entities. This rule does not
impose any requirements or create impacts on small entities. This
proposed SIP disapproval under section 110 of the CAA will not in-and-
of itself create any new requirements but simply disapproves certain
state requirements for inclusion into the SIP. Accordingly, it affords
no opportunity for EPA to fashion for small entities less burdensome
compliance or reporting requirements or timetables or exemptions from
all or part of the rule. The fact that the CAA prescribes that various
consequences (e.g., higher offset requirements) may or will flow from
this disapproval does not mean that EPA either can or must conduct a
regulatory flexibility analysis for this action. Therefore, this action
will not have a significant economic impact on a substantial number of
small entities. EPA continues to be interested in the potential impacts
of this proposed rule on small entities and welcome comments on issues
related to such impacts.
D. Unfunded Mandates Reform Act
This action contains no federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for state, local, or tribal governments or the private
sector. EPA has determined that the proposed disapproval action does
not include a federal mandate that may result in estimated costs of
$100 million or more to either state, local, or tribal governments in
the aggregate, or to the private sector. This action proposes to
disapprove pre-existing requirements under state or local law, and
imposes no new requirements. Accordingly, no additional costs to state,
local, or tribal governments, or to the private sector, result from
this action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
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, as
specified in Executive Order 13132, because it merely disapproves
certain state requirements for inclusion into the SIP and does not
alter the relationship or the distribution of power and
responsibilities established in the CAA. Thus, Executive Order 13132
does not apply to this action.
F. Executive Order 13175, Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
EPA is proposing to disapprove would not 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. Thus,
Executive Order 13175 does not apply to this action.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it is not an
economically significant regulatory action based on health or safety
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997).
This proposed SIP disapproval under section 110 the CAA will not in-
and-of itself create any new regulations but simply disapproves certain
state requirements for inclusion into the SIP.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution or Use
This action is not subject to Executive Order 13211 (66 FR 28355,
May 22, 2001) 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, Public Law 104-113, section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through the Office of Management and Budget,
explanations when the Agency decides not to use available and
applicable voluntary consensus standards. EPA believes that this action
is not subject to requirements of Section 12(d) of 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 Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this proposed action. In reviewing SIP submissions, EPA's
role is to approve or disapprove state choices based on the criteria of
the CAA. Accordingly, this action merely proposes to disapprove certain
state requirements for inclusion into the SIP under section 110 the CAA
and will not in-and-of itself create any new requirements. Accordingly,
it 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Particulate matter, and
[[Page 42686]]
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 12, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-17768 Filed 7-19-12; 8:45 am]
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