[Federal Register Volume 77, Number 199 (Monday, October 15, 2012)]
[Rules and Regulations]
[Pages 62449-62452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25149]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2012-0343; FRL-9739-3]
Approval and Promulgation of Implementation Plans; Alabama;
Disapproval of 110(a)(2)(E)(ii) Infrastructure Requirement for the 1997
and 2006 Fine Particulate Matter National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action 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 September 23, 2009, which were intended
to meet the requirement of the Clean Air Act (CAA or the Act). 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. Alabama certified
that the Alabama SIP contains provisions that ensure the 1997 annual
and 2006 24-hour fine particulate matter (PM2.5) national
ambient air quality standards (NAAQS) are implemented, enforced and
maintained in the State. Specifically, EPA is disapproving the State's
submissions that requires the
[[Page 62450]]
State to comply with the CAA. EPA is taking a separate action to
address the other applicable infrastructure elements for the 1997
annual and 2006 24-hour PM2.5 NAAQS.
DATES: This rule will be effective November 14, 2012.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2012-0343. All documents in the docket
are listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information 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 through 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:
Table of Contents
I. Background
II. EPA's Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background
Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and
(2) of the CAA require states to make a SIP submission to address basic
SIP requirements, including emissions inventories, monitoring, and
modeling to assure attainment and maintenance for that new NAAQS. On
July 18, 1997 (62 FR 36852), EPA promulgated a new annual
PM2.5 NAAQS and on October 17, 2006 (71 FR 61144), EPA
promulgated a new 24-hour NAAQS. On July 20, 2012, EPA proposed to
disapprove Alabama's July 25, 2008, and September 23, 2009,
infrastructure submissions related to the requirements respecting state
boards for the for the 1997 annual and 2006 24-hour PM2.5
NAAQS. See 77 FR 42682. A summary of the background for today's final
action is provided below. See EPA's July 20, 2012, proposed rulemaking
at 77 FR 42682 for more detail.
Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains. In the case of the 1997 annual and 2006 24-hour
PM2.5 NAAQS, states typically have met the basic program
elements required in section 110(a)(2) through earlier SIP submissions
in connection with previous PM NAAQS.
More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. Among the elements that states
must address is section 110(a)(2)(E)(ii), which in turn refers to the
specific requirements of section 128. Section 128 explicitly provides
that state SIPs ``shall contain requirements'' as described in sections
128(a)(1) and (2). In addition, states may adopt any additional
requirements that are ``more stringent'' than those explicitly required
in section 128. EPA issued guidance to states making recommendations
concerning compliance with section 128.\1\
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\1\ See ``Guidance to States for Meeting Conflict of Interest
Requirements of section 128'' from David O. Bickert, Deputy General
Counsel, to Regional Air Directors, dated March 2, 1978.
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In this action, EPA is only addressing sub-element
110(a)(2)(E)(ii). In taking final action on the proposed disapproval,
EPA is responding to an adverse comment received on EPA's July 20,
2012, proposed disapproval of Alabama's July 25, 2008, and September
23, 2009, infrastructure submissions for sub-element 110(a)(2)(E)(ii).
EPA is taking a separate action to address the other applicable
infrastructure elements for the 1997 annual and 2006 24-hour
PM2.5 NAAQS. See, e.g., 77 FR 34288.
II. EPA's Response to Comments
The following is EPA's response to the adverse comment received on
EPA's July 20, 2012, proposed disapproval of Alabama's July 25, 2008,
and September 23, 2009, infrastructure submissions as they relate to
section 110(a)(2)(E)(ii) of the CAA.
Comment: On August 20, 2012, ADEM commented on EPA's proposed
action and requested that EPA withdraw its proposed disapproval of
section 110(a)(2)(E)(ii). ADEM suggested in their comment that EPA
approve a conflict of interest protocol submitted for inclusion in the
SIP in connection with the State's 2008 ozone NAAQS infrastructure
submission. ADEM submitted this conflict of interest protocol as an
attachment to its adverse comment on the proposal action. ADEM asserted
that with the inclusion of this protocol in the SIP, EPA would be able
to approve Alabama's 1997 annual and 2006 24-hour PM2.5
infrastructure SIP for sub-element 110(a)(2)(E)(ii).
Response: 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.
In its July 20, 2012, proposed rulemaking (77 FR 42682), EPA
preliminarily determined that the State's implementation plan did not
contain provisions to comply with section 128 of the Act, and thus,
Alabama's July 25, 2008, and September 23, 2009, submissions do not
meet the requirements of the Act with respect to section
110(a)(2)(E)(ii).\2\ Alabama's
[[Page 62451]]
comment on that proposal, which contends that EPA should not finalize
the proposed disapproval based upon a conflict of interest disclosure
protocol included with the comment for incorporation into the SIP, does
not address the underlying basis for the proposed disapproval of
element 110(a)(2)(E)(ii). The basis for EPA's disapproval, as discussed
in the proposed rule for today's action, is that the SIP presently
fails to include any requirements to address the applicable
requirements of section 128 of the CAA.
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\2\ Prior to EPA's proposed disapproval for this sub-element,
ADEM and EPA engaged in a numerous communications regarding this
infrastructure SIP deficiency (see, e.g., EPA's comment to ADEM's
proposed SIP submittal addressing infrastructure requirements for
the 2008 ozone NAAQS which was attached to ADEM's adverse comment
and is available in the docket for today's action.)
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EPA considered the State's comment and has determined the comments
do not adequately address the requirements for the following procedural
and substantive reasons. With respect to procedural issues, an adverse
comment letter on a proposed action does not meet the statutory and
regulatory requirements for a SIP submission. Section 110(a)(1),
section 110(a)(2), and section 110(l), all provide that a state's
implementation plan submission must undergo reasonable notice and
opportunity for comment. In addition, EPA regulations at Part 51,
Appendix V, set forth additional criteria for a SIP submission. EPA has
determined that the conflict of interest disclosure protocol attached
to the State's adverse comment letter does not constitute such a SIP
submission for a number of reasons including, but not limited to, the
fact that the State has not provided information that the submission
has undergone the requisite public notice or a demonstration that the
protocol has been adopted and is in final form as submitted. In
addition, the protocol was not signed, stamped and dated by an
appropriate official to indicate that it is fully enforceable by the
State.
Substantively, were it an official submission, it would not be
sufficient to satisfy the requirements of section 128 necessary for EPA
to approve Alabama's infrastructure submissions as they relate to
section 110(a)(2)(E)(ii). As noted in the proposed rule for today's
action, 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.
Alabama provides no explanation as to how its conflict of interest
disclosure protocol would satisfy the public interest and significant
portion of income requirements applicable to the majority of a state
board or body subject to section 128(a)(1). Alabama's response to EPA's
comments on the State's draft 2008 8-hour ozone infrastructure
submission (included with Alabama's comment on today's rulemaking)
notes that certain ADEM officials are charged with responsibilities for
issuing permits or enforcement orders. EPA has interpreted the ``board
or body'' requirements of section 128(a)(1) as not applying to
individuals tasked with authority to approve permits or enforcement
orders. However, where appeals of such permits or enforcement orders
are resolved by boards or bodies, those entities are subject to the
majority requirements of section 128(a)(1). Alabama's comment does not
describe how appeals of permits or enforcement order are handled in the
State. In order for EPA to determine that the requirements of section
128(a)(1) are not applicable in Alabama, the State must provide this
information. If a board or body does review appeals of permit or
enforcement orders, the SIP must require that such board or board be
subject to the 128(a)(1) majority requirements in order for EPA to
approve Alabama's section 110(a)(2)(E)(ii) infrastructure submittals.
Based upon the information protocol described by Alabama, the State's
approach fails to address the majority requirements of section 128.
In addition to the issues noted above regarding the section
128(a)(1) requirements, the question of whether a board or body handles
appeals of permits or enforcement orders is also relevant to
sufficiency of the State's protocol with respect to the section
128(a)(2) requirements. To the extent a board or body decides appeals
of permits or enforcement orders, the SIP must require that members of
such board or body be subject to the section 128(a)(2) conflict of
interest disclosure requirements. The State's conflict of interest
disclosure protocol, as submitted, would appear to only apply to three
specified officials within ADEM. Alabama has failed to demonstrate how
the submitted protocol would provide adequate disclosure consistent
with the requirements section 128(a)(2).
EPA also notes that Alabama's conflict of interest disclosure
protocol, at footnote 3, asserts that ``EPA defines `significant
portion of income' as 50% or more of gross personal income for a
calendar year if the recipient is over 60 years of age and is receiving
that portion under retirement, pension, or similar arrangement. This
information need only be provided if the recipient falls in this
category.'' This statement is incomplete. The complete suggested
definition for ``Significant Portion of Income'' recommended in EPA's
1978 Guidance to States for Meeting Conflict of Interest Requirements
of Section 128 is ``10 percent or more of gross personal income for a
calendar year, including retirement benefits, consultation fees, and
stock dividends, except that it shall mean 50 percent [or more] of
gross personal income for a calendar year if the recipient is over 60
years of age and is receiving such portion pursuant to retirement,
pension, or similar arrangement.'' Alabama's protocol omits the
generally applicable 10 percent standard.\3\
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\3\ EPA notes that this suggested definition is provided in a
guidance document as an example to states of how to define
significant portions of income, therefore, states may propose a
different standard as constituting a ``significant portion of
income.'' However, as noted in the guidance, EPA views the substance
of the suggested definitions as representing the minimum level of
stringency necessary to meet the requirements of section 128.
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EPA is finalizing disapproval of Alabama's infrastructure
submissions as they relate to sub-element 110(a)(2)(E)(ii) because, as
described above, the SIP presently does not contain provisions to
address the requirements of section 128 of the CAA. Consistent with the
obligations under the CAA, EPA intends to continue working with the
State to resolve this SIP deficiency.
III. Final Action
EPA is taking final action to disapprove the portion of Alabama's
July 25, 2008, and September 23, 2009, submissions which was intended
to meet the requirement to address element 110(a)(2)(E)(ii) for the
1997 annual and 2006 24-hour PM2.5 NAAQS. EPA has made the
determination that Alabama's SIP does not satisfy the requirement for
element 110(a)(2)(E)(ii) for the 1997 annual and 2006 24-hour
PM2.5 NAAQS. In today's action, EPA is not taking any action
on the remaining elements of the submission, including other section
110(a)(2) infrastructure elements.
Under section 179(a) of the CAA, final disapproval of a submittal
that addresses a requirement of a Part D Plan (42 U.S.C. 7501-7515) or
is required in response to a finding of substantial inadequacy as
described in section 7410(k)(5) (SIP call) starts a sanctions clock.
Section 110(a)(2)(E)(ii) provisions (the provisions being disapproved
in today's notice) were not submitted to meet requirements for Part D,
and
[[Page 62452]]
therefore, no sanctions will be triggered. This final action triggers
the requirement under section 110(c) that EPA promulgate a Federal
Implementation Plan (FIP) no later than 2 years from the date of the
disapproval unless the State corrects the deficiency, and the
Administrator approves the plan or plan revision before the
Administrator promulgates such FIP.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly this final
action disapproves state law because it does not meet federal
requirements. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the state,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 14, 2012. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: September 27, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart B--Alabama
0
2. Section 52.62 is amended by adding paragraph (e), to read as
follows:
Sec. 52.62 Control strategy: Sulfur oxides and particulate matter.
* * * * *
(e) Disapproval. EPA is disapproving portions of Alabama's
Infrastructure SIP for the 1997 annual and 2006 24-hour
PM2.5 NAAQS addressing section 110(a)(2)(E)(ii) that
requires the State to comply with section 128 of the CAA.
[FR Doc. 2012-25149 Filed 10-12-12; 8:45 am]
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