[Federal Register Volume 81, Number 135 (Thursday, July 14, 2016)]
[Proposed Rules]
[Pages 45428-45438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16577]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2014-0431; FRL- 9948-98-Region 4]
Air Plan Approval/Disapproval; Alabama; Infrastructure
Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality
Standard
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve in part and disapprove in part portions of the April 23, 2013,
State Implementation Plan (SIP) submission, submitted by the State of
Alabama, through the Alabama Department of Environmental Management
(ADEM), for inclusion into the Alabama SIP. This proposal pertains to
the infrastructure requirements of the Clean Air Act (CAA or Act) for
the 2010 1-hour sulfur dioxide (SO2) national ambient air
quality standard (NAAQS). 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. ADEM certified that the Alabama SIP contains
provisions that ensure the 2010 1-hour SO2 NAAQS is
implemented, enforced, and maintained in Alabama. With the exception of
provisions respecting state boards, which EPA is proposing to
disapprove, and interstate transport, which EPA is not proposing any
action at this time, EPA is proposing to determine that portions of
Alabama's infrastructure SIP submission provided to EPA on April 23,
2013, satisfy the required infrastructure elements for the 2010 1-hour
SO2 NAAQS.
DATES: Written comments must be received on or before August 15, 2016.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0431 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be
[[Page 45429]]
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: Michele Notarianni, 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. Ms. Notarianni can be reached via electronic mail at
[email protected] or via telephone at (404) 562-9031.
SUPPLEMENTARY INFORMATION:
I. Background and Overview
On June 22, 2010 (75 FR 35520), EPA revised the primary
SO2 NAAQS to an hourly standard of 75 parts per billion
(ppb) based on a 3-year average of the annual 99th percentile of 1-hour
daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA,
states are required to submit SIPs meeting the applicable requirements
of section 110(a)(2) within three years after promulgation of a new or
revised NAAQS or within such shorter period as EPA may prescribe.
Section 110(a)(2) requires states to address basic SIP elements such as
requirements for monitoring, basic program requirements and legal
authority that are designed to assure attainment and maintenance of the
NAAQS. States were required to submit such SIPs for the 2010 1-hour
SO2 NAAQS to EPA no later than June 2, 2013.\1\
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\1\ In these infrastructure SIP submissions States generally
certify evidence of compliance with sections 110(a)(1) and (2) of
the CAA through a combination of state regulations and statutes,
some of which have been incorporated into the federally-approved
SIP. In addition, certain federally-approved, non-SIP regulations
may also be appropriate for demonstrating compliance with sections
110(a)(1) and (2). Throughout this rulemaking, unless otherwise
indicated, the term ``ADEM Administrative Code (Admin. Code r).''
indicates that the cited regulation has either been approved, or
submitted for approval into Alabama's federally-approved SIP. The
term ``Alabama Code'' (Ala. Code) indicates cited Alabama state
statutes, which are not a part of the SIP unless otherwise
indicated.
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This action is proposing to approve Alabama's infrastructure SIP
submission for the applicable requirements of the 2010 1-hour
SO2 NAAQS, with the exception of interstate transport
provisions pertaining to the contribution to nonattainment or
interference with maintenance in other states and visibility protection
requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and
4) and the state board requirements of section 110(a)(2)(E)(ii). With
respect to the interstate transport provisions of section
110(a)(2)(D)(i)(I) (prongs 1 and 2) and the visibility protection
requirements of section 110(a)(2)(D)(i)(II) (prong 4), EPA is not
proposing any action at this time regarding these requirements. With
respect to Alabama's infrastructure SIP submission related to section
110(a)(2)(E)(ii) requirements respecting the section 128 state board
requirements, EPA is proposing to disapprove this element of Alabama's
submission in this rulemaking. For the aspects of Alabama's submittal
proposed for approval today, EPA notes that the Agency is not approving
any specific rule, but rather proposing that Alabama's already approved
SIP meets certain CAA requirements.
II. What elements are required under Sections 110(a)(1) and (2)?
Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains.
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 previously, these
requirements include basic SIP elements such as requirements for
monitoring, basic program requirements and legal authority that are
designed to assure attainment and maintenance of the NAAQS. The
requirements of section 110(a)(2) are summarized later on and in EPA's
September 13, 2013, memorandum entitled ``Guidance on Infrastructure
State Implementation Plan (SIP) Elements under Clean Air Act Sections
110(a)(1) and 110(a)(2).'' \2\
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\2\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the nonattainment area
plan requirements are due pursuant to section 172. These
requirements are: (1) Submissions required by section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required
in part D, title I of the CAA; and (2) submissions required by
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, title I of the CAA. This proposed rulemaking
does not address infrastructure elements related to section
110(a)(2)(I) or the nonattainment planning requirements of
110(a)(2)(C).
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110(a)(2)(A): Emission Limits and Other Control Measures
110(a)(2)(B): Ambient Air Quality Monitoring/Data System
110(a)2(C): Programs for Enforcement of Control Measures and
for Construction or Modification of Stationary Sources \3\
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\3\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
110(a)(2)(D)(ii): Interstate Pollution Abatement and
International Air Pollution
110(a)(2)(E): Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies
110(a)(2)(F): Stationary Source Monitoring and Reporting
110(a)(2)(G): Emergency Powers
110(a)(2)(H): SIP Revisions
110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\
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\4\ As mentioned previously, this element is not relevant to
this proposed rulemaking.
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110(a)(2)(J): Consultation with Government Officials, Public
Notification, and Prevention of Significant Deterioration (PSD) and
Visibility Protection
110(a)(2)(K): Air Quality Modeling and Submission of Modeling
Data
110(a)(2)(L): Permitting fees
110(a)(2)(M): Consultation and Participation by Affected Local
Entities
[[Page 45430]]
III. What is EPA's approach to the review of infrastructure SIP
submissions?
EPA is acting upon the SIP submission from Alabama that addresses
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2)
for the 2010 1-hour SO2 NAAQS. The requirement for states to
make a SIP submission of this type arises out of CAA section 110(a)(1).
Pursuant to section 110(a)(1), states must make SIP submissions
``within 3 years (or such shorter period as the Administrator may
prescribe) after the promulgation of a national primary ambient air
quality standard (or any revision thereof),'' and these SIP submissions
are to provide for the ``implementation, maintenance, and enforcement''
of such NAAQS. The statute directly imposes on states the duty to make
these SIP submissions, and the requirement to make the submissions is
not conditioned upon EPA's taking any action other than promulgating a
new or revised NAAQS. Section 110(a)(2) includes a list of specific
elements that ``[e]ach such plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA, such
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to
address the nonattainment planning requirements of part D of title I of
the CAA, ``regional haze SIP'' submissions required by EPA rule to
address the visibility protection requirements of CAA section 169A, and
nonattainment new source review permit program submissions to address
the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\5\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
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\5\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of title I of the
Act, which specifically address nonattainment SIP requirements.\6\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years, or in some cases three years, for such designations to be
promulgated.\7\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
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\6\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\7\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
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Another example of ambiguity within sections 110(a)(1) and
110(a)(2) with respect to infrastructure SIPs pertains to whether
states must meet all of the infrastructure SIP requirements in a single
SIP submission, and whether EPA must act upon such SIP submission in a
single action. Although section 110(a)(1) directs states to submit ``a
plan'' to meet these requirements, EPA interprets the CAA to allow
states to make multiple SIP submissions separately addressing
infrastructure SIP elements for the same NAAQS. If states elect to make
such multiple SIP submissions to meet the infrastructure SIP
requirements, EPA can elect to act on such submissions either
individually or in a larger combined action.\8\ Similarly, EPA
interprets the CAA to allow it to take action on the individual parts
of one larger, comprehensive infrastructure SIP submission for a given
NAAQS without concurrent action on the entire submission. For example,
EPA has sometimes elected to act at different times on various elements
and sub-elements of the same infrastructure SIP submission.\9\
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\8\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
\9\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
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Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise
with respect to infrastructure SIP submission requirements for
different NAAQS. Thus, EPA notes that not every element of section
110(a)(2) would be relevant, or as relevant, or relevant in the same
way, for each new or revised NAAQS. The states' attendant
infrastructure SIP submissions for each NAAQS therefore could be
different. For example, the monitoring requirements that a state might
need to meet in its infrastructure
[[Page 45431]]
SIP submission for purposes of section 110(a)(2)(B) could be very
different for different pollutants because the content and scope of a
state's infrastructure SIP submission to meet this element might be
very different for an entirely new NAAQS than for a minor revision to
an existing NAAQS.\10\
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\10\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires that attainment plan SIP
submissions required by part D have to meet the ``applicable
requirements'' of section 110(a)(2). Thus, for example, attainment plan
SIP submissions must meet the requirements of section 110(a)(2)(A)
regarding enforceable emission limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it is clear that attainment plan SIP submissions required by
part D would not need to meet the portion of section 110(a)(2)(C) that
pertains to the PSD program required in part C of title I of the CAA,
because PSD does not apply to a pollutant for which an area is
designated nonattainment and thus subject to part D planning
requirements. As this example illustrates, each type of SIP submission
may implicate some elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\11\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\12\ EPA developed this document to provide states
with up-to-date guidance for infrastructure SIPs for any new or revised
NAAQS. Within this guidance, EPA describes the duty of states to make
infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
SIP submissions.\13\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and
110(a)(2) such that infrastructure SIP submissions need to address
certain issues and need not address others. Accordingly, EPA reviews
each infrastructure SIP submission for compliance with the applicable
statutory provisions of section 110(a)(2), as appropriate.
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\11\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
\12\ ``Guidance on Infrastructure State Implementation Plan
(SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
\13\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the United States (U.S.) Supreme Court agreed to review the
D.C. Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012)
which had interpreted the requirements of section
110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing
litigation, EPA elected not to provide additional guidance on the
requirements of section 110(a)(2)(D)(i)(I) at that time. As the
guidance is neither binding nor required by statute, whether EPA
elects to provide guidance on a particular section has no impact on
a state's CAA obligations.
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As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's
implementation plan appropriately addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's
interpretation that there may be a variety of ways by which states can
appropriately address these substantive statutory requirements,
depending on the structure of an individual state's permitting or
enforcement program (e.g., whether permits and enforcement orders are
approved by a multi-member board or by a head of an executive agency).
However they are addressed by the state, the substantive requirements
of section 128 are necessarily included in EPA's evaluation of
infrastructure SIP submissions because section 110(a)(2)(E)(ii)
explicitly requires that the state satisfy the provisions of section
128.
As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and new source review (NSR)
pollutants, including greenhouse gases (GHGs). By contrast, structural
PSD program requirements do not include provisions that are not
required under EPA's regulations at 40 CFR 51.166 but are merely
available as an option for the state, such as the option to provide
grandfathering of complete permit applications with respect to the 2012
fine particulate matter (PM2.5) NAAQS. Accordingly, the
latter optional provisions are types of provisions EPA considers
irrelevant in the context of an infrastructure SIP action.
For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's implementation plan meets basic structural requirements. For
example, section 110(a)(2)(C) includes, among other things, the
requirement that states have a program to regulate minor new sources.
Thus, EPA evaluates whether the state has an EPA-approved minor NSR
program and whether the program addresses the pollutants relevant to
that NAAQS. In the context of acting on an infrastructure SIP
submission, however, EPA does not think it is necessary to conduct a
review of each and every provision of a state's existing minor source
program (i.e., already in the
[[Page 45432]]
existing SIP) for compliance with the requirements of the CAA and EPA's
regulations that pertain to such programs.
With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction that may be contrary to the CAA and EPA's
policies addressing such excess emissions (``SSM''); (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) 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''). Thus, EPA believes it may approve an infrastructure SIP
submission without scrutinizing the totality of the existing SIP for
such potentially deficient provisions and may approve the submission
even if it is aware of such existing provisions.\14\ It is important to
note that EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that relate to the three
specific issues just described.
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\14\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then EPA would need to evaluate that provision
for compliance against the rubric of applicable CAA requirements in
the context of the action on the infrastructure SIP.
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EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in 110(a)(2) as requiring review of
each and every provision of a state's existing SIP against all
requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may include some outmoded
provisions and historical artifacts. These provisions, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP
submission. EPA believes that a better approach is for states and EPA
to focus attention on those elements of section 110(a)(2) of the CAA
most likely to warrant a specific SIP revision due to the promulgation
of a new or revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
Finally, EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow EPA to take appropriately
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's implementation
plan is substantially inadequate to attain or maintain the NAAQS, to
mitigate interstate transport, or to otherwise comply with the CAA.\15\
Section 110(k)(6) authorizes EPA to correct errors in past actions,
such as past approvals of SIP submissions.\16\ Significantly, EPA's
determination that an action on a state's infrastructure SIP submission
is not the appropriate time and place to address all potential existing
SIP deficiencies does not preclude EPA's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action to
correct those deficiencies at a later time. For example, although it
may not be appropriate to require a state to eliminate all existing
inappropriate director's discretion provisions in the course of acting
on an infrastructure SIP submission, EPA believes that section
110(a)(2)(A) may be among the statutory bases that EPA relies upon in
the course of addressing such deficiency in a subsequent action.\17\
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\15\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
\16\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under CAA section 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\17\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how Alabama addressed the elements of the
Sections 110(a)(1) and (2) ``Infrastructure'' provisions?
Alabama's infrastructure SIP submission addresses the provisions of
sections 110(a)(1) and (2) as described later on.
1. 110(a)(2)(A): Emission Limits and Other Control Measures:
Section 110(a)(2)(A) requires that each implementation plan include
enforceable emission limitations and other control measures, means, or
techniques (including economic incentives such as fees, marketable
permits, and auctions of emissions rights), as well as schedules and
timetables for compliance, as may be necessary or appropriate to meet
the applicable requirements. Several regulations within Alabama's SIP
are relevant to air quality control regulations. The regulations
described later on have been federally approved in the Alabama SIP and
include enforceable emission limitations and other control measures.
ADEM Admin. Code r. 335-3-1-.03--Ambient Air Quality Standards,
authorizes ADEM to adopt rules for the control of air pollution in
order to comply with NAAQS, including those necessary to obtain EPA
approval under section 110 of the CAA. ADEM Admin. Code r. 335-3-
1-.06--Compliance Schedule, sets the schedule for compliance with the
State's Air Pollution Control rules and
[[Page 45433]]
regulations to be consistent with the requirements of the CAA. ADEM
Admin. Code r. 335-3-1-05--Sampling and Testing Methods, details the
authority and means with which ADEM can require testing and emissions
verification. Also, the following ADEM Administrative Code rules
regulate stack height: 335-3-14-03(2)--Stack Heights, subparagraphs (d)
and (e), 335-3-15-02(9)--Stack Heights, subparagraphs (d) and (e), and
335-3-16-.02(10)--General Provisions, subparagraphs (d) and (e). EPA
has made the preliminary determination that Alabama's SIP satisfies
Section 110(a)(2)(A) for the 2010 1-hour SO2 NAAQS in the
State.
In this action, EPA is not proposing to approve or disapprove any
existing State provisions with regard to excess emissions during SSM of
operations at a facility. EPA believes that a number of states have SSM
provisions which are contrary to the CAA and existing EPA guidance,
``State Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the
Agency is addressing such state regulations in a separate action.\18\
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\18\ On June 12, 2015, EPA published a final action entitled,
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs;
Findings of Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown, and Malfunction.'' See 80 FR 33840.
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Additionally, in this action, EPA is not proposing to approve or
disapprove any existing State rules with regard to director's
discretion or variance provisions. EPA believes that a number of states
have such provisions which are contrary to the CAA and existing EPA
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to
take action in the future to address such state regulations. In the
meantime, EPA encourages any state having a director's discretion or
variance provision which is contrary to the CAA and EPA guidance to
take steps to correct the deficiency as soon as possible.
2. 110(a)(2)(B) Ambient Air Quality Monitoring/Data System: Section
110(a)(2)(B) requires SIPs to provide for establishment and operation
of appropriate devices, methods, systems, and procedures necessary to
(i) monitor, compile, and analyze data on ambient air quality, and (ii)
upon request, make such data available to the Administrator. ADEM
Admin. Code r. 335-3-1-.04--Monitoring, Records, and Reporting,
requires sources to submit emissions monitoring reports as prescribed
by the Director of ADEM. Pursuant to this regulation, these sources
collect air monitoring data, quality assure the results, and report the
data to EPA. ADEM Admin. Code r. 335-3-1-.05--Sampling and Testing
Methods, details the authority and means through which ADEM can require
testing and emissions verification. ADEM Admin. Code r. 335-3-14-.04--
Air Permits Authorizing Construction in Clean Air: Prevention of
Significant Deterioration Permitting (PSD), describes the State's use
of ambient air quality monitoring data for purposes of permitting new
facilities and assessing major modifications to existing facilities.
Annually, States develop and submit to EPA for approval statewide
ambient monitoring network plans consistent with the requirements of 40
CFR parts 50, 53, and 58. The annual network plan involves an
evaluation of any proposed changes to the monitoring network, and
includes the annual ambient monitoring network design plan and a
certified evaluation of the agency's ambient monitors and auxiliary
support equipment.\19\ On July 22, 2015, Alabama submitted its plan to
EPA. On November 19, 2015, EPA approved Alabama's monitoring network
plan. Alabama's approved monitoring network plan can be accessed at
www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0431. EPA has
made the preliminary determination that Alabama's SIP and practices are
adequate for the ambient air quality monitoring and data system related
to the 2010 1-hour SO2 NAAQS.
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\19\ On occasion, proposed changes to the monitoring network are
evaluated outside of the network plan approval process in accordance
with 40 CFR part 58.
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3. 110(a)(2)(C) Programs for Enforcement of Control Measures and
for Construction or Modification of Stationary Sources: This element
consists of three sub-elements: Enforcement, state-wide regulation of
new and modified minor sources and minor modifications of major
sources, and preconstruction permitting of major sources and major
modifications in areas designated attainment or unclassifiable for the
subject NAAQS as required by CAA title I part C (i.e., the major source
PSD program). ADEM's 2010 1-hour SO2 NAAQS infrastructure
SIP submission cited a number of SIP provisions to address these
requirements. Specifically, the submission cited ADEM Admin. Code r.
335-3-14-.01--General Provisions, 335-3-14-.02,--Permit Procedure, 335-
3-14-.03--Standards for Granting Permits, 335-3-14-.04--Prevention of
Significant Deterioration in Permitting and 335-3-14-.05--Air Permits
Authorizing Construction in or Near Nonattainment Areas. Collectively,
these provisions of Alabama's SIP regulate the construction of any new
major stationary source or any modification at an existing major
stationary source in an area designated as nonattainment, attainment or
unclassifiable.
Enforcement: ADEM's above-described, SIP-approved regulations
provide for enforcement of SO2 emission limits and control
measures through construction permitting for new or modified stationary
sources. Note also that ADEM has authority to issue enforcement orders
and assess penalties (see Ala. Code sections 22-22A-5, 22-28-10 and 22-
28-22).
PSD Permitting for Major Sources: EPA interprets the PSD sub-
element to require that a state's infrastructure SIP submission for a
particular NAAQS demonstrate that the state has a complete PSD
permitting program in place covering the structural PSD requirements
for all regulated NSR pollutants. A state's PSD permitting program is
complete for this sub-element (and prong 3 of D(i) and J related to
PSD) if EPA has already approved or is simultaneously approving the
state's implementation plan with respect to all structural PSD
requirements that are due under the EPA regulations or the CAA on or
before the date of the EPA's proposed action on the infrastructure SIP
submission.
For the 2010 1-hour SO2 NAAQS, Alabama's authority to
regulate new and modified sources to assist in the protection of air
quality in Alabama is established in the Alabama Administrative Code
Chapters 335-3-14-.01--General Provisions, 335-3-14-.02--Permit
Procedure, 335-3-14-.03--Standards for Granting Permits, 335-3-14-.04--
Prevention of Significant Deterioration in Permitting, and 335-3-
14-.05--Air Permits Authorizing Construction in or Near Nonattainment
Areas. Alabama's SIP contains the current structural requirements of
part C of title I of the CAA to satisfy the infrastructure SIP PSD
elements.\20\
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\20\ For more information on EPA's analysis of Alabama's
infrastructure SIP in connection with the current PSD-related
infrastructure requirements, see the Technical Support Document in
the docket for this rulemaking.
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As such, EPA has made the preliminary determination that Alabama's
SIP satisfies this PSD element for the 2010 1-hour SO2
NAAQS.
Regulation of minor sources and modifications: Section 110(a)(2)(C)
also requires the SIP to include provisions that govern the minor
source program
[[Page 45434]]
that regulates emissions of the 2010 1-hour SO2 NAAQS. ADEM
Admin. Code r. 335-3-14-.01 General Provisions, 335-3-14-.02 Permit
Procedure, and 335-3-14-.03--Standards for Granting Permits govern the
preconstruction permitting of modifications and construction of minor
stationary sources.
EPA has made the preliminary determination that Alabama's SIP and
practices are adequate for program enforcement of control measures and
regulation of minor sources and modifications, and preconstruction
permitting of modifications and construction of minor stationary
sources, and minor modifications of major stationary sources related to
the 2010 1-hour SO2 NAAQS.
4. 110(a)(2)(D)(i)(I) and (II) Interstate Pollution Transport:
Section 110(a)(2)(D)(i) has two components: 110(a)(2)(D)(i)(I) and
110(a)(2)(D)(i)(II). Each of these components has two subparts
resulting in four distinct components, commonly referred to as
``prongs,'' that must be addressed in infrastructure SIP submissions.
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I),
are provisions that prohibit any source or other type of emissions
activity in one state from contributing significantly to nonattainment
of the NAAQS in another state (``prong 1''), and interfering with
maintenance of the NAAQS in another state (``prong 2''). The third and
fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are
provisions that prohibit emissions activity in one state from
interfering with measures required to prevent significant deterioration
of air quality in another state (``prong 3''), or to protect visibility
in another state (``prong 4'').
110(a)(2)(D)(i)(I)--prongs 1 and 2: EPA is not proposing any action
in this rulemaking related to the interstate transport provisions
pertaining to the contribution to nonattainment or interference with
maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and
2) because Alabama's 2010 1-hour SO2 NAAQS infrastructure
submission did not address prongs 1 and 2.
110(a)(2)(D)(i)(II)--prong 3: With regard to section
110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, this
requirement may be met by a state's confirmation in an infrastructure
SIP submission that new major sources and major modifications in the
state are subject to: A PSD program meeting current structural
requirements of part C of title I of the CAA, or (if the state contains
a nonattainment area that has the potential to impact PSD in another
state) a NNSR program. As discussed in more detail previously under
section 110(a)(2)(C), Alabama's SIP contains provisions for the State's
PSD program that reflect the required structural PSD requirements to
satisfy the requirement of prong 3. EPA has made the preliminary
determination that Alabama's SIP satisfies section 110(a)(2)(D)(i)(II)
(prong 3) for PSD permitting of major sources and major modifications
related to interstate transport for the 2010 1-hour SO2
NAAQS.
110(a)(2)(D)(i)(II)--prong 4: EPA is not proposing any action in
this rulemaking related to the interstate transport provisions
pertaining to the contribution to nonattainment or interference with
maintenance in other states of section 110(a)(2)(D)(i)(II) (prong 4)
and will consider these requirements in relation to Alabama's 2010 1-
hour SO2 NAAQS infrastructure submission in a separate
rulemaking.
5. 110(a)(2)(D)(ii) Interstate and International Transport
Provisions: Section 110(a)(2)(D)(ii) requires SIPs to include
provisions ensuring compliance with sections 115 and 126 of the Act,
relating to interstate and international pollution abatement. ADEM
Admin. Code r. 335-3-14-.04--Prevention of Significant Deterioration in
Permitting describes how Alabama notifies neighboring states of
potential emission impacts from new or modified sources applying for
PSD permits. This regulation requires ADEM to provide an opportunity
for a public hearing to the public, which includes state or local air
pollution control agencies, ``whose lands may be affected by emissions
from the source or modification'' in Alabama. Additionally, Alabama
does not have any pending obligation under sections 115 and 126 of the
CAA. EPA has made the preliminary determination that Alabama's SIP and
practices are adequate for ensuring compliance with the applicable
requirements relating to interstate and international pollution
abatement for the 2010 1-hour SO2 NAAQS.
6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies:
Section 110(a)(2)(E) requires that each implementation plan provide:
(i) Necessary assurances that the state will have adequate personnel,
funding, and authority under state law to carry out its implementation
plan, (ii) that the state comply with the requirements respecting state
boards pursuant to section 128 of the Act, and (iii) necessary
assurances that, where the state has relied on a local or regional
government, agency, or instrumentality for the implementation of any
plan provision, the state has responsibility for ensuring adequate
implementation of such plan provisions. EPA is proposing to approve
Alabama's infrastructure SIP submission as meeting the requirements of
sub-elements 110(a)(2)(E)(i) and (iii). With respect to sub-element
110(a)(2)(E)(ii) (regarding state boards), EPA is proposing to
disapprove this sub-element. EPA's rationale respecting each sub-
element is described in turn later on.
In support of EPA's proposal to approve sub-elements
110(a)(2)(E)(i) and (iii), ADEM's infrastructure submission
demonstrates that it is responsible for promulgating rules and
regulations for the NAAQS, emissions standards, general policies, a
system of permits, fee schedules for the review of plans, and other
planning needs as authorized at Ala. Code section 22-28-11 and section
22-28-9. As evidence of the adequacy of ADEM's resources with respect
to sub-elements (i) and (iii), EPA submitted a letter to Alabama on
April 19, 2016, outlining 105 grant commitments and current status of
these commitments for fiscal year 2015. The letter EPA submitted to
Alabama can be accessed at www.regulations.gov using Docket ID No. EPA-
R04-OAR-2014-0431. Annually, states update these grant commitments
based on current SIP requirements, air quality planning, and applicable
requirements related to the NAAQS. There were no outstanding issues in
relation to the SIP for fiscal year 2015, therefore, Alabama's grants
were finalized and closed out. Alabama's funding is also met through
the state's title V fee program at ADEM Admin. Code r. 335-1-7--Air
Division Operating Permit Fees \21\ and ADEM Admin. Code r. 335-1-6--
Application Fees.\22\ In addition, the requirements of 110(a)(2)(E)(i)
and (iii) are met when EPA performs a completeness determination for
each SIP submittal. This determination ensures that each submittal
provides evidence that adequate personnel, funding, and legal authority
under state law has been used to carry out the state's implementation
plan and related issues. Alabama's authority to implement provisions of
the State's implementation plan is included in all prehearings and
final SIP submittal packages for approval by EPA. EPA has made the
preliminary determination that Alabama has
[[Page 45435]]
adequate authority and resources for implementation of the 2010 1-hour
SO2 NAAQS.
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\21\ Title V program regulations are federally-approved but not
incorporated into the federally-approved SIP.
\22\ This regulation has not been incorporated into the
federally-approved SIP.
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Section 110(a)(2)(E)(ii) requires that SIPs comply with section 128
of the CAA. Section 128 requires that SIPs contain provisions to
provide 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
April 23, 2013, infrastructure SIP submission does 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 2010
1-hour SO2 NAAQS. The submitted provisions which purport to
address 110(a)(2)(E)(ii) are severable from the other portions of
ADEM's infrastructure SIP submission, therefore, EPA is proposing to
disapprove those provisions which relate only to sub-element
110(a)(2)(E)(ii).
7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section
110(a)(2)(F) requires SIPs to meet applicable requirements addressing:
(i) The installation, maintenance, and replacement of equipment, and
the implementation of other necessary steps, by owners or operators of
stationary sources to monitor emissions from such sources, (ii)
periodic reports on the nature and amounts of emissions and emissions
related data from such sources, and (iii) correlation of such reports
by the state agency with any emission limitations or standards
established pursuant to this section, which reports shall be available
at reasonable times for public inspection. ADEM's infrastructure SIP
submission describes the establishment of requirements for compliance
testing by emissions sampling and analysis, and for emissions and
operation monitoring to ensure the quality of data in the State. The
Alabama infrastructure SIP submission also describes how the major
source and minor source emission inventory programs collect emission
data throughout the State and ensure the quality of such data. Alabama
meets these requirements through ADEM Admin. Code r. 335-3-1-.04--
Monitoring, Records, and Reporting, and 335-3-12--Continuous Monitoring
Requirements for Existing Sources. ADEM Admin. Code r. 335-3-1-.04,
details how sources are required as appropriate to establish and
maintain records; make reports; install, use, and maintain such
monitoring equipment or methods; and provide periodic emission reports
as the regulation requires. Additionally, ADEM Admin. Code r. 335-3-
12-.02 requires owners and operators of emissions sources to ``install,
calibrate, operate and maintain all monitoring equipment necessary for
continuously monitoring the pollutants.'' \23\ ADEM Admin. Code r. 335-
3-1-.13--Credible Evidence, makes allowances for owners and/or
operators to utilize ``any credible evidence or information relevant''
to demonstrate compliance with applicable requirements if the
appropriate performance or compliance test had been performed, for the
purpose of submitting compliance certification and can be used to
establish whether or not an owner or operator has violated or is in
violation of any rule or standard. Accordingly, EPA is unaware of any
provision preventing the use of credible evidence in the Alabama SIP.
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\23\ ADEM Admin. Code r. 335-3-12-.02 establishes that data
reporting requirements for sources required to conduct continuous
monitoring in the state should comply with data reporting
requirements set forth at 40 CFR part 51, Appendix P. Section 40 CFR
part 51, Appendix P includes that the averaging period used for data
reporting should be established by the state to correspond to the
averaging period specified in the emission test method used to
determine compliance with an emission standard for the pollutant/
source category in question.
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Additionally, Alabama is required to submit emissions data to EPA
for purposes of the National Emissions Inventory (NEI). The NEI is
EPA's central repository for air emissions data. EPA published the Air
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the
requirements for collecting and reporting air emissions data (73 FR
76539). The AERR shortened the time states had to report emissions data
from 17 to 12 months, giving states one calendar year to submit
emissions data. All states are required to submit a comprehensive
emissions inventory every three years and report emissions for certain
larger sources annually through EPA's online Emissions Inventory
System. States report emissions data for the six criteria pollutants
and the precursors that form them--NOX, SO2,
ammonia, lead, carbon monoxide, particulate matter, and volatile
organic compounds. Many states also voluntarily report emissions of
hazardous air pollutants. Alabama made its latest update to the 2011
NEI on May 7, 2013. EPA compiles the emissions data, supplementing it
where necessary, and releases it to the general public through the Web
site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the
preliminary determination that Alabama's SIP and practices are adequate
for the stationary source monitoring systems related to the 2010 1-hour
SO2 NAAQS.
8. 110(a)(2)(G) Emergency Powers: This section requires that states
demonstrate authority comparable with section 303 of the CAA and
adequate contingency plans to implement such authority. Ala. Code
sections 22-28-22, 22-28-14 and 22-28-21 grant ADEM authority to adopt
regulations for the purpose of protecting human health, welfare and the
environment as required by section 303 of the CAA. ADEM Admin. Code r.
335-3-2,--Air Pollution Emergency, provides for the identification of
air pollution emergency episodes, episode criteria, and emissions
reduction plans. Alabama's compliance with section 303 of the CAA and
adequate contingency plans to implement such authority is also met by
Ala. Code section 22-28-21 Air Pollution Emergencies. Ala. Code Section
22-28-21 provides ADEM the authority to order the ``person or persons
responsible for the operation or operations of one or more air
contaminants sources'' causing ``imminent danger to human health or
safety in question to reduce or discontinue emissions immediately.''
The order triggers a hearing no later than 24-hours after issuance
before the Environmental Management Commission which can affirm, modify
or set aside the Director's order. Additionally, the Governor can, by
proclamation, declare, as to all or any part of said area, that an air
pollution emergency exists and exercise certain powers in whole or in
part, by the issuance of an order or orders to protect the public
health. Under Ala. Code sections 22-28-3(a) and 22-28-10(2), ADEM also
has the authority to issue such orders as may be necessary to
effectuate the purposes of the Alabama Pollution Control Act, which
includes achieving and maintaining such levels of air quality as will
protect human health and safety and, to the greatest
[[Page 45436]]
degree practicable, prevent injury to plant and animal life and
property, foster the comfort and convenience of the people, promote the
social development of this state and facilitate the enjoyment of the
natural attractions of the state. EPA has made the preliminary
determination that Alabama's SIP, state laws and practices are adequate
to satisfy the infrastructure SIP obligations for emergency powers
related to the 2010 1-hour SO2 NAAQS. Accordingly, EPA is
proposing to approve Alabama's infrastructure SIP submission with
respect to section 110(a)(2)(G).
9. 110(a)(2)(H) SIP Revisions: Section 110(a)(2)(H), in summary,
requires each SIP to provide for revisions of such plan: (i) As may be
necessary to take account of revisions of such national primary or
secondary ambient air quality standard or the availability of improved
or more expeditious methods of attaining such standard, and (ii)
whenever the Administrator finds that the plan is substantially
inadequate to attain the NAAQS or to otherwise comply with any
additional applicable requirements. As previously discussed, ADEM is
responsible for adopting air quality rules and revising SIPs as needed
to attain or maintain the NAAQS. Alabama has the ability and authority
to respond to calls for SIP revisions, and has provided a number of SIP
revisions over the years for implementation of the NAAQS. ADEM Admin.
Code r. 335-1-1-.03--Organization and Duties of the Commission,\24\
provides the Alabama Environmental Management Commission with the
authority to establish, adopt, promulgate, modify, repeal and suspend
rules, regulations, or environmental standards which may be applicable
to Alabama or ``any of its geographic parts.'' Admin. Code r. 335-3-
1-.03--Ambient Air Quality Standards, incorporate NAAQS, as amended or
revised, and provides that the NAAQS apply throughout the State. EPA
has made the preliminary determination that Alabama adequately
demonstrates a commitment to provide future SIP revisions related to
the 2010 1-hour SO2 NAAQS when necessary. Accordingly, EPA
is proposing to approve Alabama's infrastructure SIP submission with
respect to section 110(a)(2)(H).
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\24\ This regulation has not been incorporated into the
federally-approved SIP.
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10. 110(a)(2)(J) Consultation with government officials, public
notification, and PSD and visibility protection: EPA is proposing to
approve Alabama's infrastructure SIP for the 2010 1-hour SO2
NAAQS with respect to the general requirement in section 110(a)(2)(J)
to include a program in the SIP that complies with the applicable
consultation requirements of section 121, the public notification
requirements of section 127, PSD and visibility protection. EPA's
rationale for each sub-element is described later on.
Consultation with government officials (121 consultation): Section
110(a)(2)(J) of the CAA requires states to provide a process for
consultation with local governments, designated organizations and
Federal Land Managers (FLMs) carrying out NAAQS implementation
requirements pursuant to section 121 relative to consultation. ADEM
Admin. Code r. 335-3-1-.03--Ambient Air Quality Standards, as well as
its Regional Haze Implementation Plan (which allows for continued
consultation with appropriate state, local, and tribal air pollution
control agencies as well as the corresponding FLMs), provide for
consultation with government officials whose jurisdictions might be
affected by SIP development activities. In addition, Alabama adopted
state-wide consultation procedures for the implementation of
transportation conformity which includes the development of mobile
inventories for SIP development. These consultation procedures were
developed in coordination with the transportation partners in the State
and are consistent with the approaches used for development of mobile
inventories for SIPs. Required partners covered by Alabama's
consultation procedures include Federal, state and local transportation
and air quality agency officials. EPA has made the preliminary
determination that Alabama's SIP and practices adequately demonstrate
consultation with government officials related to the 2010 1-hour
SO2 NAAQS when necessary.
Public notification (127 public notification): ADEM Admin. Code r.
335-3-14-.01(7)--Public Participation, and 335-3-14-.05(13)--Public
Participation, and Ala. Code section 22-28-21--Air Pollution
Emergencies, provide for public notification when air pollution
episodes occur. Furthermore, ADEM has several public notice mechanisms
in place to notify the public of ozone and PM2.5
forecasting. Alabama maintains a public Web site on which daily air
quality index forecasts are posted for the Birmingham, Huntsville, and
Mobile areas. This Web site can be accessed at: http://adem.alabama.gov/programs/air/airquality.cnt. Although specific air
quality forecasts for SO2 are not provided, they are
provided for PM2.5 for which SO2 is a precursor.
Accordingly, EPA is proposing to approve Alabama's infrastructure SIP
submission with respect to section 110(a)(2)(J) public notification.
PSD: With regard to the PSD element of section 110(a)(2)(J), this
requirement may be met by the state's confirmation in an infrastructure
SIP submission that new major sources and major modifications in the
state are subject to a PSD program meeting current structural
requirements of part C of title I of the CAA. As discussed in more
detail previously under the section discussing 110(a)(2)(C), Alabama's
SIP contains the required structural PSD requirements to satisfy the
PSD element of section 110(a)(2)(J). Thus, EPA has made the preliminary
determination that Alabama's SIP satisfies the PSD element of section
110(a)(2)(J) for the 2010 1-hour SO2 NAAQS .
Visibility protection: EPA's 2013 Guidance notes that it does not
treat the visibility protection aspects of section 110(a)(2)(J) as
applicable for purposes of the infrastructure SIP approval process.
ADEM referenced its regional haze program as germane to the visibility
component of section 110(a)(2)(J). EPA recognizes that states are
subject to visibility protection and regional haze program requirements
under part C of the Act (which includes sections 169A and 169B).
However, there are no newly applicable visibility protection
obligations after the promulgation of a new or revised NAAQS. Thus, EPA
has determined that states do not need to address the visibility
component of 110(a)(2)(J) in infrastructure SIP submittals so ADEM does
not need to rely on its regional haze program to fulfill its
obligations under section 110(a)(2)(J). As such, EPA has made the
preliminary determination that Alabama's submission is approvable for
the visibility protection element of section 110(a)(2)(J) and that
Alabama does not need to rely on its regional haze program to address
this element.
11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for
performing air quality modeling so that effects on air quality of
emissions from NAAQS pollutants can be predicted and submission of such
data to the EPA can be made. ADEM Admin. Code r. 335-3-14-.04--
Prevention of Significant Deterioration Permitting, specifically sub-
paragraph (11)--Air Quality Models, specifies that required air
modeling be conducted in accordance with 40 CFR part 51, Appendix W
``Guideline on Air Quality Models''. ADEM Admin. Code r. 335-3-1-.04--
Monitoring, Records, and
[[Page 45437]]
Reporting details how sources are required as appropriate to establish
and maintain records; make reports; install, use, and maintain such
monitoring equipment or methods; and provide periodic emission reports
as the regulation requires. These reports and records are required to
be compiled, and submitted on forms furnished by the State. These
regulations also demonstrate that Alabama has the authority to provide
relevant data for the purpose of predicting the effect on ambient air
quality of the 2010 1-hour SO2 NAAQS. Additionally, Alabama
participates in a regional effort to coordinate the development of
emissions inventories and conduct regional modeling for several NAAQS,
including the 2010 1-hour SO2 NAAQS, for the southeastern
states. Taken as a whole, Alabama's air quality regulations and
practices demonstrate that ADEM has the authority to provide relevant
data for the purpose of predicting the effect on ambient air quality of
any emissions of any pollutant for which a NAAQS has been promulgated,
and to provide such information to the EPA Administrator upon request.
EPA has made the preliminary determination that Alabama's SIP and
practices adequately demonstrate the State's ability to provide for air
quality modeling, along with analysis of the associated data, related
to the 2010-1-hour SO2 NAAQS. Accordingly, EPA is proposing
to approve Alabama's infrastructure SIP submission with respect to
section 110(a)(2)(K).
12. 110(a)(2)(L) Permitting Fees: This section requires the owner
or operator of each major stationary source to pay to the permitting
authority, as a condition of any permit required under the CAA, a fee
sufficient to cover (i) the reasonable costs of reviewing and acting
upon any application for such a permit, and (ii) if the owner or
operator receives a permit for such source, the reasonable costs of
implementing and enforcing the terms and conditions of any such permit
(not including any court costs or other costs associated with any
enforcement action), until such fee requirement is superseded with
respect to such sources by the Administrator's approval of a fee
program under title V. ADEM Admin. Code r. 335-1-6--Application Fees
\25\ requires ADEM to charge permit-specific fees to the applicant/
source as authorized by Ala. Code section 22-22A-5. ADEM relies on
these State requirements to demonstrate that its permitting fee
structure is sufficient for the reasonable cost of reviewing and acting
upon PSD and NNSR permits. Additionally, Alabama has a fully-approved
title V operating permit program--ADEM Admin. Code r. 335-1-7--Air
Division Operating Permit Fees\26\--that covers the cost of
implementation and enforcement of PSD and NNSR permits after they have
been issued. EPA has made the preliminary determination that Alabama's
state rules and practices adequately provide for permitting fees
related to the 2010 1-hour SO2 NAAQS, when necessary.
Accordingly, EPA is proposing to approve Alabama's infrastructure SIP
submission with respect to section 110(a)(2)(L).
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\25\ This regulation has not been incorporated into the
federally-approved SIP.
\26\ Title V program regulations are federally approved but not
incorporated into the federally-approved SIP.
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13. 110(a)(2)(M) Consultation and Participation by Affected Local
Entities: Section 110(a)(2)(M) of the Act requires states to provide
for consultation and participation in SIP development by local
political subdivisions affected by the SIP. ADEM coordinates with local
governments affected by the SIP. ADEM Administrative Code 335-3-
17-.01--Transportation Conformity is one way that Alabama provides for
consultation with affected local entities. More specifically, Alabama
adopted state-wide consultation procedures for the implementation of
transportation conformity which includes the development of mobile
inventories for SIP development and the requirements that link
transportation planning and air quality planning in nonattainment and
maintenance areas. Required partners covered by Alabama's consultation
procedures include Federal, state and local transportation and air
quality agency officials. Furthermore, ADEM has worked with the Federal
Land Managers as a requirement of the regional haze rule. EPA has made
the preliminary determination that Alabama's SIP and practices
adequately demonstrate consultation with affected local entities
related to the 2010 1-hour SO2 NAAQS when necessary.
V. Proposed Action
With the exception of interstate transport provisions pertaining to
visibility protection requirements of section 110(a)(2)(D)(i)(II)
(prong 4), and the state board requirements of section
110(a)(2)(E)(ii), EPA is proposing to approve Alabama's April 23, 2013,
SIP submission for the 2010 1-hour SO2 NAAQS for the
previously described infrastructure SIP requirements. EPA is proposing
to disapprove section 110(a)(2)(E)(ii) of Alabama's infrastructure
submission because the State's implementation plan does not contain
provisions to comply with section 128 of the Act, and thus Alabama's
April 23, 2013, infrastructure SIP submission does not meet the
requirements of the Act. The interstate transport requirements of
section 110(a)(2)(D)(i)(I) (prongs 1 and 2) will not be addressed by
EPA at this time.
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. The portion of
section 110(a)(2)(E)(ii) provisions (the provisions being proposed for
disapproval in this 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 Federal
Implementation Plan (FIP) no later than two 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.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
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
[[Page 45438]]
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, 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 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.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 30, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-16577 Filed 7-13-16; 8:45 am]
BILLING CODE 6560-50-P