[Federal Register Volume 81, Number 139 (Wednesday, July 20, 2016)]
[Proposed Rules]
[Pages 47124-47133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17053]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2014-0756; FRL-9949-27-Region 4]
Air Plan Approval/Disapproval; Alabama Infrastructure
Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality
Standards
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,
and December 9, 2015, update State Implementation Plan (SIP)
submissions, 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 nitrogen dioxide
(NO2) 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
NO2 NAAQS is implemented, enforced, and maintained in
Alabama. With the exception of provisions pertaining to prevention of
significant deterioration (PSD) permitting, and visibility in other
states, for which EPA is proposing no action through this notice, and
with the exception of the provisions respecting state boards, for which
EPA is proposing disapproval, EPA is proposing to approve Alabama's
infrastructure SIP submissions provided to EPA on April 23, 2013, and
updated on December 9, 2015, as satisfying the required infrastructure
elements for the 2010 NO2 NAAQS.
DATES: Written comments must be received on or before August 19, 2016.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0756 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Richard Wong, 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.,
[[Page 47125]]
Atlanta, Georgia 30303-8960. The telephone number is (404) 562-8726.
Mr. Wong can be reached via electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On February 9, 2010, EPA published a new 1-hour primary NAAQS for
NO2 at a level of 100 parts per billion (ppb), based on a 3-
year average of the 98th percentile of the yearly distribution of 1-
hour daily maximum concentrations. See 75 FR 6474. Pursuant to section
110(a)(1) of the CAA, states are required to submit SIPs meeting the
requirements of section 110(a)(2) within three years after promulgation
of a new or revised NAAQS. Sections 110(a)(2) require states to address
basic SIP requirements, including emissions inventories, monitoring,
and modeling to assure attainment and maintenance of the NAAQS. States
were required to submit such SIPs for the 2010 NO2 NAAQS to
EPA no later than January 22, 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 Admin. Code r.'' indicates that the cited
regulation has been approved into Alabama's federally-approved SIP.
The term ``Ala. Code'' refers to Alabama state statutes, which,
unless otherwise indicated, are not a part of the federally-approved
SIP.
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This action is proposing to approve Alabama's infrastructure SIP
submissions for the applicable requirements of the 2010 1-hour
NO2 NAAQS, with the exception of the preconstruction PSD
permitting requirements for major sources of section 110(a)(2)(C),
prong 3 of (D)(i), and (J), the interstate transport provisions of
section 110(a)(2)(D)(i), (prongs 1, 2 and 4), and the state board
requirements of section 110(a)(2)(E)(ii). On March 18, 2015, EPA
approved Alabama's April 23, 2013, infrastructure SIP submission
regarding the PSD permitting requirements for major sources of sections
110(a)(2)(C), prong 3 of D(i) and (J) for the 2010 1-hour
NO2 NAAQS. See 80 FR 14019.\2\ Therefore, EPA is not
proposing any action today pertaining to sections 110(a)(2)(C), prong 3
of D(i) and (J). Additionally, today, EPA is not taking action related
to the interstate transport provisions pertaining to the contribution
to nonattainment or interference with maintenance in other states of
prongs 1 and 2 of section 110(a)(2)(D)(i), and prong 4 of (D)(i). With
respect to Alabama's infrastructure SIP submissions 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
submissions in this rulemaking. For the aspects of Alabama's submittals
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.
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\2\ ADEM clarified that its December 9, 2015, submission was not
intended to address the PSD requirements that were approved by EPA
on March 18, 2015. See www.regulations.gov using Docket ID No. EPA-
R04-OAR-2014-0756.
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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. In the case of the 2010 NO2 NAAQS, states
typically have met the basic program elements required in section
110(a)(2) through earlier SIP submissions in connection with previous
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. As mentioned above, these
requirements include SIP infrastructure elements such as modeling,
monitoring, and emissions inventories that are designed to assure
attainment and maintenance of the NAAQS. The requirements that are the
subject of this proposed rulemaking are listed below \3\ 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 (2).''
\3\ 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. Today's proposed
rulemaking does not address infrastructure elements related to
section 110(a)(2)(I) or the nonattainment planning requirements of
110(a)(2)(C).
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 \4\
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\4\ 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 \5\
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\5\ As mentioned above, this element is not relevant to today's
proposed rulemaking.
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110(a)(2)(J): Consultation with Government Officials, Public
Notification, and 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
III. What is EPA's approach to the review of infrastructure SIP
submissions?
EPA is acting upon the SIP submissions from Alabama that addresses
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2)
for the 2010 NO2 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
[[Page 47126]]
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.\6\ 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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\6\ 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.\7\
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.\8\ 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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\7\ 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)).
\8\ 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.\9\ 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.\10\
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\9\ 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).
\10\ 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 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.\11\
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\11\ 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
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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.\12\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\13\ 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.\14\ 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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\12\ 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.
\13\ ``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.
\14\ 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 U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d 7 (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 NSR pollutants, including
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 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, inter alia, the requirement
that states have a program to regulate minor new sources. Thus, EPA
evaluates whether the state has an EPA-approved minor new source review
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 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
[[Page 47128]]
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.\15\ 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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\15\ 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.\16\
Section 110(k)(6) authorizes EPA to correct errors in past actions,
such as past approvals of SIP submissions.\17\ 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.\18\
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\16\ 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).
\17\ 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).
\18\ 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 submissions address the provisions of
sections 110(a)(1) and (2) as described below.
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. The regulations described below have been
federally approved in the Alabama SIP and include enforceable emission
limitations and other control measures for activities that contribute
to NO2 concentrations in the ambient air and provide ADEM
the authority to establish such limits and measures as well as
schedules for compliance to meet the applicable requirements of the
CAA. 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 the State's Air
Pollution Control rules and 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. EPA has made the
preliminary determination that the provisions contained in these
regulations satisfy section 110(a)(2)(A) for the 2010 1-hour
NO2 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
operations at a
[[Page 47129]]
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.\19\
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\19\ 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: SIPs
are required to provide for the establishment and operation of ambient
air quality monitors; the compilation and analysis of ambient air
quality data; and the submission of these data to EPA upon request.
These requirements are met through ADEM Admin. Code r. 335-3-1-.03--
Ambient Air Quality Standards, ADEM Admin. Code r. 335-3-1-.05--
Sampling and Testing Methods, and ADEM Admin. Code r. 335-3-1-.04--
Monitoring, Records, and Reporting. These SIP-approved rules along with
Alabama's Ambient Air Monitoring Network Plan, provide for the
establishment and operation of ambient air quality monitors, the
compilation and analysis of ambient air quality data, and the
submission of these data to EPA upon request. 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, includes the annual ambient monitoring
network design plan and a certified evaluation of the state's ambient
monitors and auxiliary support equipment.\20\ The latest monitoring
network plan for Alabama was submitted to EPA on July 22, 2015, and on
November 19, 2015, EPA approved this plan. Alabama's approved 2015
monitoring network plan can be accessed at www.regulations.gov using
Docket ID No. EPA-R04-OAR-2014-0756. 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 NO2 NAAQS.
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\20\ 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 NO2 NAAQS infrastructure
SIP submissions cited SIP provisions to address these requirements.
Specifically, the submissions cited ADEM Admin. Code r 335-3-14-.01--
``General Provisions,'' 335-3-14-.02,--``Permit Procedure'', 334-3-
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''. As
discussed further below, in this action EPA is only proposing to
approve the enforcement, and the regulation of minor sources and minor
modifications aspects of Alabama's section 110(a)(2)(C) infrastructure
SIP submissions.
Enforcement: ADEM's above-described, SIP-approved regulations
provide for enforcement of NO2 emission limits and control
measures through enforceable permits for new or modified stationary
sources. Note also that ADEM has authority to issue enforcement orders
and assess penalties (see Code sections 22-22A-5, 22-28-10 and 22-28-
22).
PSD Permitting for Major Sources: With respect to Alabama's April
23, 2013, infrastructure SIP submission related to the PSD permitting
requirements of major sources for section 110(a)(2)(C), EPA took final
action to approve these provisions for the 2010 1-hour NO2
NAAQS on March 18, 2015. See 80 FR 14019.
Regulation of minor sources and modifications: Section 110(a)(2)(C)
also requires the SIP to include provisions that govern the minor
source preconstruction program that regulates emissions of the 2010 1-
hour NO2 NAAQS. ADEM Admin. Code r 334-3-14-.03--``Standards
for Granting Permits'' governs the preconstruction permitting of minor
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 related to the 2010 1-hour
NO2 NAAQS.
4. 110(a)(2)(D) 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 have 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 through 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
NO2 NAAQS infrastructure submissions did not address prongs
1 and 2.
110(a)(2)(D)(i)(II)--prong 3: With respect to Alabama's
infrastructure SIP submission related to the interstate transport
requirements for PSD of section 110(a)(2)(D)(i)(II) (prong 3), EPA took
final action to approve Alabama's April 23, 2013, infrastructure SIP
submission regarding prong 3 of D(i) for the 2010 1-hour NO2
NAAQS on March 18, 2015. See 80 FR 14019.
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 visibility protection in other states of section
110(a)(2)(D)(i)(II) (prong 4) and will
[[Page 47130]]
consider these requirements in relation to Alabama's 2010 1-hour
NO2 NAAQS infrastructure submissions in a separate
rulemaking.
5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to
include provisions insuring 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 insuring compliance with the applicable
requirements relating to interstate and international pollution
abatement for the 2010 1-hour NO2 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 SIP as meeting the requirements of sub-elements
110(a)(2)(E)(i) and (iii). With respect to 110(a)(2)(E)(ii) (regarding
state boards), EPA is proposing disapproval of this sub-element. EPA's
rationale respecting each sub-element is described in turn below.
In support of EPA's proposal to approve sub-elements
110(a)(2)(E)(i) and (iii), ADEM's infrastructure submissions
demonstrate 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. Ala. Code section 22-28-23 does not allow the local programs
to be less strict than the Alabama SIP/regulations and allows for
oversight from the State. 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\ EPA has made the
preliminary determination that Alabama has adequate resources for
implementation of the 2010 1-hour NO2 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 the state comply with
section 128 of the CAA. Section 128 requires that: (1) The majority of
members of the state board or body which approves permits or
enforcement orders represent the public interest and do not derive any
significant portion of their income from persons subject to permitting
or enforcement orders under the CAA; and (2) any potential conflicts of
interest by such board or body, or the head of an executive agency with
similar powers be adequately disclosed. After reviewing Alabama's SIP,
EPA has made the preliminary determination that the State's
implementation plan does not contain provisions to comply with section
128 of the Act, and thus Alabama's April 23, 2013, and December 9,
2015, infrastructure SIP submissions do not meet the requirements of
the Act. While Alabama has state statutes that may address, in whole or
part, requirements related to state boards at the state level, these
provisions are not included in the SIP as required by the CAA. Based on
an evaluation of the federally-approved Alabama SIP, EPA is proposing
to disapprove Alabama's certification that its SIP meets the
requirements of 110(a)(2)(E)(ii) of the CAA for the 2010 1-hour
NO2 NAAQS. The submitted provisions which purport to address
110(a)(2)(E)(ii) are severable from the other infrastructure elements.
Therefore, EPA is proposing to disapprove those provisions which relate
only to sub-element 110(a)(2)(E)(ii).
7. 110(a)(2)(F) Stationary Source Monitoring System 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 submissions describe 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 submissions also describe
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. These reports and records
are required to be compiled, and submitted on forms furnished by the
State. 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\
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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 51, Appendix P. Section 40 CFR 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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[[Page 47131]]
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.
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--nitrogen oxides, 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 January 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 1-
hour NO2 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. 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 at Ala. Code section 22-28-21 Air Pollution Emergencies. Ala.
Code section 22-28-21 provides ADEM the authority to order ``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 establishes 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 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 and state laws are adequate for emergency powers
related to the 2010 1-hour NO2 NAAQS. Accordingly, EPA is
proposing to approve Alabama's infrastructure SIP submissions 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. 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 ADEM
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, provides ADEM the
authority to amend, revise, and incorporate the NAAQS into its SIP. EPA
has made the preliminary determination that Alabama adequately
demonstrates a commitment to provide future SIP revisions related to
the 2010 1-hour NO2 NAAQS when necessary. Accordingly, EPA
is proposing to approve Alabama's infrastructure SIP submissions 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 NO2
NAAQS with respect to the general requirement in section 110(a)(2)(J)
to include a program in the SIP that provides for meeting the
applicable consultation requirements of section 121, the public
notification requirements of section 127; and visibility protection
requirements of part C of the Act. With respect to Alabama's
infrastructure SIP submission related to the preconstruction PSD
permitting requirements of section 110(a)(2)(J), EPA took final action
to approve Alabama's April 23, 2013, 2010 1-hour NO2 NAAQS
infrastructure SIP for these requirements on March 18, 2015. See 80 FR
14019. EPA's rationale for its proposed action regarding applicable
consultation requirements of section 121, the public notification
requirements of section 127, and visibility protection requirements is
described below.
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
[[Page 47132]]
might be affected by SIP development activities. Specifically, Alabama
adopted state-wide consultation procedures for the implementation of
transportation conformity, which are 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
NO2 NAAQS when necessary. Accordingly, EPA is proposing to
approve Alabama's infrastructure SIP submissions with respect to
section 110(a)(2)(J) consultation with government officials.
Public notification (127 public notification): ADEM Admin. Code r.
335-3-14-.01(7)--Public Participation, ADEM Admin. Code r. 335-3-
14-.05(13)--Public Participation, and Ala. Code section 22-28-21--Air
Pollution Emergencies provides for public notification and resolution
when air pollution episodes occur. Furthermore, ADEM has several public
notice mechanisms in place to provide daily air quality forecasts for
ozone and fine particulate matter to the public, including: EPA AirNow,
ADEM Web site postings and customized emails through Enviroflash for
registered individuals. When air quality is expected to be poor, an air
quality alert is issued for a city, the local National Weather Service
(NWS) office is alerted and the forecast is posted on the NWS Web site.
Additionally, for some cities in Alabama (e.g., Birmingham), the county
planning organizations are alerted and the forecast is distributed to
the media, and other interested groups. EPA has made the preliminary
determination that Alabama's SIP and practices adequately demonstrate
the State's ability to provide public notification related to the 2010
1-hour NO2 NAAQS when necessary.
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 infrastructure SIP submissions
are approvable for the visibility protection element of section
110(a)(2)(J) in related to the 2010 1-hour NO2 NAAQS and
that Alabama does not need to rely on its regional haze program to
address this element.
11. 110(a)(2)(K) Air Quality and 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-
3-1-.04--Monitoring, Records, and Reporting and 335-3-14-.04--
Prevention of Significant Deterioration Permitting, specifically sub-
paragraph (11)--Air Quality Models specify 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 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 provisions demonstrate that Alabama has the authority to
provide relevant data for the purpose of predicting the effect of
pollutants on ambient air quality of the 2010 1-hour NO2
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
NO2 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 had 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 and
modeling, along with analysis of the associated data, related to the
2010 1-hour NO2 NAAQS. Accordingly, EPA is proposing to
approve Alabama's infrastructure SIP submissions with respect to
section 110(a)(2)(K).
12. 110(a)(2)(L) Permitting Fees: This element necessitates that
the SIP require 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
State legislation and Ala. Code section 22-22A-5. ADEM assures its
permitting fee structure is sufficient for the reasonable cost of
reviewing and acting upon PSD and nonattainment new source review
(NNSR) permits. Additionally, Alabama has a fully approved title V
operating permit program at 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 SIP and practices
adequately provide for permitting fees related to the 2010 1-hour
NO2 NAAQS, when necessary. Accordingly, EPA is proposing to
approve Alabama's infrastructure SIP submissions 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: This element requires states to provide for consultation and
participation in SIP development by local political subdivisions
affected by the SIP. ADEM Administrative Code 335-3-17-.01--
Transportation Conformity and the interagency consultation process as
directed by Alabama's approved Conformity SIP and 40 CFR 93.112 provide
for consultation with local groups. More specifically, Alabama
[[Page 47133]]
adopted 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. These consultation and participation procedures have
been approved in the Alabama SIP as the non-regulatory provisions:
``Alabama Interagency Transportation Conformity Memorandum of
Agreement'' and ``Conformity SIP for Birmingham and Jackson County.''
These provisions were approved on May 11, 2000, and March 26, 2009,
respectively. See 65 FR 30362 and 74 FR 13118. Required partners
covered by Alabama's consultation procedures include federal, state and
local transportation and air quality agency officials. The state and
local transportation agency officials are most directly impacted by
transportation conformity requirements and are required to provide
public involvement for their activities including the analysis
demonstrating how they meet transportation conformity requirements.
Additionally, Alabama has consulted with FLMs as a requirement of its
regional haze SIP. 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 NO2 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 that certain elements in
Alabama's April 23, 2013, and December 9, 2015, SIP submissions for the
2010 1-hour NO2 NAAQS have met the above-described
infrastructure SIP requirements. EPA is proposing to disapprove section
110(a)(2)(E)(ii) of Alabama's infrastructure submissions 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, and December
9, 2015, infrastructure SIP submissions do not meet the requirements of
the Act. The interstate transport requirements of section
110(a)(2)(D)(i)(II) (prong 4) will be addressed by EPA in a future
action.
Under section 179(a) of the CAA, final disapproval of a submittal
(or portion thereof) 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 section 110(a)(2)(E)(ii) provisions (the provisions being proposed
for disapproval in today's notice) were not submitted to meet
requirements for Part D or a SIP call, and therefore, if EPA takes
final action to disapprove this submittal, no sanctions will be
triggered. However, if this disapproval action is finalized, that final
action will trigger the requirement under section 110(c) that EPA
promulgate a federal implementation plan (FIP) no later than 2 years
from the date of the disapproval unless the State corrects the
deficiency, and EPA approves the plan or plan revision before EPA
promulgates such FIP.
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 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).
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: July 8, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-17053 Filed 7-19-16; 8:45 am]
BILLING CODE 6560-50-P