Approval and Promulgation of Air Quality Implementation Plan; Alabama; Disapproval of Interstate Transport Submission for the 2006 24-Hour PM2., 4588-4592 [2011-1628]

Download as PDF 4588 Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Proposed Rules relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely disapproves certain state requirements for inclusion into the SIP and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, Executive Order 13132 does not apply to this action. F. Executive Order 13175, Coordination With Indian Tribal Governments This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP EPA is proposing to disapprove would not apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action. G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). This proposed SIP disapproval under section 110 and subchapter I, part D of the CAA will not in-and-of itself create any new regulations but simply disapproves certain state requirements for inclusion into the SIP. mstockstill on DSKH9S0YB1PROD with PROPOSALS H. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution or Use This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act (NTTAA) Section 12(d) of the NTTAA, Public Law 104–113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or VerDate Mar<15>2010 17:13 Jan 25, 2011 Jkt 223001 otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through the Office of Management and Budget, explanations when the Agency decides not to use available and applicable voluntary consensus standards. EPA believes that this action is not subject to requirements of Section 12(d) of NTTAA because application of those requirements would be inconsistent with the CAA. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA lacks the discretionary authority to address environmental justice in this proposed action. In reviewing SIP submissions, EPA’s role is to approve or disapprove state choices, based on the criteria of the CAA. Accordingly, this action merely proposes to disapprove certain State requirements for inclusion into the SIP under section 110 and subchapter I, part D of the CAA and will not in-and-of itself create any new requirements. Accordingly, it does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Particulate matter, and Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401 et seq. Dated: January 14, 2011. Gwendolyn Keyes Fleming, Regional Administrator, Region 4. [FR Doc. 2011–1627 Filed 1–25–11; 8:45 am] BILLING CODE 6560–50–P PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R04–OAR–2010–1013–201064; FRL– 9257–7] Approval and Promulgation of Air Quality Implementation Plan; Alabama; Disapproval of Interstate Transport Submission for the 2006 24-Hour PM2.5 Standard Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: On September 23, 2009, the State of Alabama, through the Alabama Department of Environmental Management (ADEM), provided a letter to EPA with certification that Alabama’s state implementation plan (SIP) meets the interstate transport requirements with regard to the 2006 24-hour particulate matter (PM2.5) national ambient air quality standard (NAAQS). Specifically, the interstate transport requirements under the Clean Air Act (CAA or Act) prohibit a state’s emissions from significantly contributing to nonattainment or interfering with the maintenance of the NAAQS in any other state. In this action, EPA is proposing to disapprove the portion of Alabama’s September 23, 2009, submission which was intended to meet the requirement to address interstate transport for the 2006 24-hour PM2.5 NAAQS. DATES: Comments must be received on or before February 25, 2011. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R04– OAR–2010–1013 by one of the following methods: 1. https://www.regulations.gov: Follow the on-line instructions for submitting comments. 2. E-mail: benjamin.lynorae@epa.gov. 3. Fax: (404) 562–9019. 4. Mail: EPA–R04–OAR–2010–1013, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303–8960. 5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303–8960. Such deliveries are only accepted during the Regional Office’s normal hours of operation. The Regional Office’s official SUMMARY: E:\FR\FM\26JAP1.SGM 26JAP1 mstockstill on DSKH9S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Proposed Rules hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays. Instructions: Direct your comments to Docket ID No. ‘‘EPA–R04–OAR–2010– 1013.’’ EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at https://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through https://www.regulations.gov or e-mail, information that you consider to be CBI or otherwise protected. The https://www.regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through https:// www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA’s public docket visit the EPA Docket Center homepage at https:// www.epa.gov/epahome/dockets.htm. Docket: All documents in the electronic docket are listed in the https://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in https:// www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303–8960. EPA requests that if at all possible, you contact the person listed in the FOR VerDate Mar<15>2010 17:13 Jan 25, 2011 Jkt 223001 section to schedule your inspection. The Regional Office’s official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: For information regarding the Alabama SIP, contact Mr. Zuri Farngalo, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303–8960. Mr. Farngalo’s telephone number is (404) 562–9152; e-mail address: farngalo.zuri@epa.gov. For information regarding the PM2.5 interstate transport requirements under section 110(a)(2)(D)(i), contact Mr. Steven Scofield, Regulatory Development Section, at the same address above. Mr. Scofield’s telephone number is (404) 562–9034; e-mail address: scofield.steve@epa.gov. SUPPLEMENTARY INFORMATION: This section provides additional information by addressing the following questions: FURTHER INFORMATION CONTACT I. What action is EPA proposing in today’s notice? II. What is the background for this proposed action? III. What is EPA’s analysis of Alabama’s submission for section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS? IV. Proposed Action V. Statutory and Executive Order Reviews I. What action is EPA proposing in today’s notice? On September 23, 2009, the State of Alabama, through ADEM, provided a letter to EPA with certification that the Alabama SIP meets the interstate transport requirements with regard to the 2006 24-hour fine PM2.5 NAAQS.1 Specifically, Alabama certified that its current SIP adequately addresses the elements of CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS. CAA section 110(a)(2)(D)(i)(I) requires that implementation plans for each state contain adequate provisions to prohibit air pollutant emissions from sources within a state from significantly contributing to nonattainment in or interference with maintenance of the NAAQS (in this case the 2006 24-hour 1 Alabama’s September 23, 2009, certification letter also explained that Alabama’s current SIP sufficiently addresses other requirements of section 110(a)(2) for the 2006 24-hour PM2.5 NAAQS, however, today’s proposed action only relates to the section 110(a)(2)(D)(i)(I) requirements for the 2006 24-hour PM2.5 NAAQS. EPA will address the other section 110(a)(2) requirements for the 2006 24-hour PM2.5 NAAQS in relation to Alabama’s SIP in rulemaking separate from today’s proposed rulemaking. PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 4589 PM2.5 NAAQS) in any other state. In today’s action, EPA is proposing to disapprove the portion of Alabama’s September 23, 2009, submission related to interstate transport for the 2006 24hour PM2.5 NAAQS because EPA has made the preliminary determination that this submission does not meet the requirements of section 110(a)(2)(D)(i)(I) of the CAA for this NAAQS. EPA’s rationale for this proposed disapproval is provided in Section III of this rulemaking. II. What is the background for this proposed action? On December 18, 2006, EPA revised the 24-hour average PM2.5 primary and secondary NAAQS from 65 micrograms per cubic meter (μg/m3) to 35 μg/m3. Section 110(a)(1) of the CAA requires states to submit ‘‘infrastructure’’ SIPs to address a new or revised NAAQS within 3 years after promulgation of such standards, or within such shorter period as EPA may prescribe. As provided by section 110(k)(2), within 12 months of a determination that a submitted SIP is complete under 110(k)(1), the Administrator shall act on the plan. As authorized in sections 110(k)(3) of the Act, where portions of the state submittals are severable, within that 12-month period EPA may decide to approve only those severable portions of the submittals that meet the requirements of the Act. When the deficient provisions are not severable from the other submitted provisions, EPA must propose disapproval of the submittals, consistent with sections 110(k)(3) of the Act. Section 110(a)(2) lists the elements that such new infrastructure SIPs must address, as applicable, including section 110(a)(2)(D)(i), which pertains to interstate transport of certain emissions. States were required to provide submissions to address the applicable 110(a)(2) infrastructure requirements, including section 110(a)(2)(D)(i), by September 21, 2009.2 On September 25, 2009, EPA issued a guidance entitled ‘‘Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS)’’ (2006 PM2.5 NAAQS Infrastructure Guidance). EPA developed the 2006 PM2.5 NAAQS Infrastructure Guidance to make additional recommendations to states 2 The rule for the revised PM 2.5 NAAQS was signed by the Administrator and publically disseminated on September 21, 2006. Because EPA did not prescribe a shorter period for 110(a) SIP submittals, these submittals for the 2006 24-hour NAAQS were due on September 21, 2009, three years from the September 21, 2006, signature date. E:\FR\FM\26JAP1.SGM 26JAP1 mstockstill on DSKH9S0YB1PROD with PROPOSALS 4590 Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Proposed Rules for making submissions to meet the requirements of section 110, including 110(a)(2)(D)(i) for the revised 2006 24-hour PM2.5 NAAQS. As identified in the 2006 PM2.5 NAAQS Infrastructure Guidance, the ‘‘good neighbor’’ provisions in section 110(a)(2)(D)(i) require each state to submit a SIP that prohibits emissions that adversely affect another state in the ways contemplated in the statute. Section 110(a)(2)(D)(i) contains four distinct requirements related to the impacts of interstate transport. Specifically, the SIP must prevent sources in the state from emitting pollutants in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in other states; (2) interfere with maintenance of the NAAQS in other states; (3) interfere with provisions to prevent significant deterioration of air quality in other states; or (4) interfere with efforts to protect visibility in other states. In the 2006 PM2.5 NAAQS Infrastructure Guidance, EPA explained that submissions from states pertaining to the ‘‘significant contribution’’ and ‘‘interfere with maintenance’’ requirements in section 110(a)(2)(D)(i)(I) must contain adequate provisions to prohibit air pollutant emissions from within the state that contribute significantly to nonattainment or interfere with maintenance of the NAAQS in any other state. EPA described a number of considerations for states for providing an adequate demonstration to address interstate transport requirements in the 2006 PM2.5 NAAQS Infrastructure Guidance. First, EPA noted that the state’s submission should explain whether or not emissions from the state contribute significantly to nonattainment or interfere with maintenance of the NAAQS in any other state and, if so, address the impact. EPA stated that the state’s conclusion should be supported by an adequate technical analysis. Second, EPA recommended the various types of information that could be relevant to support the state’s submission, such as information concerning emissions in the state, meteorological conditions in the state and the potentially impacted states, monitored ambient concentrations in the state, and air quality modeling. Third, EPA explained that states should address the ‘‘interfere with maintenance’’ requirement independently, which requires an evaluation of impacts on areas of other states that are meeting the 2006 24-hour PM2.5 NAAQS, not merely areas designated nonattainment. Lastly, EPA explained that states could not rely on VerDate Mar<15>2010 17:13 Jan 25, 2011 Jkt 223001 the Clean Air Interstate Rule (CAIR) to comply with CAA section 110(a)(2)(D)(i) requirements for the 2006 24-hour PM2.5 NAAQS because CAIR does not address this NAAQS. Recognizing that the demonstration required may be a challenging task for the affected states, EPA also noted in the 2006 PM2.5 NAAQS Infrastructure Guidance the Agency’s intention to complete a rule to address interstate pollution transport in the eastern half of the continental United States. EPA promulgated CAIR on May 12, 2005 (see 70 FR 25162). CAIR required states to reduce emissions of sulfur dioxide and nitrogen oxides that significantly contribute to, and interfere with maintenance of the 1997 PM2.5 NAAQS and/or ozone in any downwind state. CAIR was intended to provide states covered by the rule with a mechanism to satisfy their CAA section 110(a)(2)(D)(i)(I) obligations to address significant contribution to downwind nonattainment and interference with maintenance in another state with respect to the 1997 ozone and PM2.5 NAAQS. Many states adopted the CAIR provisions and submitted SIPs to EPA to demonstrate compliance with the CAIR requirements in satisfaction of their 110(a)(2)(D)(i)(I) obligations for those two pollutants. EPA was sued by a number of parties on various aspects of CAIR, and on July 11, 2008, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit or Court) issued its decision to vacate and remand both CAIR and the associated CAIR Federal Implementation Plans (FIPs) in their entirety. North Carolina v. EPA, 531 F.3d 836 (DC Circuit, July 11, 2008). However, in response to EPA’s petition for rehearing, the Court issued an order remanding CAIR to EPA without vacating either CAIR or the CAIR FIPs. North Carolina v. EPA, 550 F.3d 1176 (DC Circuit, December 23, 2008). The Court thereby left CAIR in place in order to ‘‘temporarily preserve the environmental values covered by CAIR’’ until EPA replaces it with a rule consistent with the Court’s opinion. Id. at 1178. The Court directed EPA to ‘‘remedy CAIR’s flaws’’ consistent with its July 11, 2008, opinion, but declined to impose a schedule on EPA for completing that action. Id. In order to address the judicial remand of CAIR, EPA has proposed a new rule to address interstate transport pursuant to section 110(a)(2)(D)(i), the ‘‘Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone’’ PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 (Transport Rule).3 As part of the proposed Transport Rule, EPA specifically examined the section 110(a)(2)(D)(i) requirements that emissions from sources in a state must not ‘‘significantly contribute to nonattainment’’ and ‘‘interfere with maintenance’’ of the 2006 24-hour PM2.5 NAAQS by other states. The modeling performed for the proposed Transport Rule shows that Alabama significantly contributes to nonattainment or interferes with maintenance of the 2006 24-hour PM2.5 NAAQS in downwind areas. III. What is EPA’s analysis of Alabama’s submission for section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS? On September 23, 2009, the State of Alabama, through ADEM, provided a letter to EPA with certification that Alabama’s SIP meets the interstate transport requirements with regard to the 2006 24-hour PM2.5 NAAQS. In its submission, Alabama explains that section 110(a)(2)(D)(i)(I) is met through Alabama’s approved CAIR provisions. However, CAIR was promulgated before the 24-hour PM2.5 NAAQS were revised in 2006, and as mentioned above CAIR does not address interstate transport with respect to the 2006 PM2.5 NAAQS.4 EPA’s 2006 PM2.5 NAAQS Infrastructure Guidance explicitly notes that reliance on CAIR cannot be used to comply with section 110(a)(2)(D)(i)(I) for the respective 2006 PM2.5 NAAQS. Because Alabama’s submittal relies on CAIR to address the requirements of 110(a)(2)(D)(i)(I) with respect to the 2006 PM2.5 NAAQS while CAIR does not address that NAAQS, this submission is deficient. EPA also notes that several states in their submission claim that controls planned for or already installed on sources within the state to meet the CAIR provisions satisfied section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS. However, states will not be able to permanently rely upon the emissions reductions predicted by CAIR, because CAIR was remanded to EPA and will not remain in force permanently. EPA is in the process of developing a new Transport Rule to address the concerns of the Court as 3 See ‘‘Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone; Proposed Rule,’’ 75 FR 45210 (August 2, 2010). 4 Further, as explained above and in the Transport Rule proposal 75 FR 45210 (August 2, 2010), the DC Circuit in North Carolina v. EPA found that EPA’s quantification of states’ significant contribution and interference with maintenance in CAIR was improper and remanded the rule to EPA. CAIR remains in effect only temporarily. E:\FR\FM\26JAP1.SGM 26JAP1 Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Proposed Rules mstockstill on DSKH9S0YB1PROD with PROPOSALS outlined in its decision remanding CAIR. For this reason, EPA cannot approve Alabama’s SIP submission pertaining to the requirement of section 110(a)(2)(D)(i)(I) because it relies on CAIR for emission reduction measures. Based upon our evaluation, EPA is proposing to disapprove Alabama’s certification that its SIP meets the requirements of 110(a)(2)(D)(i)(I) of the CAA for the 2006 PM2.5 NAAQS. The submitted provisions are severable from each other. Therefore, EPA is proposing to disapprove those provisions which relate to the 110(a)(2)(D)(i)(I) demonstration and to take no action on the remainder of the demonstration at this time. IV. Proposed Action EPA is proposing to disapprove the portion of Alabama’s September 23, 2009, submission, relating to section 110(a)(2)(D)(i)(I), because EPA has made the preliminary determination that Alabama SIP does not satisfy these requirements for the 2006 PM2.5 NAAQS. Although EPA is proposing to disapprove the portion of Alabama’s September 23, 2009, submission, relating to section 110(a)(2)(D)(i)(I), EPA does acknowledge the State’s efforts to address this requirement in its September 23, 2009, submission. Unfortunately, EPA does not believe that states can sufficiently address the section 110(a)(2)(D)(i)(I) requirement for the 2006 PM2.5 NAAQS by relying on CAIR. The purpose of the Federal Transport Rule that EPA is developing and has proposed is to support states efforts to address the section 110(a)(2)(D)(i)(I) requirement for the 2006 PM2.5 NAAQS. EPA is not proposing to take any action on the remaining elements of the submission, including the section 110 infrastructure, and section 110(a)(2)(D)(i)(II) portion regarding interference with measures required in the applicable SIP for another state designed to prevention of significant deterioration of air quality and protect visibility but instead will act on those provisions in a separate rulemaking. Under section 179(a) of the CAA, final disapproval of a submittal that addresses a requirement of a Part D Plan (42 U.S.C.A. §§ 7501–7515) or is required in response to a finding of substantial inadequacy as described in § 7410(k)(5) (SIP call) starts a sanctions clock. Section 110(a)(2)(D)(i)(I) provisions (the provisions being proposed for disapproval in today’s notice) were not submitted to meet requirements for Part D, and therefore, if EPA takes final action to disapprove this submittal, no sanctions will be VerDate Mar<15>2010 17:13 Jan 25, 2011 Jkt 223001 triggered. However, if this disapproval action is finalized, that final action will trigger the requirement under section 110(c) that EPA promulgate a FIP no later than 2 years from the date of the disapproval unless the state corrects the deficiency, and the Administrator approves the plan or plan revision before the Administrator promulgates such FIP. The proposed Federal Transport Rule, when final, is the FIP that EPA intends to implement to satisfy the 110(a)(2)(D)(i)(I) requirement for Alabama for the 2006 PM2.5 NAAQS. V. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to act on state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. A. Executive Order 12866, Regulatory Planning and Review This action is not a ‘‘significant regulatory action’’ under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order. B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq, because this proposed SIP disapproval under section 110 and subchapter I, part D of the CAA will not in-and-of itself create any new information collection burdens but simply disapproves certain state requirements for inclusion into the SIP. Burden is defined at 5 CFR 1320.3(b). C. Regulatory Flexibility Act (RFA) The RFA generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of today’s rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration’s regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 4591 school district or special district with a population of less than 50,000; and (3) a small organization that is any not-forprofit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of today’s proposed rule on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. This rule does not impose any requirements or create impacts on small entities. This proposed SIP disapproval under section 110 and subchapter I, part D of the CAA will not in-and-of itself create any new requirements but simply disapproves certain State requirements for inclusion into the SIP. Accordingly, it affords no opportunity for EPA to fashion for small entities less burdensome compliance or reporting requirements or timetables or exemptions from all or part of the rule. The fact that the CAA prescribes that various consequences (e.g., higher offset requirements) may or will flow from this disapproval does not mean that EPA either can or must conduct a regulatory flexibility analysis for this action. Therefore, this action will not have a significant economic impact on a substantial number of small entities. EPA continues to be interested in the potential impacts of this proposed rule on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531– 1538 for State, local, or tribal governments or the private sector. EPA has determined that the proposed disapproval action does not include a Federal mandate that may result in estimated costs of $100 million or more to either state, local, or tribal governments in the aggregate, or to the private sector. This action proposes to disapprove pre-existing requirements under state or local law, and imposes no new requirements. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, result from this action. E. Executive Order 13132, Federalism Executive Order 13132, entitled ‘‘Federalism’’ (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have E:\FR\FM\26JAP1.SGM 26JAP1 4592 Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Proposed Rules federalism implications’’ is defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.’’ This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely disapproves certain state requirements for inclusion into the SIP and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, Executive Order 13132 does not apply to this action. F. Executive Order 13175, Coordination With Indian Tribal Governments This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP EPA is proposing to disapprove would not apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action. I. National Technology Transfer and Advancement Act (NTTAA) Section 12(d) of the NTTAA, Public Law 104–113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through the Office of Management and Budget, explanations when the Agency decides not to use available and applicable voluntary consensus standards. EPA believes that this action is not subject to requirements of Section 12(d) of NTTAA because application of those requirements would be inconsistent with the CAA. H. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution or Use J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA lacks the discretionary authority to address environmental justice in this proposed action. In reviewing SIP submissions, EPA’s role is to approve or disapprove state choices, based on the criteria of the CAA. Accordingly, this action merely proposes to disapprove certain state requirements for inclusion into the SIP under section 110 and subchapter I, part D of the CAA and will not in-and-of itself create any new requirements. Accordingly, it does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898. This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks mstockstill on DSKH9S0YB1PROD with PROPOSALS regulatory action under Executive Order 12866. EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). This proposed SIP disapproval under section 110 and subchapter I, part D of the CAA will not in-and-of itself create any new regulations but simply disapproves certain state requirements for inclusion into the SIP. VerDate Mar<15>2010 17:13 Jan 25, 2011 Jkt 223001 PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 relations, Particulate matter, and Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401 et seq. Dated: January 14, 2011. Gwendolyn Keyes Fleming, Regional Administrator, Region 4. [FR Doc. 2011–1628 Filed 1–25–11; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R04–OAR–2010–1015–201067; FRL– 9257–4] Approval and Promulgation of Air Quality Implementation Plan; North Carolina; Disapproval of Interstate Transport Submission for the 2006 24-Hour PM2.5 Standard Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: On September 21, 2009, the State of North Carolina, through the North Carolina Department of Environment and Natural Resources (NC DENR), provided a letter to EPA with certification that North Carolina’s state implementation plan (SIP) meets the interstate transport requirements with regard to the 2006 24-hour fine particulate matter (PM2.5) national ambient air quality standard (NAAQS). Specifically, the interstate transport requirements under the Clean Air Act (CAA or Act) prohibit a state’s emissions from significantly contributing to nonattainment or interfering with the maintenance of the NAAQS in any other state. In this action, EPA is proposing to disapprove the portion of North Carolina’s September 21, 2009, submission which was intended to meet the requirement to address interstate transport for the 2006 24-hour PM2.5 NAAQS. DATES: Comments must be received on or before February 25, 2011. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R04– OAR–2010–1015 by one of the following methods: 1. www.regulations.gov: Follow the on-line instructions for submitting comments. 2. E-mail: benjamin.lynorae@epa.gov. 3. Fax: (404) 562–9019. 4. Mail: EPA–R04–OAR–2010–1015, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, SUMMARY: E:\FR\FM\26JAP1.SGM 26JAP1

Agencies

[Federal Register Volume 76, Number 17 (Wednesday, January 26, 2011)]
[Proposed Rules]
[Pages 4588-4592]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-1628]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-1013-201064; FRL-9257-7]


Approval and Promulgation of Air Quality Implementation Plan; 
Alabama; Disapproval of Interstate Transport Submission for the 2006 
24-Hour PM[ihel2].[ihel5] Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On September 23, 2009, the State of Alabama, through the 
Alabama Department of Environmental Management (ADEM), provided a 
letter to EPA with certification that Alabama's state implementation 
plan (SIP) meets the interstate transport requirements with regard to 
the 2006 24-hour particulate matter (PM2.5) national ambient 
air quality standard (NAAQS). Specifically, the interstate transport 
requirements under the Clean Air Act (CAA or Act) prohibit a state's 
emissions from significantly contributing to nonattainment or 
interfering with the maintenance of the NAAQS in any other state. In 
this action, EPA is proposing to disapprove the portion of Alabama's 
September 23, 2009, submission which was intended to meet the 
requirement to address interstate transport for the 2006 24-hour 
PM2.5 NAAQS.

DATES: Comments must be received on or before February 25, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2010-1013 by one of the following methods:
    1. https://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: benjamin.lynorae@epa.gov.
    3. Fax: (404) 562-9019.
    4. Mail: EPA-R04-OAR-2010-1013, Regulatory Development Section, Air 
Planning Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief, 
Regulatory Development Section, Air Planning Branch, Air, Pesticides 
and Toxics Management Division, U.S. Environmental Protection Agency, 
Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such 
deliveries are only accepted during the Regional Office's normal hours 
of operation. The Regional Office's official

[[Page 4589]]

hours of business are Monday through Friday, 8:30 to 4:30, excluding 
Federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2010-1013.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at https://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit through https://www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The https://www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through https://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in https://www.regulations.gov or in hard copy at the Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all 
possible, you contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule your inspection. The Regional Office's 
official hours of business are Monday through Friday, 8:30 to 4:30, 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the Alabama 
SIP, contact Mr. Zuri Farngalo, Regulatory Development Section, Air 
Planning Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960. Mr. Farngalo's telephone number is (404) 
562-9152; e-mail address: farngalo.zuri@epa.gov. For information 
regarding the PM2.5 interstate transport requirements under 
section 110(a)(2)(D)(i), contact Mr. Steven Scofield, Regulatory 
Development Section, at the same address above. Mr. Scofield's 
telephone number is (404) 562-9034; e-mail address: 
scofield.steve@epa.gov.

SUPPLEMENTARY INFORMATION: This section provides additional information 
by addressing the following questions:

I. What action is EPA proposing in today's notice?
II. What is the background for this proposed action?
III. What is EPA's analysis of Alabama's submission for section 
110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. What action is EPA proposing in today's notice?

    On September 23, 2009, the State of Alabama, through ADEM, provided 
a letter to EPA with certification that the Alabama SIP meets the 
interstate transport requirements with regard to the 2006 24-hour fine 
PM2.5 NAAQS.\1\ Specifically, Alabama certified that its 
current SIP adequately addresses the elements of CAA section 
110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS. CAA 
section 110(a)(2)(D)(i)(I) requires that implementation plans for each 
state contain adequate provisions to prohibit air pollutant emissions 
from sources within a state from significantly contributing to 
nonattainment in or interference with maintenance of the NAAQS (in this 
case the 2006 24-hour PM2.5 NAAQS) in any other state. In 
today's action, EPA is proposing to disapprove the portion of Alabama's 
September 23, 2009, submission related to interstate transport for the 
2006 24-hour PM2.5 NAAQS because EPA has made the 
preliminary determination that this submission does not meet the 
requirements of section 110(a)(2)(D)(i)(I) of the CAA for this NAAQS. 
EPA's rationale for this proposed disapproval is provided in Section 
III of this rulemaking.
---------------------------------------------------------------------------

    \1\ Alabama's September 23, 2009, certification letter also 
explained that Alabama's current SIP sufficiently addresses other 
requirements of section 110(a)(2) for the 2006 24-hour 
PM2.5 NAAQS, however, today's proposed action only 
relates to the section 110(a)(2)(D)(i)(I) requirements for the 2006 
24-hour PM2.5 NAAQS. EPA will address the other section 
110(a)(2) requirements for the 2006 24-hour PM2.5 NAAQS 
in relation to Alabama's SIP in rulemaking separate from today's 
proposed rulemaking.
---------------------------------------------------------------------------

II. What is the background for this proposed action?

    On December 18, 2006, EPA revised the 24-hour average 
PM2.5 primary and secondary NAAQS from 65 micrograms per 
cubic meter ([micro]g/m\3\) to 35 [micro]g/m\3\. Section 110(a)(1) of 
the CAA requires states to submit ``infrastructure'' SIPs to address a 
new or revised NAAQS within 3 years after promulgation of such 
standards, or within such shorter period as EPA may prescribe. As 
provided by section 110(k)(2), within 12 months of a determination that 
a submitted SIP is complete under 110(k)(1), the Administrator shall 
act on the plan. As authorized in sections 110(k)(3) of the Act, where 
portions of the state submittals are severable, within that 12-month 
period EPA may decide to approve only those severable portions of the 
submittals that meet the requirements of the Act. When the deficient 
provisions are not severable from the other submitted provisions, EPA 
must propose disapproval of the submittals, consistent with sections 
110(k)(3) of the Act.
    Section 110(a)(2) lists the elements that such new infrastructure 
SIPs must address, as applicable, including section 110(a)(2)(D)(i), 
which pertains to interstate transport of certain emissions. States 
were required to provide submissions to address the applicable 
110(a)(2) infrastructure requirements, including section 
110(a)(2)(D)(i), by September 21, 2009.\2\
---------------------------------------------------------------------------

    \2\ The rule for the revised PM2.5 NAAQS was signed 
by the Administrator and publically disseminated on September 21, 
2006. Because EPA did not prescribe a shorter period for 110(a) SIP 
submittals, these submittals for the 2006 24-hour NAAQS were due on 
September 21, 2009, three years from the September 21, 2006, 
signature date.
---------------------------------------------------------------------------

    On September 25, 2009, EPA issued a guidance entitled ``Guidance on 
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality 
Standards (NAAQS)'' (2006 PM2.5 NAAQS Infrastructure 
Guidance). EPA developed the 2006 PM2.5 NAAQS Infrastructure 
Guidance to make additional recommendations to states

[[Page 4590]]

for making submissions to meet the requirements of section 110, 
including 110(a)(2)(D)(i) for the revised 2006 24-hour PM2.5 
NAAQS.
    As identified in the 2006 PM2.5 NAAQS Infrastructure 
Guidance, the ``good neighbor'' provisions in section 110(a)(2)(D)(i) 
require each state to submit a SIP that prohibits emissions that 
adversely affect another state in the ways contemplated in the statute. 
Section 110(a)(2)(D)(i) contains four distinct requirements related to 
the impacts of interstate transport. Specifically, the SIP must prevent 
sources in the state from emitting pollutants in amounts which will: 
(1) Contribute significantly to nonattainment of the NAAQS in other 
states; (2) interfere with maintenance of the NAAQS in other states; 
(3) interfere with provisions to prevent significant deterioration of 
air quality in other states; or (4) interfere with efforts to protect 
visibility in other states.
    In the 2006 PM2.5 NAAQS Infrastructure Guidance, EPA 
explained that submissions from states pertaining to the ``significant 
contribution'' and ``interfere with maintenance'' requirements in 
section 110(a)(2)(D)(i)(I) must contain adequate provisions to prohibit 
air pollutant emissions from within the state that contribute 
significantly to nonattainment or interfere with maintenance of the 
NAAQS in any other state. EPA described a number of considerations for 
states for providing an adequate demonstration to address interstate 
transport requirements in the 2006 PM2.5 NAAQS 
Infrastructure Guidance. First, EPA noted that the state's submission 
should explain whether or not emissions from the state contribute 
significantly to nonattainment or interfere with maintenance of the 
NAAQS in any other state and, if so, address the impact. EPA stated 
that the state's conclusion should be supported by an adequate 
technical analysis. Second, EPA recommended the various types of 
information that could be relevant to support the state's submission, 
such as information concerning emissions in the state, meteorological 
conditions in the state and the potentially impacted states, monitored 
ambient concentrations in the state, and air quality modeling. Third, 
EPA explained that states should address the ``interfere with 
maintenance'' requirement independently, which requires an evaluation 
of impacts on areas of other states that are meeting the 2006 24-hour 
PM2.5 NAAQS, not merely areas designated nonattainment. 
Lastly, EPA explained that states could not rely on the Clean Air 
Interstate Rule (CAIR) to comply with CAA section 110(a)(2)(D)(i) 
requirements for the 2006 24-hour PM2.5 NAAQS because CAIR 
does not address this NAAQS. Recognizing that the demonstration 
required may be a challenging task for the affected states, EPA also 
noted in the 2006 PM2.5 NAAQS Infrastructure Guidance the 
Agency's intention to complete a rule to address interstate pollution 
transport in the eastern half of the continental United States.
    EPA promulgated CAIR on May 12, 2005 (see 70 FR 25162). CAIR 
required states to reduce emissions of sulfur dioxide and nitrogen 
oxides that significantly contribute to, and interfere with maintenance 
of the 1997 PM2.5 NAAQS and/or ozone in any downwind state. 
CAIR was intended to provide states covered by the rule with a 
mechanism to satisfy their CAA section 110(a)(2)(D)(i)(I) obligations 
to address significant contribution to downwind nonattainment and 
interference with maintenance in another state with respect to the 1997 
ozone and PM2.5 NAAQS. Many states adopted the CAIR 
provisions and submitted SIPs to EPA to demonstrate compliance with the 
CAIR requirements in satisfaction of their 110(a)(2)(D)(i)(I) 
obligations for those two pollutants.
    EPA was sued by a number of parties on various aspects of CAIR, and 
on July 11, 2008, the U.S. Court of Appeals for the District of 
Columbia Circuit (DC Circuit or Court) issued its decision to vacate 
and remand both CAIR and the associated CAIR Federal Implementation 
Plans (FIPs) in their entirety. North Carolina v. EPA, 531 F.3d 836 (DC 
Circuit, July 11, 2008). However, in response to EPA's petition for 
rehearing, the Court issued an order remanding CAIR to EPA without 
vacating either CAIR or the CAIR FIPs. North Carolina v. EPA, 550 F.3d 
1176 (DC Circuit, December 23, 2008). The Court thereby left CAIR in 
place in order to ``temporarily preserve the environmental values 
covered by CAIR'' until EPA replaces it with a rule consistent with the 
Court's opinion. Id. at 1178. The Court directed EPA to ``remedy CAIR's 
flaws'' consistent with its July 11, 2008, opinion, but declined to 
impose a schedule on EPA for completing that action. Id.
    In order to address the judicial remand of CAIR, EPA has proposed a 
new rule to address interstate transport pursuant to section 
110(a)(2)(D)(i), the ``Federal Implementation Plans to Reduce 
Interstate Transport of Fine Particulate Matter and Ozone'' (Transport 
Rule).\3\ As part of the proposed Transport Rule, EPA specifically 
examined the section 110(a)(2)(D)(i) requirements that emissions from 
sources in a state must not ``significantly contribute to 
nonattainment'' and ``interfere with maintenance'' of the 2006 24-hour 
PM2.5 NAAQS by other states. The modeling performed for the 
proposed Transport Rule shows that Alabama significantly contributes to 
nonattainment or interferes with maintenance of the 2006 24-hour 
PM2.5 NAAQS in downwind areas.
---------------------------------------------------------------------------

    \3\ See ``Federal Implementation Plans to Reduce Interstate 
Transport of Fine Particulate Matter and Ozone; Proposed Rule,'' 75 
FR 45210 (August 2, 2010).
---------------------------------------------------------------------------

III. What is EPA's analysis of Alabama's submission for section 
110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS?

    On September 23, 2009, the State of Alabama, through ADEM, provided 
a letter to EPA with certification that Alabama's SIP meets the 
interstate transport requirements with regard to the 2006 24-hour 
PM2.5 NAAQS. In its submission, Alabama explains that 
section 110(a)(2)(D)(i)(I) is met through Alabama's approved CAIR 
provisions.
    However, CAIR was promulgated before the 24-hour PM2.5 
NAAQS were revised in 2006, and as mentioned above CAIR does not 
address interstate transport with respect to the 2006 PM2.5 
NAAQS.\4\ EPA's 2006 PM2.5 NAAQS Infrastructure Guidance 
explicitly notes that reliance on CAIR cannot be used to comply with 
section 110(a)(2)(D)(i)(I) for the respective 2006 PM2.5 
NAAQS. Because Alabama's submittal relies on CAIR to address the 
requirements of 110(a)(2)(D)(i)(I) with respect to the 2006 
PM2.5 NAAQS while CAIR does not address that NAAQS, this 
submission is deficient.
---------------------------------------------------------------------------

    \4\ Further, as explained above and in the Transport Rule 
proposal 75 FR 45210 (August 2, 2010), the DC Circuit in North 
Carolina v. EPA found that EPA's quantification of states' 
significant contribution and interference with maintenance in CAIR 
was improper and remanded the rule to EPA. CAIR remains in effect 
only temporarily.
---------------------------------------------------------------------------

    EPA also notes that several states in their submission claim that 
controls planned for or already installed on sources within the state 
to meet the CAIR provisions satisfied section 110(a)(2)(D)(i)(I) for 
the 2006 24-hour PM2.5 NAAQS. However, states will not be 
able to permanently rely upon the emissions reductions predicted by 
CAIR, because CAIR was remanded to EPA and will not remain in force 
permanently. EPA is in the process of developing a new Transport Rule 
to address the concerns of the Court as

[[Page 4591]]

outlined in its decision remanding CAIR. For this reason, EPA cannot 
approve Alabama's SIP submission pertaining to the requirement of 
section 110(a)(2)(D)(i)(I) because it relies on CAIR for emission 
reduction measures. Based upon our evaluation, EPA is proposing to 
disapprove Alabama's certification that its SIP meets the requirements 
of 110(a)(2)(D)(i)(I) of the CAA for the 2006 PM2.5 NAAQS. 
The submitted provisions are severable from each other. Therefore, EPA 
is proposing to disapprove those provisions which relate to the 
110(a)(2)(D)(i)(I) demonstration and to take no action on the remainder 
of the demonstration at this time.

IV. Proposed Action

    EPA is proposing to disapprove the portion of Alabama's September 
23, 2009, submission, relating to section 110(a)(2)(D)(i)(I), because 
EPA has made the preliminary determination that Alabama SIP does not 
satisfy these requirements for the 2006 PM2.5 NAAQS. 
Although EPA is proposing to disapprove the portion of Alabama's 
September 23, 2009, submission, relating to section 110(a)(2)(D)(i)(I), 
EPA does acknowledge the State's efforts to address this requirement in 
its September 23, 2009, submission. Unfortunately, EPA does not believe 
that states can sufficiently address the section 110(a)(2)(D)(i)(I) 
requirement for the 2006 PM2.5 NAAQS by relying on CAIR. The 
purpose of the Federal Transport Rule that EPA is developing and has 
proposed is to support states efforts to address the section 
110(a)(2)(D)(i)(I) requirement for the 2006 PM2.5 NAAQS. EPA 
is not proposing to take any action on the remaining elements of the 
submission, including the section 110 infrastructure, and section 
110(a)(2)(D)(i)(II) portion regarding interference with measures 
required in the applicable SIP for another state designed to prevention 
of significant deterioration of air quality and protect visibility but 
instead will act on those provisions in a separate rulemaking.
    Under section 179(a) of the CAA, final disapproval of a submittal 
that addresses a requirement of a Part D Plan (42 U.S.C.A. Sec. Sec.  
7501-7515) or is required in response to a finding of substantial 
inadequacy as described in Sec.  7410(k)(5) (SIP call) starts a 
sanctions clock. Section 110(a)(2)(D)(i)(I) provisions (the provisions 
being proposed for disapproval in today's notice) were not submitted to 
meet requirements for Part D, and therefore, if EPA takes final action 
to disapprove this submittal, no sanctions will be triggered. However, 
if this disapproval action is finalized, that final action will trigger 
the requirement under section 110(c) that EPA promulgate a FIP no later 
than 2 years from the date of the disapproval unless the state corrects 
the deficiency, and the Administrator approves the plan or plan 
revision before the Administrator promulgates such FIP. The proposed 
Federal Transport Rule, when final, is the FIP that EPA intends to 
implement to satisfy the 110(a)(2)(D)(i)(I) requirement for Alabama for 
the 2006 PM2.5 NAAQS.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to act on state law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by state law.

A. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq, 
because this proposed SIP disapproval under section 110 and subchapter 
I, part D of the CAA will not in-and-of itself create any new 
information collection burdens but simply disapproves certain state 
requirements for inclusion into the SIP. Burden is defined at 5 CFR 
1320.3(b).

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to conduct a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions. For purposes of 
assessing the impacts of today's rule on small entities, small entity 
is defined as: (1) A small business as defined by the Small Business 
Administration's regulations at 13 CFR 121.201; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This rule does not 
impose any requirements or create impacts on small entities. This 
proposed SIP disapproval under section 110 and subchapter I, part D of 
the CAA will not in-and-of itself create any new requirements but 
simply disapproves certain State requirements for inclusion into the 
SIP. Accordingly, it affords no opportunity for EPA to fashion for 
small entities less burdensome compliance or reporting requirements or 
timetables or exemptions from all or part of the rule. The fact that 
the CAA prescribes that various consequences (e.g., higher offset 
requirements) may or will flow from this disapproval does not mean that 
EPA either can or must conduct a regulatory flexibility analysis for 
this action. Therefore, this action will not have a significant 
economic impact on a substantial number of small entities. EPA 
continues to be interested in the potential impacts of this proposed 
rule on small entities and welcome comments on issues related to such 
impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. EPA has determined that the proposed disapproval action does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to either state, local, or tribal governments in 
the aggregate, or to the private sector. This action proposes to 
disapprove pre-existing requirements under state or local law, and 
imposes no new requirements. Accordingly, no additional costs to state, 
local, or tribal governments, or to the private sector, result from 
this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have

[[Page 4592]]

federalism implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on the states, on 
the relationship between the national government and the states, or on 
the distribution of power and responsibilities among the various levels 
of government.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, because it merely disapproves 
certain state requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the CAA. Thus, Executive Order 13132 
does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
EPA is proposing to disapprove would not apply in Indian country 
located in the state, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law. Thus, 
Executive Order 13175 does not apply to this action.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it is not an 
economically significant regulatory action based on health or safety 
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). 
This proposed SIP disapproval under section 110 and subchapter I, part 
D of the CAA will not in-and-of itself create any new regulations but 
simply disapproves certain state requirements for inclusion into the 
SIP.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001) because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA, Public Law 104-113, section 12(d) (15 
U.S.C. 272 note) directs EPA to use voluntary consensus standards in 
its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through the Office of Management and Budget, 
explanations when the Agency decides not to use available and 
applicable voluntary consensus standards. EPA believes that this action 
is not subject to requirements of Section 12(d) of NTTAA because 
application of those requirements would be inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this proposed action. In reviewing SIP submissions, EPA's 
role is to approve or disapprove state choices, based on the criteria 
of the CAA. Accordingly, this action merely proposes to disapprove 
certain state requirements for inclusion into the SIP under section 110 
and subchapter I, part D of the CAA and will not in-and-of itself 
create any new requirements. Accordingly, it does not provide EPA with 
the discretionary authority to address, as appropriate, 
disproportionate human health or environmental effects, using 
practicable and legally permissible methods, under Executive Order 
12898.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Particulate matter, and Reporting and recordkeeping 
requirements.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: January 14, 2011.
Gwendolyn Keyes Fleming,
Regional Administrator, Region 4.
[FR Doc. 2011-1628 Filed 1-25-11; 8:45 am]
BILLING CODE 6560-50-P
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