Approval and Promulgation of Implementation Plans; Alabama; Disapproval of 110(a)(2)(E)(ii) Infrastructure Requirement for the 1997 and 2006 Fine Particulate Matter National Ambient Air Quality Standards, 62449-62452 [2012-25149]
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Federal Register / Vol. 77, No. 199 / Monday, October 15, 2012 / Rules and Regulations
1.2
Alternate Entry by Priority Mail
1.2.1
Preparation
Place prepared EDDM-Retail mail, in
bundles with facing slips, in Priority
Mail boxes, including Priority Mail Flat
Rate boxes.
1.2.2
Documentation
Box #1 (see 1.2.3) for the EDDM-Retail
mailing must contain an envelope with
the following:
a. Sample mailpiece.
b. Check or money order made out to
‘‘Postmaster’’ or ‘‘Postal Service’’ for the
amount of postage for the EDDM-Retail
pieces (not for the Priority Mail
shipment). Include your telephone
number on the front of the check.
c. Completed EDDM-Retail postage
statement (PS Form 3587).
d. The Postmaster Instruction letter;
see https://www.usps.com/business/pdf/
eddm-postmaster-letter.pdf for a copy.
1.2.3
Labeling the Boxes
On each box, write ‘‘Every Door Direct
Mail—Retail’’ and ‘‘Open Immediately.’’
For multiple boxes, number the boxes,
starting with 1 of X, (with ‘‘X’’ being the
total number of boxes in the shipment).
Include the payment and
documentation in box #1.
1.2.4
Shipping
Address the boxes to ‘‘Postmaster’’ at
the Post Office that will deliver the
mailpieces. To ship them, either bring
the boxes to your local Post Office or
use Click-N-Ship. Each box must have a
Delivery Confirmation label affixed by
the mailer.
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Physical Standards
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2.0 Physical Standards for
Nonautomation Flats
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2.2
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Standard Mail
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[Revise the title and introductory text
of 2.2.2 as follows:]
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2.2.2 Dimensions for Standard Mail
and EDDM-Retail Flats with Simplified
Addresses
Standard Mail flats with simplified
addresses for which saturation flats
prices are paid and EDDM-Retail flats
(see 140) must have at least one
dimension that is greater than a lettersize maximum dimension as noted in
1.1a. The minimum thickness must be at
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3.0 Placement and Content of Mail
Markings
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3.2 First-Class Mail and Standard
Mail Markings
3.2.1 Placement
Mailpieces must be marked under the
corresponding standards to show the
class of service and/or price paid:
a. Basic Marking. The basic required
marking that indicates the class or
subclass which must be printed or
produced as part of, directly below, or
to the left of the permit imprint, meter
imprint, or stamp as follows:
[Revise items 1 through 4 as follows:]
1. ‘‘First-Class Mail’’
2. ‘‘Standard,’’ ‘‘STD,’’ ‘‘Presorted
Standard,’’ or ‘‘PRSRT STD’’
3. ‘‘Nonprofit Organization,’’
‘‘Nonprofit Org.,’’ or ‘‘Nonprofit’’
4. For Standard Mail flats mailed at
saturation flats prices under EDDMRetail standards in 140 and 602.3.0, add
‘‘EDDM-Retail’’ as the last line in the
permit imprint indicia. See Exhibit
144.1.3 for an example.
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602
Addressing
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Use of Alternative Addressing
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3.2
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301
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Commercial Mail Flats
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302 Elements on the Face of a
Mailpiece
3.0
300
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least 0.007 inch up to a maximum of
0.75 inch. As an exception to the
minimum length, flats with simplified
addresses may have a length shorter
than a letter-size maximum length,
under all of the following conditions:
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Simplified Address
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3.2.1 Conditions for General Use
The following conditions must be met
when using a simplified address on
commercial mailpieces:
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[Revise item 3.2.1c as follows:]
c. Standard Mail flats with simplified
addresses (also known as ‘‘Every Door
Direct Mail’’ or ‘‘EDDM’’) must have one
dimension larger than a letter-size
maximum dimension, except under
301.2.2.2. Standard Mail pieces, when
mailed under conditions in 301.2.2.2
and delivered by city route delivery or
Post Office Box delivery in offices with
city route delivery, are considered to be
flats and are charged postage for
Standard Mail saturation flats. Letter-
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size pieces that meet the size standards
in 301.2.2.2 and that are delivered by
rural or HCR routes may be mailed
(when entered at a BMEU) as letters or
flats with simplified addresses, at the
mailer’s option. See 140 for more
information about entering EDDM
pieces (EDDM-Retail) at Retail locations.
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3.2.4 Postage
[Add a new last sentence in 3.2.4 as
follows:]
* * * Postage for pieces mailed as
EDDM-Retail flats must be as described
in 144.
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We will publish an appropriate
amendment to 39 CFR part 111 to reflect
these changes.
Stanley F. Mires,
Attorney, Legal Policy & Legislative Advice.
[FR Doc. 2012–25059 Filed 10–12–12; 8:45 am]
BILLING CODE 7710–12–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2012–0343; FRL–9739–3]
Approval and Promulgation of
Implementation Plans; Alabama;
Disapproval of 110(a)(2)(E)(ii)
Infrastructure Requirement for the
1997 and 2006 Fine Particulate Matter
National Ambient Air Quality
Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is taking final action to
disapprove a portion of the State
Implementation Plan (SIP) submissions,
submitted by the State of Alabama,
through the Alabama Department of
Environmental Management (ADEM),
on July 25, 2008, and September 23,
2009, which were intended to meet the
requirement of the Clean Air Act (CAA
or the Act). The CAA requires that each
state adopt and submit a SIP for the
implementation, maintenance, and
enforcement of each NAAQS
promulgated by EPA, which is
commonly referred to as an
‘‘infrastructure’’ SIP. Alabama certified
that the Alabama SIP contains
provisions that ensure the 1997 annual
and 2006 24-hour fine particulate matter
(PM2.5) national ambient air quality
standards (NAAQS) are implemented,
enforced and maintained in the State.
Specifically, EPA is disapproving the
State’s submissions that requires the
SUMMARY:
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62449
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State to comply with the CAA. EPA is
taking a separate action to address the
other applicable infrastructure elements
for the 1997 annual and 2006 24-hour
PM2.5 NAAQS.
DATES: This rule will be effective
November 14, 2012.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2012–0343. All documents in the docket
are listed on the www.regulations.gov
Web site. Although listed in the index,
some information is not publicly
available, i.e., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the Regulatory Development Section,
Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. EPA
requests that if at all possible, you
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 to 4:30
excluding federal holidays.
FOR FURTHER INFORMATION CONTACT:
Sean Lakeman, Regulatory Development
Section, Air Planning Branch, Air,
Pesticides and Toxics Management
Division, U.S. Environmental Protection
Agency, Region 4, 61 Forsyth Street
SW., Atlanta, Georgia 30303–8960. The
telephone number is (404) 562–9043.
Mr. Lakeman can be reached via
electronic mail at
lakeman.sean@epa.gov.
SUPPLEMENTARY INFORMATION:
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I. Background
II. EPA’s Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background
Upon promulgation of a new or
revised NAAQS, sections 110(a)(1) and
(2) of the CAA require states to make a
SIP submission to address basic SIP
requirements, including emissions
inventories, monitoring, and modeling
to assure attainment and maintenance
for that new NAAQS. On July 18, 1997
(62 FR 36852), EPA promulgated a new
annual PM2.5 NAAQS and on October
17, 2006 (71 FR 61144), EPA
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promulgated a new 24-hour NAAQS. On
July 20, 2012, EPA proposed to
disapprove Alabama’s July 25, 2008,
and September 23, 2009, infrastructure
submissions related to the requirements
respecting state boards for the for the
1997 annual and 2006 24-hour PM2.5
NAAQS. See 77 FR 42682. A summary
of the background for today’s final
action is provided below. See EPA’s July
20, 2012, proposed rulemaking at 77 FR
42682 for more detail.
Section 110(a) of the CAA requires
states to submit SIPs to provide for the
implementation, maintenance, and
enforcement of a new or revised
NAAQS within three years following
the promulgation of such NAAQS, or
within such shorter period as EPA may
prescribe. Section 110(a) imposes the
obligation upon states to make a SIP
submission to EPA for a new or revised
NAAQS, but the contents of that
submission may vary depending upon
the facts and circumstances. In
particular, the data and analytical tools
available at the time the state develops
and submits the SIP for a new or revised
NAAQS affects the content of the
submission. The contents of such SIP
submissions may also vary depending
upon what provisions the state’s
existing SIP already contains. In the
case of the 1997 annual and 2006 24hour PM2.5 NAAQS, states typically
have met the basic program elements
required in section 110(a)(2) through
earlier SIP submissions in connection
with previous PM NAAQS.
More specifically, section 110(a)(1)
provides the procedural and timing
requirements for SIPs. Section 110(a)(2)
lists specific elements that states must
meet for ‘‘infrastructure’’ SIP
requirements related to a newly
established or revised NAAQS. Among
the elements that states must address is
section 110(a)(2)(E)(ii), which in turn
refers to the specific requirements of
section 128. Section 128 explicitly
provides that state SIPs ‘‘shall contain
requirements’’ as described in sections
128(a)(1) and (2). In addition, states may
adopt any additional requirements that
are ‘‘more stringent’’ than those
explicitly required in section 128. EPA
issued guidance to states making
recommendations concerning
compliance with section 128.1
In this action, EPA is only addressing
sub-element 110(a)(2)(E)(ii). In taking
final action on the proposed
disapproval, EPA is responding to an
adverse comment received on EPA’s
1 See ‘‘Guidance to States for Meeting Conflict of
Interest Requirements of section 128’’ from David
O. Bickert, Deputy General Counsel, to Regional Air
Directors, dated March 2, 1978.
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July 20, 2012, proposed disapproval of
Alabama’s July 25, 2008, and September
23, 2009, infrastructure submissions for
sub-element 110(a)(2)(E)(ii). EPA is
taking a separate action to address the
other applicable infrastructure elements
for the 1997 annual and 2006 24-hour
PM2.5 NAAQS. See, e.g., 77 FR 34288.
II. EPA’s Response to Comments
The following is EPA’s response to
the adverse comment received on EPA’s
July 20, 2012, proposed disapproval of
Alabama’s July 25, 2008, and September
23, 2009, infrastructure submissions as
they relate to section 110(a)(2)(E)(ii) of
the CAA.
Comment: On August 20, 2012,
ADEM commented on EPA’s proposed
action and requested that EPA withdraw
its proposed disapproval of section
110(a)(2)(E)(ii). ADEM suggested in their
comment that EPA approve a conflict of
interest protocol submitted for inclusion
in the SIP in connection with the State’s
2008 ozone NAAQS infrastructure
submission. ADEM submitted this
conflict of interest protocol as an
attachment to its adverse comment on
the proposal action. ADEM asserted that
with the inclusion of this protocol in the
SIP, EPA would be able to approve
Alabama’s 1997 annual and 2006 24hour PM2.5 infrastructure SIP for subelement 110(a)(2)(E)(ii).
Response: Section 110(a)(2)(E)(ii)
requires that each implementation plan
provide that states comply with the
requirements respecting state boards
pursuant to section 128 of the Act.
Section 128 requires that: (1) The
majority of members of the state board
or body which approves permits or
enforcement orders represent the public
interest and do not derive any
significant portion of their income from
persons subject to permitting or
enforcement orders under the CAA; and
(2) any potential conflicts of interest by
such board or body, or the head of an
executive agency with similar powers be
adequately disclosed.
In its July 20, 2012, proposed
rulemaking (77 FR 42682), EPA
preliminarily determined that the
State’s implementation plan did not
contain provisions to comply with
section 128 of the Act, and thus,
Alabama’s July 25, 2008, and September
23, 2009, submissions do not meet the
requirements of the Act with respect to
section 110(a)(2)(E)(ii).2 Alabama’s
2 Prior to EPA’s proposed disapproval for this
sub-element, ADEM and EPA engaged in a
numerous communications regarding this
infrastructure SIP deficiency (see, e.g., EPA’s
comment to ADEM’s proposed SIP submittal
addressing infrastructure requirements for the 2008
ozone NAAQS which was attached to ADEM’s
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comment on that proposal, which
contends that EPA should not finalize
the proposed disapproval based upon a
conflict of interest disclosure protocol
included with the comment for
incorporation into the SIP, does not
address the underlying basis for the
proposed disapproval of element
110(a)(2)(E)(ii). The basis for EPA’s
disapproval, as discussed in the
proposed rule for today’s action, is that
the SIP presently fails to include any
requirements to address the applicable
requirements of section 128 of the CAA.
EPA considered the State’s comment
and has determined the comments do
not adequately address the requirements
for the following procedural and
substantive reasons. With respect to
procedural issues, an adverse comment
letter on a proposed action does not
meet the statutory and regulatory
requirements for a SIP submission.
Section 110(a)(1), section 110(a)(2), and
section 110(l), all provide that a state’s
implementation plan submission must
undergo reasonable notice and
opportunity for comment. In addition,
EPA regulations at Part 51, Appendix V,
set forth additional criteria for a SIP
submission. EPA has determined that
the conflict of interest disclosure
protocol attached to the State’s adverse
comment letter does not constitute such
a SIP submission for a number of
reasons including, but not limited to,
the fact that the State has not provided
information that the submission has
undergone the requisite public notice or
a demonstration that the protocol has
been adopted and is in final form as
submitted. In addition, the protocol was
not signed, stamped and dated by an
appropriate official to indicate that it is
fully enforceable by the State.
Substantively, were it an official
submission, it would not be sufficient to
satisfy the requirements of section 128
necessary for EPA to approve Alabama’s
infrastructure submissions as they relate
to section 110(a)(2)(E)(ii). As noted in
the proposed rule for today’s action,
section 128 requires that: (1) The
majority of members of the state board
or body which approves permits or
enforcement orders represent the public
interest and do not derive any
significant portion of their income from
persons subject to permitting or
enforcement orders under the CAA; and
(2) any potential conflicts of interest by
such board or body, or the head of an
executive agency with similar powers be
adequately disclosed.
Alabama provides no explanation as
to how its conflict of interest disclosure
adverse comment and is available in the docket for
today’s action.)
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protocol would satisfy the public
interest and significant portion of
income requirements applicable to the
majority of a state board or body subject
to section 128(a)(1). Alabama’s response
to EPA’s comments on the State’s draft
2008 8-hour ozone infrastructure
submission (included with Alabama’s
comment on today’s rulemaking) notes
that certain ADEM officials are charged
with responsibilities for issuing permits
or enforcement orders. EPA has
interpreted the ‘‘board or body’’
requirements of section 128(a)(1) as not
applying to individuals tasked with
authority to approve permits or
enforcement orders. However, where
appeals of such permits or enforcement
orders are resolved by boards or bodies,
those entities are subject to the majority
requirements of section 128(a)(1).
Alabama’s comment does not describe
how appeals of permits or enforcement
order are handled in the State. In order
for EPA to determine that the
requirements of section 128(a)(1) are not
applicable in Alabama, the State must
provide this information. If a board or
body does review appeals of permit or
enforcement orders, the SIP must
require that such board or board be
subject to the 128(a)(1) majority
requirements in order for EPA to
approve Alabama’s section
110(a)(2)(E)(ii) infrastructure submittals.
Based upon the information protocol
described by Alabama, the State’s
approach fails to address the majority
requirements of section 128.
In addition to the issues noted above
regarding the section 128(a)(1)
requirements, the question of whether a
board or body handles appeals of
permits or enforcement orders is also
relevant to sufficiency of the State’s
protocol with respect to the section
128(a)(2) requirements. To the extent a
board or body decides appeals of
permits or enforcement orders, the SIP
must require that members of such
board or body be subject to the section
128(a)(2) conflict of interest disclosure
requirements. The State’s conflict of
interest disclosure protocol, as
submitted, would appear to only apply
to three specified officials within
ADEM. Alabama has failed to
demonstrate how the submitted protocol
would provide adequate disclosure
consistent with the requirements section
128(a)(2).
EPA also notes that Alabama’s
conflict of interest disclosure protocol,
at footnote 3, asserts that ‘‘EPA defines
‘significant portion of income’ as 50%
or more of gross personal income for a
calendar year if the recipient is over 60
years of age and is receiving that portion
under retirement, pension, or similar
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62451
arrangement. This information need
only be provided if the recipient falls in
this category.’’ This statement is
incomplete. The complete suggested
definition for ‘‘Significant Portion of
Income’’ recommended in EPA’s 1978
Guidance to States for Meeting Conflict
of Interest Requirements of Section 128
is ‘‘10 percent or more of gross personal
income for a calendar year, including
retirement benefits, consultation fees,
and stock dividends, except that it shall
mean 50 percent [or more] of gross
personal income for a calendar year if
the recipient is over 60 years of age and
is receiving such portion pursuant to
retirement, pension, or similar
arrangement.’’ Alabama’s protocol omits
the generally applicable 10 percent
standard.3
EPA is finalizing disapproval of
Alabama’s infrastructure submissions as
they relate to sub-element
110(a)(2)(E)(ii) because, as described
above, the SIP presently does not
contain provisions to address the
requirements of section 128 of the CAA.
Consistent with the obligations under
the CAA, EPA intends to continue
working with the State to resolve this
SIP deficiency.
III. Final Action
EPA is taking final action to
disapprove the portion of Alabama’s
July 25, 2008, and September 23, 2009,
submissions which was intended to
meet the requirement to address
element 110(a)(2)(E)(ii) for the 1997
annual and 2006 24-hour PM2.5 NAAQS.
EPA has made the determination that
Alabama’s SIP does not satisfy the
requirement for element 110(a)(2)(E)(ii)
for the 1997 annual and 2006 24-hour
PM2.5 NAAQS. In today’s action, EPA is
not taking any action on the remaining
elements of the submission, including
other section 110(a)(2) infrastructure
elements.
Under section 179(a) of the CAA, final
disapproval of a submittal that
addresses a requirement of a Part D Plan
(42 U.S.C. 7501–7515) or is required in
response to a finding of substantial
inadequacy as described in section
7410(k)(5) (SIP call) starts a sanctions
clock. Section 110(a)(2)(E)(ii) provisions
(the provisions being disapproved in
today’s notice) were not submitted to
meet requirements for Part D, and
3 EPA notes that this suggested definition is
provided in a guidance document as an example to
states of how to define significant portions of
income, therefore, states may propose a different
standard as constituting a ‘‘significant portion of
income.’’ However, as noted in the guidance, EPA
views the substance of the suggested definitions as
representing the minimum level of stringency
necessary to meet the requirements of section 128.
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therefore, no sanctions will be triggered.
This final action triggers the
requirement under section 110(c) that
EPA promulgate a Federal
Implementation Plan (FIP) no later than
2 years from the date of the disapproval
unless the State corrects the deficiency,
and the Administrator approves the
plan or plan revision before the
Administrator promulgates such FIP.
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IV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly this final action
disapproves state law because it does
not meet federal requirements. For that
reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
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In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by December 14, 2012. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. See section
307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Dated: September 27, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
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2. Section 52.62 is amended by adding
paragraph (e), to read as follows:
■
§ 52.62 Control strategy: Sulfur oxides and
particulate matter.
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(e) Disapproval. EPA is disapproving
portions of Alabama’s Infrastructure SIP
for the 1997 annual and 2006 24-hour
PM2.5 NAAQS addressing section
110(a)(2)(E)(ii) that requires the State to
comply with section 128 of the CAA.
[FR Doc. 2012–25149 Filed 10–12–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR part 52
[EPA–R09–OAR–2012–0244; FRL–9713–4]
Approval and Promulgation of
Implementation Plans; State of
Arizona; Prevention of Air Pollution
Emergency Episodes
Environmental Protection
Agency (EPA).
AGENCY:
ACTION:
Final rule.
EPA is approving a State
Implementation Plan (SIP) revision
submitted by the State of Arizona to
address the requirements regarding air
pollution emergency episodes in Clean
Air Act (CAA or Act).
SUMMARY:
This final rule is effective on
November 14, 2012.
DATES:
EPA has established a
docket for this action, identified by
Docket ID Number EPA–R09–OAR–
2012–0244. The index to the docket for
this action is available electronically at
https://www.regulations.gov and in hard
copy at EPA Region IX, 75 Hawthorne
Street, San Francisco, California 94105–
3901. While all documents in the docket
are listed in the index, some
information may be publicly available
only at the hard copy location (e.g.,
copyrighted material), and some may
not be publicly available in either
location (e.g., confidential business
information). To inspect the hard copy
materials, please schedule an
appointment during normal business
hours with the contact listed directly
below.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
■
PO 00000
Subpart B—Alabama
Jeffrey Buss, Air Planning Office (AIR–
2), U.S. Environmental Protection
Agency, Region IX, (415) 947–4152,
buss.jeffrey@epa.gov.
E:\FR\FM\15OCR1.SGM
15OCR1
]]>Agencies
[Federal Register Volume 77, Number 199 (Monday, October 15, 2012)]
[Rules and Regulations]
[Pages 62449-62452]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25149]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2012-0343; FRL-9739-3]
Approval and Promulgation of Implementation Plans; Alabama;
Disapproval of 110(a)(2)(E)(ii) Infrastructure Requirement for the 1997
and 2006 Fine Particulate Matter National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to disapprove a portion of the
State Implementation Plan (SIP) submissions, submitted by the State of
Alabama, through the Alabama Department of Environmental Management
(ADEM), on July 25, 2008, and September 23, 2009, which were intended
to meet the requirement of the Clean Air Act (CAA or the Act). The CAA
requires that each state adopt and submit a SIP for the implementation,
maintenance, and enforcement of each NAAQS promulgated by EPA, which is
commonly referred to as an ``infrastructure'' SIP. Alabama certified
that the Alabama SIP contains provisions that ensure the 1997 annual
and 2006 24-hour fine particulate matter (PM2.5) national
ambient air quality standards (NAAQS) are implemented, enforced and
maintained in the State. Specifically, EPA is disapproving the State's
submissions that requires the
[[Page 62450]]
State to comply with the CAA. EPA is taking a separate action to
address the other applicable infrastructure elements for the 1997
annual and 2006 24-hour PM2.5 NAAQS.
DATES: This rule will be effective November 14, 2012.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2012-0343. All documents in the docket
are listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy at the Regulatory Development Section, Air Planning Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. EPA requests that if at all possible, you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday, 8:30 to 4:30 excluding federal
holidays.
FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Regulatory Development
Section, Air Planning Branch, Air, Pesticides and Toxics Management
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth
Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404)
562-9043. Mr. Lakeman can be reached via electronic mail at
lakeman.sean@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. EPA's Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background
Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and
(2) of the CAA require states to make a SIP submission to address basic
SIP requirements, including emissions inventories, monitoring, and
modeling to assure attainment and maintenance for that new NAAQS. On
July 18, 1997 (62 FR 36852), EPA promulgated a new annual
PM2.5 NAAQS and on October 17, 2006 (71 FR 61144), EPA
promulgated a new 24-hour NAAQS. On July 20, 2012, EPA proposed to
disapprove Alabama's July 25, 2008, and September 23, 2009,
infrastructure submissions related to the requirements respecting state
boards for the for the 1997 annual and 2006 24-hour PM2.5
NAAQS. See 77 FR 42682. A summary of the background for today's final
action is provided below. See EPA's July 20, 2012, proposed rulemaking
at 77 FR 42682 for more detail.
Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains. In the case of the 1997 annual and 2006 24-hour
PM2.5 NAAQS, states typically have met the basic program
elements required in section 110(a)(2) through earlier SIP submissions
in connection with previous PM NAAQS.
More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. Among the elements that states
must address is section 110(a)(2)(E)(ii), which in turn refers to the
specific requirements of section 128. Section 128 explicitly provides
that state SIPs ``shall contain requirements'' as described in sections
128(a)(1) and (2). In addition, states may adopt any additional
requirements that are ``more stringent'' than those explicitly required
in section 128. EPA issued guidance to states making recommendations
concerning compliance with section 128.\1\
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\1\ See ``Guidance to States for Meeting Conflict of Interest
Requirements of section 128'' from David O. Bickert, Deputy General
Counsel, to Regional Air Directors, dated March 2, 1978.
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In this action, EPA is only addressing sub-element
110(a)(2)(E)(ii). In taking final action on the proposed disapproval,
EPA is responding to an adverse comment received on EPA's July 20,
2012, proposed disapproval of Alabama's July 25, 2008, and September
23, 2009, infrastructure submissions for sub-element 110(a)(2)(E)(ii).
EPA is taking a separate action to address the other applicable
infrastructure elements for the 1997 annual and 2006 24-hour
PM2.5 NAAQS. See, e.g., 77 FR 34288.
II. EPA's Response to Comments
The following is EPA's response to the adverse comment received on
EPA's July 20, 2012, proposed disapproval of Alabama's July 25, 2008,
and September 23, 2009, infrastructure submissions as they relate to
section 110(a)(2)(E)(ii) of the CAA.
Comment: On August 20, 2012, ADEM commented on EPA's proposed
action and requested that EPA withdraw its proposed disapproval of
section 110(a)(2)(E)(ii). ADEM suggested in their comment that EPA
approve a conflict of interest protocol submitted for inclusion in the
SIP in connection with the State's 2008 ozone NAAQS infrastructure
submission. ADEM submitted this conflict of interest protocol as an
attachment to its adverse comment on the proposal action. ADEM asserted
that with the inclusion of this protocol in the SIP, EPA would be able
to approve Alabama's 1997 annual and 2006 24-hour PM2.5
infrastructure SIP for sub-element 110(a)(2)(E)(ii).
Response: Section 110(a)(2)(E)(ii) requires that each
implementation plan provide that states comply with the requirements
respecting state boards pursuant to section 128 of the Act. Section 128
requires that: (1) The majority of members of the state board or body
which approves permits or enforcement orders represent the public
interest and do not derive any significant portion of their income from
persons subject to permitting or enforcement orders under the CAA; and
(2) any potential conflicts of interest by such board or body, or the
head of an executive agency with similar powers be adequately
disclosed.
In its July 20, 2012, proposed rulemaking (77 FR 42682), EPA
preliminarily determined that the State's implementation plan did not
contain provisions to comply with section 128 of the Act, and thus,
Alabama's July 25, 2008, and September 23, 2009, submissions do not
meet the requirements of the Act with respect to section
110(a)(2)(E)(ii).\2\ Alabama's
[[Page 62451]]
comment on that proposal, which contends that EPA should not finalize
the proposed disapproval based upon a conflict of interest disclosure
protocol included with the comment for incorporation into the SIP, does
not address the underlying basis for the proposed disapproval of
element 110(a)(2)(E)(ii). The basis for EPA's disapproval, as discussed
in the proposed rule for today's action, is that the SIP presently
fails to include any requirements to address the applicable
requirements of section 128 of the CAA.
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\2\ Prior to EPA's proposed disapproval for this sub-element,
ADEM and EPA engaged in a numerous communications regarding this
infrastructure SIP deficiency (see, e.g., EPA's comment to ADEM's
proposed SIP submittal addressing infrastructure requirements for
the 2008 ozone NAAQS which was attached to ADEM's adverse comment
and is available in the docket for today's action.)
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EPA considered the State's comment and has determined the comments
do not adequately address the requirements for the following procedural
and substantive reasons. With respect to procedural issues, an adverse
comment letter on a proposed action does not meet the statutory and
regulatory requirements for a SIP submission. Section 110(a)(1),
section 110(a)(2), and section 110(l), all provide that a state's
implementation plan submission must undergo reasonable notice and
opportunity for comment. In addition, EPA regulations at Part 51,
Appendix V, set forth additional criteria for a SIP submission. EPA has
determined that the conflict of interest disclosure protocol attached
to the State's adverse comment letter does not constitute such a SIP
submission for a number of reasons including, but not limited to, the
fact that the State has not provided information that the submission
has undergone the requisite public notice or a demonstration that the
protocol has been adopted and is in final form as submitted. In
addition, the protocol was not signed, stamped and dated by an
appropriate official to indicate that it is fully enforceable by the
State.
Substantively, were it an official submission, it would not be
sufficient to satisfy the requirements of section 128 necessary for EPA
to approve Alabama's infrastructure submissions as they relate to
section 110(a)(2)(E)(ii). As noted in the proposed rule for today's
action, section 128 requires that: (1) The majority of members of the
state board or body which approves permits or enforcement orders
represent the public interest and do not derive any significant portion
of their income from persons subject to permitting or enforcement
orders under the CAA; and (2) any potential conflicts of interest by
such board or body, or the head of an executive agency with similar
powers be adequately disclosed.
Alabama provides no explanation as to how its conflict of interest
disclosure protocol would satisfy the public interest and significant
portion of income requirements applicable to the majority of a state
board or body subject to section 128(a)(1). Alabama's response to EPA's
comments on the State's draft 2008 8-hour ozone infrastructure
submission (included with Alabama's comment on today's rulemaking)
notes that certain ADEM officials are charged with responsibilities for
issuing permits or enforcement orders. EPA has interpreted the ``board
or body'' requirements of section 128(a)(1) as not applying to
individuals tasked with authority to approve permits or enforcement
orders. However, where appeals of such permits or enforcement orders
are resolved by boards or bodies, those entities are subject to the
majority requirements of section 128(a)(1). Alabama's comment does not
describe how appeals of permits or enforcement order are handled in the
State. In order for EPA to determine that the requirements of section
128(a)(1) are not applicable in Alabama, the State must provide this
information. If a board or body does review appeals of permit or
enforcement orders, the SIP must require that such board or board be
subject to the 128(a)(1) majority requirements in order for EPA to
approve Alabama's section 110(a)(2)(E)(ii) infrastructure submittals.
Based upon the information protocol described by Alabama, the State's
approach fails to address the majority requirements of section 128.
In addition to the issues noted above regarding the section
128(a)(1) requirements, the question of whether a board or body handles
appeals of permits or enforcement orders is also relevant to
sufficiency of the State's protocol with respect to the section
128(a)(2) requirements. To the extent a board or body decides appeals
of permits or enforcement orders, the SIP must require that members of
such board or body be subject to the section 128(a)(2) conflict of
interest disclosure requirements. The State's conflict of interest
disclosure protocol, as submitted, would appear to only apply to three
specified officials within ADEM. Alabama has failed to demonstrate how
the submitted protocol would provide adequate disclosure consistent
with the requirements section 128(a)(2).
EPA also notes that Alabama's conflict of interest disclosure
protocol, at footnote 3, asserts that ``EPA defines `significant
portion of income' as 50% or more of gross personal income for a
calendar year if the recipient is over 60 years of age and is receiving
that portion under retirement, pension, or similar arrangement. This
information need only be provided if the recipient falls in this
category.'' This statement is incomplete. The complete suggested
definition for ``Significant Portion of Income'' recommended in EPA's
1978 Guidance to States for Meeting Conflict of Interest Requirements
of Section 128 is ``10 percent or more of gross personal income for a
calendar year, including retirement benefits, consultation fees, and
stock dividends, except that it shall mean 50 percent [or more] of
gross personal income for a calendar year if the recipient is over 60
years of age and is receiving such portion pursuant to retirement,
pension, or similar arrangement.'' Alabama's protocol omits the
generally applicable 10 percent standard.\3\
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\3\ EPA notes that this suggested definition is provided in a
guidance document as an example to states of how to define
significant portions of income, therefore, states may propose a
different standard as constituting a ``significant portion of
income.'' However, as noted in the guidance, EPA views the substance
of the suggested definitions as representing the minimum level of
stringency necessary to meet the requirements of section 128.
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EPA is finalizing disapproval of Alabama's infrastructure
submissions as they relate to sub-element 110(a)(2)(E)(ii) because, as
described above, the SIP presently does not contain provisions to
address the requirements of section 128 of the CAA. Consistent with the
obligations under the CAA, EPA intends to continue working with the
State to resolve this SIP deficiency.
III. Final Action
EPA is taking final action to disapprove the portion of Alabama's
July 25, 2008, and September 23, 2009, submissions which was intended
to meet the requirement to address element 110(a)(2)(E)(ii) for the
1997 annual and 2006 24-hour PM2.5 NAAQS. EPA has made the
determination that Alabama's SIP does not satisfy the requirement for
element 110(a)(2)(E)(ii) for the 1997 annual and 2006 24-hour
PM2.5 NAAQS. In today's action, EPA is not taking any action
on the remaining elements of the submission, including other section
110(a)(2) infrastructure elements.
Under section 179(a) of the CAA, final disapproval of a submittal
that addresses a requirement of a Part D Plan (42 U.S.C. 7501-7515) or
is required in response to a finding of substantial inadequacy as
described in section 7410(k)(5) (SIP call) starts a sanctions clock.
Section 110(a)(2)(E)(ii) provisions (the provisions being disapproved
in today's notice) were not submitted to meet requirements for Part D,
and
[[Page 62452]]
therefore, no sanctions will be triggered. This final action triggers
the requirement under section 110(c) that EPA promulgate a Federal
Implementation Plan (FIP) no later than 2 years from the date of the
disapproval unless the State corrects the deficiency, and the
Administrator approves the plan or plan revision before the
Administrator promulgates such FIP.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly this final
action disapproves state law because it does not meet federal
requirements. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the state,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 14, 2012. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: September 27, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart B--Alabama
0
2. Section 52.62 is amended by adding paragraph (e), to read as
follows:
Sec. 52.62 Control strategy: Sulfur oxides and particulate matter.
* * * * *
(e) Disapproval. EPA is disapproving portions of Alabama's
Infrastructure SIP for the 1997 annual and 2006 24-hour
PM2.5 NAAQS addressing section 110(a)(2)(E)(ii) that
requires the State to comply with section 128 of the CAA.
[FR Doc. 2012-25149 Filed 10-12-12; 8:45 am]
BILLING CODE 6560-50-P
