Air Plan Approval/Disapproval; Alabama; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard, 45428-45438 [2016-16577]
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Federal Register / Vol. 81, No. 135 / Thursday, July 14, 2016 / Proposed Rules
Dated: May 10, 2016.
Sterling Rideout, Acting Regional Director,
Mid-Continent Region.
[FR Doc. 2016–16657 Filed 7–13–16; 8:45 am]
BILLING CODE 4310–05–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 110
[Docket No. USCG–2014–0142]
RIN 1625–AA01
Anchorage Regulations; Special
Anchorage Areas, Marina del Rey
Harbor, California
Coast Guard, DHS.
Supplemental notice of
proposed rulemaking; reopen comment
period.
AGENCY:
ACTION:
The Coast Guard is re-opening
the comment period for its
supplemental notice of proposed
rulemaking (SNPRM), published in May
2014. The Coast Guard is proposing to
amend the shape and reduce the size of
the special anchorage in Marina del Rey
Harbor, California. Additionally, we
propose to clarify the language in the
note section of the existing regulation.
Because the date of the public meeting
was not published in the Federal
Register until after the meeting was
held, the Coast Guard is providing an
additional opportunity for public
comment.
SUMMARY:
Comments and related material
must reach the Coast Guard on or before
August 15, 2016.
ADDRESSES: You may submit written
comments identified by docket number
USCG–2014–0142 using the Federal
eRulemaking Portal at https://
www.regulations.gov.
DATES:
If
you have questions concerning the
proposed rule, please call or email
Lieutenant Junior Grade Colleen Patton,
Waterways Management Branch,
Eleventh Coast Guard District,
telephone 510–437–5984, email
Colleen.M.Patton@uscg.mil.
SUPPLEMENTARY INFORMATION:
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FOR FURTHER INFORMATION CONTACT:
Background and Purpose
We published a notice of proposed
rulemaking (NPRM) in the Federal
Register on May 28, 2014 (79 FR 30509),
entitled ‘‘Anchorage Regulations:
Special Anchorage Areas, Marina del
Rey Harbor, California.’’ The NPRM
proposed to disestablish the special
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anchorage area. In response to
comments received, we have issued a
supplemental NPRM (81 FR 10156,
February 29, 2016) to retain the special
anchorage, but amend the shape and
reduce the size of the anchorage to
remove the anchorage area from a
location where it could endanger vessel
traffic.
Because the date of the public
meeting was not published in the
Federal Register until after the meeting
was held, we have concluded that
additional comments would aid this
rulemaking. Therefore, we are
publishing this document to reopen the
comment period.
You may view the SNPRM, in our
online docket, in addition to supporting
documents prepared by the Coast Guard
and comments submitted thus far by
going to https://www.regulations.gov.
Once there, insert ‘‘USCG–2014–0142’’
in the ‘‘Keyword’’ box and click
‘‘Search.’’
We encourage you to participate in
this rulemaking by submitting
comments to the docket through the
Federal eRulemaking Portal at https://
www.regulations.gov. If your material
cannot be submitted using https://
www.regulations.gov, contact the person
in the FOR FURTHER INFORMATION
CONTACT section of this document for
alternate instructions.
Anyone can search the electronic
form of comments received into any of
our dockets by the name of the
individual submitting the comment (or
signing the comment, if submitted on
behalf of an association, business, labor
union, etc.). You may review a Privacy
Act notice regarding our public dockets
in the March 24, 2005, issue of the
Federal Register (70 FR 15086).
Public Meeting
We do not now plan to hold another
public meeting, but will consider
holding one in response to a request
from the public. You may submit a
request for a meeting either by
submitting a comment to the docket or
by writing to Eleventh Coast Guard
District at the address under ADDRESSES
explaining why one would be
beneficial. If we determine that a
meeting would aid this rulemaking, we
will hold one at a time and place
announced by a later notice.
Reopening the Comment Period
The comment period for the SNPRM
published in February 2016 ended April
30, 2016. In order to give the public a
chance to make additional comments,
the Coast Guard is reopening the
comment period on our SNPRM. All
comments must reach the public docket
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at the address found in ADDRESSES on or
before August 15, 2016.
Dated: June 10, 2016.
J.A. Servidio,
RADM, U.S. Coast Guard, Commander,
Eleventh Coast Guard District.
[FR Doc. 2016–16713 Filed 7–13–16; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2014–0431; FRL– 9948–98–
Region 4]
Air Plan Approval/Disapproval;
Alabama; Infrastructure Requirements
for the 2010 Sulfur Dioxide National
Ambient Air Quality Standard
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
in part and disapprove in part portions
of the April 23, 2013, State
Implementation Plan (SIP) submission,
submitted by the State of Alabama,
through the Alabama Department of
Environmental Management (ADEM),
for inclusion into the Alabama SIP. This
proposal pertains to the infrastructure
requirements of the Clean Air Act (CAA
or Act) for the 2010 1-hour sulfur
dioxide (SO2) national ambient air
quality standard (NAAQS). The CAA
requires that each state adopt and
submit a SIP for the implementation,
maintenance and enforcement of each
NAAQS promulgated by EPA, which is
commonly referred to as an
‘‘infrastructure’’ SIP. ADEM certified
that the Alabama SIP contains
provisions that ensure the 2010 1-hour
SO2 NAAQS is implemented, enforced,
and maintained in Alabama. With the
exception of provisions respecting state
boards, which EPA is proposing to
disapprove, and interstate transport,
which EPA is not proposing any action
at this time, EPA is proposing to
determine that portions of Alabama’s
infrastructure SIP submission provided
to EPA on April 23, 2013, satisfy the
required infrastructure elements for the
2010 1-hour SO2 NAAQS.
DATES: Written comments must be
received on or before August 15, 2016.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2014–0431 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
SUMMARY:
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edited or removed from Regulations.gov.
EPA may publish any comment received
to its public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. EPA will generally
not consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Michele Notarianni, Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Ms.
Notarianni can be reached via electronic
mail at notarianni.michele@epa.gov or
via telephone at (404) 562–9031.
SUPPLEMENTARY INFORMATION:
I. Background and Overview
On June 22, 2010 (75 FR 35520), EPA
revised the primary SO2 NAAQS to an
hourly standard of 75 parts per billion
(ppb) based on a 3-year average of the
annual 99th percentile of 1-hour daily
maximum concentrations. Pursuant to
section 110(a)(1) of the CAA, states are
required to submit SIPs meeting the
applicable requirements of section
110(a)(2) within three years after
promulgation of a new or revised
NAAQS or within such shorter period
as EPA may prescribe. Section 110(a)(2)
requires states to address basic SIP
elements such as requirements for
monitoring, basic program requirements
and legal authority that are designed to
assure attainment and maintenance of
the NAAQS. States were required to
submit such SIPs for the 2010 1-hour
SO2 NAAQS to EPA no later than June
2, 2013.1
1 In these infrastructure SIP submissions States
generally certify evidence of compliance with
sections 110(a)(1) and (2) of the CAA through a
combination of state regulations and statutes, some
of which have been incorporated into the federallyapproved SIP. In addition, certain federallyapproved, non-SIP regulations may also be
appropriate for demonstrating compliance with
sections 110(a)(1) and (2). Throughout this
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This action is proposing to approve
Alabama’s infrastructure SIP submission
for the applicable requirements of the
2010 1-hour SO2 NAAQS, with the
exception of interstate transport
provisions pertaining to the
contribution to nonattainment or
interference with maintenance in other
states and visibility protection
requirements of section 110(a)(2)(D)(i)(I)
and (II) (prongs 1, 2, and 4) and the state
board requirements of section
110(a)(2)(E)(ii). With respect to the
interstate transport provisions of section
110(a)(2)(D)(i)(I) (prongs 1 and 2) and
the visibility protection requirements of
section 110(a)(2)(D)(i)(II) (prong 4), EPA
is not proposing any action at this time
regarding these requirements. With
respect to Alabama’s infrastructure SIP
submission related to section
110(a)(2)(E)(ii) requirements respecting
the section 128 state board
requirements, EPA is proposing to
disapprove this element of Alabama’s
submission in this rulemaking. For the
aspects of Alabama’s submittal
proposed for approval today, EPA notes
that the Agency is not approving any
specific rule, but rather proposing that
Alabama’s already approved SIP meets
certain CAA requirements.
II. What elements are required under
Sections 110(a)(1) and (2)?
Section 110(a) of the CAA requires
states to submit SIPs to provide for the
implementation, maintenance, and
enforcement of a new or revised
NAAQS within three years following
the promulgation of such NAAQS, or
within such shorter period as EPA may
prescribe. Section 110(a) imposes the
obligation upon states to make a SIP
submission to EPA for a new or revised
NAAQS, but the contents of that
submission may vary depending upon
the facts and circumstances. In
particular, the data and analytical tools
available at the time the state develops
and submits the SIP for a new or revised
NAAQS affects the content of the
submission. The contents of such SIP
submissions may also vary depending
upon what provisions the state’s
existing SIP already contains.
More specifically, section 110(a)(1)
provides the procedural and timing
requirements for SIPs. Section 110(a)(2)
lists specific elements that states must
meet for ‘‘infrastructure’’ SIP
rulemaking, unless otherwise indicated, the term
‘‘ADEM Administrative Code (Admin. Code r).’’
indicates that the cited regulation has either been
approved, or submitted for approval into Alabama’s
federally-approved SIP. The term ‘‘Alabama Code’’
(Ala. Code) indicates cited Alabama state statutes,
which are not a part of the SIP unless otherwise
indicated.
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requirements related to a newly
established or revised NAAQS. As
mentioned previously, these
requirements include basic SIP elements
such as requirements for monitoring,
basic program requirements and legal
authority that are designed to assure
attainment and maintenance of the
NAAQS. The requirements of section
110(a)(2) are summarized later on and in
EPA’s September 13, 2013,
memorandum entitled ‘‘Guidance on
Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act
Sections 110(a)(1) and 110(a)(2).’’ 2
• 110(a)(2)(A): Emission Limits and
Other Control Measures
• 110(a)(2)(B): Ambient Air Quality
Monitoring/Data System
• 110(a)2(C): Programs for Enforcement
of Control Measures and for
Construction or Modification of
Stationary Sources 3
• 110(a)(2)(D)(i)(I) and (II): Interstate
Pollution Transport
• 110(a)(2)(D)(ii): Interstate Pollution
Abatement and International Air
Pollution
• 110(a)(2)(E): Adequate Resources and
Authority, Conflict of Interest, and
Oversight of Local Governments and
Regional Agencies
• 110(a)(2)(F): Stationary Source
Monitoring and Reporting
• 110(a)(2)(G): Emergency Powers
• 110(a)(2)(H): SIP Revisions
• 110(a)(2)(I): Plan Revisions for
Nonattainment Areas 4
• 110(a)(2)(J): Consultation with
Government Officials, Public
Notification, and Prevention of
Significant Deterioration (PSD) and
Visibility Protection
• 110(a)(2)(K): Air Quality Modeling
and Submission of Modeling Data
• 110(a)(2)(L): Permitting fees
• 110(a)(2)(M): Consultation and
Participation by Affected Local
Entities
2 Two elements identified in section 110(a)(2) are
not governed by the three year submission deadline
of section 110(a)(1) because SIPs incorporating
necessary local nonattainment area controls are not
due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the
nonattainment area plan requirements are due
pursuant to section 172. These requirements are: (1)
Submissions required by section 110(a)(2)(C) to the
extent that subsection refers to a permit program as
required in part D, title I of the CAA; and (2)
submissions required by section 110(a)(2)(I) which
pertain to the nonattainment planning requirements
of part D, title I of the CAA. This proposed
rulemaking does not address infrastructure
elements related to section 110(a)(2)(I) or the
nonattainment planning requirements of
110(a)(2)(C).
3 This rulemaking only addresses requirements
for this element as they relate to attainment areas.
4 As mentioned previously, this element is not
relevant to this proposed rulemaking.
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III. What is EPA’s approach to the
review of infrastructure SIP
submissions?
EPA is acting upon the SIP
submission from Alabama that
addresses the infrastructure
requirements of CAA sections 110(a)(1)
and 110(a)(2) for the 2010 1-hour SO2
NAAQS. The requirement for states to
make a SIP submission of this type
arises out of CAA section 110(a)(1).
Pursuant to section 110(a)(1), states
must make SIP submissions ‘‘within 3
years (or such shorter period as the
Administrator may prescribe) after the
promulgation of a national primary
ambient air quality standard (or any
revision thereof),’’ and these SIP
submissions are to provide for the
‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
EPA’s taking any action other than
promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of
specific elements that ‘‘[e]ach such
plan’’ submission must address.
EPA has historically referred to these
SIP submissions made for the purpose
of satisfying the requirements of CAA
sections 110(a)(1) and 110(a)(2) as
‘‘infrastructure SIP’’ submissions.
Although the term ‘‘infrastructure SIP’’
does not appear in the CAA, EPA uses
the term to distinguish this particular
type of SIP submission from
submissions that are intended to satisfy
other SIP requirements under the CAA,
such as ‘‘nonattainment SIP’’ or
‘‘attainment plan SIP’’ submissions to
address the nonattainment planning
requirements of part D of title I of the
CAA, ‘‘regional haze SIP’’ submissions
required by EPA rule to address the
visibility protection requirements of
CAA section 169A, and nonattainment
new source review permit program
submissions to address the permit
requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing
and general requirements for
infrastructure SIP submissions, and
section 110(a)(2) provides more details
concerning the required contents of
these submissions. The list of required
elements provided in section 110(a)(2)
contains a wide variety of disparate
provisions, some of which pertain to
required legal authority, some of which
pertain to required substantive program
provisions, and some of which pertain
to requirements for both authority and
substantive program provisions.5 EPA
5 For example: Section 110(a)(2)(E)(i) provides
that states must provide assurances that they have
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therefore believes that while the timing
requirement in section 110(a)(1) is
unambiguous, some of the other
statutory provisions are ambiguous. In
particular, EPA believes that the list of
required elements for infrastructure SIP
submissions provided in section
110(a)(2) contains ambiguities
concerning what is required for
inclusion in an infrastructure SIP
submission.
The following examples of
ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and
section 110(a)(2) requirements with
respect to infrastructure SIP
submissions for a given new or revised
NAAQS. One example of ambiguity is
that section 110(a)(2) requires that
‘‘each’’ SIP submission must meet the
list of requirements therein, while EPA
has long noted that this literal reading
of the statute is internally inconsistent
and would create a conflict with the
nonattainment provisions in part D of
title I of the Act, which specifically
address nonattainment SIP
requirements.6 Section 110(a)(2)(I)
pertains to nonattainment SIP
requirements and part D addresses
when attainment plan SIP submissions
to address nonattainment area
requirements are due. For example,
section 172(b) requires EPA to establish
a schedule for submission of such plans
for certain pollutants when the
Administrator promulgates the
designation of an area as nonattainment,
and section 107(d)(1)(B) allows up to
two years, or in some cases three years,
for such designations to be
promulgated.7 This ambiguity illustrates
that rather than apply all the stated
requirements of section 110(a)(2) in a
strict literal sense, EPA must determine
which provisions of section 110(a)(2)
adequate legal authority under state and local law
to carry out the SIP; section 110(a)(2)(C) provides
that states must have a SIP-approved program to
address certain sources as required by part C of title
I of the CAA; and section 110(a)(2)(G) provides that
states must have legal authority to address
emergencies as well as contingency plans that are
triggered in the event of such emergencies.
6 See, e.g., ‘‘Rule To Reduce Interstate Transport
of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,’’ 70 FR
25162, at 25163–65 (May 12, 2005) (explaining
relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
7 EPA notes that this ambiguity within section
110(a)(2) is heightened by the fact that various
subparts of part D set specific dates for submission
of certain types of SIP submissions in designated
nonattainment areas for various pollutants. Note,
e.g., that section 182(a)(1) provides specific dates
for submission of emissions inventories for the
ozone NAAQS. Some of these specific dates are
necessarily later than three years after promulgation
of the new or revised NAAQS.
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are applicable for a particular
infrastructure SIP submission.
Another example of ambiguity within
sections 110(a)(1) and 110(a)(2) with
respect to infrastructure SIPs pertains to
whether states must meet all of the
infrastructure SIP requirements in a
single SIP submission, and whether EPA
must act upon such SIP submission in
a single action. Although section
110(a)(1) directs states to submit ‘‘a
plan’’ to meet these requirements, EPA
interprets the CAA to allow states to
make multiple SIP submissions
separately addressing infrastructure SIP
elements for the same NAAQS. If states
elect to make such multiple SIP
submissions to meet the infrastructure
SIP requirements, EPA can elect to act
on such submissions either individually
or in a larger combined action.8
Similarly, EPA interprets the CAA to
allow it to take action on the individual
parts of one larger, comprehensive
infrastructure SIP submission for a
given NAAQS without concurrent
action on the entire submission. For
example, EPA has sometimes elected to
act at different times on various
elements and sub-elements of the same
infrastructure SIP submission.9
Ambiguities within sections 110(a)(1)
and 110(a)(2) may also arise with
respect to infrastructure SIP submission
requirements for different NAAQS.
Thus, EPA notes that not every element
of section 110(a)(2) would be relevant,
or as relevant, or relevant in the same
way, for each new or revised NAAQS.
The states’ attendant infrastructure SIP
submissions for each NAAQS therefore
could be different. For example, the
monitoring requirements that a state
might need to meet in its infrastructure
8 See, e.g., ‘‘Approval and Promulgation of
Implementation Plans; New Mexico; Revisions to
the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of
Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR) Permitting,’’ 78 FR
4339 (January 22, 2013) (EPA’s final action
approving the structural PSD elements of the New
Mexico SIP submitted by the State separately to
meet the requirements of EPA’s 2008 PM2.5 NSR
rule), and ‘‘Approval and Promulgation of Air
Quality Implementation Plans; New Mexico;
Infrastructure and Interstate Transport
Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR
4337) (January 22, 2013) (EPA’s final action on the
infrastructure SIP for the 2006 PM2.5 NAAQS).
9 On December 14, 2007, the State of Tennessee,
through the Tennessee Department of Environment
and Conservation, made a SIP revision to EPA
demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action
for infrastructure SIP elements (C) and (J) on
January 23, 2012 (77 FR 3213) and took final action
on March 14, 2012 (77 FR 14976). On April 16,
2012 (77 FR 22533) and July 23, 2012 (77 FR
42997), EPA took separate proposed and final
actions on all other section 110(a)(2) infrastructure
SIP elements of Tennessee’s December 14, 2007
submittal.
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SIP submission for purposes of section
110(a)(2)(B) could be very different for
different pollutants because the content
and scope of a state’s infrastructure SIP
submission to meet this element might
be very different for an entirely new
NAAQS than for a minor revision to an
existing NAAQS.10
EPA notes that interpretation of
section 110(a)(2) is also necessary when
EPA reviews other types of SIP
submissions required under the CAA.
Therefore, as with infrastructure SIP
submissions, EPA also has to identify
and interpret the relevant elements of
section 110(a)(2) that logically apply to
these other types of SIP submissions.
For example, section 172(c)(7) requires
that attainment plan SIP submissions
required by part D have to meet the
‘‘applicable requirements’’ of section
110(a)(2). Thus, for example, attainment
plan SIP submissions must meet the
requirements of section 110(a)(2)(A)
regarding enforceable emission limits
and control measures and section
110(a)(2)(E)(i) regarding air agency
resources and authority. By contrast, it
is clear that attainment plan SIP
submissions required by part D would
not need to meet the portion of section
110(a)(2)(C) that pertains to the PSD
program required in part C of title I of
the CAA, because PSD does not apply
to a pollutant for which an area is
designated nonattainment and thus
subject to part D planning requirements.
As this example illustrates, each type of
SIP submission may implicate some
elements of section 110(a)(2) but not
others.
Given the potential for ambiguity in
some of the statutory language of section
110(a)(1) and section 110(a)(2), EPA
believes that it is appropriate to
interpret the ambiguous portions of
section 110(a)(1) and section 110(a)(2)
in the context of acting on a particular
SIP submission. In other words, EPA
assumes that Congress could not have
intended that each and every SIP
submission, regardless of the NAAQS in
question or the history of SIP
development for the relevant pollutant,
would meet each of the requirements, or
meet each of them in the same way.
Therefore, EPA has adopted an
approach under which it reviews
infrastructure SIP submissions against
the list of elements in section 110(a)(2),
but only to the extent each element
applies for that particular NAAQS.
Historically, EPA has elected to use
guidance documents to make
10 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
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recommendations to states for
infrastructure SIPs, in some cases
conveying needed interpretations on
newly arising issues and in some cases
conveying interpretations that have
already been developed and applied to
individual SIP submissions for
particular elements.11 EPA most
recently issued guidance for
infrastructure SIPs on September 13,
2013 (2013 Guidance).12 EPA developed
this document to provide states with upto-date guidance for infrastructure SIPs
for any new or revised NAAQS. Within
this guidance, EPA describes the duty of
states to make infrastructure SIP
submissions to meet basic structural SIP
requirements within three years of
promulgation of a new or revised
NAAQS. EPA also made
recommendations about many specific
subsections of section 110(a)(2) that are
relevant in the context of infrastructure
SIP submissions.13 The guidance also
discusses the substantively important
issues that are germane to certain
subsections of section 110(a)(2).
Significantly, EPA interprets sections
110(a)(1) and 110(a)(2) such that
infrastructure SIP submissions need to
address certain issues and need not
address others. Accordingly, EPA
reviews each infrastructure SIP
submission for compliance with the
applicable statutory provisions of
section 110(a)(2), as appropriate.
As an example, section 110(a)(2)(E)(ii)
is a required element of section
110(a)(2) for infrastructure SIP
submissions. Under this element, a state
must meet the substantive requirements
of section 128, which pertain to state
boards that approve permits or
enforcement orders and heads of
11 EPA notes, however, that nothing in the CAA
requires EPA to provide guidance or to promulgate
regulations for infrastructure SIP submissions. The
CAA directly applies to states and requires the
submission of infrastructure SIP submissions,
regardless of whether or not EPA provides guidance
or regulations pertaining to such submissions. EPA
elects to issue such guidance in order to assist
states, as appropriate.
12 ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2),’’
Memorandum from Stephen D. Page, September 13,
2013.
13 EPA’s September 13, 2013, guidance did not
make recommendations with respect to
infrastructure SIP submissions to address section
110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the United States (U.S.) Supreme Court agreed
to review the D.C. Circuit decision in EME Homer
City, 696 F.3d7 (D.C. Cir. 2012) which had
interpreted the requirements of section
110(a)(2)(D)(i)(I). In light of the uncertainty created
by ongoing litigation, EPA elected not to provide
additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is
neither binding nor required by statute, whether
EPA elects to provide guidance on a particular
section has no impact on a state’s CAA obligations.
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executive agencies with similar powers.
Thus, EPA reviews infrastructure SIP
submissions to ensure that the state’s
implementation plan appropriately
addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The
2013 Guidance explains EPA’s
interpretation that there may be a
variety of ways by which states can
appropriately address these substantive
statutory requirements, depending on
the structure of an individual state’s
permitting or enforcement program (e.g.,
whether permits and enforcement
orders are approved by a multi-member
board or by a head of an executive
agency). However they are addressed by
the state, the substantive requirements
of section 128 are necessarily included
in EPA’s evaluation of infrastructure SIP
submissions because section
110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section
128.
As another example, EPA’s review of
infrastructure SIP submissions with
respect to the PSD program
requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the
structural PSD program requirements
contained in part C and EPA’s PSD
regulations. Structural PSD program
requirements include provisions
necessary for the PSD program to
address all regulated sources and new
source review (NSR) pollutants,
including greenhouse gases (GHGs). By
contrast, structural PSD program
requirements do not include provisions
that are not required under EPA’s
regulations at 40 CFR 51.166 but are
merely available as an option for the
state, such as the option to provide
grandfathering of complete permit
applications with respect to the 2012
fine particulate matter (PM2.5) NAAQS.
Accordingly, the latter optional
provisions are types of provisions EPA
considers irrelevant in the context of an
infrastructure SIP action.
For other section 110(a)(2) elements,
however, EPA’s review of a state’s
infrastructure SIP submission focuses
on assuring that the state’s
implementation plan meets basic
structural requirements. For example,
section 110(a)(2)(C) includes, among
other things, the requirement that states
have a program to regulate minor new
sources. Thus, EPA evaluates whether
the state has an EPA-approved minor
NSR program and whether the program
addresses the pollutants relevant to that
NAAQS. In the context of acting on an
infrastructure SIP submission, however,
EPA does not think it is necessary to
conduct a review of each and every
provision of a state’s existing minor
source program (i.e., already in the
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existing SIP) for compliance with the
requirements of the CAA and EPA’s
regulations that pertain to such
programs.
With respect to certain other issues,
EPA does not believe that an action on
a state’s infrastructure SIP submission is
necessarily the appropriate type of
action in which to address possible
deficiencies in a state’s existing SIP.
These issues include: (i) Existing
provisions related to excess emissions
from sources during periods of startup,
shutdown, or malfunction that may be
contrary to the CAA and EPA’s policies
addressing such excess emissions
(‘‘SSM’’); (ii) existing provisions related
to ‘‘director’s variance’’ or ‘‘director’s
discretion’’ that may be contrary to the
CAA because they purport to allow
revisions to SIP-approved emissions
limits while limiting public process or
not requiring further approval by EPA;
and (iii) existing provisions for PSD
programs that may be inconsistent with
current requirements of EPA’s ‘‘Final
NSR Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (‘‘NSR
Reform’’). Thus, EPA believes it may
approve an infrastructure SIP
submission without scrutinizing the
totality of the existing SIP for such
potentially deficient provisions and may
approve the submission even if it is
aware of such existing provisions.14 It is
important to note that EPA’s approval of
a state’s infrastructure SIP submission
should not be construed as explicit or
implicit re-approval of any existing
potentially deficient provisions that
relate to the three specific issues just
described.
EPA’s approach to review of
infrastructure SIP submissions is to
identify the CAA requirements that are
logically applicable to that submission.
EPA believes that this approach to the
review of a particular infrastructure SIP
submission is appropriate, because it
would not be reasonable to read the
general requirements of section
110(a)(1) and the list of elements in
110(a)(2) as requiring review of each
and every provision of a state’s existing
SIP against all requirements in the CAA
and EPA regulations merely for
purposes of assuring that the state in
question has the basic structural
elements for a functioning SIP for a new
or revised NAAQS. Because SIPs have
14 By contrast, EPA notes that if a state were to
include a new provision in an infrastructure SIP
submission that contained a legal deficiency, such
as a new exemption for excess emissions during
SSM events, then EPA would need to evaluate that
provision for compliance against the rubric of
applicable CAA requirements in the context of the
action on the infrastructure SIP.
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grown by accretion over the decades as
statutory and regulatory requirements
under the CAA have evolved, they may
include some outmoded provisions and
historical artifacts. These provisions,
while not fully up to date, nevertheless
may not pose a significant problem for
the purposes of ‘‘implementation,
maintenance, and enforcement’’ of a
new or revised NAAQS when EPA
evaluates adequacy of the infrastructure
SIP submission. EPA believes that a
better approach is for states and EPA to
focus attention on those elements of
section 110(a)(2) of the CAA most likely
to warrant a specific SIP revision due to
the promulgation of a new or revised
NAAQS or other factors.
For example, EPA’s 2013 Guidance
gives simpler recommendations with
respect to carbon monoxide than other
NAAQS pollutants to meet the visibility
requirements of section
110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As
a result, an infrastructure SIP
submission for any future new or
revised NAAQS for carbon monoxide
need only state this fact in order to
address the visibility prong of section
110(a)(2)(D)(i)(II).
Finally, EPA believes that its
approach with respect to infrastructure
SIP requirements is based on a
reasonable reading of sections 110(a)(1)
and 110(a)(2) because the CAA provides
other avenues and mechanisms to
address specific substantive deficiencies
in existing SIPs. These other statutory
tools allow EPA to take appropriately
tailored action, depending upon the
nature and severity of the alleged SIP
deficiency. Section 110(k)(5) authorizes
EPA to issue a ‘‘SIP call’’ whenever the
Agency determines that a state’s
implementation plan is substantially
inadequate to attain or maintain the
NAAQS, to mitigate interstate transport,
or to otherwise comply with the CAA.15
Section 110(k)(6) authorizes EPA to
correct errors in past actions, such as
past approvals of SIP submissions.16
15 For example, EPA issued a SIP call to Utah to
address specific existing SIP deficiencies related to
the treatment of excess emissions during SSM
events. See ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revisions,’’ 74 FR 21639
(April 18, 2011).
16 EPA has used this authority to correct errors in
past actions on SIP submissions related to PSD
programs. See ‘‘Limitation of Approval of
Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in
State Implementation Plans; Final Rule,’’ 75 FR
82536 (December 30, 2010). EPA has previously
used its authority under CAA section 110(k)(6) to
remove numerous other SIP provisions that the
Agency determined it had approved in error. See,
e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641
(June 27, 1997) (corrections to American Samoa,
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Significantly, EPA’s determination that
an action on a state’s infrastructure SIP
submission is not the appropriate time
and place to address all potential
existing SIP deficiencies does not
preclude EPA’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action to correct those
deficiencies at a later time. For example,
although it may not be appropriate to
require a state to eliminate all existing
inappropriate director’s discretion
provisions in the course of acting on an
infrastructure SIP submission, EPA
believes that section 110(a)(2)(A) may be
among the statutory bases that EPA
relies upon in the course of addressing
such deficiency in a subsequent
action.17
IV. What is EPA’s analysis of how
Alabama addressed the elements of the
Sections 110(a)(1) and (2)
‘‘Infrastructure’’ provisions?
Alabama’s infrastructure SIP
submission addresses the provisions of
sections 110(a)(1) and (2) as described
later on.
1. 110(a)(2)(A): Emission Limits and
Other Control Measures: Section
110(a)(2)(A) requires that each
implementation plan include
enforceable emission limitations and
other control measures, means, or
techniques (including economic
incentives such as fees, marketable
permits, and auctions of emissions
rights), as well as schedules and
timetables for compliance, as may be
necessary or appropriate to meet the
applicable requirements. Several
regulations within Alabama’s SIP are
relevant to air quality control
regulations. The regulations described
later on have been federally approved in
the Alabama SIP and include
enforceable emission limitations and
other control measures. ADEM Admin.
Code r. 335–3–1–.03—Ambient Air
Quality Standards, authorizes ADEM to
adopt rules for the control of air
pollution in order to comply with
NAAQS, including those necessary to
obtain EPA approval under section 110
of the CAA. ADEM Admin. Code r. 335–
3–1–.06—Compliance Schedule, sets the
schedule for compliance with the State’s
Air Pollution Control rules and
Arizona, California, Hawaii, and Nevada SIPs); 69
FR 67062 (November 16, 2004) (corrections to
California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
17 See, e.g., EPA’s disapproval of a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344
(July 21, 2010) (proposed disapproval of director’s
discretion provisions); 76 FR 4540 (Jan. 26, 2011)
(final disapproval of such provisions).
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regulations to be consistent with the
requirements of the CAA. ADEM
Admin. Code r. 335–3–1–05—Sampling
and Testing Methods, details the
authority and means with which ADEM
can require testing and emissions
verification. Also, the following ADEM
Administrative Code rules regulate stack
height: 335–3–14–03(2)—Stack Heights,
subparagraphs (d) and (e), 335–3–15–
02(9)—Stack Heights, subparagraphs (d)
and (e), and 335–3–16–.02(10)—General
Provisions, subparagraphs (d) and (e).
EPA has made the preliminary
determination that Alabama’s SIP
satisfies Section 110(a)(2)(A) for the
2010 1-hour SO2 NAAQS in the State.
In this action, EPA is not proposing to
approve or disapprove any existing
State provisions with regard to excess
emissions during SSM of operations at
a facility. EPA believes that a number of
states have SSM provisions which are
contrary to the CAA and existing EPA
guidance, ‘‘State Implementation Plans:
Policy Regarding Excess Emissions
During Malfunctions, Startup, and
Shutdown’’ (September 20, 1999), and
the Agency is addressing such state
regulations in a separate action.18
Additionally, in this action, EPA is
not proposing to approve or disapprove
any existing State rules with regard to
director’s discretion or variance
provisions. EPA believes that a number
of states have such provisions which are
contrary to the CAA and existing EPA
guidance (52 FR 45109 (November 24,
1987)), and the Agency plans to take
action in the future to address such state
regulations. In the meantime, EPA
encourages any state having a director’s
discretion or variance provision which
is contrary to the CAA and EPA
guidance to take steps to correct the
deficiency as soon as possible.
2. 110(a)(2)(B) Ambient Air Quality
Monitoring/Data System: Section
110(a)(2)(B) requires SIPs to provide for
establishment and operation of
appropriate devices, methods, systems,
and procedures necessary to (i) monitor,
compile, and analyze data on ambient
air quality, and (ii) upon request, make
such data available to the
Administrator. ADEM Admin. Code r.
335–3–1–.04—Monitoring, Records, and
Reporting, requires sources to submit
emissions monitoring reports as
prescribed by the Director of ADEM.
Pursuant to this regulation, these
18 On June 12, 2015, EPA published a final action
entitled, ‘‘State Implementation Plans: Response to
Petition for Rulemaking; Restatement and Update of
EPA’s SSM Policy Applicable to SIPs; Findings of
Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During
Periods of Startup, Shutdown, and Malfunction.’’
See 80 FR 33840.
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sources collect air monitoring data,
quality assure the results, and report the
data to EPA. ADEM Admin. Code r.
335–3–1–.05—Sampling and Testing
Methods, details the authority and
means through which ADEM can
require testing and emissions
verification. ADEM Admin. Code r.
335–3–14–.04—Air Permits Authorizing
Construction in Clean Air: Prevention of
Significant Deterioration Permitting
(PSD), describes the State’s use of
ambient air quality monitoring data for
purposes of permitting new facilities
and assessing major modifications to
existing facilities. Annually, States
develop and submit to EPA for approval
statewide ambient monitoring network
plans consistent with the requirements
of 40 CFR parts 50, 53, and 58. The
annual network plan involves an
evaluation of any proposed changes to
the monitoring network, and includes
the annual ambient monitoring network
design plan and a certified evaluation of
the agency’s ambient monitors and
auxiliary support equipment.19 On July
22, 2015, Alabama submitted its plan to
EPA. On November 19, 2015, EPA
approved Alabama’s monitoring
network plan. Alabama’s approved
monitoring network plan can be
accessed at www.regulations.gov using
Docket ID No. EPA–R04–OAR–2014–
0431. EPA has made the preliminary
determination that Alabama’s SIP and
practices are adequate for the ambient
air quality monitoring and data system
related to the 2010 1-hour SO2 NAAQS.
3. 110(a)(2)(C) Programs for
Enforcement of Control Measures and
for Construction or Modification of
Stationary Sources: This element
consists of three sub-elements:
Enforcement, state-wide regulation of
new and modified minor sources and
minor modifications of major sources,
and preconstruction permitting of major
sources and major modifications in
areas designated attainment or
unclassifiable for the subject NAAQS as
required by CAA title I part C (i.e., the
major source PSD program). ADEM’s
2010 1-hour SO2 NAAQS infrastructure
SIP submission cited a number of SIP
provisions to address these
requirements. Specifically, the
submission cited ADEM Admin. Code r.
335–3–14–.01—General Provisions,
335–3–14–.02,—Permit Procedure, 335–
3–14–.03—Standards for Granting
Permits, 335–3–14–.04—Prevention of
Significant Deterioration in Permitting
and 335–3–14–.05—Air Permits
occasion, proposed changes to the
monitoring network are evaluated outside of the
network plan approval process in accordance with
40 CFR part 58.
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Authorizing Construction in or Near
Nonattainment Areas. Collectively,
these provisions of Alabama’s SIP
regulate the construction of any new
major stationary source or any
modification at an existing major
stationary source in an area designated
as nonattainment, attainment or
unclassifiable.
Enforcement: ADEM’s abovedescribed, SIP-approved regulations
provide for enforcement of SO2
emission limits and control measures
through construction permitting for new
or modified stationary sources. Note
also that ADEM has authority to issue
enforcement orders and assess penalties
(see Ala. Code sections 22–22A–5, 22–
28–10 and 22–28–22).
PSD Permitting for Major Sources:
EPA interprets the PSD sub-element to
require that a state’s infrastructure SIP
submission for a particular NAAQS
demonstrate that the state has a
complete PSD permitting program in
place covering the structural PSD
requirements for all regulated NSR
pollutants. A state’s PSD permitting
program is complete for this subelement (and prong 3 of D(i) and J
related to PSD) if EPA has already
approved or is simultaneously
approving the state’s implementation
plan with respect to all structural PSD
requirements that are due under the
EPA regulations or the CAA on or before
the date of the EPA’s proposed action on
the infrastructure SIP submission.
For the 2010 1-hour SO2 NAAQS,
Alabama’s authority to regulate new and
modified sources to assist in the
protection of air quality in Alabama is
established in the Alabama
Administrative Code Chapters 335–3–
14–.01—General Provisions, 335–3–14–
.02—Permit Procedure, 335–3–14–.03—
Standards for Granting Permits, 335–3–
14–.04—Prevention of Significant
Deterioration in Permitting, and 335–3–
14–.05—Air Permits Authorizing
Construction in or Near Nonattainment
Areas. Alabama’s SIP contains the
current structural requirements of part C
of title I of the CAA to satisfy the
infrastructure SIP PSD elements.20
As such, EPA has made the
preliminary determination that
Alabama’s SIP satisfies this PSD
element for the 2010 1-hour SO2
NAAQS.
Regulation of minor sources and
modifications: Section 110(a)(2)(C) also
requires the SIP to include provisions
that govern the minor source program
20 For more information on EPA’s analysis of
Alabama’s infrastructure SIP in connection with the
current PSD-related infrastructure requirements, see
the Technical Support Document in the docket for
this rulemaking.
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that regulates emissions of the 2010 1hour SO2 NAAQS. ADEM Admin. Code
r. 335–3–14–.01 General Provisions,
335–3–14–.02 Permit Procedure, and
335–3–14–.03—Standards for Granting
Permits govern the preconstruction
permitting of modifications and
construction of minor stationary
sources.
EPA has made the preliminary
determination that Alabama’s SIP and
practices are adequate for program
enforcement of control measures and
regulation of minor sources and
modifications, and preconstruction
permitting of modifications and
construction of minor stationary
sources, and minor modifications of
major stationary sources related to the
2010 1-hour SO2 NAAQS.
4. 110(a)(2)(D)(i)(I) and (II) Interstate
Pollution Transport: Section
110(a)(2)(D)(i) has two components:
110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II).
Each of these components has two
subparts resulting in four distinct
components, commonly referred to as
‘‘prongs,’’ that must be addressed in
infrastructure SIP submissions. The first
two prongs, which are codified in
section 110(a)(2)(D)(i)(I), are provisions
that prohibit any source or other type of
emissions activity in one state from
contributing significantly to
nonattainment of the NAAQS in another
state (‘‘prong 1’’), and interfering with
maintenance of the NAAQS in another
state (‘‘prong 2’’). The third and fourth
prongs, which are codified in section
110(a)(2)(D)(i)(II), are provisions that
prohibit emissions activity in one state
from interfering with measures required
to prevent significant deterioration of air
quality in another state (‘‘prong 3’’), or
to protect visibility in another state
(‘‘prong 4’’).
110(a)(2)(D)(i)(I)—prongs 1 and 2:
EPA is not proposing any action in this
rulemaking related to the interstate
transport provisions pertaining to the
contribution to nonattainment or
interference with maintenance in other
states of section 110(a)(2)(D)(i)(I)
(prongs 1 and 2) because Alabama’s
2010 1-hour SO2 NAAQS infrastructure
submission did not address prongs 1
and 2.
110(a)(2)(D)(i)(II)—prong 3: With
regard to section 110(a)(2)(D)(i)(II), the
PSD element, referred to as prong 3, this
requirement may be met by a state’s
confirmation in an infrastructure SIP
submission that new major sources and
major modifications in the state are
subject to: A PSD program meeting
current structural requirements of part C
of title I of the CAA, or (if the state
contains a nonattainment area that has
the potential to impact PSD in another
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state) a NNSR program. As discussed in
more detail previously under section
110(a)(2)(C), Alabama’s SIP contains
provisions for the State’s PSD program
that reflect the required structural PSD
requirements to satisfy the requirement
of prong 3. EPA has made the
preliminary determination that
Alabama’s SIP satisfies section
110(a)(2)(D)(i)(II) (prong 3) for PSD
permitting of major sources and major
modifications related to interstate
transport for the 2010 1-hour SO2
NAAQS.
110(a)(2)(D)(i)(II)—prong 4: EPA is not
proposing any action in this rulemaking
related to the interstate transport
provisions pertaining to the
contribution to nonattainment or
interference with maintenance in other
states of section 110(a)(2)(D)(i)(II) (prong
4) and will consider these requirements
in relation to Alabama’s 2010 1-hour
SO2 NAAQS infrastructure submission
in a separate rulemaking.
5. 110(a)(2)(D)(ii) Interstate and
International Transport Provisions:
Section 110(a)(2)(D)(ii) requires SIPs to
include provisions ensuring compliance
with sections 115 and 126 of the Act,
relating to interstate and international
pollution abatement. ADEM Admin.
Code r. 335–3–14–.04—Prevention of
Significant Deterioration in Permitting
describes how Alabama notifies
neighboring states of potential emission
impacts from new or modified sources
applying for PSD permits. This
regulation requires ADEM to provide an
opportunity for a public hearing to the
public, which includes state or local air
pollution control agencies, ‘‘whose
lands may be affected by emissions from
the source or modification’’ in Alabama.
Additionally, Alabama does not have
any pending obligation under sections
115 and 126 of the CAA. EPA has made
the preliminary determination that
Alabama’s SIP and practices are
adequate for ensuring compliance with
the applicable requirements relating to
interstate and international pollution
abatement for the 2010 1-hour SO2
NAAQS.
6. 110(a)(2)(E) Adequate Resources
and Authority, Conflict of Interest, and
Oversight of Local Governments and
Regional Agencies: Section 110(a)(2)(E)
requires that each implementation plan
provide: (i) Necessary assurances that
the state will have adequate personnel,
funding, and authority under state law
to carry out its implementation plan, (ii)
that the state comply with the
requirements respecting state boards
pursuant to section 128 of the Act, and
(iii) necessary assurances that, where
the state has relied on a local or regional
government, agency, or instrumentality
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for the implementation of any plan
provision, the state has responsibility
for ensuring adequate implementation
of such plan provisions. EPA is
proposing to approve Alabama’s
infrastructure SIP submission as
meeting the requirements of subelements 110(a)(2)(E)(i) and (iii). With
respect to sub-element 110(a)(2)(E)(ii)
(regarding state boards), EPA is
proposing to disapprove this subelement. EPA’s rationale respecting each
sub-element is described in turn later
on.
In support of EPA’s proposal to
approve sub-elements 110(a)(2)(E)(i) and
(iii), ADEM’s infrastructure submission
demonstrates that it is responsible for
promulgating rules and regulations for
the NAAQS, emissions standards,
general policies, a system of permits, fee
schedules for the review of plans, and
other planning needs as authorized at
Ala. Code section 22–28–11 and section
22–28–9. As evidence of the adequacy
of ADEM’s resources with respect to
sub-elements (i) and (iii), EPA
submitted a letter to Alabama on April
19, 2016, outlining 105 grant
commitments and current status of these
commitments for fiscal year 2015. The
letter EPA submitted to Alabama can be
accessed at www.regulations.gov using
Docket ID No. EPA–R04–OAR–2014–
0431. Annually, states update these
grant commitments based on current SIP
requirements, air quality planning, and
applicable requirements related to the
NAAQS. There were no outstanding
issues in relation to the SIP for fiscal
year 2015, therefore, Alabama’s grants
were finalized and closed out.
Alabama’s funding is also met through
the state’s title V fee program at ADEM
Admin. Code r. 335–1–7—Air Division
Operating Permit Fees 21 and ADEM
Admin. Code r. 335–1–6—Application
Fees.22 In addition, the requirements of
110(a)(2)(E)(i) and (iii) are met when
EPA performs a completeness
determination for each SIP submittal.
This determination ensures that each
submittal provides evidence that
adequate personnel, funding, and legal
authority under state law has been used
to carry out the state’s implementation
plan and related issues. Alabama’s
authority to implement provisions of the
State’s implementation plan is included
in all prehearings and final SIP
submittal packages for approval by EPA.
EPA has made the preliminary
determination that Alabama has
21 Title V program regulations are federallyapproved but not incorporated into the federallyapproved SIP.
22 This regulation has not been incorporated into
the federally-approved SIP.
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adequate authority and resources for
implementation of the 2010 1-hour SO2
NAAQS.
Section 110(a)(2)(E)(ii) requires that
SIPs comply with section 128 of the
CAA. Section 128 requires that SIPs
contain provisions to provide that: (1)
The majority of members of the state
board or body which approves permits
or enforcement orders represent the
public interest and do not derive any
significant portion of their income from
persons subject to permitting or
enforcement orders under the CAA; and
(2) any potential conflicts of interest by
such board or body, or the head of an
executive agency with similar powers be
adequately disclosed. After reviewing
Alabama’s SIP, EPA has made the
preliminary determination that the
State’s implementation plan does not
contain provisions to comply with
section 128 of the Act, and thus
Alabama’s April 23, 2013, infrastructure
SIP submission does not meet the
requirements of the Act. While Alabama
has state statutes that may address, in
whole or part, requirements related to
state boards at the state level, these
provisions are not included in the SIP
as required by the CAA. Based on an
evaluation of the federally-approved
Alabama SIP, EPA is proposing to
disapprove Alabama’s certification that
its SIP meets the requirements of
110(a)(2)(E)(ii) of the CAA for the 2010
1-hour SO2 NAAQS. The submitted
provisions which purport to address
110(a)(2)(E)(ii) are severable from the
other portions of ADEM’s infrastructure
SIP submission, therefore, EPA is
proposing to disapprove those
provisions which relate only to subelement 110(a)(2)(E)(ii).
7. 110(a)(2)(F) Stationary Source
Monitoring and Reporting: Section
110(a)(2)(F) requires SIPs to meet
applicable requirements addressing: (i)
The installation, maintenance, and
replacement of equipment, and the
implementation of other necessary
steps, by owners or operators of
stationary sources to monitor emissions
from such sources, (ii) periodic reports
on the nature and amounts of emissions
and emissions related data from such
sources, and (iii) correlation of such
reports by the state agency with any
emission limitations or standards
established pursuant to this section,
which reports shall be available at
reasonable times for public inspection.
ADEM’s infrastructure SIP submission
describes the establishment of
requirements for compliance testing by
emissions sampling and analysis, and
for emissions and operation monitoring
to ensure the quality of data in the State.
The Alabama infrastructure SIP
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submission also describes how the
major source and minor source emission
inventory programs collect emission
data throughout the State and ensure the
quality of such data. Alabama meets
these requirements through ADEM
Admin. Code r. 335–3–1–.04—
Monitoring, Records, and Reporting, and
335–3–12—Continuous Monitoring
Requirements for Existing Sources.
ADEM Admin. Code r. 335–3–1–.04,
details how sources are required as
appropriate to establish and maintain
records; make reports; install, use, and
maintain such monitoring equipment or
methods; and provide periodic emission
reports as the regulation requires.
Additionally, ADEM Admin. Code r.
335–3–12–.02 requires owners and
operators of emissions sources to
‘‘install, calibrate, operate and maintain
all monitoring equipment necessary for
continuously monitoring the
pollutants.’’ 23 ADEM Admin. Code r.
335–3–1–.13—Credible Evidence, makes
allowances for owners and/or operators
to utilize ‘‘any credible evidence or
information relevant’’ to demonstrate
compliance with applicable
requirements if the appropriate
performance or compliance test had
been performed, for the purpose of
submitting compliance certification and
can be used to establish whether or not
an owner or operator has violated or is
in violation of any rule or standard.
Accordingly, EPA is unaware of any
provision preventing the use of credible
evidence in the Alabama SIP.
Additionally, Alabama is required to
submit emissions data to EPA for
purposes of the National Emissions
Inventory (NEI). The NEI is EPA’s
central repository for air emissions data.
EPA published the Air Emissions
Reporting Rule (AERR) on December 5,
2008, which modified the requirements
for collecting and reporting air
emissions data (73 FR 76539). The
AERR shortened the time states had to
report emissions data from 17 to 12
months, giving states one calendar year
to submit emissions data. All states are
required to submit a comprehensive
emissions inventory every three years
and report emissions for certain larger
sources annually through EPA’s online
Emissions Inventory System. States
23 ADEM Admin. Code r. 335–3–12–.02
establishes that data reporting requirements for
sources required to conduct continuous monitoring
in the state should comply with data reporting
requirements set forth at 40 CFR part 51, Appendix
P. Section 40 CFR part 51, Appendix P includes
that the averaging period used for data reporting
should be established by the state to correspond to
the averaging period specified in the emission test
method used to determine compliance with an
emission standard for the pollutant/source category
in question.
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45435
report emissions data for the six criteria
pollutants and the precursors that form
them—NOX, SO2, ammonia, lead,
carbon monoxide, particulate matter,
and volatile organic compounds. Many
states also voluntarily report emissions
of hazardous air pollutants. Alabama
made its latest update to the 2011 NEI
on May 7, 2013. EPA compiles the
emissions data, supplementing it where
necessary, and releases it to the general
public through the Web site https://
www.epa.gov/ttn/chief/
eiinformation.html. EPA has made the
preliminary determination that
Alabama’s SIP and practices are
adequate for the stationary source
monitoring systems related to the 2010
1-hour SO2 NAAQS.
8. 110(a)(2)(G) Emergency Powers:
This section requires that states
demonstrate authority comparable with
section 303 of the CAA and adequate
contingency plans to implement such
authority. Ala. Code sections 22–28–22,
22–28–14 and 22–28–21 grant ADEM
authority to adopt regulations for the
purpose of protecting human health,
welfare and the environment as required
by section 303 of the CAA. ADEM
Admin. Code r. 335–3–2,—Air Pollution
Emergency, provides for the
identification of air pollution emergency
episodes, episode criteria, and
emissions reduction plans. Alabama’s
compliance with section 303 of the CAA
and adequate contingency plans to
implement such authority is also met by
Ala. Code section 22–28–21 Air
Pollution Emergencies. Ala. Code
Section 22–28–21 provides ADEM the
authority to order the ‘‘person or
persons responsible for the operation or
operations of one or more air
contaminants sources’’ causing
‘‘imminent danger to human health or
safety in question to reduce or
discontinue emissions immediately.’’
The order triggers a hearing no later
than 24-hours after issuance before the
Environmental Management
Commission which can affirm, modify
or set aside the Director’s order.
Additionally, the Governor can, by
proclamation, declare, as to all or any
part of said area, that an air pollution
emergency exists and exercise certain
powers in whole or in part, by the
issuance of an order or orders to protect
the public health. Under Ala. Code
sections 22–28–3(a) and 22–28–10(2),
ADEM also has the authority to issue
such orders as may be necessary to
effectuate the purposes of the Alabama
Pollution Control Act, which includes
achieving and maintaining such levels
of air quality as will protect human
health and safety and, to the greatest
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degree practicable, prevent injury to
plant and animal life and property,
foster the comfort and convenience of
the people, promote the social
development of this state and facilitate
the enjoyment of the natural attractions
of the state. EPA has made the
preliminary determination that
Alabama’s SIP, state laws and practices
are adequate to satisfy the infrastructure
SIP obligations for emergency powers
related to the 2010 1-hour SO2 NAAQS.
Accordingly, EPA is proposing to
approve Alabama’s infrastructure SIP
submission with respect to section
110(a)(2)(G).
9. 110(a)(2)(H) SIP Revisions: Section
110(a)(2)(H), in summary, requires each
SIP to provide for revisions of such
plan: (i) As may be necessary to take
account of revisions of such national
primary or secondary ambient air
quality standard or the availability of
improved or more expeditious methods
of attaining such standard, and (ii)
whenever the Administrator finds that
the plan is substantially inadequate to
attain the NAAQS or to otherwise
comply with any additional applicable
requirements. As previously discussed,
ADEM is responsible for adopting air
quality rules and revising SIPs as
needed to attain or maintain the
NAAQS. Alabama has the ability and
authority to respond to calls for SIP
revisions, and has provided a number of
SIP revisions over the years for
implementation of the NAAQS. ADEM
Admin. Code r. 335–1–1–.03—
Organization and Duties of the
Commission,24 provides the Alabama
Environmental Management
Commission with the authority to
establish, adopt, promulgate, modify,
repeal and suspend rules, regulations, or
environmental standards which may be
applicable to Alabama or ‘‘any of its
geographic parts.’’ Admin. Code r. 335–
3–1–.03—Ambient Air Quality
Standards, incorporate NAAQS, as
amended or revised, and provides that
the NAAQS apply throughout the State.
EPA has made the preliminary
determination that Alabama adequately
demonstrates a commitment to provide
future SIP revisions related to the 2010
1-hour SO2 NAAQS when necessary.
Accordingly, EPA is proposing to
approve Alabama’s infrastructure SIP
submission with respect to section
110(a)(2)(H).
10. 110(a)(2)(J) Consultation with
government officials, public
notification, and PSD and visibility
protection: EPA is proposing to approve
Alabama’s infrastructure SIP for the
24 This regulation has not been incorporated into
the federally-approved SIP.
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2010 1-hour SO2 NAAQS with respect
to the general requirement in section
110(a)(2)(J) to include a program in the
SIP that complies with the applicable
consultation requirements of section
121, the public notification
requirements of section 127, PSD and
visibility protection. EPA’s rationale for
each sub-element is described later on.
Consultation with government
officials (121 consultation): Section
110(a)(2)(J) of the CAA requires states to
provide a process for consultation with
local governments, designated
organizations and Federal Land
Managers (FLMs) carrying out NAAQS
implementation requirements pursuant
to section 121 relative to consultation.
ADEM Admin. Code r. 335–3–1–.03—
Ambient Air Quality Standards, as well
as its Regional Haze Implementation
Plan (which allows for continued
consultation with appropriate state,
local, and tribal air pollution control
agencies as well as the corresponding
FLMs), provide for consultation with
government officials whose jurisdictions
might be affected by SIP development
activities. In addition, Alabama adopted
state-wide consultation procedures for
the implementation of transportation
conformity which includes the
development of mobile inventories for
SIP development. These consultation
procedures were developed in
coordination with the transportation
partners in the State and are consistent
with the approaches used for
development of mobile inventories for
SIPs. Required partners covered by
Alabama’s consultation procedures
include Federal, state and local
transportation and air quality agency
officials. EPA has made the preliminary
determination that Alabama’s SIP and
practices adequately demonstrate
consultation with government officials
related to the 2010 1-hour SO2 NAAQS
when necessary.
Public notification (127 public
notification): ADEM Admin. Code r.
335–3–14–.01(7)—Public Participation,
and 335–3–14–.05(13)—Public
Participation, and Ala. Code section 22–
28–21—Air Pollution Emergencies,
provide for public notification when air
pollution episodes occur. Furthermore,
ADEM has several public notice
mechanisms in place to notify the
public of ozone and PM2.5 forecasting.
Alabama maintains a public Web site on
which daily air quality index forecasts
are posted for the Birmingham,
Huntsville, and Mobile areas. This Web
site can be accessed at: https://
adem.alabama.gov/programs/air/
airquality.cnt. Although specific air
quality forecasts for SO2 are not
provided, they are provided for PM2.5
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for which SO2 is a precursor.
Accordingly, EPA is proposing to
approve Alabama’s infrastructure SIP
submission with respect to section
110(a)(2)(J) public notification.
PSD: With regard to the PSD element
of section 110(a)(2)(J), this requirement
may be met by the state’s confirmation
in an infrastructure SIP submission that
new major sources and major
modifications in the state are subject to
a PSD program meeting current
structural requirements of part C of title
I of the CAA. As discussed in more
detail previously under the section
discussing 110(a)(2)(C), Alabama’s SIP
contains the required structural PSD
requirements to satisfy the PSD element
of section 110(a)(2)(J). Thus, EPA has
made the preliminary determination
that Alabama’s SIP satisfies the PSD
element of section 110(a)(2)(J) for the
2010 1-hour SO2 NAAQS .
Visibility protection: EPA’s 2013
Guidance notes that it does not treat the
visibility protection aspects of section
110(a)(2)(J) as applicable for purposes of
the infrastructure SIP approval process.
ADEM referenced its regional haze
program as germane to the visibility
component of section 110(a)(2)(J). EPA
recognizes that states are subject to
visibility protection and regional haze
program requirements under part C of
the Act (which includes sections 169A
and 169B). However, there are no newly
applicable visibility protection
obligations after the promulgation of a
new or revised NAAQS. Thus, EPA has
determined that states do not need to
address the visibility component of
110(a)(2)(J) in infrastructure SIP
submittals so ADEM does not need to
rely on its regional haze program to
fulfill its obligations under section
110(a)(2)(J). As such, EPA has made the
preliminary determination that
Alabama’s submission is approvable for
the visibility protection element of
section 110(a)(2)(J) and that Alabama
does not need to rely on its regional
haze program to address this element.
11. 110(a)(2)(K) Air Quality Modeling
and Submission of Modeling Data:
Section 110(a)(2)(K) of the CAA requires
that SIPs provide for performing air
quality modeling so that effects on air
quality of emissions from NAAQS
pollutants can be predicted and
submission of such data to the EPA can
be made. ADEM Admin. Code r. 335–3–
14–.04—Prevention of Significant
Deterioration Permitting, specifically
sub-paragraph (11)—Air Quality Models,
specifies that required air modeling be
conducted in accordance with 40 CFR
part 51, Appendix W ‘‘Guideline on Air
Quality Models’’. ADEM Admin. Code r.
335–3–1–.04—Monitoring, Records, and
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Reporting details how sources are
required as appropriate to establish and
maintain records; make reports; install,
use, and maintain such monitoring
equipment or methods; and provide
periodic emission reports as the
regulation requires. These reports and
records are required to be compiled, and
submitted on forms furnished by the
State. These regulations also
demonstrate that Alabama has the
authority to provide relevant data for
the purpose of predicting the effect on
ambient air quality of the 2010 1-hour
SO2 NAAQS. Additionally, Alabama
participates in a regional effort to
coordinate the development of
emissions inventories and conduct
regional modeling for several NAAQS,
including the 2010 1-hour SO2 NAAQS,
for the southeastern states. Taken as a
whole, Alabama’s air quality regulations
and practices demonstrate that ADEM
has the authority to provide relevant
data for the purpose of predicting the
effect on ambient air quality of any
emissions of any pollutant for which a
NAAQS has been promulgated, and to
provide such information to the EPA
Administrator upon request. EPA has
made the preliminary determination
that Alabama’s SIP and practices
adequately demonstrate the State’s
ability to provide for air quality
modeling, along with analysis of the
associated data, related to the 2010–1hour SO2 NAAQS. Accordingly, EPA is
proposing to approve Alabama’s
infrastructure SIP submission with
respect to section 110(a)(2)(K).
12. 110(a)(2)(L) Permitting Fees: This
section requires the owner or operator of
each major stationary source to pay to
the permitting authority, as a condition
of any permit required under the CAA,
a fee sufficient to cover (i) the
reasonable costs of reviewing and acting
upon any application for such a permit,
and (ii) if the owner or operator receives
a permit for such source, the reasonable
costs of implementing and enforcing the
terms and conditions of any such permit
(not including any court costs or other
costs associated with any enforcement
action), until such fee requirement is
superseded with respect to such sources
by the Administrator’s approval of a fee
program under title V. ADEM Admin.
Code r. 335–1–6—Application Fees 25
requires ADEM to charge permitspecific fees to the applicant/source as
authorized by Ala. Code section 22–
22A–5. ADEM relies on these State
requirements to demonstrate that its
permitting fee structure is sufficient for
the reasonable cost of reviewing and
25 This
regulation has not been incorporated into
the federally-approved SIP.
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acting upon PSD and NNSR permits.
Additionally, Alabama has a fullyapproved title V operating permit
program—ADEM Admin. Code r. 335–
1–7—Air Division Operating Permit
Fees26—that covers the cost of
implementation and enforcement of
PSD and NNSR permits after they have
been issued. EPA has made the
preliminary determination that
Alabama’s state rules and practices
adequately provide for permitting fees
related to the 2010 1-hour SO2 NAAQS,
when necessary. Accordingly, EPA is
proposing to approve Alabama’s
infrastructure SIP submission with
respect to section 110(a)(2)(L).
13. 110(a)(2)(M) Consultation and
Participation by Affected Local Entities:
Section 110(a)(2)(M) of the Act requires
states to provide for consultation and
participation in SIP development by
local political subdivisions affected by
the SIP. ADEM coordinates with local
governments affected by the SIP. ADEM
Administrative Code 335–3–17–.01—
Transportation Conformity is one way
that Alabama provides for consultation
with affected local entities. More
specifically, Alabama adopted statewide consultation procedures for the
implementation of transportation
conformity which includes the
development of mobile inventories for
SIP development and the requirements
that link transportation planning and air
quality planning in nonattainment and
maintenance areas. Required partners
covered by Alabama’s consultation
procedures include Federal, state and
local transportation and air quality
agency officials. Furthermore, ADEM
has worked with the Federal Land
Managers as a requirement of the
regional haze rule. EPA has made the
preliminary determination that
Alabama’s SIP and practices adequately
demonstrate consultation with affected
local entities related to the 2010 1-hour
SO2 NAAQS when necessary.
V. Proposed Action
With the exception of interstate
transport provisions pertaining to
visibility protection requirements of
section 110(a)(2)(D)(i)(II) (prong 4), and
the state board requirements of section
110(a)(2)(E)(ii), EPA is proposing to
approve Alabama’s April 23, 2013, SIP
submission for the 2010 1-hour SO2
NAAQS for the previously described
infrastructure SIP requirements. EPA is
proposing to disapprove section
110(a)(2)(E)(ii) of Alabama’s
infrastructure submission because the
26 Title V program regulations are federally
approved but not incorporated into the federallyapproved SIP.
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45437
State’s implementation plan does not
contain provisions to comply with
section 128 of the Act, and thus
Alabama’s April 23, 2013, infrastructure
SIP submission does not meet the
requirements of the Act. The interstate
transport requirements of section
110(a)(2)(D)(i)(I) (prongs 1 and 2) will
not be addressed by EPA at this time.
Under section 179(a) of the CAA, final
disapproval of a submittal that
addresses a requirement of a CAA Part
D Plan, or is required in response to a
finding of substantial inadequacy as
described in CAA section 110(k)(5) (SIP
call), starts a sanctions clock. The
portion of section 110(a)(2)(E)(ii)
provisions (the provisions being
proposed for disapproval in this notice)
were not submitted to meet
requirements for Part D or a SIP call,
and therefore, if EPA takes final action
to disapprove this submittal, no
sanctions will be triggered. However, if
this disapproval action is finalized, that
final action will trigger the requirement
under section 110(c) that EPA
promulgate a Federal Implementation
Plan (FIP) no later than two years from
the date of the disapproval unless the
State corrects the deficiency, and EPA
approves the plan or plan revision
before EPA promulgates such FIP.
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
action merely approves state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this proposed action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
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in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to
apply on any Indian reservation land or
in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), nor will it impose
substantial direct costs on tribal
governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 30, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016–16577 Filed 7–13–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
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[EPA–R04–OAR–2015–0252; FRL–9948–96Region 4]
Air Plan Approval; Tennessee
Infrastructure Requirements for the
2010 Nitrogen Dioxide National
Ambient Air Quality Standard
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
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The Environmental Protection
Agency (EPA) is proposing to approve
portions of the State Implementation
Plan (SIP) submission, submitted by the
State of Tennessee, through the
Tennessee Department of Environment
and Conservation (TDEC), on March 13,
2014, to demonstrate that the State
meets the infrastructure requirements of
the Clean Air Act (CAA or Act) for the
2010 nitrogen dioxide (NO2) national
ambient air quality standard (NAAQS).
The CAA requires that each state adopt
and submit a SIP for the
implementation, maintenance and
enforcement of each NAAQS
promulgated by EPA, which is
commonly referred to as an
‘‘infrastructure’’ SIP submission. TDEC
certified that the Tennessee SIP contains
provisions that ensure the 2010 NO2
NAAQS is implemented, enforced, and
maintained in Tennessee. With the
exception of provisions pertaining to
prevention of significant deterioration
(PSD) permitting, and interstate
transport provisions pertaining to the
contribution to nonattainment or
interference with maintenance, and
visibility in other states, for which EPA
is proposing no action through this
rulemaking, EPA is proposing to find
that Tennessee’s infrastructure SIP
submission, provided to EPA on March
13, 2014, satisfies the required
infrastructure elements for the 2010 NO2
NAAQS.
SUMMARY:
Written comments must be
received on or before August 15, 2016.
DATES:
Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2015–0252 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
EPA may publish any comment received
to its public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. EPA will generally
not consider comments or comment
contents located outside of the primary
submission (i.e. on the Web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
ADDRESSES:
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https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Richard Wong, Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Mr. Wong
can be reached via electronic mail at
wong.richard@epa.gov or via telephone
at (404) 562–8726.
SUPPLEMENTARY INFORMATION:
I. Background and Overview
On February 9, 2010 (75 FR 6474),
EPA published a new 1-hour primary
NAAQS for NO2 at a level of 100 parts
per billion (ppb), based on a 3-year
average of the 98th percentile of the
yearly distribution of 1-hour daily
maximum concentrations. See 75 FR
6474. Pursuant to section 110(a)(1) of
the CAA, states are required to submit
SIPs meeting the requirements of
section 110(a)(2) within three years after
promulgation of a new or revised
NAAQS or within such shorter period
as EPA may prescribe. Section 110(a)(2)
requires states to address basic SIP
requirements, including emissions
inventories, monitoring, and modeling
to assure attainment and maintenance of
the NAAQS. States were required to
submit such SIPs for the 2010 1-hour
NO2 NAAQS to EPA no later than
January 22, 2013.1
This action is proposing to approve
Tennessee’s infrastructure SIP
submission for the applicable
requirements of the 2010 1-hour NO2
NAAQS, with the exception of the PSD
permitting requirements for major
sources of sections 110(a)(2)(C), prong 3
of D(i), and (J), and the interstate
transport provisions of prongs 1, 2, and
4 of section 110(a)(2)(D)(i). On March
18, 2015, EPA approved Tennessee’s
March 13, 2014 infrastructure SIP
submission regarding the PSD
permitting requirements for major
sources of sections 110(a)(2)(C), prong 3
of D(i), and (J) for the 2010 1-hour NO2
1 In these infrastructure SIP submissions States
generally certify evidence of compliance with
sections 110(a)(1) and (2) of the CAA through a
combination of state regulations and statutes, some
of which have been incorporated into the federallyapproved SIP. In addition, certain federallyapproved, non-SIP regulations may also be
appropriate for demonstrating compliance with
sections 110(a)(1) and (2). Throughout this
rulemaking, unless otherwise indicated, the term
‘‘Tennessee Air Pollution Control Regulations’’ or
‘‘Regulation’’ indicates that the cited regulation has
been approved into Tennessee’s federally-approved
SIP. The term ‘‘Tennessee Annotated Code’’, or
‘‘TCA’’, indicates cited Tennessee state statutes,
which are not a part of the SIP unless otherwise
indicated.
E:\FR\FM\14JYP1.SGM
14JYP1
]]>Agencies
[Federal Register Volume 81, Number 135 (Thursday, July 14, 2016)]
[Proposed Rules]
[Pages 45428-45438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16577]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2014-0431; FRL- 9948-98-Region 4]
Air Plan Approval/Disapproval; Alabama; Infrastructure
Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality
Standard
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve in part and disapprove in part portions of the April 23, 2013,
State Implementation Plan (SIP) submission, submitted by the State of
Alabama, through the Alabama Department of Environmental Management
(ADEM), for inclusion into the Alabama SIP. This proposal pertains to
the infrastructure requirements of the Clean Air Act (CAA or Act) for
the 2010 1-hour sulfur dioxide (SO2) national ambient air
quality standard (NAAQS). The CAA requires that each state adopt and
submit a SIP for the implementation, maintenance and enforcement of
each NAAQS promulgated by EPA, which is commonly referred to as an
``infrastructure'' SIP. ADEM certified that the Alabama SIP contains
provisions that ensure the 2010 1-hour SO2 NAAQS is
implemented, enforced, and maintained in Alabama. With the exception of
provisions respecting state boards, which EPA is proposing to
disapprove, and interstate transport, which EPA is not proposing any
action at this time, EPA is proposing to determine that portions of
Alabama's infrastructure SIP submission provided to EPA on April 23,
2013, satisfy the required infrastructure elements for the 2010 1-hour
SO2 NAAQS.
DATES: Written comments must be received on or before August 15, 2016.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0431 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be
[[Page 45429]]
edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Michele Notarianni, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. Ms. Notarianni can be reached via electronic mail at
notarianni.michele@epa.gov or via telephone at (404) 562-9031.
SUPPLEMENTARY INFORMATION:
I. Background and Overview
On June 22, 2010 (75 FR 35520), EPA revised the primary
SO2 NAAQS to an hourly standard of 75 parts per billion
(ppb) based on a 3-year average of the annual 99th percentile of 1-hour
daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA,
states are required to submit SIPs meeting the applicable requirements
of section 110(a)(2) within three years after promulgation of a new or
revised NAAQS or within such shorter period as EPA may prescribe.
Section 110(a)(2) requires states to address basic SIP elements such as
requirements for monitoring, basic program requirements and legal
authority that are designed to assure attainment and maintenance of the
NAAQS. States were required to submit such SIPs for the 2010 1-hour
SO2 NAAQS to EPA no later than June 2, 2013.\1\
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\1\ In these infrastructure SIP submissions States generally
certify evidence of compliance with sections 110(a)(1) and (2) of
the CAA through a combination of state regulations and statutes,
some of which have been incorporated into the federally-approved
SIP. In addition, certain federally-approved, non-SIP regulations
may also be appropriate for demonstrating compliance with sections
110(a)(1) and (2). Throughout this rulemaking, unless otherwise
indicated, the term ``ADEM Administrative Code (Admin. Code r).''
indicates that the cited regulation has either been approved, or
submitted for approval into Alabama's federally-approved SIP. The
term ``Alabama Code'' (Ala. Code) indicates cited Alabama state
statutes, which are not a part of the SIP unless otherwise
indicated.
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This action is proposing to approve Alabama's infrastructure SIP
submission for the applicable requirements of the 2010 1-hour
SO2 NAAQS, with the exception of interstate transport
provisions pertaining to the contribution to nonattainment or
interference with maintenance in other states and visibility protection
requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and
4) and the state board requirements of section 110(a)(2)(E)(ii). With
respect to the interstate transport provisions of section
110(a)(2)(D)(i)(I) (prongs 1 and 2) and the visibility protection
requirements of section 110(a)(2)(D)(i)(II) (prong 4), EPA is not
proposing any action at this time regarding these requirements. With
respect to Alabama's infrastructure SIP submission related to section
110(a)(2)(E)(ii) requirements respecting the section 128 state board
requirements, EPA is proposing to disapprove this element of Alabama's
submission in this rulemaking. For the aspects of Alabama's submittal
proposed for approval today, EPA notes that the Agency is not approving
any specific rule, but rather proposing that Alabama's already approved
SIP meets certain CAA requirements.
II. What elements are required under Sections 110(a)(1) and (2)?
Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains.
More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. As mentioned previously, these
requirements include basic SIP elements such as requirements for
monitoring, basic program requirements and legal authority that are
designed to assure attainment and maintenance of the NAAQS. The
requirements of section 110(a)(2) are summarized later on and in EPA's
September 13, 2013, memorandum entitled ``Guidance on Infrastructure
State Implementation Plan (SIP) Elements under Clean Air Act Sections
110(a)(1) and 110(a)(2).'' \2\
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\2\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the nonattainment area
plan requirements are due pursuant to section 172. These
requirements are: (1) Submissions required by section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required
in part D, title I of the CAA; and (2) submissions required by
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, title I of the CAA. This proposed rulemaking
does not address infrastructure elements related to section
110(a)(2)(I) or the nonattainment planning requirements of
110(a)(2)(C).
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110(a)(2)(A): Emission Limits and Other Control Measures
110(a)(2)(B): Ambient Air Quality Monitoring/Data System
110(a)2(C): Programs for Enforcement of Control Measures and
for Construction or Modification of Stationary Sources \3\
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\3\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
110(a)(2)(D)(ii): Interstate Pollution Abatement and
International Air Pollution
110(a)(2)(E): Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies
110(a)(2)(F): Stationary Source Monitoring and Reporting
110(a)(2)(G): Emergency Powers
110(a)(2)(H): SIP Revisions
110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\
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\4\ As mentioned previously, this element is not relevant to
this proposed rulemaking.
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110(a)(2)(J): Consultation with Government Officials, Public
Notification, and Prevention of Significant Deterioration (PSD) and
Visibility Protection
110(a)(2)(K): Air Quality Modeling and Submission of Modeling
Data
110(a)(2)(L): Permitting fees
110(a)(2)(M): Consultation and Participation by Affected Local
Entities
[[Page 45430]]
III. What is EPA's approach to the review of infrastructure SIP
submissions?
EPA is acting upon the SIP submission from Alabama that addresses
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2)
for the 2010 1-hour SO2 NAAQS. The requirement for states to
make a SIP submission of this type arises out of CAA section 110(a)(1).
Pursuant to section 110(a)(1), states must make SIP submissions
``within 3 years (or such shorter period as the Administrator may
prescribe) after the promulgation of a national primary ambient air
quality standard (or any revision thereof),'' and these SIP submissions
are to provide for the ``implementation, maintenance, and enforcement''
of such NAAQS. The statute directly imposes on states the duty to make
these SIP submissions, and the requirement to make the submissions is
not conditioned upon EPA's taking any action other than promulgating a
new or revised NAAQS. Section 110(a)(2) includes a list of specific
elements that ``[e]ach such plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA, such
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to
address the nonattainment planning requirements of part D of title I of
the CAA, ``regional haze SIP'' submissions required by EPA rule to
address the visibility protection requirements of CAA section 169A, and
nonattainment new source review permit program submissions to address
the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\5\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
---------------------------------------------------------------------------
\5\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of title I of the
Act, which specifically address nonattainment SIP requirements.\6\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years, or in some cases three years, for such designations to be
promulgated.\7\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
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\6\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\7\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
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Another example of ambiguity within sections 110(a)(1) and
110(a)(2) with respect to infrastructure SIPs pertains to whether
states must meet all of the infrastructure SIP requirements in a single
SIP submission, and whether EPA must act upon such SIP submission in a
single action. Although section 110(a)(1) directs states to submit ``a
plan'' to meet these requirements, EPA interprets the CAA to allow
states to make multiple SIP submissions separately addressing
infrastructure SIP elements for the same NAAQS. If states elect to make
such multiple SIP submissions to meet the infrastructure SIP
requirements, EPA can elect to act on such submissions either
individually or in a larger combined action.\8\ Similarly, EPA
interprets the CAA to allow it to take action on the individual parts
of one larger, comprehensive infrastructure SIP submission for a given
NAAQS without concurrent action on the entire submission. For example,
EPA has sometimes elected to act at different times on various elements
and sub-elements of the same infrastructure SIP submission.\9\
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\8\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
\9\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
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Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise
with respect to infrastructure SIP submission requirements for
different NAAQS. Thus, EPA notes that not every element of section
110(a)(2) would be relevant, or as relevant, or relevant in the same
way, for each new or revised NAAQS. The states' attendant
infrastructure SIP submissions for each NAAQS therefore could be
different. For example, the monitoring requirements that a state might
need to meet in its infrastructure
[[Page 45431]]
SIP submission for purposes of section 110(a)(2)(B) could be very
different for different pollutants because the content and scope of a
state's infrastructure SIP submission to meet this element might be
very different for an entirely new NAAQS than for a minor revision to
an existing NAAQS.\10\
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\10\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
---------------------------------------------------------------------------
EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires that attainment plan SIP
submissions required by part D have to meet the ``applicable
requirements'' of section 110(a)(2). Thus, for example, attainment plan
SIP submissions must meet the requirements of section 110(a)(2)(A)
regarding enforceable emission limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it is clear that attainment plan SIP submissions required by
part D would not need to meet the portion of section 110(a)(2)(C) that
pertains to the PSD program required in part C of title I of the CAA,
because PSD does not apply to a pollutant for which an area is
designated nonattainment and thus subject to part D planning
requirements. As this example illustrates, each type of SIP submission
may implicate some elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\11\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\12\ EPA developed this document to provide states
with up-to-date guidance for infrastructure SIPs for any new or revised
NAAQS. Within this guidance, EPA describes the duty of states to make
infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
SIP submissions.\13\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and
110(a)(2) such that infrastructure SIP submissions need to address
certain issues and need not address others. Accordingly, EPA reviews
each infrastructure SIP submission for compliance with the applicable
statutory provisions of section 110(a)(2), as appropriate.
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\11\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
\12\ ``Guidance on Infrastructure State Implementation Plan
(SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
\13\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the United States (U.S.) Supreme Court agreed to review the
D.C. Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012)
which had interpreted the requirements of section
110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing
litigation, EPA elected not to provide additional guidance on the
requirements of section 110(a)(2)(D)(i)(I) at that time. As the
guidance is neither binding nor required by statute, whether EPA
elects to provide guidance on a particular section has no impact on
a state's CAA obligations.
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As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's
implementation plan appropriately addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's
interpretation that there may be a variety of ways by which states can
appropriately address these substantive statutory requirements,
depending on the structure of an individual state's permitting or
enforcement program (e.g., whether permits and enforcement orders are
approved by a multi-member board or by a head of an executive agency).
However they are addressed by the state, the substantive requirements
of section 128 are necessarily included in EPA's evaluation of
infrastructure SIP submissions because section 110(a)(2)(E)(ii)
explicitly requires that the state satisfy the provisions of section
128.
As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and new source review (NSR)
pollutants, including greenhouse gases (GHGs). By contrast, structural
PSD program requirements do not include provisions that are not
required under EPA's regulations at 40 CFR 51.166 but are merely
available as an option for the state, such as the option to provide
grandfathering of complete permit applications with respect to the 2012
fine particulate matter (PM2.5) NAAQS. Accordingly, the
latter optional provisions are types of provisions EPA considers
irrelevant in the context of an infrastructure SIP action.
For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's implementation plan meets basic structural requirements. For
example, section 110(a)(2)(C) includes, among other things, the
requirement that states have a program to regulate minor new sources.
Thus, EPA evaluates whether the state has an EPA-approved minor NSR
program and whether the program addresses the pollutants relevant to
that NAAQS. In the context of acting on an infrastructure SIP
submission, however, EPA does not think it is necessary to conduct a
review of each and every provision of a state's existing minor source
program (i.e., already in the
[[Page 45432]]
existing SIP) for compliance with the requirements of the CAA and EPA's
regulations that pertain to such programs.
With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction that may be contrary to the CAA and EPA's
policies addressing such excess emissions (``SSM''); (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for PSD programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR
Reform''). Thus, EPA believes it may approve an infrastructure SIP
submission without scrutinizing the totality of the existing SIP for
such potentially deficient provisions and may approve the submission
even if it is aware of such existing provisions.\14\ It is important to
note that EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that relate to the three
specific issues just described.
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\14\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then EPA would need to evaluate that provision
for compliance against the rubric of applicable CAA requirements in
the context of the action on the infrastructure SIP.
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EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in 110(a)(2) as requiring review of
each and every provision of a state's existing SIP against all
requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may include some outmoded
provisions and historical artifacts. These provisions, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP
submission. EPA believes that a better approach is for states and EPA
to focus attention on those elements of section 110(a)(2) of the CAA
most likely to warrant a specific SIP revision due to the promulgation
of a new or revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
Finally, EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow EPA to take appropriately
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's implementation
plan is substantially inadequate to attain or maintain the NAAQS, to
mitigate interstate transport, or to otherwise comply with the CAA.\15\
Section 110(k)(6) authorizes EPA to correct errors in past actions,
such as past approvals of SIP submissions.\16\ Significantly, EPA's
determination that an action on a state's infrastructure SIP submission
is not the appropriate time and place to address all potential existing
SIP deficiencies does not preclude EPA's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action to
correct those deficiencies at a later time. For example, although it
may not be appropriate to require a state to eliminate all existing
inappropriate director's discretion provisions in the course of acting
on an infrastructure SIP submission, EPA believes that section
110(a)(2)(A) may be among the statutory bases that EPA relies upon in
the course of addressing such deficiency in a subsequent action.\17\
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\15\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
\16\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under CAA section 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\17\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how Alabama addressed the elements of the
Sections 110(a)(1) and (2) ``Infrastructure'' provisions?
Alabama's infrastructure SIP submission addresses the provisions of
sections 110(a)(1) and (2) as described later on.
1. 110(a)(2)(A): Emission Limits and Other Control Measures:
Section 110(a)(2)(A) requires that each implementation plan include
enforceable emission limitations and other control measures, means, or
techniques (including economic incentives such as fees, marketable
permits, and auctions of emissions rights), as well as schedules and
timetables for compliance, as may be necessary or appropriate to meet
the applicable requirements. Several regulations within Alabama's SIP
are relevant to air quality control regulations. The regulations
described later on have been federally approved in the Alabama SIP and
include enforceable emission limitations and other control measures.
ADEM Admin. Code r. 335-3-1-.03--Ambient Air Quality Standards,
authorizes ADEM to adopt rules for the control of air pollution in
order to comply with NAAQS, including those necessary to obtain EPA
approval under section 110 of the CAA. ADEM Admin. Code r. 335-3-
1-.06--Compliance Schedule, sets the schedule for compliance with the
State's Air Pollution Control rules and
[[Page 45433]]
regulations to be consistent with the requirements of the CAA. ADEM
Admin. Code r. 335-3-1-05--Sampling and Testing Methods, details the
authority and means with which ADEM can require testing and emissions
verification. Also, the following ADEM Administrative Code rules
regulate stack height: 335-3-14-03(2)--Stack Heights, subparagraphs (d)
and (e), 335-3-15-02(9)--Stack Heights, subparagraphs (d) and (e), and
335-3-16-.02(10)--General Provisions, subparagraphs (d) and (e). EPA
has made the preliminary determination that Alabama's SIP satisfies
Section 110(a)(2)(A) for the 2010 1-hour SO2 NAAQS in the
State.
In this action, EPA is not proposing to approve or disapprove any
existing State provisions with regard to excess emissions during SSM of
operations at a facility. EPA believes that a number of states have SSM
provisions which are contrary to the CAA and existing EPA guidance,
``State Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the
Agency is addressing such state regulations in a separate action.\18\
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\18\ On June 12, 2015, EPA published a final action entitled,
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs;
Findings of Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown, and Malfunction.'' See 80 FR 33840.
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Additionally, in this action, EPA is not proposing to approve or
disapprove any existing State rules with regard to director's
discretion or variance provisions. EPA believes that a number of states
have such provisions which are contrary to the CAA and existing EPA
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to
take action in the future to address such state regulations. In the
meantime, EPA encourages any state having a director's discretion or
variance provision which is contrary to the CAA and EPA guidance to
take steps to correct the deficiency as soon as possible.
2. 110(a)(2)(B) Ambient Air Quality Monitoring/Data System: Section
110(a)(2)(B) requires SIPs to provide for establishment and operation
of appropriate devices, methods, systems, and procedures necessary to
(i) monitor, compile, and analyze data on ambient air quality, and (ii)
upon request, make such data available to the Administrator. ADEM
Admin. Code r. 335-3-1-.04--Monitoring, Records, and Reporting,
requires sources to submit emissions monitoring reports as prescribed
by the Director of ADEM. Pursuant to this regulation, these sources
collect air monitoring data, quality assure the results, and report the
data to EPA. ADEM Admin. Code r. 335-3-1-.05--Sampling and Testing
Methods, details the authority and means through which ADEM can require
testing and emissions verification. ADEM Admin. Code r. 335-3-14-.04--
Air Permits Authorizing Construction in Clean Air: Prevention of
Significant Deterioration Permitting (PSD), describes the State's use
of ambient air quality monitoring data for purposes of permitting new
facilities and assessing major modifications to existing facilities.
Annually, States develop and submit to EPA for approval statewide
ambient monitoring network plans consistent with the requirements of 40
CFR parts 50, 53, and 58. The annual network plan involves an
evaluation of any proposed changes to the monitoring network, and
includes the annual ambient monitoring network design plan and a
certified evaluation of the agency's ambient monitors and auxiliary
support equipment.\19\ On July 22, 2015, Alabama submitted its plan to
EPA. On November 19, 2015, EPA approved Alabama's monitoring network
plan. Alabama's approved monitoring network plan can be accessed at
www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0431. EPA has
made the preliminary determination that Alabama's SIP and practices are
adequate for the ambient air quality monitoring and data system related
to the 2010 1-hour SO2 NAAQS.
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\19\ On occasion, proposed changes to the monitoring network are
evaluated outside of the network plan approval process in accordance
with 40 CFR part 58.
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3. 110(a)(2)(C) Programs for Enforcement of Control Measures and
for Construction or Modification of Stationary Sources: This element
consists of three sub-elements: Enforcement, state-wide regulation of
new and modified minor sources and minor modifications of major
sources, and preconstruction permitting of major sources and major
modifications in areas designated attainment or unclassifiable for the
subject NAAQS as required by CAA title I part C (i.e., the major source
PSD program). ADEM's 2010 1-hour SO2 NAAQS infrastructure
SIP submission cited a number of SIP provisions to address these
requirements. Specifically, the submission cited ADEM Admin. Code r.
335-3-14-.01--General Provisions, 335-3-14-.02,--Permit Procedure, 335-
3-14-.03--Standards for Granting Permits, 335-3-14-.04--Prevention of
Significant Deterioration in Permitting and 335-3-14-.05--Air Permits
Authorizing Construction in or Near Nonattainment Areas. Collectively,
these provisions of Alabama's SIP regulate the construction of any new
major stationary source or any modification at an existing major
stationary source in an area designated as nonattainment, attainment or
unclassifiable.
Enforcement: ADEM's above-described, SIP-approved regulations
provide for enforcement of SO2 emission limits and control
measures through construction permitting for new or modified stationary
sources. Note also that ADEM has authority to issue enforcement orders
and assess penalties (see Ala. Code sections 22-22A-5, 22-28-10 and 22-
28-22).
PSD Permitting for Major Sources: EPA interprets the PSD sub-
element to require that a state's infrastructure SIP submission for a
particular NAAQS demonstrate that the state has a complete PSD
permitting program in place covering the structural PSD requirements
for all regulated NSR pollutants. A state's PSD permitting program is
complete for this sub-element (and prong 3 of D(i) and J related to
PSD) if EPA has already approved or is simultaneously approving the
state's implementation plan with respect to all structural PSD
requirements that are due under the EPA regulations or the CAA on or
before the date of the EPA's proposed action on the infrastructure SIP
submission.
For the 2010 1-hour SO2 NAAQS, Alabama's authority to
regulate new and modified sources to assist in the protection of air
quality in Alabama is established in the Alabama Administrative Code
Chapters 335-3-14-.01--General Provisions, 335-3-14-.02--Permit
Procedure, 335-3-14-.03--Standards for Granting Permits, 335-3-14-.04--
Prevention of Significant Deterioration in Permitting, and 335-3-
14-.05--Air Permits Authorizing Construction in or Near Nonattainment
Areas. Alabama's SIP contains the current structural requirements of
part C of title I of the CAA to satisfy the infrastructure SIP PSD
elements.\20\
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\20\ For more information on EPA's analysis of Alabama's
infrastructure SIP in connection with the current PSD-related
infrastructure requirements, see the Technical Support Document in
the docket for this rulemaking.
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As such, EPA has made the preliminary determination that Alabama's
SIP satisfies this PSD element for the 2010 1-hour SO2
NAAQS.
Regulation of minor sources and modifications: Section 110(a)(2)(C)
also requires the SIP to include provisions that govern the minor
source program
[[Page 45434]]
that regulates emissions of the 2010 1-hour SO2 NAAQS. ADEM
Admin. Code r. 335-3-14-.01 General Provisions, 335-3-14-.02 Permit
Procedure, and 335-3-14-.03--Standards for Granting Permits govern the
preconstruction permitting of modifications and construction of minor
stationary sources.
EPA has made the preliminary determination that Alabama's SIP and
practices are adequate for program enforcement of control measures and
regulation of minor sources and modifications, and preconstruction
permitting of modifications and construction of minor stationary
sources, and minor modifications of major stationary sources related to
the 2010 1-hour SO2 NAAQS.
4. 110(a)(2)(D)(i)(I) and (II) Interstate Pollution Transport:
Section 110(a)(2)(D)(i) has two components: 110(a)(2)(D)(i)(I) and
110(a)(2)(D)(i)(II). Each of these components has two subparts
resulting in four distinct components, commonly referred to as
``prongs,'' that must be addressed in infrastructure SIP submissions.
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I),
are provisions that prohibit any source or other type of emissions
activity in one state from contributing significantly to nonattainment
of the NAAQS in another state (``prong 1''), and interfering with
maintenance of the NAAQS in another state (``prong 2''). The third and
fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are
provisions that prohibit emissions activity in one state from
interfering with measures required to prevent significant deterioration
of air quality in another state (``prong 3''), or to protect visibility
in another state (``prong 4'').
110(a)(2)(D)(i)(I)--prongs 1 and 2: EPA is not proposing any action
in this rulemaking related to the interstate transport provisions
pertaining to the contribution to nonattainment or interference with
maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and
2) because Alabama's 2010 1-hour SO2 NAAQS infrastructure
submission did not address prongs 1 and 2.
110(a)(2)(D)(i)(II)--prong 3: With regard to section
110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, this
requirement may be met by a state's confirmation in an infrastructure
SIP submission that new major sources and major modifications in the
state are subject to: A PSD program meeting current structural
requirements of part C of title I of the CAA, or (if the state contains
a nonattainment area that has the potential to impact PSD in another
state) a NNSR program. As discussed in more detail previously under
section 110(a)(2)(C), Alabama's SIP contains provisions for the State's
PSD program that reflect the required structural PSD requirements to
satisfy the requirement of prong 3. EPA has made the preliminary
determination that Alabama's SIP satisfies section 110(a)(2)(D)(i)(II)
(prong 3) for PSD permitting of major sources and major modifications
related to interstate transport for the 2010 1-hour SO2
NAAQS.
110(a)(2)(D)(i)(II)--prong 4: EPA is not proposing any action in
this rulemaking related to the interstate transport provisions
pertaining to the contribution to nonattainment or interference with
maintenance in other states of section 110(a)(2)(D)(i)(II) (prong 4)
and will consider these requirements in relation to Alabama's 2010 1-
hour SO2 NAAQS infrastructure submission in a separate
rulemaking.
5. 110(a)(2)(D)(ii) Interstate and International Transport
Provisions: Section 110(a)(2)(D)(ii) requires SIPs to include
provisions ensuring compliance with sections 115 and 126 of the Act,
relating to interstate and international pollution abatement. ADEM
Admin. Code r. 335-3-14-.04--Prevention of Significant Deterioration in
Permitting describes how Alabama notifies neighboring states of
potential emission impacts from new or modified sources applying for
PSD permits. This regulation requires ADEM to provide an opportunity
for a public hearing to the public, which includes state or local air
pollution control agencies, ``whose lands may be affected by emissions
from the source or modification'' in Alabama. Additionally, Alabama
does not have any pending obligation under sections 115 and 126 of the
CAA. EPA has made the preliminary determination that Alabama's SIP and
practices are adequate for ensuring compliance with the applicable
requirements relating to interstate and international pollution
abatement for the 2010 1-hour SO2 NAAQS.
6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies:
Section 110(a)(2)(E) requires that each implementation plan provide:
(i) Necessary assurances that the state will have adequate personnel,
funding, and authority under state law to carry out its implementation
plan, (ii) that the state comply with the requirements respecting state
boards pursuant to section 128 of the Act, and (iii) necessary
assurances that, where the state has relied on a local or regional
government, agency, or instrumentality for the implementation of any
plan provision, the state has responsibility for ensuring adequate
implementation of such plan provisions. EPA is proposing to approve
Alabama's infrastructure SIP submission as meeting the requirements of
sub-elements 110(a)(2)(E)(i) and (iii). With respect to sub-element
110(a)(2)(E)(ii) (regarding state boards), EPA is proposing to
disapprove this sub-element. EPA's rationale respecting each sub-
element is described in turn later on.
In support of EPA's proposal to approve sub-elements
110(a)(2)(E)(i) and (iii), ADEM's infrastructure submission
demonstrates that it is responsible for promulgating rules and
regulations for the NAAQS, emissions standards, general policies, a
system of permits, fee schedules for the review of plans, and other
planning needs as authorized at Ala. Code section 22-28-11 and section
22-28-9. As evidence of the adequacy of ADEM's resources with respect
to sub-elements (i) and (iii), EPA submitted a letter to Alabama on
April 19, 2016, outlining 105 grant commitments and current status of
these commitments for fiscal year 2015. The letter EPA submitted to
Alabama can be accessed at www.regulations.gov using Docket ID No. EPA-
R04-OAR-2014-0431. Annually, states update these grant commitments
based on current SIP requirements, air quality planning, and applicable
requirements related to the NAAQS. There were no outstanding issues in
relation to the SIP for fiscal year 2015, therefore, Alabama's grants
were finalized and closed out. Alabama's funding is also met through
the state's title V fee program at ADEM Admin. Code r. 335-1-7--Air
Division Operating Permit Fees \21\ and ADEM Admin. Code r. 335-1-6--
Application Fees.\22\ In addition, the requirements of 110(a)(2)(E)(i)
and (iii) are met when EPA performs a completeness determination for
each SIP submittal. This determination ensures that each submittal
provides evidence that adequate personnel, funding, and legal authority
under state law has been used to carry out the state's implementation
plan and related issues. Alabama's authority to implement provisions of
the State's implementation plan is included in all prehearings and
final SIP submittal packages for approval by EPA. EPA has made the
preliminary determination that Alabama has
[[Page 45435]]
adequate authority and resources for implementation of the 2010 1-hour
SO2 NAAQS.
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\21\ Title V program regulations are federally-approved but not
incorporated into the federally-approved SIP.
\22\ This regulation has not been incorporated into the
federally-approved SIP.
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Section 110(a)(2)(E)(ii) requires that SIPs comply with section 128
of the CAA. Section 128 requires that SIPs contain provisions to
provide that: (1) The majority of members of the state board or body
which approves permits or enforcement orders represent the public
interest and do not derive any significant portion of their income from
persons subject to permitting or enforcement orders under the CAA; and
(2) any potential conflicts of interest by such board or body, or the
head of an executive agency with similar powers be adequately
disclosed. After reviewing Alabama's SIP, EPA has made the preliminary
determination that the State's implementation plan does not contain
provisions to comply with section 128 of the Act, and thus Alabama's
April 23, 2013, infrastructure SIP submission does not meet the
requirements of the Act. While Alabama has state statutes that may
address, in whole or part, requirements related to state boards at the
state level, these provisions are not included in the SIP as required
by the CAA. Based on an evaluation of the federally-approved Alabama
SIP, EPA is proposing to disapprove Alabama's certification that its
SIP meets the requirements of 110(a)(2)(E)(ii) of the CAA for the 2010
1-hour SO2 NAAQS. The submitted provisions which purport to
address 110(a)(2)(E)(ii) are severable from the other portions of
ADEM's infrastructure SIP submission, therefore, EPA is proposing to
disapprove those provisions which relate only to sub-element
110(a)(2)(E)(ii).
7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section
110(a)(2)(F) requires SIPs to meet applicable requirements addressing:
(i) The installation, maintenance, and replacement of equipment, and
the implementation of other necessary steps, by owners or operators of
stationary sources to monitor emissions from such sources, (ii)
periodic reports on the nature and amounts of emissions and emissions
related data from such sources, and (iii) correlation of such reports
by the state agency with any emission limitations or standards
established pursuant to this section, which reports shall be available
at reasonable times for public inspection. ADEM's infrastructure SIP
submission describes the establishment of requirements for compliance
testing by emissions sampling and analysis, and for emissions and
operation monitoring to ensure the quality of data in the State. The
Alabama infrastructure SIP submission also describes how the major
source and minor source emission inventory programs collect emission
data throughout the State and ensure the quality of such data. Alabama
meets these requirements through ADEM Admin. Code r. 335-3-1-.04--
Monitoring, Records, and Reporting, and 335-3-12--Continuous Monitoring
Requirements for Existing Sources. ADEM Admin. Code r. 335-3-1-.04,
details how sources are required as appropriate to establish and
maintain records; make reports; install, use, and maintain such
monitoring equipment or methods; and provide periodic emission reports
as the regulation requires. Additionally, ADEM Admin. Code r. 335-3-
12-.02 requires owners and operators of emissions sources to ``install,
calibrate, operate and maintain all monitoring equipment necessary for
continuously monitoring the pollutants.'' \23\ ADEM Admin. Code r. 335-
3-1-.13--Credible Evidence, makes allowances for owners and/or
operators to utilize ``any credible evidence or information relevant''
to demonstrate compliance with applicable requirements if the
appropriate performance or compliance test had been performed, for the
purpose of submitting compliance certification and can be used to
establish whether or not an owner or operator has violated or is in
violation of any rule or standard. Accordingly, EPA is unaware of any
provision preventing the use of credible evidence in the Alabama SIP.
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\23\ ADEM Admin. Code r. 335-3-12-.02 establishes that data
reporting requirements for sources required to conduct continuous
monitoring in the state should comply with data reporting
requirements set forth at 40 CFR part 51, Appendix P. Section 40 CFR
part 51, Appendix P includes that the averaging period used for data
reporting should be established by the state to correspond to the
averaging period specified in the emission test method used to
determine compliance with an emission standard for the pollutant/
source category in question.
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Additionally, Alabama is required to submit emissions data to EPA
for purposes of the National Emissions Inventory (NEI). The NEI is
EPA's central repository for air emissions data. EPA published the Air
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the
requirements for collecting and reporting air emissions data (73 FR
76539). The AERR shortened the time states had to report emissions data
from 17 to 12 months, giving states one calendar year to submit
emissions data. All states are required to submit a comprehensive
emissions inventory every three years and report emissions for certain
larger sources annually through EPA's online Emissions Inventory
System. States report emissions data for the six criteria pollutants
and the precursors that form them--NOX, SO2,
ammonia, lead, carbon monoxide, particulate matter, and volatile
organic compounds. Many states also voluntarily report emissions of
hazardous air pollutants. Alabama made its latest update to the 2011
NEI on May 7, 2013. EPA compiles the emissions data, supplementing it
where necessary, and releases it to the general public through the Web
site https://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the
preliminary determination that Alabama's SIP and practices are adequate
for the stationary source monitoring systems related to the 2010 1-hour
SO2 NAAQS.
8. 110(a)(2)(G) Emergency Powers: This section requires that states
demonstrate authority comparable with section 303 of the CAA and
adequate contingency plans to implement such authority. Ala. Code
sections 22-28-22, 22-28-14 and 22-28-21 grant ADEM authority to adopt
regulations for the purpose of protecting human health, welfare and the
environment as required by section 303 of the CAA. ADEM Admin. Code r.
335-3-2,--Air Pollution Emergency, provides for the identification of
air pollution emergency episodes, episode criteria, and emissions
reduction plans. Alabama's compliance with section 303 of the CAA and
adequate contingency plans to implement such authority is also met by
Ala. Code section 22-28-21 Air Pollution Emergencies. Ala. Code Section
22-28-21 provides ADEM the authority to order the ``person or persons
responsible for the operation or operations of one or more air
contaminants sources'' causing ``imminent danger to human health or
safety in question to reduce or discontinue emissions immediately.''
The order triggers a hearing no later than 24-hours after issuance
before the Environmental Management Commission which can affirm, modify
or set aside the Director's order. Additionally, the Governor can, by
proclamation, declare, as to all or any part of said area, that an air
pollution emergency exists and exercise certain powers in whole or in
part, by the issuance of an order or orders to protect the public
health. Under Ala. Code sections 22-28-3(a) and 22-28-10(2), ADEM also
has the authority to issue such orders as may be necessary to
effectuate the purposes of the Alabama Pollution Control Act, which
includes achieving and maintaining such levels of air quality as will
protect human health and safety and, to the greatest
[[Page 45436]]
degree practicable, prevent injury to plant and animal life and
property, foster the comfort and convenience of the people, promote the
social development of this state and facilitate the enjoyment of the
natural attractions of the state. EPA has made the preliminary
determination that Alabama's SIP, state laws and practices are adequate
to satisfy the infrastructure SIP obligations for emergency powers
related to the 2010 1-hour SO2 NAAQS. Accordingly, EPA is
proposing to approve Alabama's infrastructure SIP submission with
respect to section 110(a)(2)(G).
9. 110(a)(2)(H) SIP Revisions: Section 110(a)(2)(H), in summary,
requires each SIP to provide for revisions of such plan: (i) As may be
necessary to take account of revisions of such national primary or
secondary ambient air quality standard or the availability of improved
or more expeditious methods of attaining such standard, and (ii)
whenever the Administrator finds that the plan is substantially
inadequate to attain the NAAQS or to otherwise comply with any
additional applicable requirements. As previously discussed, ADEM is
responsible for adopting air quality rules and revising SIPs as needed
to attain or maintain the NAAQS. Alabama has the ability and authority
to respond to calls for SIP revisions, and has provided a number of SIP
revisions over the years for implementation of the NAAQS. ADEM Admin.
Code r. 335-1-1-.03--Organization and Duties of the Commission,\24\
provides the Alabama Environmental Management Commission with the
authority to establish, adopt, promulgate, modify, repeal and suspend
rules, regulations, or environmental standards which may be applicable
to Alabama or ``any of its geographic parts.'' Admin. Code r. 335-3-
1-.03--Ambient Air Quality Standards, incorporate NAAQS, as amended or
revised, and provides that the NAAQS apply throughout the State. EPA
has made the preliminary determination that Alabama adequately
demonstrates a commitment to provide future SIP revisions related to
the 2010 1-hour SO2 NAAQS when necessary. Accordingly, EPA
is proposing to approve Alabama's infrastructure SIP submission with
respect to section 110(a)(2)(H).
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\24\ This regulation has not been incorporated into the
federally-approved SIP.
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10. 110(a)(2)(J) Consultation with government officials, public
notification, and PSD and visibility protection: EPA is proposing to
approve Alabama's infrastructure SIP for the 2010 1-hour SO2
NAAQS with respect to the general requirement in section 110(a)(2)(J)
to include a program in the SIP that complies with the applicable
consultation requirements of section 121, the public notification
requirements of section 127, PSD and visibility protection. EPA's
rationale for each sub-element is described later on.
Consultation with government officials (121 consultation): Section
110(a)(2)(J) of the CAA requires states to provide a process for
consultation with local governments, designated organizations and
Federal Land Managers (FLMs) carrying out NAAQS implementation
requirements pursuant to section 121 relative to consultation. ADEM
Admin. Code r. 335-3-1-.03--Ambient Air Quality Standards, as well as
its Regional Haze Implementation Plan (which allows for continued
consultation with appropriate state, local, and tribal air pollution
control agencies as well as the corresponding FLMs), provide for
consultation with government officials whose jurisdictions might be
affected by SIP development activities. In addition, Alabama adopted
state-wide consultation procedures for the implementation of
transportation conformity which includes the development of mobile
inventories for SIP development. These consultation procedures were
developed in coordination with the transportation partners in the State
and are consistent with the approaches used for development of mobile
inventories for SIPs. Required partners covered by Alabama's
consultation procedures include Federal, state and local transportation
and air quality agency officials. EPA has made the preliminary
determination that Alabama's SIP and practices adequately demonstrate
consultation with government officials related to the 2010 1-hour
SO2 NAAQS when necessary.
Public notification (127 public notification): ADEM Admin. Code r.
335-3-14-.01(7)--Public Participation, and 335-3-14-.05(13)--Public
Participation, and Ala. Code section 22-28-21--Air Pollution
Emergencies, provide for public notification when air pollution
episodes occur. Furthermore, ADEM has several public notice mechanisms
in place to notify the public of ozone and PM2.5
forecasting. Alabama maintains a public Web site on which daily air
quality index forecasts are posted for the Birmingham, Huntsville, and
Mobile areas. This Web site can be accessed at: https://adem.alabama.gov/programs/air/airquality.cnt. Although specific air
quality forecasts for SO2 are not provided, they are
provided for PM2.5 for which SO2 is a precursor.
Accordingly, EPA is proposing to approve Alabama's infrastructure SIP
submission with respect to section 110(a)(2)(J) public notification.
PSD: With regard to the PSD element of section 110(a)(2)(J), this
requirement may be met by the state's confirmation in an infrastructure
SIP submission that new major sources and major modifications in the
state are subject to a PSD program meeting current structural
requirements of part C of title I of the CAA. As discussed in more
detail previously under the section discussing 110(a)(2)(C), Alabama's
SIP contains the required structural PSD requirements to satisfy the
PSD element of section 110(a)(2)(J). Thus, EPA has made the preliminary
determination that Alabama's SIP satisfies the PSD element of section
110(a)(2)(J) for the 2010 1-hour SO2 NAAQS .
Visibility protection: EPA's 2013 Guidance notes that it does not
treat the visibility protection aspects of section 110(a)(2)(J) as
applicable for purposes of the infrastructure SIP approval process.
ADEM referenced its regional haze program as germane to the visibility
component of section 110(a)(2)(J). EPA recognizes that states are
subject to visibility protection and regional haze program requirements
under part C of the Act (which includes sections 169A and 169B).
However, there are no newly applicable visibility protection
obligations after the promulgation of a new or revised NAAQS. Thus, EPA
has determined that states do not need to address the visibility
component of 110(a)(2)(J) in infrastructure SIP submittals so ADEM does
not need to rely on its regional haze program to fulfill its
obligations under section 110(a)(2)(J). As such, EPA has made the
preliminary determination that Alabama's submission is approvable for
the visibility protection element of section 110(a)(2)(J) and that
Alabama does not need to rely on its regional haze program to address
this element.
11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for
performing air quality modeling so that effects on air quality of
emissions from NAAQS pollutants can be predicted and submission of such
data to the EPA can be made. ADEM Admin. Code r. 335-3-14-.04--
Prevention of Significant Deterioration Permitting, specifically sub-
paragraph (11)--Air Quality Models, specifies that required air
modeling be conducted in accordance with 40 CFR part 51, Appendix W
``Guideline on Air Quality Models''. ADEM Admin. Code r. 335-3-1-.04--
Monitoring, Records, and
[[Page 45437]]
Reporting details how sources are required as appropriate to establish
and maintain records; make reports; install, use, and maintain such
monitoring equipment or methods; and provide periodic emission reports
as the regulation requires. These reports and records are required to
be compiled, and submitted on forms furnished by the State. These
regulations also demonstrate that Alabama has the authority to provide
relevant data for the purpose of predicting the effect on ambient air
quality of the 2010 1-hour SO2 NAAQS. Additionally, Alabama
participates in a regional effort to coordinate the development of
emissions inventories and conduct regional modeling for several NAAQS,
including the 2010 1-hour SO2 NAAQS, for the southeastern
states. Taken as a whole, Alabama's air quality regulations and
practices demonstrate that ADEM has the authority to provide relevant
data for the purpose of predicting the effect on ambient air quality of
any emissions of any pollutant for which a NAAQS has been promulgated,
and to provide such information to the EPA Administrator upon request.
EPA has made the preliminary determination that Alabama's SIP and
practices adequately demonstrate the State's ability to provide for air
quality modeling, along with analysis of the associated data, related
to the 2010-1-hour SO2 NAAQS. Accordingly, EPA is proposing
to approve Alabama's infrastructure SIP submission with respect to
section 110(a)(2)(K).
12. 110(a)(2)(L) Permitting Fees: This section requires the owner
or operator of each major stationary source to pay to the permitting
authority, as a condition of any permit required under the CAA, a fee
sufficient to cover (i) the reasonable costs of reviewing and acting
upon any application for such a permit, and (ii) if the owner or
operator receives a permit for such source, the reasonable costs of
implementing and enforcing the terms and conditions of any such permit
(not including any court costs or other costs associated with any
enforcement action), until such fee requirement is superseded with
respect to such sources by the Administrator's approval of a fee
program under title V. ADEM Admin. Code r. 335-1-6--Application Fees
\25\ requires ADEM to charge permit-specific fees to the applicant/
source as authorized by Ala. Code section 22-22A-5. ADEM relies on
these State requirements to demonstrate that its permitting fee
structure is sufficient for the reasonable cost of reviewing and acting
upon PSD and NNSR permits. Additionally, Alabama has a fully-approved
title V operating permit program--ADEM Admin. Code r. 335-1-7--Air
Division Operating Permit Fees\26\--that covers the cost of
implementation and enforcement of PSD and NNSR permits after they have
been issued. EPA has made the preliminary determination that Alabama's
state rules and practices adequately provide for permitting fees
related to the 2010 1-hour SO2 NAAQS, when necessary.
Accordingly, EPA is proposing to approve Alabama's infrastructure SIP
submission with respect to section 110(a)(2)(L).
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\25\ This regulation has not been incorporated into the
federally-approved SIP.
\26\ Title V program regulations are federally approved but not
incorporated into the federally-approved SIP.
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13. 110(a)(2)(M) Consultation and Participation by Affected Local
Entities: Section 110(a)(2)(M) of the Act requires states to provide
for consultation and participation in SIP development by local
political subdivisions affected by the SIP. ADEM coordinates with local
governments affected by the SIP. ADEM Administrative Code 335-3-
17-.01--Transportation Conformity is one way that Alabama provides for
consultation with affected local entities. More specifically, Alabama
adopted state-wide consultation procedures for the implementation of
transportation conformity which includes the development of mobile
inventories for SIP development and the requirements that link
transportation planning and air quality planning in nonattainment and
maintenance areas. Required partners covered by Alabama's consultation
procedures include Federal, state and local transportation and air
quality agency officials. Furthermore, ADEM has worked with the Federal
Land Managers as a requirement of the regional haze rule. EPA has made
the preliminary determination that Alabama's SIP and practices
adequately demonstrate consultation with affected local entities
related to the 2010 1-hour SO2 NAAQS when necessary.
V. Proposed Action
With the exception of interstate transport provisions pertaining to
visibility protection requirements of section 110(a)(2)(D)(i)(II)
(prong 4), and the state board requirements of section
110(a)(2)(E)(ii), EPA is proposing to approve Alabama's April 23, 2013,
SIP submission for the 2010 1-hour SO2 NAAQS for the
previously described infrastructure SIP requirements. EPA is proposing
to disapprove section 110(a)(2)(E)(ii) of Alabama's infrastructure
submission because the State's implementation plan does not contain
provisions to comply with section 128 of the Act, and thus Alabama's
April 23, 2013, infrastructure SIP submission does not meet the
requirements of the Act. The interstate transport requirements of
section 110(a)(2)(D)(i)(I) (prongs 1 and 2) will not be addressed by
EPA at this time.
Under section 179(a) of the CAA, final disapproval of a submittal
that addresses a requirement of a CAA Part D Plan, or is required in
response to a finding of substantial inadequacy as described in CAA
section 110(k)(5) (SIP call), starts a sanctions clock. The portion of
section 110(a)(2)(E)(ii) provisions (the provisions being proposed for
disapproval in this notice) were not submitted to meet requirements for
Part D or a SIP call, and therefore, if EPA takes final action to
disapprove this submittal, no sanctions will be triggered. However, if
this disapproval action is finalized, that final action will trigger
the requirement under section 110(c) that EPA promulgate a Federal
Implementation Plan (FIP) no later than two years from the date of the
disapproval unless the State corrects the deficiency, and EPA approves
the plan or plan revision before EPA promulgates such FIP.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described
[[Page 45438]]
in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation
land or in any other area where EPA or an Indian tribe has demonstrated
that a tribe has jurisdiction. In those areas of Indian country, the
rule does not have tribal implications as specified by Executive Order
13175 (65 FR 67249, November 9, 2000), nor will it impose substantial
direct costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 30, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-16577 Filed 7-13-16; 8:45 am]
BILLING CODE 6560-50-P
