Air Plan Approval/Disapproval; Alabama Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standards, 47124-47133 [2016-17053]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 81, Number 139 (Wednesday, July 20, 2016)]
[Proposed Rules]
[Pages 47124-47133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17053]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2014-0756; FRL-9949-27-Region 4]


Air Plan Approval/Disapproval; Alabama Infrastructure 
Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality 
Standards

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve in part and disapprove in part portions of the April 23, 2013, 
and December 9, 2015, update State Implementation Plan (SIP) 
submissions, submitted by the State of Alabama, through the Alabama 
Department of Environmental Management (ADEM), for inclusion into the 
Alabama SIP. This proposal pertains to the infrastructure requirements 
of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide 
(NO2) national ambient air quality standard (NAAQS). The CAA 
requires that each state adopt and submit a SIP for the implementation, 
maintenance and enforcement of each NAAQS promulgated by EPA, which is 
commonly referred to as an ``infrastructure'' SIP. ADEM certified that 
the Alabama SIP contains provisions that ensure the 2010 1-hour 
NO2 NAAQS is implemented, enforced, and maintained in 
Alabama. With the exception of provisions pertaining to prevention of 
significant deterioration (PSD) permitting, and visibility in other 
states, for which EPA is proposing no action through this notice, and 
with the exception of the provisions respecting state boards, for which 
EPA is proposing disapproval, EPA is proposing to approve Alabama's 
infrastructure SIP submissions provided to EPA on April 23, 2013, and 
updated on December 9, 2015, as satisfying the required infrastructure 
elements for the 2010 NO2 NAAQS.

DATES: Written comments must be received on or before August 19, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0756 at 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 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.,

[[Page 47125]]

Atlanta, Georgia 30303-8960. The telephone number is (404) 562-8726. 
Mr. Wong can be reached via electronic mail at wong.richard@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On February 9, 2010, EPA published a new 1-hour primary NAAQS for 
NO2 at a level of 100 parts per billion (ppb), based on a 3-
year average of the 98th percentile of the yearly distribution of 1-
hour daily maximum concentrations. See 75 FR 6474. Pursuant to section 
110(a)(1) of the CAA, states are required to submit SIPs meeting the 
requirements of section 110(a)(2) within three years after promulgation 
of a new or revised NAAQS. Sections 110(a)(2) require states to address 
basic SIP requirements, including emissions inventories, monitoring, 
and modeling to assure attainment and maintenance of the NAAQS. States 
were required to submit such SIPs for the 2010 NO2 NAAQS to 
EPA no later than January 22, 2013.\1\
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    \1\ In these infrastructure SIP submissions states generally 
certify evidence of compliance with sections 110(a)(1) and (2) of 
the CAA through a combination of state regulations and statutes, 
some of which have been incorporated into the federally-approved 
SIP. In addition, certain federally-approved, non-SIP regulations 
may also be appropriate for demonstrating compliance with sections 
110(a)(1) and (2). Throughout this rulemaking, unless otherwise 
indicated, the term ``ADEM Admin. Code r.'' indicates that the cited 
regulation has been approved into Alabama's federally-approved SIP. 
The term ``Ala. Code'' refers to Alabama state statutes, which, 
unless otherwise indicated, are not a part of the federally-approved 
SIP.
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    This action is proposing to approve Alabama's infrastructure SIP 
submissions for the applicable requirements of the 2010 1-hour 
NO2 NAAQS, with the exception of the preconstruction PSD 
permitting requirements for major sources of section 110(a)(2)(C), 
prong 3 of (D)(i), and (J), the interstate transport provisions of 
section 110(a)(2)(D)(i), (prongs 1, 2 and 4), and the state board 
requirements of section 110(a)(2)(E)(ii). On March 18, 2015, EPA 
approved Alabama's April 23, 2013, infrastructure SIP submission 
regarding the PSD permitting requirements for major sources of sections 
110(a)(2)(C), prong 3 of D(i) and (J) for the 2010 1-hour 
NO2 NAAQS. See 80 FR 14019.\2\ Therefore, EPA is not 
proposing any action today pertaining to sections 110(a)(2)(C), prong 3 
of D(i) and (J). Additionally, today, EPA is not taking action related 
to the interstate transport provisions pertaining to the contribution 
to nonattainment or interference with maintenance in other states of 
prongs 1 and 2 of section 110(a)(2)(D)(i), and prong 4 of (D)(i). With 
respect to Alabama's infrastructure SIP submissions related to section 
110(a)(2)(E)(ii) requirements respecting the section 128 state board 
requirements, EPA is proposing to disapprove this element of Alabama's 
submissions in this rulemaking. For the aspects of Alabama's submittals 
proposed for approval today, EPA notes that the Agency is not approving 
any specific rule, but rather proposing that Alabama's already approved 
SIP meets certain CAA requirements.
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    \2\ ADEM clarified that its December 9, 2015, submission was not 
intended to address the PSD requirements that were approved by EPA 
on March 18, 2015. See www.regulations.gov using Docket ID No. EPA-
R04-OAR-2014-0756.
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II. What elements are required under sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 2010 NO2 NAAQS, states 
typically have met the basic program elements required in section 
110(a)(2) through earlier SIP submissions in connection with previous 
NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned above, these 
requirements include SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The requirements that are the 
subject of this proposed rulemaking are listed below \3\ and in EPA's 
September 13, 2013, memorandum entitled ``Guidance on Infrastructure 
State Implementation Plan (SIP) Elements under Clean Air Act Sections 
110(a)(1) and (2).''

    \3\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA; and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. Today's proposed 
rulemaking does not address infrastructure elements related to 
section 110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).

 110(a)(2)(A): Emission Limits and Other Control Measures
 110(a)(2)(B): Ambient Air Quality Monitoring/Data System
 110(a)(2)(C): Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources \4\
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    \4\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
 110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution
 110(a)(2)(E): Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies
 110(a)(2)(F): Stationary Source Monitoring and Reporting
 110(a)(2)(G): Emergency Powers
 110(a)(2)(H): SIP revisions
 110(a)(2)(I): Plan Revisions for Nonattainment Areas \5\
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    \5\ As mentioned above, this element is not relevant to today's 
proposed rulemaking.
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 110(a)(2)(J): Consultation with Government Officials, Public 
Notification, and PSD and Visibility Protection
 110(a)(2)(K): Air Quality Modeling and Submission of Modeling 
Data
 110(a)(2)(L): Permitting fees
 110(a)(2)(M): Consultation and Participation by Affected Local 
Entities

III. What is EPA's approach to the review of infrastructure SIP 
submissions?

    EPA is acting upon the SIP submissions from Alabama that addresses 
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) 
for the 2010 NO2 NAAQS. The requirement for states to make a 
SIP submission of this type arises out of CAA section 110(a)(1). 
Pursuant to section 110(a)(1), states must make SIP submissions 
``within 3 years (or such shorter period as the Administrator may 
prescribe) after the promulgation of a national primary ambient air 
quality standard (or any revision thereof),'' and

[[Page 47126]]

these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon EPA's 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of specific elements that ``[e]ach 
such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review permit program submissions to address 
the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\6\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \6\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
Act, which specifically address nonattainment SIP requirements.\7\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years, or in some cases three years, for such designations to be 
promulgated.\8\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
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    \7\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \8\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether EPA must act upon such SIP submission in a 
single action. Although section 110(a)(1) directs states to submit ``a 
plan'' to meet these requirements, EPA interprets the CAA to allow 
states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, EPA can elect to act on such submissions either 
individually or in a larger combined action.\9\ Similarly, EPA 
interprets the CAA to allow it to take action on the individual parts 
of one larger, comprehensive infrastructure SIP submission for a given 
NAAQS without concurrent action on the entire submission. For example, 
EPA has sometimes elected to act at different times on various elements 
and sub-elements of the same infrastructure SIP submission.\10\
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    \9\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \10\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state might 
need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants 
because the content and scope of a state's infrastructure SIP 
submission to meet this element might be very different for an entirely 
new NAAQS than for a minor revision to an existing NAAQS.\11\
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    \11\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to

[[Page 47127]]

these other types of SIP submissions. For example, section 172(c)(7) 
requires that attainment plan SIP submissions required by part D have 
to meet the ``applicable requirements'' of section 110(a)(2). Thus, for 
example, attainment plan SIP submissions must meet the requirements of 
section 110(a)(2)(A) regarding enforceable emission limits and control 
measures and section 110(a)(2)(E)(i) regarding air agency resources and 
authority. By contrast, it is clear that attainment plan SIP 
submissions required by part D would not need to meet the portion of 
section 110(a)(2)(C) that pertains to the PSD program required in part 
C of title I of the CAA, because PSD does not apply to a pollutant for 
which an area is designated nonattainment and thus subject to part D 
planning requirements. As this example illustrates, each type of SIP 
submission may implicate some elements of section 110(a)(2) but not 
others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\12\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\13\ EPA developed this document to provide states 
with up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure 
SIP submissions.\14\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 
110(a)(2) such that infrastructure SIP submissions need to address 
certain issues and need not address others. Accordingly, EPA reviews 
each infrastructure SIP submission for compliance with the applicable 
statutory provisions of section 110(a)(2), as appropriate.
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    \12\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \13\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \14\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's 
implementation plan appropriately addresses the requirements of section 
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's 
interpretation that there may be a variety of ways by which states can 
appropriately address these substantive statutory requirements, 
depending on the structure of an individual state's permitting or 
enforcement program (e.g., whether permits and enforcement orders are 
approved by a multi-member board or by a head of an executive agency). 
However they are addressed by the state, the substantive requirements 
of section 128 are necessarily included in EPA's evaluation of 
infrastructure SIP submissions because section 110(a)(2)(E)(ii) 
explicitly requires that the state satisfy the provisions of section 
128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and NSR pollutants, including 
GHGs. By contrast, structural PSD program requirements do not include 
provisions that are not required under EPA's regulations at 40 CFR 
51.166 but are merely available as an option for the state, such as the 
option to provide grandfathering of complete permit applications with 
respect to the 2012 PM2.5 NAAQS. Accordingly, the latter 
optional provisions are types of provisions EPA considers irrelevant in 
the context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's implementation plan meets basic structural requirements. For 
example, section 110(a)(2)(C) includes, inter alia, the requirement 
that states have a program to regulate minor new sources. Thus, EPA 
evaluates whether the state has an EPA-approved minor new source review 
program and whether the program addresses the pollutants relevant to 
that NAAQS. In the context of acting on an infrastructure SIP 
submission, however, EPA does not think it is necessary to conduct a 
review of each and every provision of a state's existing minor source 
program (i.e., already in the existing SIP) for compliance with the 
requirements of the CAA and EPA's regulations that pertain to such 
programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or

[[Page 47128]]

not requiring further approval by EPA; and (iii) existing provisions 
for PSD programs that may be inconsistent with current requirements of 
EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002), 
as amended by 72 FR 32526 (June 13, 2007) (``NSR Reform''). Thus, EPA 
believes it may approve an infrastructure SIP submission without 
scrutinizing the totality of the existing SIP for such potentially 
deficient provisions and may approve the submission even if it is aware 
of such existing provisions.\15\ It is important to note that EPA's 
approval of a state's infrastructure SIP submission should not be 
construed as explicit or implicit re-approval of any existing 
potentially deficient provisions that relate to the three specific 
issues just described.
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    \15\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's implementation 
plan is substantially inadequate to attain or maintain the NAAQS, to 
mitigate interstate transport, or to otherwise comply with the CAA.\16\ 
Section 110(k)(6) authorizes EPA to correct errors in past actions, 
such as past approvals of SIP submissions.\17\ Significantly, EPA's 
determination that an action on a state's infrastructure SIP submission 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies at a later time. For example, although it 
may not be appropriate to require a state to eliminate all existing 
inappropriate director's discretion provisions in the course of acting 
on an infrastructure SIP submission, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that EPA relies upon in 
the course of addressing such deficiency in a subsequent action.\18\
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    \16\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \17\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \18\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how Alabama addressed the elements of the 
sections 110(a)(1) and (2) ``infrastructure'' provisions?

    Alabama's infrastructure submissions address the provisions of 
sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A) Emission Limits and Other Control Measures: Section 
110(a)(2)(A) requires that each implementation plan include enforceable 
emission limitations and other control measures, means, or techniques 
(including economic incentives such as fees, marketable permits, and 
auctions of emissions rights), as well as schedules and timetables for 
compliance, as may be necessary or appropriate to meet the applicable 
requirements. Several regulations within Alabama's SIP are relevant to 
air quality control. The regulations described below have been 
federally approved in the Alabama SIP and include enforceable emission 
limitations and other control measures for activities that contribute 
to NO2 concentrations in the ambient air and provide ADEM 
the authority to establish such limits and measures as well as 
schedules for compliance to meet the applicable requirements of the 
CAA. ADEM Admin. Code r. 335-3-1-.03--Ambient Air Quality Standards, 
authorizes ADEM to adopt rules for the control of air pollution in 
order to comply with NAAQS, including those necessary to obtain EPA 
approval under section 110 of the CAA. ADEM Admin. Code r. 335-3-
1-.06--Compliance Schedule, sets the schedule for the State's Air 
Pollution Control rules and regulations to be consistent with the 
requirements of the CAA. ADEM Admin. Code r. 335-3-1-.05--Sampling and 
Testing Methods, details the authority and means with which ADEM can 
require testing and emissions verification. EPA has made the 
preliminary determination that the provisions contained in these 
regulations satisfy section 110(a)(2)(A) for the 2010 1-hour 
NO2 NAAQS in the State.
    In this action, EPA is not proposing to approve or disapprove any 
existing State provisions with regard to excess emissions during SSM 
operations at a

[[Page 47129]]

facility. EPA believes that a number of states have SSM provisions 
which are contrary to the CAA and existing EPA guidance, ``State 
Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the 
Agency is addressing such state regulations in a separate action.\19\
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    \19\ On June 12, 2015, EPA published a final action entitled, 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; 
Findings of Substantial Inadequacy; and SIP Calls to Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown, and Malfunction.'' See 80 FR 33840.
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    Additionally, in this action, EPA is not proposing to approve or 
disapprove any existing State rules with regard to director's 
discretion or variance provisions. EPA believes that a number of states 
have such provisions which are contrary to the CAA and existing EPA 
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to 
take action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a director's discretion or 
variance provision which is contrary to the CAA and EPA guidance to 
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient Air Quality Monitoring/Data System: SIPs 
are required to provide for the establishment and operation of ambient 
air quality monitors; the compilation and analysis of ambient air 
quality data; and the submission of these data to EPA upon request. 
These requirements are met through ADEM Admin. Code r. 335-3-1-.03--
Ambient Air Quality Standards, ADEM Admin. Code r. 335-3-1-.05--
Sampling and Testing Methods, and ADEM Admin. Code r. 335-3-1-.04--
Monitoring, Records, and Reporting. These SIP-approved rules along with 
Alabama's Ambient Air Monitoring Network Plan, provide for the 
establishment and operation of ambient air quality monitors, the 
compilation and analysis of ambient air quality data, and the 
submission of these data to EPA upon request. Annually, states develop 
and submit to EPA for approval statewide ambient monitoring network 
plans consistent with the requirements of 40 CFR parts 50, 53, and 58. 
The annual network plan involves an evaluation of any proposed changes 
to the monitoring network, includes the annual ambient monitoring 
network design plan and a certified evaluation of the state's ambient 
monitors and auxiliary support equipment.\20\ The latest monitoring 
network plan for Alabama was submitted to EPA on July 22, 2015, and on 
November 19, 2015, EPA approved this plan. Alabama's approved 2015 
monitoring network plan can be accessed at www.regulations.gov using 
Docket ID No. EPA-R04-OAR-2014-0756. EPA has made the preliminary 
determination that Alabama's SIP and practices are adequate for the 
ambient air quality monitoring and data system related to the 2010 1-
hour NO2 NAAQS.
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    \20\ On occasion, proposed changes to the monitoring network are 
evaluated outside of the network plan approval process in accordance 
with 40 CFR part 58.
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    3. 110(a)(2)(C) Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources: This element 
consists of three sub-elements; enforcement, state-wide regulation of 
new and modified minor sources and minor modifications of major 
sources; and preconstruction permitting of major sources and major 
modifications in areas designated attainment or unclassifiable for the 
subject NAAQS as required by CAA title I part C (i.e., the major source 
PSD program). ADEM's 2010 1-hour NO2 NAAQS infrastructure 
SIP submissions cited SIP provisions to address these requirements. 
Specifically, the submissions cited ADEM Admin. Code r 335-3-14-.01--
``General Provisions,'' 335-3-14-.02,--``Permit Procedure'', 334-3-
14-.03--``Standards for Granting Permits'', 335-3-14-.04--``Prevention 
of Significant Deterioration in Permitting'' and 335-3-14-.05--``Air 
Permits Authorizing Construction in or Near Nonattainment Areas''. As 
discussed further below, in this action EPA is only proposing to 
approve the enforcement, and the regulation of minor sources and minor 
modifications aspects of Alabama's section 110(a)(2)(C) infrastructure 
SIP submissions.
    Enforcement: ADEM's above-described, SIP-approved regulations 
provide for enforcement of NO2 emission limits and control 
measures through enforceable permits for new or modified stationary 
sources. Note also that ADEM has authority to issue enforcement orders 
and assess penalties (see Code sections 22-22A-5, 22-28-10 and 22-28-
22).
    PSD Permitting for Major Sources: With respect to Alabama's April 
23, 2013, infrastructure SIP submission related to the PSD permitting 
requirements of major sources for section 110(a)(2)(C), EPA took final 
action to approve these provisions for the 2010 1-hour NO2 
NAAQS on March 18, 2015. See 80 FR 14019.
    Regulation of minor sources and modifications: Section 110(a)(2)(C) 
also requires the SIP to include provisions that govern the minor 
source preconstruction program that regulates emissions of the 2010 1-
hour NO2 NAAQS. ADEM Admin. Code r 334-3-14-.03--``Standards 
for Granting Permits'' governs the preconstruction permitting of minor 
modifications and construction of minor stationary sources. EPA has 
made the preliminary determination that Alabama's SIP and practices are 
adequate for program enforcement of control measures and regulation of 
minor sources and modifications related to the 2010 1-hour 
NO2 NAAQS.
    4. 110(a)(2)(D) Interstate Pollution Transport: Section 
110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(i)(II). Each of these components have two subparts 
resulting in four distinct components, commonly referred to as 
``prongs,'' that must be addressed in infrastructure SIP submissions. 
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), 
are provisions that prohibit any source or other type of emissions 
activity in one state from contributing significantly to nonattainment 
of the NAAQS in another state (``prong 1''), and interfering with 
maintenance of the NAAQS in another state (``prong 2''). The third and 
fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are 
provisions that prohibit emissions activity in one state from 
interfering with measures required to prevent significant deterioration 
of air quality in another state (``prong 3''), or to protect visibility 
in another state (``prong 4'').
    110(a)(2)(D)(i)(I)--prongs 1 through 2: EPA is not proposing any 
action in this rulemaking related to the interstate transport 
provisions pertaining to the contribution to nonattainment or 
interference with maintenance in other states of section 
110(a)(2)(D)(i)(I) (prongs 1 and 2) because Alabama's 2010 1-hour 
NO2 NAAQS infrastructure submissions did not address prongs 
1 and 2.
    110(a)(2)(D)(i)(II)--prong 3: With respect to Alabama's 
infrastructure SIP submission related to the interstate transport 
requirements for PSD of section 110(a)(2)(D)(i)(II) (prong 3), EPA took 
final action to approve Alabama's April 23, 2013, infrastructure SIP 
submission regarding prong 3 of D(i) for the 2010 1-hour NO2 
NAAQS on March 18, 2015. See 80 FR 14019.
    110(a)(2)(D)(i)(II)--prong 4: EPA is not proposing any action in 
this rulemaking related to the interstate transport provisions 
pertaining to visibility protection in other states of section 
110(a)(2)(D)(i)(II) (prong 4) and will

[[Page 47130]]

consider these requirements in relation to Alabama's 2010 1-hour 
NO2 NAAQS infrastructure submissions in a separate 
rulemaking.
    5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and 
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to 
include provisions insuring compliance with sections 115 and 126 of the 
Act, relating to interstate and international pollution abatement. ADEM 
Admin. Code r. 335-3-14-.04--Prevention of Significant Deterioration in 
Permitting describes how Alabama notifies neighboring states of 
potential emission impacts from new or modified sources applying for 
PSD permits. This regulation requires ADEM to provide an opportunity 
for a public hearing to the public, which includes State or local air 
pollution control agencies, ``whose lands may be affected by emissions 
from the source or modification'' in Alabama. Additionally, Alabama 
does not have any pending obligation under sections 115 and 126 of the 
CAA. EPA has made the preliminary determination that Alabama's SIP and 
practices are adequate for insuring compliance with the applicable 
requirements relating to interstate and international pollution 
abatement for the 2010 1-hour NO2 NAAQS.
    6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies: 
Section 110(a)(2)(E) requires that each implementation plan provide: 
(i) Necessary assurances that the State will have adequate personnel, 
funding, and authority under state law to carry out its implementation 
plan, (ii) that the State comply with the requirements respecting State 
Boards pursuant to section 128 of the Act, and (iii) necessary 
assurances that, where the State has relied on a local or regional 
government, agency, or instrumentality for the implementation of any 
plan provision, the State has responsibility for ensuring adequate 
implementation of such plan provisions. EPA is proposing to approve 
Alabama's SIP as meeting the requirements of sub-elements 
110(a)(2)(E)(i) and (iii). With respect to 110(a)(2)(E)(ii) (regarding 
state boards), EPA is proposing disapproval of this sub-element. EPA's 
rationale respecting each sub-element is described in turn below.
    In support of EPA's proposal to approve sub-elements 
110(a)(2)(E)(i) and (iii), ADEM's infrastructure submissions 
demonstrate that it is responsible for promulgating rules and 
regulations for the NAAQS, emissions standards, general policies, a 
system of permits, fee schedules for the review of plans, and other 
planning needs as authorized at Ala. Code section 22-28-11 and section 
22-28-9. Ala. Code section 22-28-23 does not allow the local programs 
to be less strict than the Alabama SIP/regulations and allows for 
oversight from the State. As evidence of the adequacy of ADEM's 
resources with respect to sub-elements (i) and (iii), EPA submitted a 
letter to Alabama on April 19, 2016, outlining 105 grant commitments 
and current status of these commitments for fiscal year 2015. The 
letter EPA submitted to Alabama can be accessed at www.regulations.gov 
using Docket ID No. EPA-R04-OAR-2014-0431. Annually, states update 
these grant commitments based on current SIP requirements, air quality 
planning, and applicable requirements related to the NAAQS. There were 
no outstanding issues in relation to the SIP for fiscal year 2015, 
therefore, Alabama's grants were finalized and closed out. Alabama's 
funding is also met through the state's title V fee program at ADEM 
Admin. Code r. 335-1-7--Air Division Operating Permit Fees \21\ and 
ADEM Admin. Code r. 335-1-6--Application Fees.\22\ EPA has made the 
preliminary determination that Alabama has adequate resources for 
implementation of the 2010 1-hour NO2 NAAQS.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    Section 110(a)(2)(E)(ii) requires that the state comply with 
section 128 of the CAA. Section 128 requires that: (1) The majority of 
members of the state board or body which approves permits or 
enforcement orders represent the public interest and do not derive any 
significant portion of their income from persons subject to permitting 
or enforcement orders under the CAA; and (2) any potential conflicts of 
interest by such board or body, or the head of an executive agency with 
similar powers be adequately disclosed. After reviewing Alabama's SIP, 
EPA has made the preliminary determination that the State's 
implementation plan does not contain provisions to comply with section 
128 of the Act, and thus Alabama's April 23, 2013, and December 9, 
2015, infrastructure SIP submissions do not meet the requirements of 
the Act. While Alabama has state statutes that may address, in whole or 
part, requirements related to state boards at the state level, these 
provisions are not included in the SIP as required by the CAA. Based on 
an evaluation of the federally-approved Alabama SIP, EPA is proposing 
to disapprove Alabama's certification that its SIP meets the 
requirements of 110(a)(2)(E)(ii) of the CAA for the 2010 1-hour 
NO2 NAAQS. The submitted provisions which purport to address 
110(a)(2)(E)(ii) are severable from the other infrastructure elements. 
Therefore, EPA is proposing to disapprove those provisions which relate 
only to sub-element 110(a)(2)(E)(ii).
    7. 110(a)(2)(F) Stationary Source Monitoring System and Reporting: 
Section 110(a)(2)(F) requires SIPs to meet applicable requirements 
addressing: (i) The installation, maintenance, and replacement of 
equipment, and the implementation of other necessary steps, by owners 
or operators of stationary sources to monitor emissions from such 
sources, (ii) periodic reports on the nature and amounts of emissions 
and emissions related data from such sources, and (iii) correlation of 
such reports by the state agency with any emission limitations or 
standards established pursuant to this section, which reports shall be 
available at reasonable times for public inspection. ADEM's 
infrastructure SIP submissions describe the establishment of 
requirements for compliance testing by emissions sampling and analysis, 
and for emissions and operation monitoring to ensure the quality of 
data in the State. The Alabama infrastructure submissions also describe 
how the major source and minor source emission inventory programs 
collect emission data throughout the State and ensure the quality of 
such data. Alabama meets these requirements through ADEM Admin. Code r. 
335-3-1-.04--Monitoring, Records, and Reporting, and 335-3-12--
Continuous Monitoring Requirements for Existing Sources. ADEM Admin. 
Code r. 335-3-1-.04, details how sources are required as appropriate to 
establish and maintain records; make reports; install, use, and 
maintain such monitoring equipment or methods and provide periodic 
emission reports as the regulation requires. These reports and records 
are required to be compiled, and submitted on forms furnished by the 
State. Additionally, ADEM Admin. Code r. 335-3-12-.02 requires owners 
and operators of emissions sources to ``install, calibrate, operate and 
maintain all monitoring equipment necessary for continuously monitoring 
the pollutants.'' \23\
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    \23\ ADEM Admin. Code r. 335-3-12-.02 establishes that data 
reporting requirements for sources required to conduct continuous 
monitoring in the state should comply with data reporting 
requirements set forth at 40 CFR 51, Appendix P. Section 40 CFR 51, 
Appendix P includes that the averaging period used for data 
reporting should be established by the state to correspond to the 
averaging period specified in the emission test method used to 
determine compliance with an emission standard for the pollutant/
source category in question.

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[[Page 47131]]

    ADEM Admin. Code r. 335-3-1-.13--Credible Evidence, makes 
allowances for owners and/or operators to utilize ``any credible 
evidence or information relevant'' to demonstrate compliance with 
applicable requirements if the appropriate performance or compliance 
test had been performed, for the purpose of submitting compliance 
certification and can be used to establish whether or not an owner or 
operator has violated or is in violation of any rule or standard. 
Accordingly, EPA is unaware of any provision preventing the use of 
credible evidence in the Alabama SIP.
    Additionally, Alabama is required to submit emissions data to EPA 
for purposes of the National Emissions Inventory (NEI). The NEI is 
EPA's central repository for air emissions data. EPA published the Air 
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the 
requirements for collecting and reporting air emissions data (73 FR 
76539). The AERR shortened the time states had to report emissions data 
from 17 to 12 months, giving states one calendar year to submit 
emissions data. All states are required to submit a comprehensive 
emissions inventory every three years and report emissions for certain 
larger sources annually through EPA's online Emissions Inventory 
System. States report emissions data for the six criteria pollutants 
and the precursors that form them--nitrogen oxides, SO2, 
ammonia, lead, carbon monoxide, particulate matter, and volatile 
organic compounds. Many states also voluntarily report emissions of 
hazardous air pollutants. Alabama made its latest update to the 2011 
NEI on January 7, 2013. EPA compiles the emissions data, supplementing 
it where necessary, and releases it to the general public through the 
Web site 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 1-
hour NO2 NAAQS.
    8. 110(a)(2)(G) Emergency Powers: This section requires that states 
demonstrate authority comparable with section 303 of the CAA and 
adequate contingency plans to implement such authority. ADEM Admin. 
Code r. 335-3-2--Air Pollution Emergency, provides for the 
identification of air pollution emergency episodes, episode criteria, 
and emissions reduction plans. Alabama's compliance with section 303 of 
the CAA and adequate contingency plans to implement such authority is 
also met at Ala. Code section 22-28-21 Air Pollution Emergencies. Ala. 
Code section 22-28-21 provides ADEM the authority to order ``person or 
persons responsible for the operation or operations of one or more air 
contaminants sources'' causing ``imminent danger to human health or 
safety in question to reduce or discontinue emissions immediately.'' 
The order establishes a hearing no later than 24-hours after issuance 
before the Environmental Management Commission which can affirm, modify 
or set aside the Director's order. Additionally, the Governor can, by 
proclamation, declare, as to all or any part of said area, that an air 
pollution emergency exists and exercise certain powers in whole or in 
part, by the issuance of an order or orders to protect the public 
health. Under Ala. Code sections 22-28-3(a) and 22-28-10(2), ADEM also 
has the authority to issue such orders as may be necessary to 
effectuate the purposes of the Alabama Pollution Control Act, which 
includes achieving and maintaining such levels of air quality as will 
protect human health and safety and, to the greatest degree 
practicable, prevent injury to plant and animal life and property, 
foster the comfort and convenience of the people, promote the social 
development of this state and facilitate the enjoyment of the natural 
attractions of the state. EPA has made the preliminary determination 
that Alabama's SIP and state laws are adequate for emergency powers 
related to the 2010 1-hour NO2 NAAQS. Accordingly, EPA is 
proposing to approve Alabama's infrastructure SIP submissions with 
respect to section 110(a)(2)(G).
    9. 110(a)(2)(H) SIP Revisions: Section 110(a)(2)(H), in summary, 
requires each SIP to provide for revisions of such plan: (i) As may be 
necessary to take account of revisions of such national primary or 
secondary ambient air quality standard or the availability of improved 
or more expeditious methods of attaining such standard, and (ii) 
whenever the Administrator finds that the plan is substantially 
inadequate to attain the NAAQS or to otherwise comply with any 
additional applicable requirements. ADEM is responsible for adopting 
air quality rules and revising SIPs as needed to attain or maintain the 
NAAQS. Alabama has the ability and authority to respond to calls for 
SIP revisions, and has provided a number of SIP revisions over the 
years for implementation of the NAAQS. ADEM Admin. Code r. 335-1-
1-.03--Organization and Duties of the Commission,\24\ provides ADEM 
with the authority to establish, adopt, promulgate, modify, repeal and 
suspend rules, regulations, or environmental standards which may be 
applicable to Alabama or ``any of its geographic parts.'' Admin. Code 
r. 335-3-1-.03--Ambient Air Quality Standards, provides ADEM the 
authority to amend, revise, and incorporate the NAAQS into its SIP. EPA 
has made the preliminary determination that Alabama adequately 
demonstrates a commitment to provide future SIP revisions related to 
the 2010 1-hour NO2 NAAQS when necessary. Accordingly, EPA 
is proposing to approve Alabama's infrastructure SIP submissions with 
respect to section 110(a)(2)(H).
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    \24\ This regulation has not been incorporated into the 
federally-approved SIP.
---------------------------------------------------------------------------

    10. 110(a)(2)(J) Consultation with Government Officials, Public 
Notification, and PSD and visibility Protection: EPA is proposing to 
approve Alabama's infrastructure SIP for the 2010 1-hour NO2 
NAAQS with respect to the general requirement in section 110(a)(2)(J) 
to include a program in the SIP that provides for meeting the 
applicable consultation requirements of section 121, the public 
notification requirements of section 127; and visibility protection 
requirements of part C of the Act. With respect to Alabama's 
infrastructure SIP submission related to the preconstruction PSD 
permitting requirements of section 110(a)(2)(J), EPA took final action 
to approve Alabama's April 23, 2013, 2010 1-hour NO2 NAAQS 
infrastructure SIP for these requirements on March 18, 2015. See 80 FR 
14019. EPA's rationale for its proposed action regarding applicable 
consultation requirements of section 121, the public notification 
requirements of section 127, and visibility protection requirements is 
described below.
    Consultation with government officials (121 consultation): Section 
110(a)(2)(J) of the CAA requires states to provide a process for 
consultation with local governments, designated organizations and 
federal land managers (FLMs) carrying out NAAQS implementation 
requirements pursuant to section 121 relative to consultation. ADEM 
Admin. Code r. 335-3-1-.03--Ambient Air Quality Standards, as well as 
its Regional Haze Implementation Plan (which allows for continued 
consultation with appropriate state, local, and tribal air pollution 
control agencies as well as the corresponding FLMs), provide for 
consultation with government officials whose jurisdictions

[[Page 47132]]

might be affected by SIP development activities. Specifically, Alabama 
adopted state-wide consultation procedures for the implementation of 
transportation conformity, which are used for development of mobile 
inventories for SIPs. Required partners covered by Alabama's 
consultation procedures include federal, state and local transportation 
and air quality agency officials. EPA has made the preliminary 
determination that Alabama's SIP and practices adequately demonstrate 
consultation with government officials related to the 2010 1-hour 
NO2 NAAQS when necessary. Accordingly, EPA is proposing to 
approve Alabama's infrastructure SIP submissions with respect to 
section 110(a)(2)(J) consultation with government officials.
    Public notification (127 public notification): ADEM Admin. Code r. 
335-3-14-.01(7)--Public Participation, ADEM Admin. Code r. 335-3-
14-.05(13)--Public Participation, and Ala. Code section 22-28-21--Air 
Pollution Emergencies provides for public notification and resolution 
when air pollution episodes occur. Furthermore, ADEM has several public 
notice mechanisms in place to provide daily air quality forecasts for 
ozone and fine particulate matter to the public, including: EPA AirNow, 
ADEM Web site postings and customized emails through Enviroflash for 
registered individuals. When air quality is expected to be poor, an air 
quality alert is issued for a city, the local National Weather Service 
(NWS) office is alerted and the forecast is posted on the NWS Web site. 
Additionally, for some cities in Alabama (e.g., Birmingham), the county 
planning organizations are alerted and the forecast is distributed to 
the media, and other interested groups. EPA has made the preliminary 
determination that Alabama's SIP and practices adequately demonstrate 
the State's ability to provide public notification related to the 2010 
1-hour NO2 NAAQS when necessary.
    Visibility protection: EPA's 2013 Guidance notes that it does not 
treat the visibility protection aspects of section 110(a)(2)(J) as 
applicable for purposes of the infrastructure SIP approval process. 
ADEM referenced its regional haze program as germane to the visibility 
component of section 110(a)(2)(J). EPA recognizes that states are 
subject to visibility protection and regional haze program requirements 
under Part C of the Act (which includes sections 169A and 169B). 
However, there are no newly applicable visibility protection 
obligations after the promulgation of a new or revised NAAQS. Thus, EPA 
has determined that states do not need to address the visibility 
component of 110(a)(2)(J) in infrastructure SIP submittals so ADEM does 
not need to rely on its regional haze program to fulfill its 
obligations under section 110(a)(2)(J). As such, EPA has made the 
preliminary determination that Alabama's infrastructure SIP submissions 
are approvable for the visibility protection element of section 
110(a)(2)(J) in related to the 2010 1-hour NO2 NAAQS and 
that Alabama does not need to rely on its regional haze program to 
address this element.
    11. 110(a)(2)(K) Air Quality and Modeling and Submission of 
Modeling Data: Section 110(a)(2)(K) of the CAA requires that SIPs 
provide for performing air quality modeling so that effects on air 
quality of emissions from NAAQS pollutants can be predicted and 
submission of such data to the EPA can be made. ADEM Admin. Code r 335-
3-1-.04--Monitoring, Records, and Reporting and 335-3-14-.04--
Prevention of Significant Deterioration Permitting, specifically sub-
paragraph (11)--Air Quality Models specify that required air modeling 
be conducted in accordance with 40 CFR part 51, Appendix W ``Guideline 
on Air Quality Models''. ADEM Admin. Code r 335-3-1-.04--Monitoring, 
Records, and Reporting details how sources are required as appropriate 
to establish and maintain records; make reports; install, use, and 
maintain such monitoring equipment or methods and provide periodic 
emission reports as the regulation requires. These reports and records 
are required to be compiled, and submitted on forms furnished by the 
State. These provisions demonstrate that Alabama has the authority to 
provide relevant data for the purpose of predicting the effect of 
pollutants on ambient air quality of the 2010 1-hour NO2 
NAAQS. Additionally, Alabama participates in a regional effort to 
coordinate the development of emissions inventories and conduct 
regional modeling for several NAAQS, including the 2010 1-hour 
NO2 NAAQS, for the southeastern states. Taken as a whole, 
Alabama's air quality regulations and practices demonstrate that ADEM 
has the authority to provide relevant data for the purpose of 
predicting the effect on ambient air quality of any emissions of any 
pollutant for which a NAAQS had been promulgated, and to provide such 
information to the EPA Administrator upon request. EPA has made the 
preliminary determination that Alabama's SIP and practices adequately 
demonstrate the State's ability to provide for air quality and 
modeling, along with analysis of the associated data, related to the 
2010 1-hour NO2 NAAQS. Accordingly, EPA is proposing to 
approve Alabama's infrastructure SIP submissions with respect to 
section 110(a)(2)(K).
    12. 110(a)(2)(L) Permitting Fees: This element necessitates that 
the SIP require the owner or operator of each major stationary source 
to pay to the permitting authority, as a condition of any permit 
required under the CAA, a fee sufficient to cover: (i) The reasonable 
costs of reviewing and acting upon any application for such a permit, 
and (ii) if the owner or operator receives a permit for such source, 
the reasonable costs of implementing and enforcing the terms and 
conditions of any such permit (not including any court costs or other 
costs associated with any enforcement action), until such fee 
requirement is superseded with respect to such sources by the 
Administrator's approval of a fee program under title V.
    ADEM Admin. Code r. 335-1-6--Application Fees \25\ requires ADEM to 
charge permit-specific fees to the applicant/source as authorized by 
State legislation and Ala. Code section 22-22A-5. ADEM assures its 
permitting fee structure is sufficient for the reasonable cost of 
reviewing and acting upon PSD and nonattainment new source review 
(NNSR) permits. Additionally, Alabama has a fully approved title V 
operating permit program at ADEM Admin. Code r. 335-1-7--Air Division 
Operating Permit Fees,\26\ that covers the cost of implementation and 
enforcement of PSD and NNSR permits after they have been issued. EPA 
has made the preliminary determination that Alabama's SIP and practices 
adequately provide for permitting fees related to the 2010 1-hour 
NO2 NAAQS, when necessary. Accordingly, EPA is proposing to 
approve Alabama's infrastructure SIP submissions with respect to 
section 110(a)(2)(L).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    13. 110(a)(2)(M) Consultation and Participation by Affected Local 
Entities: This element requires states to provide for consultation and 
participation in SIP development by local political subdivisions 
affected by the SIP. ADEM Administrative Code 335-3-17-.01--
Transportation Conformity and the interagency consultation process as 
directed by Alabama's approved Conformity SIP and 40 CFR 93.112 provide 
for consultation with local groups. More specifically, Alabama

[[Page 47133]]

adopted consultation procedures for the implementation of 
transportation conformity which includes the development of mobile 
inventories for SIP development and the requirements that link 
transportation planning and air quality planning in nonattainment and 
maintenance areas. These consultation and participation procedures have 
been approved in the Alabama SIP as the non-regulatory provisions: 
``Alabama Interagency Transportation Conformity Memorandum of 
Agreement'' and ``Conformity SIP for Birmingham and Jackson County.'' 
These provisions were approved on May 11, 2000, and March 26, 2009, 
respectively. See 65 FR 30362 and 74 FR 13118. Required partners 
covered by Alabama's consultation procedures include federal, state and 
local transportation and air quality agency officials. The state and 
local transportation agency officials are most directly impacted by 
transportation conformity requirements and are required to provide 
public involvement for their activities including the analysis 
demonstrating how they meet transportation conformity requirements. 
Additionally, Alabama has consulted with FLMs as a requirement of its 
regional haze SIP. EPA has made the preliminary determination that 
Alabama's SIP and practices adequately demonstrate consultation with 
affected local entities related to the 2010 1-hour NO2 NAAQS 
when necessary.

V. Proposed Action

    With the exception of interstate transport provisions pertaining to 
visibility protection requirements of section 110(a)(2)(D)(i)(II) 
(prong 4), and the state board requirements of section 
110(a)(2)(E)(ii), EPA is proposing to approve that certain elements in 
Alabama's April 23, 2013, and December 9, 2015, SIP submissions for the 
2010 1-hour NO2 NAAQS have met the above-described 
infrastructure SIP requirements. EPA is proposing to disapprove section 
110(a)(2)(E)(ii) of Alabama's infrastructure submissions because the 
State's implementation plan does not contain provisions to comply with 
section 128 of the Act, and thus Alabama's April 23, 2013, and December 
9, 2015, infrastructure SIP submissions do not meet the requirements of 
the Act. The interstate transport requirements of section 
110(a)(2)(D)(i)(II) (prong 4) will be addressed by EPA in a future 
action.
    Under section 179(a) of the CAA, final disapproval of a submittal 
(or portion thereof) that addresses a requirement of a CAA Part D Plan 
or is required in response to a finding of substantial inadequacy as 
described in CAA section 110(k)(5) (SIP call) starts a sanctions clock. 
The section 110(a)(2)(E)(ii) provisions (the provisions being proposed 
for disapproval in today's notice) were not submitted to meet 
requirements for Part D or a SIP call, and therefore, if EPA takes 
final action to disapprove this submittal, no sanctions will be 
triggered. However, if this disapproval action is finalized, that final 
action will trigger the requirement under section 110(c) that EPA 
promulgate a federal implementation plan (FIP) no later than 2 years 
from the date of the disapproval unless the State corrects the 
deficiency, and EPA approves the plan or plan revision before EPA 
promulgates such FIP.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: July 8, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-17053 Filed 7-19-16; 8:45 am]
 BILLING CODE 6560-50-P