Air Plan Disapproval; AL; Prong 4 Visibility for the 2008 8-Hour Ozone Standard, 87503-87509 [2016-28871]
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Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Proposed Rules
The information needed to document
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submitted to the Chief Counsel for
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Comments and Requests for Public
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Drafting Information
The principal author of this regulation
is Rachel L. Gregory, Office of the
Associate Chief Counsel (Procedure &
Administration).
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and
recordkeeping requirements.
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Proposed Amendments to the
Regulations
Accordingly, 26 CFR part 1 is
proposed to be amended as follows:
PART 1—INCOME TAXES
Paragraph 1. The authority citation
for part 1 continues to read in part as
follows:
■
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 1.6695–2 is amended
by revising the section heading and
paragraphs (a), (b)(1)(i) introductory
text, (b)(1)(ii), (b)(2), (b)(3)(i) and (ii),
(b)(4)(i)(B) and (C), (c)(3), and (e) to read
as follows:
■
§ 1.6695–2 Tax return preparer due
diligence requirements for certain credits.
(a) [The text of the proposed
amendment to § 1.6695–2(a) is the same
as the text of § 1.6695–2T(a) published
elsewhere in this issue of the Federal
Register].
(b) * * *
(1) * * *
(i) [The text of the proposed
amendment to § 1.6695–2(b)(1)(i) is the
same as the text of § 1.6695–2T(b)(1)(i)
published elsewhere in this issue of the
Federal Register].
*
*
*
*
*
(ii) [The text of the proposed
amendment to § 1.6695–2(b)(1)(ii) is the
same as the text of § 1.6695–2T(b)(1)(ii)
published elsewhere in this issue of the
Federal Register].
(2) [The text of the proposed
amendment to § 1.6695–2(b)(2) is the
same as the text of § 1.6695–2T(b)(2)
published elsewhere in this issue of the
Federal Register].
(3) * * *
(i) [The text of the proposed
amendment to § 1.6695–2(b)(3)(i) is the
same as the text of § 1.6695–2T(b)(3)(i)
published elsewhere in this issue of the
Federal Register].
(ii) [The text of the proposed
amendment to § 1.6695–2(b)(3)(ii) is the
same as the text of § 1.6695–2T(b)(3)(ii)
published elsewhere in this issue of the
Federal Register].
(4) * * *
(i) * * *
(B) [The text of the proposed
amendment to § 1.6695–2(b)(4)(i)(B) is
the same as the text of § 1.6695–
2T(b)(4)(i)(B) published elsewhere in
this issue of the Federal Register].
(C) [The text of the proposed
amendment to § 1.6695–2T(b)(4)(i)(C) is
the same as the text of § 1.6695–
2T(b)(4)(i)(C) published elsewhere in
this issue of the Federal Register].
*
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*
*
*
(c) * * *
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(3) [The text of the proposed
amendment to § 1.6695–2T(c)(3) is the
same as the text of § 1.6695–2T(c)(3)
published elsewhere in this issue of the
Federal Register].
*
*
*
*
*
(e) Applicability date. The rules of
this section apply to tax returns and
claims for refunds prepared on or after
the date of publication of the Treasury
decision adopting these rules as final
regulations in the Federal Register with
respect to tax years beginning after
December 31, 2015.
John M. Dalrymple,
Deputy Commissioner for Services and
Enforcement.
[FR Doc. 2016–28995 Filed 12–2–16; 8:45 am]
BILLING CODE 4830–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52
[EPA–R04–OAR–2012–0689; FRL–9955–95–
Region 4]
Air Plan Disapproval; AL; Prong 4
Visibility for the 2008 8-Hour Ozone
Standard
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to
disapprove the visibility transport
(prong 4) portion of a revision to the
Alabama State Implementation Plan
(SIP), submitted by the Alabama
Department of Environmental
Management (ADEM), addressing the
Clean Air Act (CAA or Act)
infrastructure SIP requirements for the
2008 8-hour ozone National Ambient
Air Quality Standards (NAAQS). The
CAA requires that each state adopt and
submit a SIP for the implementation,
maintenance, and enforcement of each
NAAQS promulgated by EPA,
commonly referred to as an
‘‘infrastructure SIP.’’ Specifically, EPA
is proposing to disapprove the prong 4
portion of Alabama’s August 20, 2012,
2008 8-hour ozone infrastructure SIP
submission. All other applicable
infrastructure requirements for this SIP
submission have been addressed in
separate rulemakings.
DATES: Comments must be received on
or before December 27, 2016.
ADDRESSES: Submit your comments,
identified by Docket ID No EPA–R04–
OAR–2012–0689 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
SUMMARY:
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Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Proposed Rules
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:
Sean Lakeman of the 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.
Lakeman can be reached by telephone at
(404) 562–9043 or via electronic mail at
lakeman.sean@epa.gov.
SUPPLEMENTARY INFORMATION:
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I. Background
By statute, SIPs meeting the
requirements of sections 110(a)(1) and
(2) of the CAA are to be submitted by
states within three years after
promulgation of a new or revised
NAAQS to provide for the
implementation, maintenance, and
enforcement of the new or revised
NAAQS. EPA has historically referred to
these SIP submissions made for the
purpose of satisfying the requirements
of sections 110(a)(1) and 110(a)(2) as
‘‘infrastructure SIP’’ submissions.
Sections 110(a)(1) and (2) require states
to address basic SIP elements such as
for monitoring, basic program
requirements, and legal authority that
are designed to assure attainment and
maintenance of the newly established or
revised NAAQS. More specifically,
section 110(a)(1) provides the
procedural and timing requirements for
infrastructure SIPs. Section 110(a)(2)
lists specific elements that states must
meet for the infrastructure SIP
requirements related to a newly
established or revised NAAQS. The
contents of an infrastructure SIP
submission may vary depending upon
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the data and analytical tools available to
the state, as well as the provisions
already contained in the state’s
implementation plan at the time in
which the state develops and submits
the submission for a new or revised
NAAQS.
Section 110(a)(2)(D) has two
components: 110(a)(2)(D)(i) and
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i)
includes 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), 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 from 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), prohibit any source or
other type of emissions activity in one
state from interfering with measures
required to prevent significant
deterioration of air quality in another
state (prong 3) or from interfering with
measures to protect visibility in another
state (prong 4). Section 110(a)(2)(D)(ii)
requires SIPs to include provisions
insuring compliance with sections 115
and 126 of the Act, relating to
international and interstate pollution
abatement, respectively.
On March 12, 2008, EPA revised the
8-hour ozone NAAQS to 0.075 parts per
million. See 73 FR 16436 (March 27,
2008). States were required to submit
infrastructure SIP submissions for the
2008 8-hour ozone NAAQS to EPA no
later than March 12, 2011. For the 2008
8-hour ozone NAAQS, this proposed
action only addresses the prong 4
element of Alabama’s infrastructure SIP
submission that EPA received on
August 20, 2012. Through this action,
EPA is proposing to disapprove the
prong 4 portion of Alabama’s
infrastructure SIP submission for the
2008 8-hour ozone NAAQS. All other
applicable infrastructure SIP
requirements for this SIP submission
have been addressed in separate
rulemakings.
II. What is EPA’s approach to the
review of infrastructure SIP
submissions?
The requirement for states to make a
SIP submission of this type arises out of
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
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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 ‘‘each such plan’’
submission must address.
EPA has historically referred to these
SIP submissions made for the purpose
of satisfying the requirements of section
110(a)(1) and (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 section 169A of the
CAA, 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.1 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.
1 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 CAA, which specifically
address nonattainment SIP
requirements.2 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.3 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.
Another example of ambiguity within
section 110(a)(1) and (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
2 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)).
3 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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either individually or in a larger
combined action.4 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 subelements of the same infrastructure SIP
submission.5
Ambiguities within section 110(a)(1)
and (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.6
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
4 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).
5 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
submission.
6 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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87505
these other types of SIP submissions.
For example, section 172(c)(7) requires
attainment plan SIP submissions
required by part D to meet the
‘‘applicable requirements’’ of section
110(a)(2); thus, 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 portion 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.7 EPA most recently
issued guidance for infrastructure SIPs
on September 13, 2013 (2013
7 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.
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Guidance).8 EPA developed this
document to provide states with up-todate 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.9 The guidance also
discusses the substantively important
issues that are germane to certain
subsections of section 110(a)(2). EPA
interprets section 110(a)(1) and (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
executive agencies with similar powers.
Thus, EPA reviews infrastructure SIP
submissions to ensure that the state’s
SIP 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
8 ‘‘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.
9 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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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 section 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 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 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 SIP 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 (SSM) that
may be contrary to the CAA and EPA’s
policies addressing such excess
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emissions; 10 (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 SIPapproved 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 that 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.11 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
section 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
10 Subsequent to issuing the 2013 Guidance,
EPA’s interpretation of the CAA with respect to the
approvability of affirmative defense provisions in
SIPs has changed. See ‘‘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,’’ 80 FR 33839 (June 12, 2015). As a
result, EPA’s 2013 Guidance (p. 21 & n.30) no
longer represents EPA’s view concerning the
validity of affirmative defense provisions, in light
of the requirements of section 113 and section 304.
11 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 or affirmative defense 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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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 section 110(a)(1)
and (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 SIP is
substantially inadequate to attain or
maintain the NAAQS, to mitigate
interstate transport, or to otherwise
comply with the CAA.12 Section
110(k)(6) authorizes EPA to correct
errors in past actions, such as past
approvals of SIP submissions.13
12 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).
13 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 section 110(k)(6) of the
CAA 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).
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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.14
III. What are the prong 4 requirements?
Section 110(a)(2)(D)(i)(II) requires a
state’s SIP to contain provisions
prohibiting sources in that state from
emitting pollutants in amounts that
interfere with any other state’s efforts to
protect visibility under part C of the
CAA (which includes sections 169A and
169B). The 2013 Guidance states that
these prong 4 requirements can be
satisfied by approved SIP provisions
that EPA has found to adequately
address any contribution of that state’s
sources that impacts the visibility
program requirements in other states.
The 2013 Guidance also states that EPA
interprets this prong to be pollutantspecific, such that the infrastructure SIP
submission need only address the
potential for interference with
protection of visibility caused by the
pollutant (including precursors) to
which the new or revised NAAQS
applies.
The 2013 Guidance lays out two ways
in which a state’s infrastructure SIP may
satisfy prong 4. The first way is through
an air agency’s confirmation in its
infrastructure SIP submission that it has
an EPA-approved regional haze SIP that
fully meets the requirements of 40 CFR
51.308 or 51.309. 40 CFR 51.308 and
51.309 specifically require that a state
participating in a regional planning
process include all measures needed to
achieve its apportionment of emission
reduction obligations agreed upon
through that process. A fully approved
regional haze SIP will ensure that
emissions from sources under an air
agency’s jurisdiction are not interfering
14 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 (January 26,
2011) (final disapproval of such provisions).
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87507
with visibility protection in other air
agencies’ jurisdiction.
Alternatively, in the absence of a fully
approved regional haze SIP, a state may
meet the requirements of prong 4
through a demonstration in its
infrastructure SIP submission that
emissions within its jurisdiction do not
interfere with other air agencies’ plans
to protect visibility. Such an
infrastructure SIP submission would
need to include measures to limit
visibility-impairing pollutants and
ensure that the reductions conform with
any mutually agreed regional haze
reasonable progress goals for mandatory
Class I areas in other states.
IV. What is EPA’s analysis of how
Alabama addressed prong 4?
Alabama’s August 20, 2012, 2008 8hour ozone infrastructure submission
cites to the State’s regional haze SIP
alone to satisfy prong 4 requirements.15
Alabama’s regional haze SIP relies on
the Clean Air Interstate Rule (CAIR) 16 as
an alternative to the best available
retrofit technology (BART) requirements
for its CAIR-subject electricity
generating units (EGUs).17 Although this
reliance on CAIR was consistent with
the CAA at the time the State submitted
its regional haze SIP, CAIR has since
been replaced by the Cross-State Air
15 As mentioned above, a state may meet the
requirements of prong 4 without a fully approved
regional haze SIP by showing that its SIP contains
adequate provisions to prevent emissions from
within the state from interfering with other states’
measures to protect visibility. Alabama did not,
however, provide a demonstration in the
infrastructure SIP submission subject to this
proposed action that emissions within its
jurisdiction do not interfere with other states’ plans
to protect visibility.
16 CAIR created regional cap-and-trade programs
to reduce sulfur dioxide (SO2) and nitrogen oxides
(NOX) emissions in 28 eastern states, including
Alabama, that contributed to downwind
nonattainment and maintenance of the 1997 8-hour
ozone NAAQS and the 1997 PM2.5 NAAQS.
17 Section 169A of the CAA and EPA’s
implementing regulations require states to establish
long-term strategies for making reasonable progress
towards the national goal of achieving natural
visibility conditions in certain Class I areas. The
156 mandatory Class I federal areas in which
visibility has been determined to be an important
value are listed at subpart D of 40 CFR part 81. For
brevity, these areas are referred to here simply as
‘‘Class I areas.’’
Implementation plans must give specific
attention to certain stationary sources. Specifically,
section 169A(b)(2)(A) of the CAA requires states to
revise their SIPs to contain such measures as may
be necessary to make reasonable progress towards
the natural visibility goal, including a requirement
that certain categories of existing major stationary
sources built between 1962 and 1977 procure,
install, and operate BART as determined by the
state. Under the Regional Haze Rule, states are
directed to conduct BART determinations for such
‘‘BART-eligible’’ sources that may be anticipated to
cause or contribute to any visibility impairment in
a Class I area.
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Pollution Rule (CSAPR) 18 and can no
longer be relied upon as an alternative
to BART or as part of a long-term
strategy (LTS) for addressing regional
haze. Therefore, EPA finalized a limited
disapproval of Alabama’s 2008 regional
haze SIP submission to the extent that
it relied on CAIR to satisfy the BART
and LTS requirements.19 See 77 FR
33642 (June 7, 2012).
In that limited disapproval action,
EPA also amended the Regional Haze
Rule to provide that CSAPR can serve as
an alternative to BART, i.e., that
participation by a state’s EGUs in a
CSAPR trading program for a given
pollutant achieves greater reasonable
progress toward the national goal of
achieving natural visibility conditions
in Class I areas than source-specific
BART for those EGUs for that
pollutant.20 See 40 CFR 51.308(e)(4); 77
FR 33642. A state can participate in the
trading program through either a federal
implementation plan (FIP)
implementing CSAPR or an integrated
CSAPR state trading program
implemented through an approved SIP
revision. In promulgating this
amendment to the Regional Haze Rule,
EPA relied on an analytic demonstration
of visibility improvement from CSAPR
implementation relative to BART based
on an air quality modeling study.
At the time of the rule amendment,
questions regarding the legality of
CSAPR were pending before the United
States Court of Appeals for the District
of Columbia Circuit (D.C. Circuit) and
the court had stayed implementation of
the rule. The D.C. Circuit subsequently
vacated and remanded CSAPR in
August 2012, leaving CAIR in place
temporarily.21 However, in April 2014,
the Supreme Court reversed the vacatur
and remanded to the D.C. Circuit for
resolution of the remaining claims.22
The D.C. Circuit then granted EPA’s
motion to lift the stay and to toll the
18 CSAPR addresses the interstate transport of
emissions contributing to nonattainment and
interfering with maintenance of the two air quality
standards covered by CAIR as well as the 2006
PM2.5 NAAQS. CSAPR requires substantial
reductions of SO2 and NOX emissions from electric
generating units (EGUs) in 28 states in the eastern
United States.
19 EPA finalized a limited approval of Alabama’s
regional haze SIP on March 30, 2012. See 77 FR
19098.
20 Legal challenges from state, industry, and other
petitioners to EPA’s determination that CSAPR can
be an alternative to BART are pending. Utility Air
Regulatory Group v. EPA, No. 12–1342 (D.C. Cir.
filed August 6, 2012).
21 EME Homer City Generation, L.P. v. EPA, 696
F.3d 7 (D.C. Cir. 2012).
22 EPA v. EME Homer City Generation, L.P., 134
S. Ct. 1584 (2014), reversing 696 F.3d 7 (D.C. Cir.
2012).
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rule’s deadlines by three years.23
Consequently, implementation of
CSAPR Phase 1 began in January 2015
and implementation of Phase 2 is
scheduled to begin in January 2017.
Following the Supreme Court remand,
the D.C. Circuit conducted further
proceedings to address the remaining
claims. In July 2015, the court issued a
decision denying most of the claims but
remanding the Phase 2 sulfur dioxide
(SO2) emissions budgets for Alabama,
Georgia, South Carolina, and Texas and
the Phase 2 ozone-season nitrogen
oxides (NOX) budgets for eleven states
to EPA for reconsideration.24 Since
receipt of the D.C. Circuit’s 2015
decision, EPA has engaged the affected
states to determine appropriate next
steps to address the decision with
regard to each state.25 In a November 10,
2016 proposed rulemaking, EPA stated
that it expects that potentially material
changes to the scope of CSAPR coverage
resulting from the remand will be
limited to withdrawal of the CSAPR FIP
requiring Texas to participate in the
Phase 2 trading programs for annual
emissions of SO2 and NOX and
withdrawal of Florida’s CSAPR FIP
requirements for ozone-season NOX,
which EPA recently finalized in another
action.26
Due to these expected changes to
CSAPR’s scope, EPA conducted a
sensitivity analysis to the 2012 analytic
CSAPR ‘‘alternative to BART’’
demonstration showing that the analysis
would have supported the same
conclusion if the actions that EPA has
proposed to take or has already taken in
response to the D.C. Circuit’s remand of
various CSAPR Phase 2 budgets—
specifically, the proposed withdrawal of
PM2.5-related CSAPR Phase 2 FIP
requirements for Texas EGUs and the
recently finalized withdrawal of ozonerelated CSAPR Phase 2 FIP
requirements for Florida EGUs—were
reflected in that analysis. EPA’s
November 10, 2016 notice of proposed
rulemaking seeks comment on this
analysis. See 81 FR 78954.
23 Order, EME Homer City Generation, L.P. v.
EPA, No. 11–1302 (D.C. Cir. issued October 23,
2014).
24 EME Homer City Generation, L.P. v. EPA, 795
F.3d 118, 138 (D.C. Cir. 2015). The D.C. Circuit did
not remand the CSAPR ozone season NOX budgets
for Alabama.
25 As discussed below, Alabama submitted a SIP
revision to EPA on October 26, 2015, to incorporate
the Phase 2 annual NOX and annual SO2 CSAPR
budgets for the State into the SIP. EPA approved
this SIP revision in a final action published on
August 31, 2016. See 81 FR 59869.
26 See 81 FR 78954 (November 10, 2016) for
further discussion regarding EPA’s expectations and
the proposed withdrawal of the CSAPR FIP for
Texas.
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Alabama sought to convert the 2012
limited approval/limited disapproval of
the State’s regional haze SIP to a full
approval through a SIP revision
submitted on October 26, 2015. This SIP
revision intended to adopt the CSAPR
trading program into the SIP, including
the Phase 2 annual NOx and annual SO2
CSAPR budgets for the State, and to use
this adoption to replace reliance on
CAIR with reliance on CSAPR to satisfy
the BART and LTS requirements.
Although EPA has approved the CSAPR
trading program into the Alabama SIP,27
EPA is currently seeking comment on its
proposal that CSAPR continue to be
available as an alternative to BART. EPA
thus cannot approve the portion of
Alabama’s 2015 SIP submission seeking
to replace reliance on CAIR with
reliance on CSAPR to satisfy the BART
and LTS requirements at this time.
Because Alabama’s prong 4 SIP
submission relies solely on the State
having a fully approved regional haze
SIP, EPA is not currently in a position
to approve the prong 4 element of
Alabama’s August 20, 2012, 2008 8-hour
ozone infrastructure SIP revision.
EPA is therefore proposing to
disapprove the prong 4 element of
Alabama’s August 20, 2012, 2008 8-hour
ozone infrastructure SIP submission.
Alabama did not submit this
infrastructure SIP to meet requirements
for Part D or a SIP call; therefore, if EPA
takes final action to disapprove the
prong 4 portion of this submission, no
sanctions will be triggered. However, if
EPA finalizes this proposed
disapproval, 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 EPA approves a SIP
revision satisfying prong 4 requirements
before EPA promulgates such a FIP.
V. Proposed Action
As described above, EPA is proposing
to disapprove the prong 4 portion of
Alabama’s August 20, 2012, 2008 8-hour
ozone infrastructure SIP submission. All
other applicable infrastructure
requirements for this SIP submission
have been addressed in separate
rulemakings.
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,
27 See
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EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. EPA is proposing to determine
that the prong 4 portion of the
aforementioned SIP submission does
not meet Federal requirements.
Therefore, this proposed action does not
impose additional requirements on the
state 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.
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List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
[FR Doc. 2016–28871 Filed 12–2–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 152, 153, 155, 156, 160,
165, 168, 170, and 172
[EPA–HQ–OPP–2016–0227; FRL–9945–77]
RIN 2070–AK13
Notification of Submission to the
Secretary of Agriculture; Pesticides;
Removal of Obsolete Information
Environmental Protection
Agency (EPA).
ACTION: Notification of submission to
the Secretary of Agriculture.
AGENCY:
This document notifies the
public as required by the Federal
Insecticide, Fungicide, and Rodenticide
Act (FIFRA) that the EPA Administrator
has forwarded to the Secretary of the
United States Department of Agriculture
(USDA) a draft regulatory document
concerning removal of obsolete
information. The draft regulatory
document is not available to the public
until after it has been signed and made
available by EPA.
DATES: See Unit I. under SUPPLEMENTARY
INFORMATION.
ADDRESSES: The docket for this action,
identified by docket identification (ID)
number EPA–HQ–OPP–2016–0227 is
available at https://www.regulations.gov
or at the Office of Pesticide Programs
Regulatory Docket (OPP Docket) in the
Environmental Protection Agency
Docket Center (EPA/DC), West William
Jefferson Clinton Bldg., Rm. 3334, 1301
Constitution Ave. NW., Washington, DC
20460–0001. The Public Reading Room
is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal
holidays. The telephone number for the
Public Reading Room is (202) 566–1744,
and the telephone number for the OPP
Docket is (703) 305–5805. Please review
the visitor instructions and additional
information about the docket available
at https://www.epa.gov/dockets.
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FOR FURTHER INFORMATION CONTACT:
Kathryn Boyle, Field and External
Affairs Division (7506P), Office of
Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania
Ave. NW., Washington, DC 20460–0001;
telephone number: (703) 305–6304;
email address: boyle.kathryn@epa.gov.
SUPPLEMENTARY INFORMATION:
I. What action is EPA taking?
Dated: November 23, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
SUMMARY:
87509
Section 25(a)(2)(B) of FIFRA requires
the EPA Administrator to provide the
Secretary of USDA with a copy of any
draft final rule at least 30 days before
signing it in final form for publication
in the Federal Register. The draft final
rule is not available to the public until
after it has been signed by EPA. If the
Secretary of USDA comments in writing
regarding the draft final rule within 15
days after receiving it, the EPA
Administrator shall include the
comments of the Secretary of USDA, if
requested by the Secretary of USDA,
and the EPA Administrator’s response
to those comments with the final rule
that publishes in the Federal Register.
If the Secretary of USDA does not
comment in writing within 15 days after
receiving the draft final rule, the EPA
Administrator may sign the final rule for
publication in the Federal Register any
time after the 15–day period.
II. Do any Statutory and Executive
Order reviews apply to this
notification?
No. This document is merely a
notification of submission to the
Secretary of USDA. As such, none of the
regulatory assessment requirements
apply to this document.
List of Subjects
40 CFR Part 152
Environmental protection,
Administrative practice and procedure,
Pesticides and pests, Reporting and
recordkeeping requirements.
40 CFR Part 153
Environmental protection, Pesticides
and pests, Reporting and recordkeeping
requirements.
40 CFR Part 155
Environmental protection,
Administrative practice and procedure,
Confidential business information,
Pesticides and pests, Reporting and
recordkeeping requirements.
40 CFR Part 156
Environmental protection, Labeling,
Occupational safety and health,
Pesticides and pests, Reporting and
recordkeeping requirements.
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]]>Agencies
[Federal Register Volume 81, Number 233 (Monday, December 5, 2016)]
[Proposed Rules]
[Pages 87503-87509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28871]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52
[EPA-R04-OAR-2012-0689; FRL-9955-95-Region 4]
Air Plan Disapproval; AL; Prong 4 Visibility for the 2008 8-Hour
Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
disapprove the visibility transport (prong 4) portion of a revision to
the Alabama State Implementation Plan (SIP), submitted by the Alabama
Department of Environmental Management (ADEM), addressing the Clean Air
Act (CAA or Act) infrastructure SIP requirements for the 2008 8-hour
ozone National Ambient Air Quality Standards (NAAQS). The CAA requires
that each state adopt and submit a SIP for the implementation,
maintenance, and enforcement of each NAAQS promulgated by EPA, commonly
referred to as an ``infrastructure SIP.'' Specifically, EPA is
proposing to disapprove the prong 4 portion of Alabama's August 20,
2012, 2008 8-hour ozone infrastructure SIP submission. All other
applicable infrastructure requirements for this SIP submission have
been addressed in separate rulemakings.
DATES: Comments must be received on or before December 27, 2016.
ADDRESSES: Submit your comments, identified by Docket ID No EPA-R04-
OAR-2012-0689 at https://www.regulations.gov. Follow the online
instructions for submitting comments.
[[Page 87504]]
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: Sean Lakeman of the 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. Lakeman can be reached by telephone at (404) 562-9043
or via electronic mail at lakeman.sean@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
By statute, SIPs meeting the requirements of sections 110(a)(1) and
(2) of the CAA are to be submitted by states within three years after
promulgation of a new or revised NAAQS to provide for the
implementation, maintenance, and enforcement of the new or revised
NAAQS. EPA has historically referred to these SIP submissions made for
the purpose of satisfying the requirements of sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Sections 110(a)(1) and
(2) require states to address basic SIP elements such as for
monitoring, basic program requirements, and legal authority that are
designed to assure attainment and maintenance of the newly established
or revised NAAQS. More specifically, section 110(a)(1) provides the
procedural and timing requirements for infrastructure SIPs. Section
110(a)(2) lists specific elements that states must meet for the
infrastructure SIP requirements related to a newly established or
revised NAAQS. The contents of an infrastructure SIP submission may
vary depending upon the data and analytical tools available to the
state, as well as the provisions already contained in the state's
implementation plan at the time in which the state develops and submits
the submission for a new or revised NAAQS.
Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes 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), 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 from
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), prohibit any source or other type of emissions
activity in one state from interfering with measures required to
prevent significant deterioration of air quality in another state
(prong 3) or from interfering with measures to protect visibility in
another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to
include provisions insuring compliance with sections 115 and 126 of the
Act, relating to international and interstate pollution abatement,
respectively.
On March 12, 2008, EPA revised the 8-hour ozone NAAQS to 0.075
parts per million. See 73 FR 16436 (March 27, 2008). States were
required to submit infrastructure SIP submissions for the 2008 8-hour
ozone NAAQS to EPA no later than March 12, 2011. For the 2008 8-hour
ozone NAAQS, this proposed action only addresses the prong 4 element of
Alabama's infrastructure SIP submission that EPA received on August 20,
2012. Through this action, EPA is proposing to disapprove the prong 4
portion of Alabama's infrastructure SIP submission for the 2008 8-hour
ozone NAAQS. All other applicable infrastructure SIP requirements for
this SIP submission have been addressed in separate rulemakings.
II. What is EPA's approach to the review of infrastructure SIP
submissions?
The requirement for states to make a SIP submission of this type
arises out of 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 ``each such
plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of section 110(a)(1) and (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 section 169A of the CAA, 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.\1\ 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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\1\ 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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[[Page 87505]]
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
CAA, which specifically address nonattainment SIP requirements.\2\
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.\3\ 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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\2\ 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)).
\3\ 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 section 110(a)(1) and (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.\4\ 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.\5\
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\4\ 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).
\5\ 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 submission.
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Ambiguities within section 110(a)(1) and (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.\6\
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\6\ 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 these other types of SIP submissions.
For example, section 172(c)(7) requires attainment plan SIP submissions
required by part D to meet the ``applicable requirements'' of section
110(a)(2); thus, 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 portion 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.\7\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013
[[Page 87506]]
Guidance).\8\ 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.\9\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). EPA interprets section 110(a)(1) and (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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\7\ 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.
\8\ ``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.
\9\ 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 SIP
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 section 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
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 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 SIP 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 (SSM) that may be contrary to the CAA and
EPA's policies addressing such excess emissions; \10\ (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 that 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.\11\ 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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\10\ Subsequent to issuing the 2013 Guidance, EPA's
interpretation of the CAA with respect to the approvability of
affirmative defense provisions in SIPs has changed. See ``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,'' 80 FR 33839 (June 12, 2015). As a
result, EPA's 2013 Guidance (p. 21 & n.30) no longer represents
EPA's view concerning the validity of affirmative defense
provisions, in light of the requirements of section 113 and section
304.
\11\ 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 or affirmative defense 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 section 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
[[Page 87507]]
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
section 110(a)(1) and (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 SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or to otherwise comply with the CAA.\12\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\13\ 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.\14\
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\12\ 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).
\13\ 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 section 110(k)(6) of the CAA 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).
\14\ 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 (January 26, 2011) (final disapproval of such provisions).
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III. What are the prong 4 requirements?
Section 110(a)(2)(D)(i)(II) requires a state's SIP to contain
provisions prohibiting sources in that state from emitting pollutants
in amounts that interfere with any other state's efforts to protect
visibility under part C of the CAA (which includes sections 169A and
169B). The 2013 Guidance states that these prong 4 requirements can be
satisfied by approved SIP provisions that EPA has found to adequately
address any contribution of that state's sources that impacts the
visibility program requirements in other states. The 2013 Guidance also
states that EPA interprets this prong to be pollutant-specific, such
that the infrastructure SIP submission need only address the potential
for interference with protection of visibility caused by the pollutant
(including precursors) to which the new or revised NAAQS applies.
The 2013 Guidance lays out two ways in which a state's
infrastructure SIP may satisfy prong 4. The first way is through an air
agency's confirmation in its infrastructure SIP submission that it has
an EPA-approved regional haze SIP that fully meets the requirements of
40 CFR 51.308 or 51.309. 40 CFR 51.308 and 51.309 specifically require
that a state participating in a regional planning process include all
measures needed to achieve its apportionment of emission reduction
obligations agreed upon through that process. A fully approved regional
haze SIP will ensure that emissions from sources under an air agency's
jurisdiction are not interfering with visibility protection in other
air agencies' jurisdiction.
Alternatively, in the absence of a fully approved regional haze
SIP, a state may meet the requirements of prong 4 through a
demonstration in its infrastructure SIP submission that emissions
within its jurisdiction do not interfere with other air agencies' plans
to protect visibility. Such an infrastructure SIP submission would need
to include measures to limit visibility-impairing pollutants and ensure
that the reductions conform with any mutually agreed regional haze
reasonable progress goals for mandatory Class I areas in other states.
IV. What is EPA's analysis of how Alabama addressed prong 4?
Alabama's August 20, 2012, 2008 8-hour ozone infrastructure
submission cites to the State's regional haze SIP alone to satisfy
prong 4 requirements.\15\ Alabama's regional haze SIP relies on the
Clean Air Interstate Rule (CAIR) \16\ as an alternative to the best
available retrofit technology (BART) requirements for its CAIR-subject
electricity generating units (EGUs).\17\ Although this reliance on CAIR
was consistent with the CAA at the time the State submitted its
regional haze SIP, CAIR has since been replaced by the Cross-State Air
[[Page 87508]]
Pollution Rule (CSAPR) \18\ and can no longer be relied upon as an
alternative to BART or as part of a long-term strategy (LTS) for
addressing regional haze. Therefore, EPA finalized a limited
disapproval of Alabama's 2008 regional haze SIP submission to the
extent that it relied on CAIR to satisfy the BART and LTS
requirements.\19\ See 77 FR 33642 (June 7, 2012).
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\15\ As mentioned above, a state may meet the requirements of
prong 4 without a fully approved regional haze SIP by showing that
its SIP contains adequate provisions to prevent emissions from
within the state from interfering with other states' measures to
protect visibility. Alabama did not, however, provide a
demonstration in the infrastructure SIP submission subject to this
proposed action that emissions within its jurisdiction do not
interfere with other states' plans to protect visibility.
\16\ CAIR created regional cap-and-trade programs to reduce
sulfur dioxide (SO2) and nitrogen oxides (NOX)
emissions in 28 eastern states, including Alabama, that contributed
to downwind nonattainment and maintenance of the 1997 8-hour ozone
NAAQS and the 1997 PM2.5 NAAQS.
\17\ Section 169A of the CAA and EPA's implementing regulations
require states to establish long-term strategies for making
reasonable progress towards the national goal of achieving natural
visibility conditions in certain Class I areas. The 156 mandatory
Class I federal areas in which visibility has been determined to be
an important value are listed at subpart D of 40 CFR part 81. For
brevity, these areas are referred to here simply as ``Class I
areas.''
Implementation plans must give specific attention to certain
stationary sources. Specifically, section 169A(b)(2)(A) of the CAA
requires states to revise their SIPs to contain such measures as may
be necessary to make reasonable progress towards the natural
visibility goal, including a requirement that certain categories of
existing major stationary sources built between 1962 and 1977
procure, install, and operate BART as determined by the state. Under
the Regional Haze Rule, states are directed to conduct BART
determinations for such ``BART-eligible'' sources that may be
anticipated to cause or contribute to any visibility impairment in a
Class I area.
\18\ CSAPR addresses the interstate transport of emissions
contributing to nonattainment and interfering with maintenance of
the two air quality standards covered by CAIR as well as the 2006
PM2.5 NAAQS. CSAPR requires substantial reductions of
SO2 and NOX emissions from electric generating
units (EGUs) in 28 states in the eastern United States.
\19\ EPA finalized a limited approval of Alabama's regional haze
SIP on March 30, 2012. See 77 FR 19098.
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In that limited disapproval action, EPA also amended the Regional
Haze Rule to provide that CSAPR can serve as an alternative to BART,
i.e., that participation by a state's EGUs in a CSAPR trading program
for a given pollutant achieves greater reasonable progress toward the
national goal of achieving natural visibility conditions in Class I
areas than source-specific BART for those EGUs for that pollutant.\20\
See 40 CFR 51.308(e)(4); 77 FR 33642. A state can participate in the
trading program through either a federal implementation plan (FIP)
implementing CSAPR or an integrated CSAPR state trading program
implemented through an approved SIP revision. In promulgating this
amendment to the Regional Haze Rule, EPA relied on an analytic
demonstration of visibility improvement from CSAPR implementation
relative to BART based on an air quality modeling study.
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\20\ Legal challenges from state, industry, and other
petitioners to EPA's determination that CSAPR can be an alternative
to BART are pending. Utility Air Regulatory Group v. EPA, No. 12-
1342 (D.C. Cir. filed August 6, 2012).
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At the time of the rule amendment, questions regarding the legality
of CSAPR were pending before the United States Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) and the court had stayed
implementation of the rule. The D.C. Circuit subsequently vacated and
remanded CSAPR in August 2012, leaving CAIR in place temporarily.\21\
However, in April 2014, the Supreme Court reversed the vacatur and
remanded to the D.C. Circuit for resolution of the remaining
claims.\22\ The D.C. Circuit then granted EPA's motion to lift the stay
and to toll the rule's deadlines by three years.\23\ Consequently,
implementation of CSAPR Phase 1 began in January 2015 and
implementation of Phase 2 is scheduled to begin in January 2017.
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\21\ EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C.
Cir. 2012).
\22\ EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584
(2014), reversing 696 F.3d 7 (D.C. Cir. 2012).
\23\ Order, EME Homer City Generation, L.P. v. EPA, No. 11-1302
(D.C. Cir. issued October 23, 2014).
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Following the Supreme Court remand, the D.C. Circuit conducted
further proceedings to address the remaining claims. In July 2015, the
court issued a decision denying most of the claims but remanding the
Phase 2 sulfur dioxide (SO2) emissions budgets for Alabama,
Georgia, South Carolina, and Texas and the Phase 2 ozone-season
nitrogen oxides (NOX) budgets for eleven states to EPA for
reconsideration.\24\ Since receipt of the D.C. Circuit's 2015 decision,
EPA has engaged the affected states to determine appropriate next steps
to address the decision with regard to each state.\25\ In a November
10, 2016 proposed rulemaking, EPA stated that it expects that
potentially material changes to the scope of CSAPR coverage resulting
from the remand will be limited to withdrawal of the CSAPR FIP
requiring Texas to participate in the Phase 2 trading programs for
annual emissions of SO2 and NOX and withdrawal of
Florida's CSAPR FIP requirements for ozone-season NOX, which
EPA recently finalized in another action.\26\
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\24\ EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 138
(D.C. Cir. 2015). The D.C. Circuit did not remand the CSAPR ozone
season NOX budgets for Alabama.
\25\ As discussed below, Alabama submitted a SIP revision to EPA
on October 26, 2015, to incorporate the Phase 2 annual
NOX and annual SO2 CSAPR budgets for the State
into the SIP. EPA approved this SIP revision in a final action
published on August 31, 2016. See 81 FR 59869.
\26\ See 81 FR 78954 (November 10, 2016) for further discussion
regarding EPA's expectations and the proposed withdrawal of the
CSAPR FIP for Texas.
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Due to these expected changes to CSAPR's scope, EPA conducted a
sensitivity analysis to the 2012 analytic CSAPR ``alternative to BART''
demonstration showing that the analysis would have supported the same
conclusion if the actions that EPA has proposed to take or has already
taken in response to the D.C. Circuit's remand of various CSAPR Phase 2
budgets--specifically, the proposed withdrawal of PM2.5-
related CSAPR Phase 2 FIP requirements for Texas EGUs and the recently
finalized withdrawal of ozone-related CSAPR Phase 2 FIP requirements
for Florida EGUs--were reflected in that analysis. EPA's November 10,
2016 notice of proposed rulemaking seeks comment on this analysis. See
81 FR 78954.
Alabama sought to convert the 2012 limited approval/limited
disapproval of the State's regional haze SIP to a full approval through
a SIP revision submitted on October 26, 2015. This SIP revision
intended to adopt the CSAPR trading program into the SIP, including the
Phase 2 annual NOx and annual SO2 CSAPR budgets for the
State, and to use this adoption to replace reliance on CAIR with
reliance on CSAPR to satisfy the BART and LTS requirements. Although
EPA has approved the CSAPR trading program into the Alabama SIP,\27\
EPA is currently seeking comment on its proposal that CSAPR continue to
be available as an alternative to BART. EPA thus cannot approve the
portion of Alabama's 2015 SIP submission seeking to replace reliance on
CAIR with reliance on CSAPR to satisfy the BART and LTS requirements at
this time. Because Alabama's prong 4 SIP submission relies solely on
the State having a fully approved regional haze SIP, EPA is not
currently in a position to approve the prong 4 element of Alabama's
August 20, 2012, 2008 8-hour ozone infrastructure SIP revision.
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\27\ See 81 FR 59869 (August 31, 2016).
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EPA is therefore proposing to disapprove the prong 4 element of
Alabama's August 20, 2012, 2008 8-hour ozone infrastructure SIP
submission. Alabama did not submit this infrastructure SIP to meet
requirements for Part D or a SIP call; therefore, if EPA takes final
action to disapprove the prong 4 portion of this submission, no
sanctions will be triggered. However, if EPA finalizes this proposed
disapproval, 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 EPA
approves a SIP revision satisfying prong 4 requirements before EPA
promulgates such a FIP.
V. Proposed Action
As described above, EPA is proposing to disapprove the prong 4
portion of Alabama's August 20, 2012, 2008 8-hour ozone infrastructure
SIP submission. All other applicable infrastructure requirements for
this SIP submission have been addressed in separate rulemakings.
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,
[[Page 87509]]
EPA's role is to approve state choices, provided that they meet the
criteria of the CAA. EPA is proposing to determine that the prong 4
portion of the aforementioned SIP submission does not meet Federal
requirements. Therefore, this proposed action does not impose
additional requirements on the state 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,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 23, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-28871 Filed 12-2-16; 8:45 am]
BILLING CODE 6560-50-P
