Air Plan Approval; Alabama; Regional Haze Plan and Prong 4 (Visibility) for the 2012 PM2.5, 39090-39097 [2017-17346]
Download as PDF
39090
Federal Register / Vol. 82, No. 158 / Thursday, August 17, 2017 / Proposed Rules
and its updated provisions into the SIP,
pursuant to CAA section 110(a)(2)(C).
IV. Incorporation by Reference
In this rule, EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with the
requirements of 1 CFR 51.5, EPA is
proposing to incorporate by reference
South Carolina Regulation 61–62.1,
Section II—‘‘Permit Requirements,’’
effective June 24, 2016,11 which revises
the federally enforceable minor source
construction and operating permit
program. EPA has made, and will
continue to make, these materials
generally available through
www.regulations.gov and/or at the EPA
Region 4 office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
V. Proposed Action
EPA is proposing to approve portions
of revisions to the South Carolina SIP
submitted by SC DHEC to EPA on
October 1, 2007, July 18, 2011, June 17,
2013, August 8, 2014, January 20, 2016,
and July 27, 2016. Specifically, EPA is
proposing to approve the changes to
S.C. Code Ann. Regs. 61–62.1, Section
II—‘‘Permit Requirements,’’ as
discussed above, pursuant to CAA
section 110(a)(2)(C), section 110(l), and
40 CFR 51.160—164.
sradovich on DSK3GMQ082PROD with PROPOSALS
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
action merely proposes to approve state
law as meeting Federal requirements
and does not impose additional
requirements beyond those imposed by
state law. For that reason, this proposed
action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
11 See Section I and Section II.C. of this proposed
rule for additional detail.
VerDate Sep<11>2014
17:29 Aug 16, 2017
Jkt 241001
• 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 (Public Law 104–4);
• does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this proposed rule for South
Carolina does not have Tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), because it does not have
substantial direct effects on an Indian
Tribe. The Catawba Indian Nation
Reservation is located within the state of
South Carolina. Pursuant to the Catawba
Indian Claims Settlement Act, S.C. Code
Ann. 27–16–120, ‘‘all state and local
environmental laws and regulations
apply to the [Catawba Indian Nation]
and Reservation and are fully
enforceable by all relevant state and
local agencies and authorities.’’ EPA
notes this action will not impose
substantial direct costs on Tribal
governments or preempt Tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 7, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2017–17345 Filed 8–16–17; 8:45 am]
BILLING CODE 6560–50–P
PO 00000
Frm 00042
Fmt 4702
Sfmt 4702
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2017–0104; FRL–9966–18–
Region 4]
Air Plan Approval; Alabama; Regional
Haze Plan and Prong 4 (Visibility) for
the 2012 PM2.5, 2010 NO2, 2010 SO2,
and 2008 Ozone NAAQS
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to take the
following four actions regarding the
Alabama State Implementation Plan
(SIP), contingent upon a final
determination from the Agency that a
state’s participation in the Cross-State
Air Pollution Rule (CSAPR) continues to
meet the Regional Haze Rule (RHR)’s
criteria to qualify as an alternative to the
application of Best Available Retrofit
Technology (BART): Approve the
portion of Alabama’s October 26, 2015,
SIP submittal seeking to change reliance
from the Clean Air Interstate Rule
(CAIR) to CSAPR for certain regional
haze requirements; convert EPA’s
limited approval/limited disapproval of
Alabama’s July 15, 2008, regional haze
SIP to a full approval; approve the
visibility prong of Alabama’s
infrastructure SIP submittals for the
2012 Fine Particulate Matter (PM2.5),
2010 Nitrogen Dioxide (NO2), and 2010
Sulfur Dioxide (SO2) National Ambient
Air Quality Standards (NAAQS); and
convert EPA’s disapproval of the
visibility portion of Alabama’s
infrastructure SIP submittal for the 2008
Ozone NAAQS to an approval.
DATES: Comments must be received on
or before September 18, 2017.
ADDRESSES: Submit your comments,
identified by Docket ID No EPA–R04–
OAR–2017–0104 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
EPA may publish any comment received
to its public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. EPA will generally
not consider comments or comment
contents located outside of the primary
SUMMARY:
E:\FR\FM\17AUP1.SGM
17AUP1
Federal Register / Vol. 82, No. 158 / Thursday, August 17, 2017 / Proposed Rules
submission (i.e., on the Web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Michele Notarianni, Air Regulatory
Management Section, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Ms.
Notarianni can be reached by telephone
at (404) 562–9031 or via electronic mail
at notarianni.michele@epa.gov.
SUPPLEMENTARY INFORMATION:
sradovich on DSK3GMQ082PROD with PROPOSALS
I. Background
A. Regional Haze SIPs and Their
Relationship With CAIR and CSAPR
Section 169A(b)(2)(A) of the Clean Air
Act (CAA or Act) requires states to
submit regional haze SIPs that 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 RHR, 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. Rather than requiring sourcespecific BART controls, states also have
the flexibility to adopt an emissions
trading program or other alternative
program as long as the alternative
provides greater reasonable progress
towards improving visibility than
BART. See 40 CFR 51.308(e)(2). EPA
provided states with this flexibility in
the RHR, adopted in 1999, and further
refined the criteria for assessing whether
an alternative program provides for
greater reasonable progress in two
subsequent rulemakings. See 64 FR
35714 (July 1, 1999); 70 FR 39104 (July
6, 2005); 71 FR 60612 (October 13,
2006).
EPA demonstrated that CAIR would
achieve greater reasonable progress than
BART in revisions to the regional haze
program made in 2005.1 See 70 FR
39104. In those revisions, EPA amended
its regulations to provide that states
1 CAIR created regional cap-and-trade programs to
reduce SO2 and NOX emissions in 27 eastern states
(and the District of Columbia), including Alabama,
that contributed to downwind nonattainment or
interfered with maintenance of the 1997 8-hour
ozone NAAQS or the 1997 PM2.5 NAAQS.
VerDate Sep<11>2014
17:29 Aug 16, 2017
Jkt 241001
participating in the CAIR cap-and-trade
programs pursuant to an EPA-approved
CAIR SIP or states that remain subject
to a CAIR Federal Implementation Plan
(FIP) need not require affected BARTeligible electric generating units (EGUs)
to install, operate, and maintain BART
for emissions of SO2 and nitrogen
oxides (NOX). As a result of EPA’s
determination that CAIR was ‘‘betterthan-BART,’’ a number of states in the
CAIR region, including Alabama, relied
on the CAIR cap-and-trade programs as
an alternative to BART for EGU
emissions of SO2 and NOX in designing
their regional haze SIPs. These states
also relied on CAIR as an element of a
long-term strategy (LTS) for achieving
their reasonable progress goals (RPGs)
for their regional haze programs.
However, in 2008, the United States
Court of Appeals for the District of
Columbia Circuit (D.C. Circuit)
remanded CAIR to EPA without vacatur
to preserve the environmental benefits
provided by CAIR. North Carolina v.
EPA, 550 F.3d 1176, 1178 (D.C. Cir.
2008). On August 8, 2011 (76 FR 48208),
acting on the D.C. Circuit’s remand, EPA
promulgated CSAPR to replace CAIR
and issued FIPs to implement the rule
in CSAPR-subject states.2
Implementation of CSAPR was
scheduled to begin on January 1, 2012,
when CSAPR would have superseded
the CAIR program.
Due to the D.C. Circuit’s 2008 ruling
that CAIR was ‘‘fatally flawed’’ and its
resulting status as a temporary measure
following that ruling, EPA could not
fully approve regional haze SIPs to the
extent that they relied on CAIR to satisfy
the BART requirement and the
requirement for a LTS sufficient to
achieve the state-adopted RPGs. On
these grounds, EPA finalized a limited
disapproval of Alabama’s regional haze
SIP on June 7, 2012, triggering the
requirement for EPA to promulgate a
FIP unless Alabama submitted and EPA
approved a SIP revision that corrected
the deficiency. See 77 FR 33642. EPA
finalized a limited approval of
Alabama’s regional haze SIP on June 28,
2012, as meeting the remaining
2 CSAPR requires 28 eastern states to limit their
statewide emissions of SO2 and/or NOX in order to
mitigate transported air pollution unlawfully
impacting other states’ ability to attain or maintain
four NAAQS: The 1997 ozone NAAQS, the 1997
annual PM2.5 NAAQS, the 2006 24-hour PM2.5
NAAQS, and the 2008 8-hour ozone NAAQS. The
CSAPR emissions limitations are defined in terms
of maximum statewide ‘‘budgets’’ for emissions of
annual SO2, annual NOX, and/or ozone-season NOX
by each covered state’s large EGUs. The CSAPR
state budgets are implemented in two phases of
generally increasing stringency, with the Phase 1
budgets applying to emissions in 2015 and 2016
and the Phase 2 budgets applying to emissions in
2017 and later years.
PO 00000
Frm 00043
Fmt 4702
Sfmt 4702
39091
applicable regional haze requirements
set forth in the CAA and the RHR. See
77 FR 38515.
In the June 7, 2012, limited
disapproval action, EPA also amended
the RHR to provide that participation by
a state’s EGUs in a CSAPR trading
program for a given pollutant—either a
CSAPR federal trading program
implemented through a CSAPR FIP or
an integrated CSAPR state trading
program implemented through an
approved CSAPR SIP revision—
qualifies as a BART alternative for those
EGUs for that pollutant.3 See 40 CFR
51.308(e)(4). Since EPA promulgated
this amendment, numerous states
covered by CSAPR have come to rely on
the provision through either SIPs or
FIPs.4
Numerous parties filed petitions for
review of CSAPR in the D.C. Circuit,
and on August 21, 2012, the court
issued its ruling, vacating and
remanding CSAPR to EPA and ordering
continued implementation of CAIR.
EME Homer City Generation, L.P. v.
EPA, 696 F.3d 7, 38 (D.C. Cir. 2012). The
D.C. Circuit’s vacatur of CSAPR was
reversed by the United States Supreme
Court on April 29, 2014, and the case
was remanded to the D.C. Circuit to
resolve remaining issues in accordance
with the high court’s ruling. EPA v. EME
Homer City Generation, L.P., 134 S. Ct.
1584 (2014). On remand, the D.C.
Circuit affirmed CSAPR in most
respects, but invalidated without
vacating some of the CSAPR budgets as
to a number of states. EME Homer City
Generation, L.P. v. EPA, 795 F.3d 118
(D.C. Cir. 2015). The remanded budgets
include the Phase 2 SO2 emissions
budgets for Alabama, Georgia, South
Carolina, and Texas and the Phase 2
ozone-season NOX budgets for 11 states.
This litigation ultimately delayed
implementation of CSAPR for three
years, from January 1, 2012, when
CSAPR’s cap-and-trade programs were
originally scheduled to replace the CAIR
cap-and-trade programs, to January 1,
2015. Thus, the rule’s Phase 2 budgets
that were originally promulgated to
begin on January 1, 2014, began on
January 1, 2017.
3 Legal challenges to the CSAPR-Better-thanBART rule from state, industry, and other
petitioners are pending. Utility Air Regulatory
Group v. EPA, No. 12–1342 (D.C. Cir. filed August
6, 2012).
4 EPA has promulgated FIPs relying on CSAPR
participation for BART purposes for Georgia,
Indiana, Iowa, Kentucky, Michigan, Missouri, Ohio,
Pennsylvania, South Carolina, Tennessee, Virginia,
and West Virginia, 77 FR at 33654, and Nebraska,
77 FR 40150, 40151 (July 6, 2012). EPA has
approved Minnesota’s and Wisconsin’s SIPs relying
on CSAPR participation for BART purposes. See 77
FR 34801, 34806 (June 12, 2012) for Minnesota and
77 FR 46952, 46959 (August 7, 2012) for Wisconsin.
E:\FR\FM\17AUP1.SGM
17AUP1
39092
Federal Register / Vol. 82, No. 158 / Thursday, August 17, 2017 / Proposed Rules
sradovich on DSK3GMQ082PROD with PROPOSALS
On November 10, 2016, EPA
published a notice of proposed
rulemaking (NPRM) explaining the
Agency’s belief that the potentially
material changes to the scope of CSAPR
coverage resulting from the D.C.
Circuit’s remand will be limited to the
withdrawal of the FIP provisions
providing SO2 and annual NOX budgets
for Texas and ozone-season NOX
budgets for Florida. This is due, in part,
to EPA’s approval of the portion of
Alabama’s October 26, 2015, SIP
submittal adopting Phase 2 annual NOX
and SO2 budgets equivalent to the
federally-developed budgets and to
commitments from Georgia and South
Carolina to submit SIP revisions
adopting Phase 2 annual NOX and SO2
budgets equal to or more stringent than
the federally-developed budgets. See 81
FR 78954. Since publication of the
NPRM, Georgia and South Carolina have
submitted these SIP revisions to EPA.5
In the NPRM, EPA also proposed to
determine that the limited changes to
the scope of CSAPR coverage do not
alter EPA’s conclusion that CSAPR
remains ‘‘better-than-BART;’’ that is,
that participation in CSAPR remains
available as an alternative to BART for
EGUs covered by the trading program.
At this time, EPA has not finalized this
proposed determination.
Alabama’s October 26, 2015, SIP
submittal also seeks to correct the
deficiencies identified in the June 7,
2012, limited disapproval of its regional
haze SIP by replacing reliance on CAIR
with reliance on CSAPR.6 Specifically,
Alabama requests that EPA amend the
State’s regional haze SIP by replacing its
reliance on CAIR with CSAPR to satisfy
SO2 and NOX BART requirements and
SO2 reasonable progress requirements
for EGUs formerly subject to CAIR,7 and
5 Georgia’s rulemaking to adopt the Phase 2
annual NOX and SO2 budgets became state effective
on July 20, 2017, and the State will submit a SIP
revision to EPA in the near future. South Carolina
submitted a SIP revision to EPA for parallel
processing on May 26, 2017, to adopt the Phase 2
annual NOX and SO2 budgets.
6 On August 31, 2016 (81 FR 59869), EPA
approved portions of the October 26, 2015, SIP
submission incorporating into Alabama’s SIP the
State’s regulations requiring Alabama EGUs to
participate in CSAPR state trading programs for
annual NOX and SO2 emissions integrated with the
CSAPR federal trading programs and thus replacing
the corresponding FIP requirements. In the August
31, 2016, action, EPA did not take any action
regarding Alabama’s request in this October 26,
2015, SIP submission to revise the State’s regional
haze SIP nor regarding the prong 4 for the 2008
lead, 2008 8-hour ozone, 2010 1-hour NO2, and
2010 1-hour SO2 NAAQS.
7 In its regional haze SIP, Alabama concluded and
EPA found acceptable the State’s determination that
no additional controls beyond CAIR are reasonable
for SO2 for affected Alabama EGUs for the first
implementation period. See 77 FR 11949 (February
28, 2012).
VerDate Sep<11>2014
17:29 Aug 16, 2017
Jkt 241001
to support the RPGs for the Sipsey
Wilderness Area in Alabama for the first
planning period. EPA is proposing to
take these actions in this action.
B. Infrastructure SIPs
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 (or less, if the
Administrator so prescribes) 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), are provisions that
prohibit any source or other type of
emissions activity in one state from
contributing significantly to
nonattainment of the NAAQS in another
state (prong 1) and 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), are provisions that
prohibit emissions activity in one state
from interfering with measures required
to prevent significant deterioration of air
quality in another state (prong 3) or
from interfering with measures to
protect visibility in another state (prong
4). Section 110(a)(2)(D)(ii) requires SIPs
to include provisions ensuring
PO 00000
Frm 00044
Fmt 4702
Sfmt 4702
compliance with sections 115 and 126
of the Act, relating to interstate and
international pollution abatement.
Through this action, EPA is proposing
to approve the prong 4 portion of
Alabama’s infrastructure SIP
submissions for the 2010 1-hour NO2,
2010 1-hour SO2, and 2012 annual PM2.5
NAAQS, and to convert EPA’s
disapproval of the prong 4 portion of
Alabama’s infrastructure SIP submission
for the 2008 8-hour Ozone NAAQS to an
approval, as discussed in section IV of
this notice.8 All other applicable
infrastructure SIP requirements for these
SIP submissions have been or will be
addressed in separate rulemakings. A
brief background regarding the NAAQS
relevant to this proposal is provided
below. For comprehensive information
on these NAAQS, please refer to the
Federal Register notices cited in the
following subsections.
1. 2010 1-Hour SO2 NAAQS
On June 2, 2010, EPA revised the 1hour primary SO2 NAAQS to an hourly
standard of 75 parts per billion (ppb)
based on a 3-year average of the annual
99th percentile of 1-hour daily
maximum concentrations. See 75 FR
35520 (June 22, 2010). States were
required to submit infrastructure SIP
submissions for the 2010 1-hour SO2
NAAQS to EPA no later than June 2,
2013. Alabama submitted an
infrastructure SIP submission for the
2010 1-hour SO2 NAAQS on April 23,
2013. This proposed action only
addresses the prong 4 element of that
submission.9
2. 2010 1-Hour NO2 NAAQS
On January 22, 2010, EPA
promulgated a new 1-hour primary
NAAQS for NO2 at a level of 100 ppb,
based on a 3-year average of the 98th
percentile of the yearly distribution of 1hour daily maximum concentrations.
See 75 FR 6474 (February 9, 2010).
States were required to submit
infrastructure SIP submissions for the
2010 1-hour NO2 NAAQS to EPA no
later than January 22, 2013. Alabama
submitted infrastructure SIP
submissions for the 2010 1-hour NO2
NAAQS on April 23, 2013, and
December 9, 2015. This proposed action
only addresses the prong 4 element of
those submissions.10
8 See
82 FR 9512 (February 7, 2017).
other portions of Alabama’s April 23 2013,
SO2 infrastructure submission have been addressed
in a previous EPA action. See 82 FR 3637 (January
12, 2017).
10 The other portions for Alabama’s April 23
2013, and December 9, 2015, NO2 infrastructure
submissions have been addressed in previous EPA
actions. See 81 FR 83142 (November 21, 2016); 80
FR 14019 (March 18, 2015).
9 The
E:\FR\FM\17AUP1.SGM
17AUP1
Federal Register / Vol. 82, No. 158 / Thursday, August 17, 2017 / Proposed Rules
3. 2012 PM2.5 NAAQS
On December 14, 2012, EPA revised
the annual primary PM2.5 NAAQS to 12
micrograms per cubic meter (mg/m3).
See 78 FR 3086 (January 15, 2013).
States were required to submit
infrastructure SIP submissions for the
2012 PM2.5 NAAQS to EPA no later than
December 14, 2015. Alabama submitted
an infrastructure SIP submission for the
2012 PM2.5 NAAQS on December 9,
2015. This proposed action only
addresses the prong 4 element of that
submission.11
sradovich on DSK3GMQ082PROD with PROPOSALS
4. 2008 8-Hour Ozone NAAQS
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. Alabama
submitted an infrastructure SIP for the
2008 8-hour Ozone NAAQS on August
20, 2012. On February 7, 2017, EPA
disapproved the prong 4 element of
Alabama’s 2008 8-hour Ozone
infrastructure submission. See 82 FR
9512. This proposed action addresses
that disapproval and proposes to
convert it to a full approval for prong
4.12
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’’
11 The other portions of Alabama’s December 9,
2015, PM2.5 infrastructure submission are being
addressed in separate actions.
12 The other portions of Alabama’s March 12,
2008, ozone infrastructure SIP submission have
been addressed in previous EPA actions. See 80 FR
14019 (March 3, 2015); 80 FR 17689 (April 2, 2015).
VerDate Sep<11>2014
17:29 Aug 16, 2017
Jkt 241001
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 (NSR) 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.13 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.
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
13 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.
PO 00000
Frm 00045
Fmt 4702
Sfmt 4702
39093
requirements.14 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.15 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
either individually or in a larger
combined action.16 Similarly, EPA
14 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)).
15 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.
16 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).
E:\FR\FM\17AUP1.SGM
17AUP1
39094
Federal Register / Vol. 82, No. 158 / Thursday, August 17, 2017 / Proposed Rules
sradovich on DSK3GMQ082PROD with PROPOSALS
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.17
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.18
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
17 On December 14, 2007, the State of Tennessee,
through the Tennessee Department of Environment
and Conservation, made a SIP revision to EPA
demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action
for infrastructure SIP elements (C) and (J) on
January 23, 2012 (77 FR 3213) and took final action
on March 14, 2012 (77 FR 14976). On April 16,
2012 (77 FR 22533) and July 23, 2012 (77 FR
42997), EPA took separate proposed and final
actions on all other section 110(a)(2) infrastructure
SIP elements of Tennessee’s December 14, 2007,
submittal.
18 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.
VerDate Sep<11>2014
17:29 Aug 16, 2017
Jkt 241001
110(a)(2)(C) that pertains to the
prevention of significant deterioration
(PSD) program required in part C of
Title I of the CAA, because PSD does
not apply to a pollutant for which an
area is designated nonattainment and
thus subject to part D planning
requirements. As this example
illustrates, each type of SIP submission
may implicate some elements of section
110(a)(2) but not others.
Given the potential for ambiguity in
some of the statutory language of section
110(a)(1) and section 110(a)(2), EPA
believes that it is appropriate to
interpret the ambiguous portions of
section 110(a)(1) and section 110(a)(2)
in the context of acting on a particular
SIP submission. In other words, EPA
assumes that Congress could not have
intended that each and every SIP
submission, regardless of the NAAQS in
question or the history of SIP
development for the relevant pollutant,
would meet each of the requirements, or
meet each of them in the same way.
Therefore, EPA has adopted an
approach under which it reviews
infrastructure SIP submissions against
the list of elements in section 110(a)(2),
but only to the extent each element
applies for that particular NAAQS.
Historically, EPA has elected to use
guidance documents to make
recommendations to states for
infrastructure SIPs, in some cases
conveying needed interpretations on
newly arising issues and in some cases
conveying interpretations that have
already been developed and applied to
individual SIP submissions for
particular elements.19 EPA most
recently issued guidance for
infrastructure SIPs on September 13,
2013 (2013 Guidance).20 EPA developed
this document to provide states with upto-date guidance for infrastructure SIPs
for any new or revised NAAQS. Within
this guidance, EPA describes the duty of
states to make infrastructure SIP
submissions to meet basic structural SIP
requirements within three years of
promulgation of a new or revised
NAAQS. EPA also made
recommendations about many specific
subsections of section 110(a)(2) that are
19 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.
20 ‘‘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.
PO 00000
Frm 00046
Fmt 4702
Sfmt 4702
relevant in the context of infrastructure
SIP submissions.21 The guidance also
discusses the substantively important
issues that are germane to certain
subsections of section 110(a)(2). EPA
interprets sections 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).
Regardless of how 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
21 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.
E:\FR\FM\17AUP1.SGM
17AUP1
Federal Register / Vol. 82, No. 158 / Thursday, August 17, 2017 / Proposed Rules
sradovich on DSK3GMQ082PROD with PROPOSALS
pollutants, including greenhouse gases.
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
NSR program and whether the program
addresses the pollutants relevant to that
NAAQS. In the context of acting on an
infrastructure SIP submission, however,
EPA does not think it is necessary to
conduct a review of each and every
provision of a state’s existing minor
source program (i.e., already in the
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; 22 (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)
22 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 the EPA’s view concerning the
validity of affirmative defense provisions, in light
of the requirements of section 113 and section 304.
VerDate Sep<11>2014
17:29 Aug 16, 2017
Jkt 241001
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.23 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
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
23 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.
PO 00000
Frm 00047
Fmt 4702
Sfmt 4702
39095
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 implementation
plan is substantially inadequate to attain
or maintain the NAAQS, to mitigate
interstate transport, or to otherwise
comply with the CAA.24 Section
110(k)(6) authorizes EPA to correct
errors in past actions, such as past
approvals of SIP submissions.25
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
24 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).
25 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).
E:\FR\FM\17AUP1.SGM
17AUP1
39096
Federal Register / Vol. 82, No. 158 / Thursday, August 17, 2017 / Proposed Rules
sradovich on DSK3GMQ082PROD with PROPOSALS
such deficiency in a subsequent
action.26
for mandatory Class I areas in other
states.
III. What are the Prong 4 requirements?
CAA section 110(a)(2)(D)(i)(II)
requires a state’s implementation plan
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 how a
state’s infrastructure SIP may satisfy
prong 4. One way that a state can meet
the requirements is via confirmation in
its infrastructure SIP submission that
the state has an 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 measures required to be included
in other air agencies’ plans to protect
visibility.
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 RPGs
IV. What is EPA’s analysis of how
Alabama addressed Prong 4 and
regional haze?
Alabama’s August 20, 2012, 2008 8hour Ozone infrastructure SIP
submission; April 23, 2013, and
December 9, 2015, 2010 1-hour NO2
submissions; April 23, 2013, 2010 1hour SO2 submission; and December 9,
2015, 2012 annual PM2.5 submission
rely on the State having a fully
approved regional haze SIP to satisfy its
prong 4 requirements. However, EPA
has not fully approved Alabama’s
regional haze SIP, as the Agency issued
a limited disapproval of the State’s
original regional haze plan on June 7,
2012, due to its reliance on CAIR. To
correct the deficiencies in its regional
haze SIP and obtain approval of the
aforementioned infrastructure SIPs that
rely on the regional haze SIP, the State
submitted a SIP revision on October 26,
2015, to replace reliance on CAIR with
reliance on CSAPR. 27
EPA is proposing to approve the
regional haze portion of the State’s
October 26, 2015, SIP revision and
convert EPA’s previous action on
Alabama’s regional haze SIP from a
limited approval/limited disapproval to
a full approval because final approval of
this portion of the SIP revision would
correct the deficiencies that led to EPA’s
limited approval/limited disapproval of
the State’s regional haze SIP.
Specifically, EPA’s approval of this
portion of Alabama’s October 26, 2015,
SIP revision would satisfy the SO2 and
NOx BART requirements and SO2
reasonable progress requirements for
EGUs formerly subject to CAIR and the
requirement that a LTS include
measures as necessary to achieve the
State-adopted RPGs. Because a state
may satisfy prong 4 requirements
through a fully approved regional haze
SIP, EPA is therefore also proposing to
approve the prong 4 portion of
Alabama’s April 23, 2013, and
December 9, 2015, 2010 1-hour NO2
infrastructure submissions; the April 23,
2013, 2010 1-hour SO2 infrastructure
submission; and the December 9, 2015,
2012 annual PM2.5 submission; and to
convert EPA’s February 7, 2017,
disapproval of the prong 4 portions of
Alabama’s August 20, 2012, 2008 8-hour
Ozone infrastructure submission to an
approval. However, as noted above, EPA
proposed in November 2016 to find that
CSAPR remains ‘‘better than BART’’
26 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).
VerDate Sep<11>2014
17:47 Aug 16, 2017
Jkt 241001
27 See Alabama’s October 26, 2015, SIP submittal,
Part H—Proposed Revisions to Alabama Regional
Haze State Implementation Plan (SIP).
PO 00000
Frm 00048
Fmt 4702
Sfmt 4702
given the changes to CSAPR’s scope in
response to the D.C. Circuit’s remand,
but the Agency has not finalized this
national rulemaking. Therefore, EPA
will not finalize the proposed approvals
of Alabama’s regional haze and prong 4
submissions described above unless it
has finalized the CSAPR remains
‘‘better-than-BART’’ rulemaking or
otherwise determined that participation
in CSAPR remains a viable alternative to
BART.
V. Proposed Action
As described above, EPA is proposing
to take the following actions, contingent
upon a final determination that CSAPR
continues to qualify as an alternative to
the application of BART under the RHR:
(1) Approve the regional haze portion of
Alabama’s October 26, 2015, SIP
submission to change reliance from
CAIR to CSAPR; (2) convert EPA’s
limited approval/limited disapproval of
Alabama’s July 15, 2008, regional haze
SIP to a full approval; (3) approve the
prong 4 portion of Alabama’s April 23,
2013, and December 9, 2015, 2010 1hour NO2 submissions; April 23, 2013,
2010 1-hour SO2 submission; and
December 9, 2015, 2012 annual PM2.5
submission; and (4) convert EPA’s
February 7, 2017, disapproval of the
prong 4 portion of Alabama’s August 20,
2012, 2008 8-hour Ozone submission to
an approval. All other applicable
infrastructure requirements for the
infrastructure SIP submissions have
been or will be 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,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, these proposed
actions merely propose to approve state
law as meeting Federal requirements
and do not impose additional
requirements beyond those imposed by
state law. For that reason, these
proposed actions:
• Are not ‘‘significant regulatory
actions’’ 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);
• do not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
E:\FR\FM\17AUP1.SGM
17AUP1
Federal Register / Vol. 82, No. 158 / Thursday, August 17, 2017 / Proposed Rules
• are 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.);
• do 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);
• do not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• are not economically significant
regulatory actions based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• are not significant regulatory
actions subject to Executive Order
13211 (66 FR 28355, May 22, 2001);
• are 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
• do 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
sradovich on DSK3GMQ082PROD with PROPOSALS
Environmental protection,
Administrative practice and procedure,
Air pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
Matter, Reporting and recordkeeping
requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 4, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2017–17346 Filed 8–16–17; 8:45 am]
BILLING CODE 6560–50–P
VerDate Sep<11>2014
17:29 Aug 16, 2017
Jkt 241001
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–R04–OAR–2007–0085; FRL–9966–23–
Region 4]
Air Plan Approval; NC; Air Curtain
Burners
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
portions of revisions to the North
Carolina State Implementation Plan
(SIP) submitted by the State of North
Carolina through the North Carolina
Department of Environmental Quality
(formerly the North Carolina
Department of Environment and Natural
Resources (NCDENR)), Division of Air
Quality (DAQ), on October 14, 2004,
March 24, 2006, and January 31, 2008.
The proposed revisions are changes to
the air curtain burner regulation of the
North Carolina SIP and are part of North
Carolina’s strategy to meet and maintain
the national ambient air quality
standards (NAAQS). EPA has taken or
will take action with respect to all other
portions of these SIP revisions. This
action is being taken pursuant to the
Clean Air Act (CAA or Act) and its
implementing regulations.
DATES: Written comments must be
received on or before September 18,
2017.
SUMMARY:
Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2007–0085 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
EPA may publish any comment received
to its public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. EPA will generally
not consider comments or comment
contents located outside of the primary
submission (i.e., on the Web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
ADDRESSES:
Frm 00049
Fmt 4702
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
40 CFR Part 52
PO 00000
39097
Sfmt 4702
Sean Lakeman or Nacosta C. Ward, 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 via telephone
at (404) 562–9043 or via electronic mail
at lakeman.sean@epa.gov. Ms. Ward can
be reached via telephone at (404) 562–
9140, or via electronic mail at
ward.nacosta@epa.gov.
SUPPLEMENTARY INFORMATION: In the
Final Rules section of this Federal
Register, EPA is approving the State’s
SIP revision as a direct final rule
without prior proposal because the
Agency views this as a noncontroversial
submittal and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the direct final
rule. If no adverse comments are
received in response to this rule, no
further activity is contemplated. If EPA
receives adverse comments, the direct
final rule will be withdrawn and all
public comments received will be
addressed in a subsequent final rule
based on this proposed rule. EPA will
not institute a second comment period
on this document. Any parties
interested in commenting on this
document should do so at this time.
Dated: August 4, 2017
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2017–17243 Filed 8–16–17; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2017–0382; FRL–9966–30–
Region 3]
Approval and Promulgation of Air
Quality Implementation Plans; Virginia;
Revisions To Implement the
Revocation of the 1997 Ozone NAAQS
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) proposes to approve the
state implementation plan (SIP) revision
submitted by the Commonwealth of
Virginia which includes revised
provisions of the State Air Pollution
Control Board’s Regulations for the
Control and Abatement of Air Pollution
SUMMARY:
E:\FR\FM\17AUP1.SGM
17AUP1
Agencies
[Federal Register Volume 82, Number 158 (Thursday, August 17, 2017)]
[Proposed Rules]
[Pages 39090-39097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17346]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2017-0104; FRL-9966-18-Region 4]
Air Plan Approval; Alabama; Regional Haze Plan and Prong 4
(Visibility) for the 2012 PM2.5, 2010 NO2, 2010 SO2, and 2008 Ozone
NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to take
the following four actions regarding the Alabama State Implementation
Plan (SIP), contingent upon a final determination from the Agency that
a state's participation in the Cross-State Air Pollution Rule (CSAPR)
continues to meet the Regional Haze Rule (RHR)'s criteria to qualify as
an alternative to the application of Best Available Retrofit Technology
(BART): Approve the portion of Alabama's October 26, 2015, SIP
submittal seeking to change reliance from the Clean Air Interstate Rule
(CAIR) to CSAPR for certain regional haze requirements; convert EPA's
limited approval/limited disapproval of Alabama's July 15, 2008,
regional haze SIP to a full approval; approve the visibility prong of
Alabama's infrastructure SIP submittals for the 2012 Fine Particulate
Matter (PM2.5), 2010 Nitrogen Dioxide (NO2), and
2010 Sulfur Dioxide (SO2) National Ambient Air Quality
Standards (NAAQS); and convert EPA's disapproval of the visibility
portion of Alabama's infrastructure SIP submittal for the 2008 Ozone
NAAQS to an approval.
DATES: Comments must be received on or before September 18, 2017.
ADDRESSES: Submit your comments, identified by Docket ID No EPA-R04-
OAR-2017-0104 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary
[[Page 39091]]
submission (i.e., on the Web, cloud, or other file sharing system). For
additional submission methods, the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Michele Notarianni, Air Regulatory
Management Section, Air, Pesticides and Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. Ms. Notarianni can be reached by telephone
at (404) 562-9031 or via electronic mail at notarianni.michele@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
A. Regional Haze SIPs and Their Relationship With CAIR and CSAPR
Section 169A(b)(2)(A) of the Clean Air Act (CAA or Act) requires
states to submit regional haze SIPs that 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 RHR, 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. Rather than requiring source-
specific BART controls, states also have the flexibility to adopt an
emissions trading program or other alternative program as long as the
alternative provides greater reasonable progress towards improving
visibility than BART. See 40 CFR 51.308(e)(2). EPA provided states with
this flexibility in the RHR, adopted in 1999, and further refined the
criteria for assessing whether an alternative program provides for
greater reasonable progress in two subsequent rulemakings. See 64 FR
35714 (July 1, 1999); 70 FR 39104 (July 6, 2005); 71 FR 60612 (October
13, 2006).
EPA demonstrated that CAIR would achieve greater reasonable
progress than BART in revisions to the regional haze program made in
2005.\1\ See 70 FR 39104. In those revisions, EPA amended its
regulations to provide that states participating in the CAIR cap-and-
trade programs pursuant to an EPA-approved CAIR SIP or states that
remain subject to a CAIR Federal Implementation Plan (FIP) need not
require affected BART-eligible electric generating units (EGUs) to
install, operate, and maintain BART for emissions of SO2 and
nitrogen oxides (NOX). As a result of EPA's determination
that CAIR was ``better-than-BART,'' a number of states in the CAIR
region, including Alabama, relied on the CAIR cap-and-trade programs as
an alternative to BART for EGU emissions of SO2 and
NOX in designing their regional haze SIPs. These states also
relied on CAIR as an element of a long-term strategy (LTS) for
achieving their reasonable progress goals (RPGs) for their regional
haze programs. However, in 2008, the United States Court of Appeals for
the District of Columbia Circuit (D.C. Circuit) remanded CAIR to EPA
without vacatur to preserve the environmental benefits provided by
CAIR. North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). On
August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's remand, EPA
promulgated CSAPR to replace CAIR and issued FIPs to implement the rule
in CSAPR-subject states.\2\ Implementation of CSAPR was scheduled to
begin on January 1, 2012, when CSAPR would have superseded the CAIR
program.
---------------------------------------------------------------------------
\1\ CAIR created regional cap-and-trade programs to reduce
SO2 and NOX emissions in 27 eastern states
(and the District of Columbia), including Alabama, that contributed
to downwind nonattainment or interfered with maintenance of the 1997
8-hour ozone NAAQS or the 1997 PM2.5 NAAQS.
\2\ CSAPR requires 28 eastern states to limit their statewide
emissions of SO2 and/or NOX in order to
mitigate transported air pollution unlawfully impacting other
states' ability to attain or maintain four NAAQS: The 1997 ozone
NAAQS, the 1997 annual PM2.5 NAAQS, the 2006 24-hour
PM2.5 NAAQS, and the 2008 8-hour ozone NAAQS. The CSAPR
emissions limitations are defined in terms of maximum statewide
``budgets'' for emissions of annual SO2, annual
NOX, and/or ozone-season NOX by each covered
state's large EGUs. The CSAPR state budgets are implemented in two
phases of generally increasing stringency, with the Phase 1 budgets
applying to emissions in 2015 and 2016 and the Phase 2 budgets
applying to emissions in 2017 and later years.
---------------------------------------------------------------------------
Due to the D.C. Circuit's 2008 ruling that CAIR was ``fatally
flawed'' and its resulting status as a temporary measure following that
ruling, EPA could not fully approve regional haze SIPs to the extent
that they relied on CAIR to satisfy the BART requirement and the
requirement for a LTS sufficient to achieve the state-adopted RPGs. On
these grounds, EPA finalized a limited disapproval of Alabama's
regional haze SIP on June 7, 2012, triggering the requirement for EPA
to promulgate a FIP unless Alabama submitted and EPA approved a SIP
revision that corrected the deficiency. See 77 FR 33642. EPA finalized
a limited approval of Alabama's regional haze SIP on June 28, 2012, as
meeting the remaining applicable regional haze requirements set forth
in the CAA and the RHR. See 77 FR 38515.
In the June 7, 2012, limited disapproval action, EPA also amended
the RHR to provide that participation by a state's EGUs in a CSAPR
trading program for a given pollutant--either a CSAPR federal trading
program implemented through a CSAPR FIP or an integrated CSAPR state
trading program implemented through an approved CSAPR SIP revision--
qualifies as a BART alternative for those EGUs for that pollutant.\3\
See 40 CFR 51.308(e)(4). Since EPA promulgated this amendment, numerous
states covered by CSAPR have come to rely on the provision through
either SIPs or FIPs.\4\
---------------------------------------------------------------------------
\3\ Legal challenges to the CSAPR-Better-than-BART rule from
state, industry, and other petitioners are pending. Utility Air
Regulatory Group v. EPA, No. 12-1342 (D.C. Cir. filed August 6,
2012).
\4\ EPA has promulgated FIPs relying on CSAPR participation for
BART purposes for Georgia, Indiana, Iowa, Kentucky, Michigan,
Missouri, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia,
and West Virginia, 77 FR at 33654, and Nebraska, 77 FR 40150, 40151
(July 6, 2012). EPA has approved Minnesota's and Wisconsin's SIPs
relying on CSAPR participation for BART purposes. See 77 FR 34801,
34806 (June 12, 2012) for Minnesota and 77 FR 46952, 46959 (August
7, 2012) for Wisconsin.
---------------------------------------------------------------------------
Numerous parties filed petitions for review of CSAPR in the D.C.
Circuit, and on August 21, 2012, the court issued its ruling, vacating
and remanding CSAPR to EPA and ordering continued implementation of
CAIR. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir.
2012). The D.C. Circuit's vacatur of CSAPR was reversed by the United
States Supreme Court on April 29, 2014, and the case was remanded to
the D.C. Circuit to resolve remaining issues in accordance with the
high court's ruling. EPA v. EME Homer City Generation, L.P., 134 S. Ct.
1584 (2014). On remand, the D.C. Circuit affirmed CSAPR in most
respects, but invalidated without vacating some of the CSAPR budgets as
to a number of states. EME Homer City Generation, L.P. v. EPA, 795 F.3d
118 (D.C. Cir. 2015). The remanded budgets include the Phase 2
SO2 emissions budgets for Alabama, Georgia, South Carolina,
and Texas and the Phase 2 ozone-season NOX budgets for 11
states. This litigation ultimately delayed implementation of CSAPR for
three years, from January 1, 2012, when CSAPR's cap-and-trade programs
were originally scheduled to replace the CAIR cap-and-trade programs,
to January 1, 2015. Thus, the rule's Phase 2 budgets that were
originally promulgated to begin on January 1, 2014, began on January 1,
2017.
[[Page 39092]]
On November 10, 2016, EPA published a notice of proposed rulemaking
(NPRM) explaining the Agency's belief that the potentially material
changes to the scope of CSAPR coverage resulting from the D.C.
Circuit's remand will be limited to the withdrawal of the FIP
provisions providing SO2 and annual NOX budgets
for Texas and ozone-season NOX budgets for Florida. This is
due, in part, to EPA's approval of the portion of Alabama's October 26,
2015, SIP submittal adopting Phase 2 annual NOX and
SO2 budgets equivalent to the federally-developed budgets
and to commitments from Georgia and South Carolina to submit SIP
revisions adopting Phase 2 annual NOX and SO2
budgets equal to or more stringent than the federally-developed
budgets. See 81 FR 78954. Since publication of the NPRM, Georgia and
South Carolina have submitted these SIP revisions to EPA.\5\ In the
NPRM, EPA also proposed to determine that the limited changes to the
scope of CSAPR coverage do not alter EPA's conclusion that CSAPR
remains ``better-than-BART;'' that is, that participation in CSAPR
remains available as an alternative to BART for EGUs covered by the
trading program. At this time, EPA has not finalized this proposed
determination.
---------------------------------------------------------------------------
\5\ Georgia's rulemaking to adopt the Phase 2 annual
NOX and SO2 budgets became state effective on
July 20, 2017, and the State will submit a SIP revision to EPA in
the near future. South Carolina submitted a SIP revision to EPA for
parallel processing on May 26, 2017, to adopt the Phase 2 annual
NOX and SO2 budgets.
---------------------------------------------------------------------------
Alabama's October 26, 2015, SIP submittal also seeks to correct the
deficiencies identified in the June 7, 2012, limited disapproval of its
regional haze SIP by replacing reliance on CAIR with reliance on
CSAPR.\6\ Specifically, Alabama requests that EPA amend the State's
regional haze SIP by replacing its reliance on CAIR with CSAPR to
satisfy SO2 and NOX BART requirements and
SO2 reasonable progress requirements for EGUs formerly
subject to CAIR,\7\ and to support the RPGs for the Sipsey Wilderness
Area in Alabama for the first planning period. EPA is proposing to take
these actions in this action.
---------------------------------------------------------------------------
\6\ On August 31, 2016 (81 FR 59869), EPA approved portions of
the October 26, 2015, SIP submission incorporating into Alabama's
SIP the State's regulations requiring Alabama EGUs to participate in
CSAPR state trading programs for annual NOX and
SO2 emissions integrated with the CSAPR federal trading
programs and thus replacing the corresponding FIP requirements. In
the August 31, 2016, action, EPA did not take any action regarding
Alabama's request in this October 26, 2015, SIP submission to revise
the State's regional haze SIP nor regarding the prong 4 for the 2008
lead, 2008 8-hour ozone, 2010 1-hour NO2, and 2010 1-hour
SO2 NAAQS.
\7\ In its regional haze SIP, Alabama concluded and EPA found
acceptable the State's determination that no additional controls
beyond CAIR are reasonable for SO2 for affected Alabama
EGUs for the first implementation period. See 77 FR 11949 (February
28, 2012).
---------------------------------------------------------------------------
B. Infrastructure SIPs
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 (or
less, if the Administrator so prescribes) 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), are provisions that prohibit
any source or other type of emissions activity in one state from
contributing significantly to nonattainment of the NAAQS in another
state (prong 1) and 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), are provisions that prohibit
emissions activity in one state from interfering with measures required
to prevent significant deterioration of air quality in another state
(prong 3) or from interfering with measures to protect visibility in
another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to
include provisions ensuring compliance with sections 115 and 126 of the
Act, relating to interstate and international pollution abatement.
Through this action, EPA is proposing to approve the prong 4
portion of Alabama's infrastructure SIP submissions for the 2010 1-hour
NO2, 2010 1-hour SO2, and 2012 annual
PM2.5 NAAQS, and to convert EPA's disapproval of the prong 4
portion of Alabama's infrastructure SIP submission for the 2008 8-hour
Ozone NAAQS to an approval, as discussed in section IV of this
notice.\8\ All other applicable infrastructure SIP requirements for
these SIP submissions have been or will be addressed in separate
rulemakings. A brief background regarding the NAAQS relevant to this
proposal is provided below. For comprehensive information on these
NAAQS, please refer to the Federal Register notices cited in the
following subsections.
---------------------------------------------------------------------------
\8\ See 82 FR 9512 (February 7, 2017).
---------------------------------------------------------------------------
1. 2010 1-Hour SO2 NAAQS
On June 2, 2010, EPA revised the 1-hour primary SO2
NAAQS to an hourly standard of 75 parts per billion (ppb) based on a 3-
year average of the annual 99th percentile of 1-hour daily maximum
concentrations. See 75 FR 35520 (June 22, 2010). States were required
to submit infrastructure SIP submissions for the 2010 1-hour
SO2 NAAQS to EPA no later than June 2, 2013. Alabama
submitted an infrastructure SIP submission for the 2010 1-hour
SO2 NAAQS on April 23, 2013. This proposed action only
addresses the prong 4 element of that submission.\9\
---------------------------------------------------------------------------
\9\ The other portions of Alabama's April 23 2013,
SO2 infrastructure submission have been addressed in a
previous EPA action. See 82 FR 3637 (January 12, 2017).
---------------------------------------------------------------------------
2. 2010 1-Hour NO2 NAAQS
On January 22, 2010, EPA promulgated a new 1-hour primary NAAQS for
NO2 at a level of 100 ppb, based on a 3-year average of the
98th percentile of the yearly distribution of 1-hour daily maximum
concentrations. See 75 FR 6474 (February 9, 2010). States were required
to submit infrastructure SIP submissions for the 2010 1-hour
NO2 NAAQS to EPA no later than January 22, 2013. Alabama
submitted infrastructure SIP submissions for the 2010 1-hour
NO2 NAAQS on April 23, 2013, and December 9, 2015. This
proposed action only addresses the prong 4 element of those
submissions.\10\
---------------------------------------------------------------------------
\10\ The other portions for Alabama's April 23 2013, and
December 9, 2015, NO2 infrastructure submissions have
been addressed in previous EPA actions. See 81 FR 83142 (November
21, 2016); 80 FR 14019 (March 18, 2015).
---------------------------------------------------------------------------
[[Page 39093]]
3. 2012 PM2.5 NAAQS
On December 14, 2012, EPA revised the annual primary
PM2.5 NAAQS to 12 micrograms per cubic meter ([mu]g/m\3\).
See 78 FR 3086 (January 15, 2013). States were required to submit
infrastructure SIP submissions for the 2012 PM2.5 NAAQS to
EPA no later than December 14, 2015. Alabama submitted an
infrastructure SIP submission for the 2012 PM2.5 NAAQS on
December 9, 2015. This proposed action only addresses the prong 4
element of that submission.\11\
---------------------------------------------------------------------------
\11\ The other portions of Alabama's December 9, 2015,
PM2.5 infrastructure submission are being addressed in
separate actions.
---------------------------------------------------------------------------
4. 2008 8-Hour Ozone NAAQS
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. Alabama submitted an
infrastructure SIP for the 2008 8-hour Ozone NAAQS on August 20, 2012.
On February 7, 2017, EPA disapproved the prong 4 element of Alabama's
2008 8-hour Ozone infrastructure submission. See 82 FR 9512. This
proposed action addresses that disapproval and proposes to convert it
to a full approval for prong 4.\12\
---------------------------------------------------------------------------
\12\ The other portions of Alabama's March 12, 2008, ozone
infrastructure SIP submission have been addressed in previous EPA
actions. See 80 FR 14019 (March 3, 2015); 80 FR 17689 (April 2,
2015).
---------------------------------------------------------------------------
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 (NSR) 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.\13\ 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.
---------------------------------------------------------------------------
\13\ 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.
---------------------------------------------------------------------------
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.\14\
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.\15\ 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.
---------------------------------------------------------------------------
\14\ 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)).
\15\ 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.
---------------------------------------------------------------------------
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.\16\ Similarly, EPA
[[Page 39094]]
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.\17\
---------------------------------------------------------------------------
\16\ 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).
\17\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007, submittal.
---------------------------------------------------------------------------
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.\18\
---------------------------------------------------------------------------
\18\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
---------------------------------------------------------------------------
EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires 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
prevention of significant deterioration (PSD) program required in part
C of Title I of the CAA, because PSD does not apply to a pollutant for
which an area is designated nonattainment and thus subject to part D
planning requirements. As this example illustrates, each type of SIP
submission may implicate some elements of section 110(a)(2) but not
others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\19\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\20\ 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.\21\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). EPA interprets sections 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.
---------------------------------------------------------------------------
\19\ 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.
\20\ ``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.
\21\ 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.
---------------------------------------------------------------------------
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). Regardless of how
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
[[Page 39095]]
pollutants, including greenhouse gases. 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 NSR program and whether the program
addresses the pollutants relevant to that NAAQS. In the context of
acting on an infrastructure SIP submission, however, EPA does not think
it is necessary to conduct a review of each and every provision of a
state's existing minor source program (i.e., already in the 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; \22\ (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.\23\ 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.
---------------------------------------------------------------------------
\22\ 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 the
EPA's view concerning the validity of affirmative defense
provisions, in light of the requirements of section 113 and section
304.
\23\ 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.
---------------------------------------------------------------------------
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 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 implementation
plan is substantially inadequate to attain or maintain the NAAQS, to
mitigate interstate transport, or to otherwise comply with the CAA.\24\
Section 110(k)(6) authorizes EPA to correct errors in past actions,
such as past approvals of SIP submissions.\25\ 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
[[Page 39096]]
such deficiency in a subsequent action.\26\
---------------------------------------------------------------------------
\24\ 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).
\25\ 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).
\26\ 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).
---------------------------------------------------------------------------
III. What are the Prong 4 requirements?
CAA section 110(a)(2)(D)(i)(II) requires a state's implementation
plan 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 how a state's infrastructure SIP may
satisfy prong 4. One way that a state can meet the requirements is via
confirmation in its infrastructure SIP submission that the state has an
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 measures required to be included
in other air agencies' plans to protect visibility.
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 RPGs
for mandatory Class I areas in other states.
IV. What is EPA's analysis of how Alabama addressed Prong 4 and
regional haze?
Alabama's August 20, 2012, 2008 8-hour Ozone infrastructure SIP
submission; April 23, 2013, and December 9, 2015, 2010 1-hour
NO2 submissions; April 23, 2013, 2010 1-hour SO2
submission; and December 9, 2015, 2012 annual PM2.5
submission rely on the State having a fully approved regional haze SIP
to satisfy its prong 4 requirements. However, EPA has not fully
approved Alabama's regional haze SIP, as the Agency issued a limited
disapproval of the State's original regional haze plan on June 7, 2012,
due to its reliance on CAIR. To correct the deficiencies in its
regional haze SIP and obtain approval of the aforementioned
infrastructure SIPs that rely on the regional haze SIP, the State
submitted a SIP revision on October 26, 2015, to replace reliance on
CAIR with reliance on CSAPR. \27\
---------------------------------------------------------------------------
\27\ See Alabama's October 26, 2015, SIP submittal, Part H--
Proposed Revisions to Alabama Regional Haze State Implementation
Plan (SIP).
---------------------------------------------------------------------------
EPA is proposing to approve the regional haze portion of the
State's October 26, 2015, SIP revision and convert EPA's previous
action on Alabama's regional haze SIP from a limited approval/limited
disapproval to a full approval because final approval of this portion
of the SIP revision would correct the deficiencies that led to EPA's
limited approval/limited disapproval of the State's regional haze SIP.
Specifically, EPA's approval of this portion of Alabama's October 26,
2015, SIP revision would satisfy the SO2 and NOx BART
requirements and SO2 reasonable progress requirements for
EGUs formerly subject to CAIR and the requirement that a LTS include
measures as necessary to achieve the State-adopted RPGs. Because a
state may satisfy prong 4 requirements through a fully approved
regional haze SIP, EPA is therefore also proposing to approve the prong
4 portion of Alabama's April 23, 2013, and December 9, 2015, 2010 1-
hour NO2 infrastructure submissions; the April 23, 2013,
2010 1-hour SO2 infrastructure submission; and the December
9, 2015, 2012 annual PM2.5 submission; and to convert EPA's
February 7, 2017, disapproval of the prong 4 portions of Alabama's
August 20, 2012, 2008 8-hour Ozone infrastructure submission to an
approval. However, as noted above, EPA proposed in November 2016 to
find that CSAPR remains ``better than BART'' given the changes to
CSAPR's scope in response to the D.C. Circuit's remand, but the Agency
has not finalized this national rulemaking. Therefore, EPA will not
finalize the proposed approvals of Alabama's regional haze and prong 4
submissions described above unless it has finalized the CSAPR remains
``better-than-BART'' rulemaking or otherwise determined that
participation in CSAPR remains a viable alternative to BART.
V. Proposed Action
As described above, EPA is proposing to take the following actions,
contingent upon a final determination that CSAPR continues to qualify
as an alternative to the application of BART under the RHR: (1) Approve
the regional haze portion of Alabama's October 26, 2015, SIP submission
to change reliance from CAIR to CSAPR; (2) convert EPA's limited
approval/limited disapproval of Alabama's July 15, 2008, regional haze
SIP to a full approval; (3) approve the prong 4 portion of Alabama's
April 23, 2013, and December 9, 2015, 2010 1-hour NO2
submissions; April 23, 2013, 2010 1-hour SO2 submission; and
December 9, 2015, 2012 annual PM2.5 submission; and (4)
convert EPA's February 7, 2017, disapproval of the prong 4 portion of
Alabama's August 20, 2012, 2008 8-hour Ozone submission to an approval.
All other applicable infrastructure requirements for the infrastructure
SIP submissions have been or will be 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, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, these
proposed actions merely propose to approve state law as meeting Federal
requirements and do not impose additional requirements beyond those
imposed by state law. For that reason, these proposed actions:
Are not ``significant regulatory actions'' 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);
do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
[[Page 39097]]
are 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.);
do 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);
do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
are 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
do 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, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Nitrogen dioxide, Ozone, Particulate Matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 4, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2017-17346 Filed 8-16-17; 8:45 am]
BILLING CODE 6560-50-P