Air Plan Approval; AL; Section 128 Board Requirements for Infrastructure SIPs, 5594-5598 [2018-02146]

Download as PDF 5594 Federal Register / Vol. 83, No. 27 / Thursday, February 8, 2018 / Proposed Rules million (ppm) to 0.070 ppm. Accordingly, in the December 21, 2016, SIP submittal, the District revised Regulation 3.01, Ambient Air Quality Standards, to update the primary and secondary air quality standards for ozone to be consistent with the NAAQS that were promulgated by EPA in 2015. EPA has reviewed this change to the Jefferson County regulation for ozone and has made the determination that this change is consistent with federal regulations. In addition to the revision of air quality standards in Section 7 of Regulation 3.01, the August 29, 2017, SIP submittal included minor formatting changes to Regulation 3.01: Removal of the numbering of the subsections in Section 7; and textual modifications to the footnotes which abbreviate them but do not change their meaning. EPA has determined that these are administrative changes that are consistent with the requirements of the CAA. III. 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 requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Jefferson County Regulation 3.01, Ambient Air Quality Standards, effective September 21, 2016, and February 15, 2017, which was revised to be consistent with the current NAAQS. 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). daltland on DSKBBV9HB2PROD with PROPOSALS IV. Proposed Action EPA is proposing to approve the Commonwealth of Kentucky December 21, 2016, and August 29, 2017, SIP revisions identified in section II above, because these changes are consistent with the CAA. V. 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. This action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those VerDate Sep<11>2014 16:37 Feb 07, 2018 Jkt 244001 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); • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866; • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: January 29, 2018. Onis ‘‘Trey’’ Glenn, III, Regional Administrator, Region 4. [FR Doc. 2018–02464 Filed 2–7–18; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R04–OAR–2017–0642; FRL–9974–02– Region 4] Air Plan Approval; AL; Section 128 Board Requirements for Infrastructure SIPs Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) submission, submitted by the State of Alabama, through the Alabama Department of Environmental Management (ADEM), on October 24, 2017. This submission addresses the Clean Air Act (CAA or Act) requirements applicable to Alabama state boards or agency personnel with respect to the approval of permits or enforcement orders. The submission also specifically addresses requirements for implementation of the following national ambient air quality standards (NAAQS): 1997, 2006, and 2012 Fine Particulate Matter (PM2.5), 2008 8-hour Ozone, 2008 Lead, 2010 Nitrogen Dioxide (NO2), and 2010 Sulfur Dioxide (SO2). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA. Whenever EPA promulgates a new or revised NAAQS, the CAA requires the state to make a new SIP submission establishing that the existing SIP meets the various applicable requirements, or revising the SIP to meet those requirements. This type of SIP submission is commonly referred to as an ‘‘infrastructure’’ SIP. In this proposed action, EPA is proposing to approve the October 24, 2017, submission with respect to: (1) The requirements applicable to state boards of the CAA; and (2) the related state board infrastructure SIP requirements for the 1997, 2006, and 2012 PM2.5, 2008 8-hour Ozone, 2008 Lead, 2010 NO2, and 2010 SO2 NAAQS. In addition, EPA is proposing approval of ADEM’s SUMMARY: E:\FR\FM\08FEP1.SGM 08FEP1 Federal Register / Vol. 83, No. 27 / Thursday, February 8, 2018 / Proposed Rules December 9, 2015, infrastructure SIP submission (as supplemented by the October 24, 2017 submission) related to the state board requirements for the 2012 PM2.5 NAAQS. If this proposed approval action is finalized, EPA will no longer be required to promulgate a federal implementation plan (FIP) to address these CAA state board requirements for Alabama, as described in more detail below. Comments must be received on or before March 12, 2018. DATES: Submit your comments, identified by Docket ID No. EPA–R04– OAR–2017–0642 at https:// www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/ commenting-epa-dockets. ADDRESSES: FOR FURTHER INFORMATION CONTACT: 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. The telephone number is (404) 562–9140. Ms. Ward can be reached via electronic mail at ward.nacosta@epa.gov. SUPPLEMENTARY INFORMATION: daltland on DSKBBV9HB2PROD with PROPOSALS I. Background By statute, states are required to have SIPs that provide for the implementation, maintenance, and enforcement of the NAAQS. States are further required to make a SIP submission meeting the applicable requirements of sections 110(a)(1) and (2) within three years after EPA VerDate Sep<11>2014 16:37 Feb 07, 2018 Jkt 244001 promulgates a new or revised NAAQS.1 EPA has historically referred to this type of SIP submission 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 SIP submissions. Section 110(a)(2) lists specific elements that states must meet to satisfy 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 existing EPA approved SIP at the time when the state develops and submits the infrastructure SIP submission for a new or revised NAAQS. This action pertains to one of the requirements of section 110(a)(2) that is relevant in the context of a state’s development, and EPA’s evaluation of, infrastructure SIP submissions. Section 110(a)(2)(E)(ii) of the CAA requires states to have SIPs that contain provisions that comply with certain specific requirements respecting state boards or bodies or heads of state agencies provided in CAA section 128. Section 128 of the CAA requires that states include provisions in their SIP that (1) require that any state board or body which approves permits or enforcement orders shall have a majority of members who represent the public interest and do not receive a significant portion of their income from parties subject to permits or enforcement (section 128(a)(1)); and (2) require that the members of any such 1 EPA has long noted that a literal reading of the statutory provision to meet all requirements of 110(a)(2) on the schedule provided in 110(a)(1) would create a conflict with the nonattainment provisions in part D of Title I of the CAA, which specifically address nonattainment area SIP requirements. See, e.g., ‘‘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 at 4. For example, 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. The provisions in section 172(b) for submission of such plans for nonattainment areas differ from the timing requirements for an infrastructure SIP submission under 110(a)(1).Thus, rather than applying all the stated requirements of section 110(a)(2) in a strict, literal sense, EPA has determined that certain provisions like 110(a)(2)(I) of section 110(a)(2) are not applicable to infrastructure SIP submissions. PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 5595 board or body, or the head of an executive agency with similar power to approve permits or enforcement orders under the CAA, shall also be subject to adequate conflict of interest disclosure requirements (section 128(a)(2)). Alabama previously made infrastructure SIP submissions for a number of recently revised NAAQS. With the exception of the state board requirements of section 110(a)(2)(E)(ii) of the CAA, EPA has already approved or will consider in separate actions all other elements of Alabama’s infrastructure SIP submissions related to the 2008 8-hour Ozone, 2008 Lead, 2010 NO2, 2010 SO2, and 1997, 2006, and 2012 PM2.5 NAAQS. At the time of those infrastructure SIP submissions, however, the Alabama SIP did not include provisions to meet the requirements of section 128, and thus these submissions did not meet the requirements of section 110(a)(2)(E)(ii) of the CAA. Therefore, EPA took final action to disapprove Alabama’s infrastructure SIP submissions as they pertained to the conflict of interest requirements of section 128 and section 110(a)(2)(E)(ii), for the 1997 and 2006 PM2.5 NAAQS on October 15, 2012 (77 FR 62449), the 2008 8-hour Ozone NAAQS on April 2, 2015 (80 FR 17689), the 2008 Lead NAAQS on October 9, 2015 (80 FR 61111), the 2010 NO2 NAAQS on November 21, 2016 (81 FR 83142), and the 2010 SO2 NAAQS on January 12, 2017 (82 FR 3637). Under section 110(c)(1)(B), these disapprovals started a two-year clock for EPA to promulgate a FIP to address the deficiency. EPA did not take action on this element for the 2012 PM2.5 NAAQS.2 In order to address the requirements of section 128, and thus the requirements of section 110(a)(2)(E)(ii), Alabama made the October 24, 2017, SIP submission to revise the existing SIP in order to include the necessary SIP provisions. Through this action, EPA is proposing approval of Alabama’s SIP revision to incorporate into its SIP certain regulatory provisions to address the state board requirements of section 128. More detail on how Alabama’s SIP revision meets these requirements is provided below. As a result of the addition of these new SIP provisions to meet the requirements of section 128, EPA is also proposing approval of this submission as satisfying the section 110(a)(2)(E)(ii) infrastructure element for the 1997, 2006 and 2012 PM2.5, 2008 8-hour Ozone, 2008 Lead, 2010 NO2, and 2010 SO2 NAAQS. The approvals 2 ADEM submitted its infrastructure SIP for the 2012 PM2.5 NAAQS on December 9, 2015. E:\FR\FM\08FEP1.SGM 08FEP1 5596 Federal Register / Vol. 83, No. 27 / Thursday, February 8, 2018 / Proposed Rules daltland on DSKBBV9HB2PROD with PROPOSALS proposed herein would fully address the SIP deficiencies from EPA’s prior disapprovals for the 1997 and 2006 PM2.5 NAAQS on October 15, 2012 (77 FR 62449), 2008 8-hour Ozone NAAQS on April 2, 2015 (80 FR 17689), 2008 Lead NAAQS on October 9, 2015 (80 FR 61111), 2010 NO2 NAAQS on November 21, 2016 (81 FR 83142), and 2010 SO2 NAAQS on January 12, 2017 (82 FR 3637). Thus, if EPA finalizes this proposed approval, this will resolve the prior disapprovals for element 110(a)(2)(E)(ii) for the 1997 and 2006 PM2.5 NAAQS, the 2008 Ozone NAAQS, the 2008 lead NAAQS, the 2010 NO2, and the 2010 SO2 NAAQS, and terminate EPA’s FIP obligation with regard to that element for these NAAQS. A brief background regarding each NAAQS relevant to this action is provided below. For comprehensive information on these NAAQS, please refer to the Federal Register rulemakings cited below. d. 2010 NO2 NAAQS On February 9, 2010 (75 FR 6474), EPA established a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion (ppb), based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. States were required to submit infrastructure SIP submissions for the 2010 NO2 NAAQS to EPA no later than January 2013. e. 2010 SO2 NAAQS On June 22, 2010 (75 FR 35520), EPA promulgated a revised primary SO2 NAAQS to an hourly standard of 75 ppb based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. States were required to submit infrastructure SIPs for the 2010 1-hour SO2 NAAQS to EPA no later than June 22, 2013. f. 2012 PM2.5 NAAQS On December 14, 2012, EPA revised the primary annual PM2.5 NAAQS to a. 1997 and 2006 PM2.5 NAAQS 12.0 mg/m3. See 78 FR 3086 (January 15, 2013). An area meets the standard if the On July 18, 1997 (62 FR 36852), EPA three-year average of its annual average established an annual PM2.5 NAAQS at PM2.5 concentration (at each monitoring 15.0 micrograms per cubic meter (mg/ site in the area) is less than or equal to 3) based on a 3-year average of annual m 12.0 mg/m3. States were required to mean PM2.5 concentrations. At that time, submit infrastructure SIP submissions EPA also established a 24-hour NAAQS for the 2012 PM2.5 NAAQS to EPA no of 65 mg/m3. See 40 CFR 50.7. On later than December 14, 2015. October 17, 2006 (71 FR 61144), EPA retained the 1997 annual PM2.5 NAAQS II. What is EPA’s analysis of how Alabama addressed the state board at 15.0 mg/m3 based on a 3-year average requirements of section 128? of annual mean PM2.5 concentrations, and promulgated a new 24-hour On October 24, 2017, Alabama NAAQS of 35 mg/m3 based on a 3-year submitted a SIP submission to include average of the 98th percentile of 24-hour SIP provisions to address the concentrations. States were required to requirements of CAA section 128, and submit infrastructure SIPs to EPA no thereby to meet the related later than July 2000 for the 1997 annual infrastructure SIP requirements of PM2.5 NAAQS, and no later than section 110(a)(2)(E)(ii). The October 24, October 2009 for the 2006 24-hour PM2.5 2017, SIP submission includes changes NAAQS. to rules 335–1–1–.03 and 335–1–1–.04 of ADEM’s Administrative Code for b. 2008 8-Hour Ozone NAAQS Division 1 to incorporate into Alabama’s On March 27, 2008, EPA promulgated SIP certain conflict of interest a revised NAAQS for ozone based on provisions that apply to the boards, 8-hour average concentrations. EPA bodies and executive agency personnel revised the level of the 8-hour ozone with approval authority for CAA NAAQS to 0.075 parts per million. See permits and enforcement. Rule 335–1– 77 FR 16436. States were required to 1–.03, Organization and Duties of the submit infrastructure SIP submissions Commission, is amended to include for the 2008 8-hour Ozone NAAQS to language for incorporation into the SIP EPA no later than March 2011. mandating that members of the Alabama Environmental Management c. 2008 Lead NAAQS Commission (EMC) meet all On November 12, 2008 (75 FR 81126), requirements of the state ethics law and EPA issued a final rule to revise the the conflict of interest provisions of Lead NAAQS. The Lead NAAQS was applicable Federal laws, which includes revised to 0.15 mg/m3. States were section 128. Rule 335–1–1–.04, Organization of the Department is required to submit infrastructure SIP amended to include language for submissions to EPA no later than incorporation into the SIP mandating October 15, 2011, for the 2008 Lead that the ADEM Director, Deputy NAAQS. VerDate Sep<11>2014 16:37 Feb 07, 2018 Jkt 244001 PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 Director, Division Chiefs, and all ADEM personnel meet all requirements of the state ethics law and the conflict of interest provisions of applicable Federal laws, which includes section 128. ADEM and the EMC are the entities that have the authority to issue and approve CAA permits and enforcement orders. The ADEM Air Director has the authority to approve permits and enforcement orders for Alabama. In the case of appeal, permits and enforcement orders are sent to the EMC and the EMC has final approval authority. If a state has a board or body that approves CAA permits or enforcement orders, section 128(a)(1) requires that a majority of such board or body represent the public interest and not derive a significant portion of income from persons subject to such permits and enforcement orders.3 Under section 128(a)(2), the members of any such board or body, or the head of an executive agency with similar power to approve permits or enforcement orders under the CAA, are required to disclose any potential conflict of interest adequately. In 1978, EPA issued guidance recommending potential ways that states might elect to meet the requirements of section 128, including suggested interpretations of key terms.4 In this guidance, EPA recognized that states may have a variety of procedures and special concerns that may warrant differing approaches to implementation of section 128 and made clear that the guidance does not create a requirement that all SIPs must include the suggested definitions verbatim, or that definitions per se must be included in SIPs. EPA provided further guidance with respect to these statutory requirements in its 2013 infrastructure guidance.5 In the 2013 guidance, EPA clarified that provisions to implement section 128 need to be contained within the SIP. Therefore, EPA will not approve an infrastructure SIP submission that addresses the requirements of section 128 only by providing a narrative 3 EPA’s September 13, 2013, memorandum entitled ‘‘Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)’’ provides that SIPs are only required to meet the section 128(a)(1) majority requirements if the state has a multi-member board or body with CAA permit or order approval authority. 4 ‘‘Guidance to States for Meeting Conflict of Interest Requirements of Section 128,’’ Memorandum from David O. Bickart, Deputy General Counsel, to Regional Air Directors, March 2, 1978. 5 ‘‘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. E:\FR\FM\08FEP1.SGM 08FEP1 Federal Register / Vol. 83, No. 27 / Thursday, February 8, 2018 / Proposed Rules description or references existing state laws or requirements that are not contained within the SIP. EPA has also provided certain interpretations of the statutory requirements of section 128 in its actions on infrastructure SIP submissions from various states, based on the facts and circumstances of those actions.6 In several actions, EPA has approved state law requirements that closely track or mirror the explicit statutory language of section 128.7 The legislative history of the 1977 amendments to the CAA also indicates that states have some flexibility to determine the specific provisions needed to satisfy the requirements of section 128, so long as the statutory requirements are met.8 Also, section 128 explicitly provides that states may adopt any requirements respecting conflicts of interest for such boards or bodies or heads of executive agencies, or any other entities which are more stringent than the requirements of paragraphs (1) and (2), and that the Administrator shall approve any such more stringent requirements submitted as part of an implementation plan. EPA is proposing to approve Alabama’s October 24, 2017 SIP submission as meeting the requirements of section 128 because we believe it complies with the statutory requirements and is consistent with EPA’s guidance. The State has submitted certain regulatory provisions for incorporation into its SIP, and these provisions explicitly require the EMC and ADEM personnel with CAA permit or order approval authority to comply with applicable federal conflict interest laws and regulations. As explained in the submission, these provisions encompass the majority composition and income requirements of section 128(a)(1) for the multi-member EMC and the conflict of interest disclosure requirements of section 128(a)(2) for both the EMC members and the ADEM Director and designees. As noted above, EPA has determined that state requirements that closely track or mirror the section 128 requirements satisfy CAA requirements. Likewise, EPA believes state law provisions that cross reference or incorporate these 6 Id. at 43–44. e.g., EPA proposed rule on Montana’s SIP/ infrastructure requirements, 81 FR 4225, 4233, finalized at 81 FR 23180; EPA’s final approval of Georgia’s infrastructure requirements, 77 FR 65125, proposed at 77 FR 35909. 8 Specifically, the conference committee for the 1977 amendments stated that ‘‘it is the responsibility of each state to determine the specific requirements to meet the general requirements of [section 128].’’ H.R. Rep. 95–564 (1977), reprinted in Legislative History of the Clean Air Act Amendments of 1977, 526–527 (1978). daltland on DSKBBV9HB2PROD with PROPOSALS 7 See, VerDate Sep<11>2014 16:37 Feb 07, 2018 Jkt 244001 federal conflict of interest requirements satisfy the requirements of the CAA. With the incorporation of these specific regulatory requirements to comply with the relevant CAA requirements into the SIP, EPA believes that Alabama will meet the requirements of section 128 of the CAA. 5597 Organization of the Department, effective December 8, 2017, which revise Alabama’s SIP to include language that mandates members of the Alabama Environmental Management Commission and the ADEM Director, Deputy Director, Division Chiefs and all ADEM personnel meet all requirements of the state ethics law and the conflict III. What is EPA’s analysis of how of interest provisions of applicable Alabama addressed the requirements of Federal laws and regulations. EPA has section 110(a)(2)(E)(ii)? made, and will continue to make, these The State also specifically submitted materials generally available through the October 24, 2017, submission to www.regulations.gov and/or at the EPA address the infrastructure requirements Region 4 office (please contact the of section 110(a)(2)(E)(ii), and the person identified in the FOR FURTHER related section 128 requirements, for the INFORMATION CONTACT section of this 1997, 2006, and 2012 PM2.5, 2008 8-hour preamble for more information). Ozone, 2008 Lead, 2010 NO2, and 2010 V. Proposed Action SO2 NAAQS. Section 110(a)(2)(E)(ii) of As described above, EPA is proposing the CAA requires states to have SIP to approve that Alabama’s SIP meets the provisions that comply with the state board requirements of 128 of the requirements of CAA section 128. CAA, and is proposing to approve that Because EPA is proposing to approve the Alabama SIP meets the requirements provisions into Alabama’s SIP to meet for the section 110(a)(2)(E)(ii) for the the requirements of section 128 as 2012 PM2.5 NAAQS. In this action, EPA discussed above, it is also proposing to approve the SIP submission with is also proposing to conclude that, if respect to the related requirements of Alabama’s October 24, 2017, SIP section 110(a)(2)(E)(ii) for the NAAQS revision is approved, the section previously mentioned. EPA notes that 110(a)(2)(E)(ii) requirements are met for section 128 is not NAAQS-specific, and the 1997 and 2006 PM2.5, 2008 8-hour thus once a state has met the Ozone, 2008 Lead, 2010 NO2, and 2010 requirements of section 128 it will SO2 NAAQS. Consequently, if EPA continue to do so for purposes of future finalizes approval of this action, the NAAQS, unless the state makes any deficiencies identified in the previous changes to the approved SIP provisions, partial disapprovals of Alabama’s in which case the changed provisions infrastructure SIP submissions related to may require further evaluation to ensure the state board requirements for the that they still meet the requirements of 1997 and 2006 PM2.5, 2008 8-hour section 128. Ozone, 2008 Lead, 2010 NO2, and 2010 For the 2012 PM2.5 NAAQS, ADEM SO2 NAAQS will be cured. submitted an infrastructure SIP VI. Statutory and Executive Order submission on December 9, 2015, to Reviews address the state board requirements of Under the CAA, the Administrator is section 110(a)(2)(E)(ii). EPA has already required to approve a SIP submission approved, or will consider in separate that complies with the provisions of the actions, all other infrastructure SIP Act and applicable Federal regulations. elements for the 2012 PM2.5 NAAQS, but has not taken any prior action on the See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, December 9, 2015 submission for EPA’s role is to approve state choices, section 110(a)(2)(E)(ii). With the SIP provided that they meet the criteria of revision to address sections 128 and 110(a)(2)(E)(ii) in the December 24, 2017 the CAA. This action merely proposes to approve state law as meeting Federal submission, EPA is proposing to requirements and does not impose approve the December 9, 2015 additional requirements beyond those submission for purposes of section imposed by state law. For that reason, 110(a)(2)(E)(ii) in this action. this proposed action: IV. Incorporation by Reference • Is not a significant regulatory action In this rule, EPA is proposing to subject to review by the Office of include in a final EPA rule regulatory Management and Budget under text that includes incorporation by Executive Orders 12866 (58 FR 51735, reference. In accordance with the October 4, 1993) and 13563 (76 FR 3821, requirements of 1 CFR 51.5, EPA is January 21, 2011); • Is not an Executive Order 13771 (82 proposing to incorporate by reference FR 9339, February 2, 2017) regulatory ADEM’s Rule 335–1–1–.03, action because SIP approvals are Organization and Duties of the exempted under Executive Order 12866. Commission and Rule 335–1–1–.04, PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 E:\FR\FM\08FEP1.SGM 08FEP1 5598 Federal Register / Vol. 83, No. 27 / Thursday, February 8, 2018 / Proposed Rules • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law. daltland on DSKBBV9HB2PROD with PROPOSALS List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: January 25, 2018. Onis ‘‘Trey’’ Glenn, III, Regional Administrator, Region 4. [FR Doc. 2018–02146 Filed 2–7–18; 8:45 am] BILLING CODE 6560–50–P VerDate Sep<11>2014 16:37 Feb 07, 2018 Jkt 244001 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 721 [EPA–HQ–OPPT–2011–0941; FRL–9973–02] RIN 2070–AB27 Modification of Significant New Use of a Certain Chemical Substance Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: EPA is proposing to amend the significant new use rule (SNUR) under section 5(a)(2) of the Toxic Substances Control Act (TSCA) for Oxazolidine, 3,3′-methylenebis[5methyl-, which was the subject of a premanufacture notice (PMN) and a significant new use notice (SNUN). This action would amend the SNUR to allow certain new uses reported in the SNUN without requiring additional SNUNs and make the lack of certain worker protections a new use. EPA is proposing this amendment based on review of new and existing data as described for the chemical substance. A SNUR requires persons who intend to manufacture (including import) or process this chemical substance for an activity that is designated as a significant new use by this proposed rule to notify EPA at least 90 days before commencing that activity. The required notification initiates EPA’s evaluation of the intended use within the applicable review period. Manufacture and processing for the significant new use would be unable to commence until EPA conducted a review of the notice, made an appropriate determination on the notice, and took such actions as are required with that determination. DATES: Comments must be received on or before February 23, 2018. ADDRESSES: Submit your comments, identified by docket identification (ID) number EPA–HQ–OPPT–2011–0941, by one of the following methods: • Federal eRulemaking Portal: https:// www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. • Mail: Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460–0001. • Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please SUMMARY: PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 follow the instructions at https:// www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https:// www.epa.gov/dockets. FOR FURTHER INFORMATION CONTACT: For technical information contact: Kenneth Moss, Chemical Control Division, Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460–0001; telephone number: (202) 564–8974; email address: moss.kenneth@epa.gov. For general information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554– 1404; email address: TSCA-Hotline@ epa.gov. SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me? You may be potentially affected by this action if you manufacture, process, or use the chemical substance contained in this rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include: • Manufacturers or processors of the chemical substance (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries. This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemicals subject to a modified SNUR must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export the chemical substance that is the subject of a final rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D. E:\FR\FM\08FEP1.SGM 08FEP1

Agencies

[Federal Register Volume 83, Number 27 (Thursday, February 8, 2018)]
[Proposed Rules]
[Pages 5594-5598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-02146]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2017-0642; FRL-9974-02-Region 4]


Air Plan Approval; AL; Section 128 Board Requirements for 
Infrastructure SIPs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a State Implementation Plan (SIP) submission, submitted by the 
State of Alabama, through the Alabama Department of Environmental 
Management (ADEM), on October 24, 2017. This submission addresses the 
Clean Air Act (CAA or Act) requirements applicable to Alabama state 
boards or agency personnel with respect to the approval of permits or 
enforcement orders. The submission also specifically addresses 
requirements for implementation of the following national ambient air 
quality standards (NAAQS): 1997, 2006, and 2012 Fine Particulate Matter 
(PM2.5), 2008 8-hour Ozone, 2008 Lead, 2010 Nitrogen Dioxide 
(NO2), and 2010 Sulfur Dioxide (SO2). The CAA 
requires that each state adopt and submit a SIP for the implementation, 
maintenance and enforcement of each NAAQS promulgated by EPA. Whenever 
EPA promulgates a new or revised NAAQS, the CAA requires the state to 
make a new SIP submission establishing that the existing SIP meets the 
various applicable requirements, or revising the SIP to meet those 
requirements. This type of SIP submission is commonly referred to as an 
``infrastructure'' SIP. In this proposed action, EPA is proposing to 
approve the October 24, 2017, submission with respect to: (1) The 
requirements applicable to state boards of the CAA; and (2) the related 
state board infrastructure SIP requirements for the 1997, 2006, and 
2012 PM2.5, 2008 8-hour Ozone, 2008 Lead, 2010 
NO2, and 2010 SO2 NAAQS. In addition, EPA is 
proposing approval of ADEM's

[[Page 5595]]

December 9, 2015, infrastructure SIP submission (as supplemented by the 
October 24, 2017 submission) related to the state board requirements 
for the 2012 PM2.5 NAAQS. If this proposed approval action 
is finalized, EPA will no longer be required to promulgate a federal 
implementation plan (FIP) to address these CAA state board requirements 
for Alabama, as described in more detail below.

DATES: Comments must be received on or before March 12, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2017-0642 at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: 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. The telephone number is (404) 562-9140. Ms. Ward can be 
reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    By statute, states are required to have SIPs that provide for the 
implementation, maintenance, and enforcement of the NAAQS. States are 
further required to make a SIP submission meeting the applicable 
requirements of sections 110(a)(1) and (2) within three years after EPA 
promulgates a new or revised NAAQS.\1\ EPA has historically referred to 
this type of SIP submission 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 SIP 
submissions. Section 110(a)(2) lists specific elements that states must 
meet to satisfy 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 existing EPA approved SIP at the time when the state 
develops and submits the infrastructure SIP submission for a new or 
revised NAAQS.
---------------------------------------------------------------------------

    \1\ EPA has long noted that a literal reading of the statutory 
provision to meet all requirements of 110(a)(2) on the schedule 
provided in 110(a)(1) would create a conflict with the nonattainment 
provisions in part D of Title I of the CAA, which specifically 
address nonattainment area SIP requirements. See, e.g., ``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 at 4. For example, 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. The provisions in section 
172(b) for submission of such plans for nonattainment areas differ 
from the timing requirements for an infrastructure SIP submission 
under 110(a)(1).Thus, rather than applying all the stated 
requirements of section 110(a)(2) in a strict, literal sense, EPA 
has determined that certain provisions like 110(a)(2)(I) of section 
110(a)(2) are not applicable to infrastructure SIP submissions.
---------------------------------------------------------------------------

    This action pertains to one of the requirements of section 
110(a)(2) that is relevant in the context of a state's development, and 
EPA's evaluation of, infrastructure SIP submissions. Section 
110(a)(2)(E)(ii) of the CAA requires states to have SIPs that contain 
provisions that comply with certain specific requirements respecting 
state boards or bodies or heads of state agencies provided in CAA 
section 128. Section 128 of the CAA requires that states include 
provisions in their SIP that (1) require that any state board or body 
which approves permits or enforcement orders shall have a majority of 
members who represent the public interest and do not receive a 
significant portion of their income from parties subject to permits or 
enforcement (section 128(a)(1)); and (2) require that the members of 
any such board or body, or the head of an executive agency with similar 
power to approve permits or enforcement orders under the CAA, shall 
also be subject to adequate conflict of interest disclosure 
requirements (section 128(a)(2)).
    Alabama previously made infrastructure SIP submissions for a number 
of recently revised NAAQS. With the exception of the state board 
requirements of section 110(a)(2)(E)(ii) of the CAA, EPA has already 
approved or will consider in separate actions all other elements of 
Alabama's infrastructure SIP submissions related to the 2008 8-hour 
Ozone, 2008 Lead, 2010 NO2, 2010 SO2, and 1997, 
2006, and 2012 PM2.5 NAAQS. At the time of those 
infrastructure SIP submissions, however, the Alabama SIP did not 
include provisions to meet the requirements of section 128, and thus 
these submissions did not meet the requirements of section 
110(a)(2)(E)(ii) of the CAA. Therefore, EPA took final action to 
disapprove Alabama's infrastructure SIP submissions as they pertained 
to the conflict of interest requirements of section 128 and section 
110(a)(2)(E)(ii), for the 1997 and 2006 PM2.5 NAAQS on 
October 15, 2012 (77 FR 62449), the 2008 8-hour Ozone NAAQS on April 2, 
2015 (80 FR 17689), the 2008 Lead NAAQS on October 9, 2015 (80 FR 
61111), the 2010 NO2 NAAQS on November 21, 2016 (81 FR 
83142), and the 2010 SO2 NAAQS on January 12, 2017 (82 FR 
3637). Under section 110(c)(1)(B), these disapprovals started a two-
year clock for EPA to promulgate a FIP to address the deficiency. EPA 
did not take action on this element for the 2012 PM2.5 
NAAQS.\2\
---------------------------------------------------------------------------

    \2\ ADEM submitted its infrastructure SIP for the 2012 
PM2.5 NAAQS on December 9, 2015.
---------------------------------------------------------------------------

    In order to address the requirements of section 128, and thus the 
requirements of section 110(a)(2)(E)(ii), Alabama made the October 24, 
2017, SIP submission to revise the existing SIP in order to include the 
necessary SIP provisions. Through this action, EPA is proposing 
approval of Alabama's SIP revision to incorporate into its SIP certain 
regulatory provisions to address the state board requirements of 
section 128. More detail on how Alabama's SIP revision meets these 
requirements is provided below. As a result of the addition of these 
new SIP provisions to meet the requirements of section 128, EPA is also 
proposing approval of this submission as satisfying the section 
110(a)(2)(E)(ii) infrastructure element for the 1997, 2006 and 2012 
PM2.5, 2008 8-hour Ozone, 2008 Lead, 2010 NO2, 
and 2010 SO2 NAAQS. The approvals

[[Page 5596]]

proposed herein would fully address the SIP deficiencies from EPA's 
prior disapprovals for the 1997 and 2006 PM2.5 NAAQS on 
October 15, 2012 (77 FR 62449), 2008 8-hour Ozone NAAQS on April 2, 
2015 (80 FR 17689), 2008 Lead NAAQS on October 9, 2015 (80 FR 61111), 
2010 NO2 NAAQS on November 21, 2016 (81 FR 83142), and 2010 
SO2 NAAQS on January 12, 2017 (82 FR 3637). Thus, if EPA 
finalizes this proposed approval, this will resolve the prior 
disapprovals for element 110(a)(2)(E)(ii) for the 1997 and 2006 
PM2.5 NAAQS, the 2008 Ozone NAAQS, the 2008 lead NAAQS, the 
2010 NO2, and the 2010 SO2 NAAQS, and terminate 
EPA's FIP obligation with regard to that element for these NAAQS.
    A brief background regarding each NAAQS relevant to this action is 
provided below. For comprehensive information on these NAAQS, please 
refer to the Federal Register rulemakings cited below.

a. 1997 and 2006 PM2.5 NAAQS

    On July 18, 1997 (62 FR 36852), EPA established an annual 
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\) 
based on a 3-year average of annual mean PM2.5 
concentrations. At that time, EPA also established a 24-hour NAAQS of 
65 [mu]g/m\3\. See 40 CFR 50.7. On October 17, 2006 (71 FR 61144), EPA 
retained the 1997 annual PM2.5 NAAQS at 15.0 [mu]g/m\3\ 
based on a 3-year average of annual mean PM2.5 
concentrations, and promulgated a new 24-hour NAAQS of 35 [mu]g/m\3\ 
based on a 3-year average of the 98th percentile of 24-hour 
concentrations. States were required to submit infrastructure SIPs to 
EPA no later than July 2000 for the 1997 annual PM2.5 NAAQS, 
and no later than October 2009 for the 2006 24-hour PM2.5 
NAAQS.

b. 2008 8-Hour Ozone NAAQS

    On March 27, 2008, EPA promulgated a revised NAAQS for ozone based 
on 8-hour average concentrations. EPA revised the level of the 8-hour 
ozone NAAQS to 0.075 parts per million. See 77 FR 16436. States were 
required to submit infrastructure SIP submissions for the 2008 8-hour 
Ozone NAAQS to EPA no later than March 2011.

c. 2008 Lead NAAQS

    On November 12, 2008 (75 FR 81126), EPA issued a final rule to 
revise the Lead NAAQS. The Lead NAAQS was revised to 0.15 [micro]g/
m\3\. States were required to submit infrastructure SIP submissions to 
EPA no later than October 15, 2011, for the 2008 Lead NAAQS.

d. 2010 NO2 NAAQS

    On February 9, 2010 (75 FR 6474), EPA established a new 1-hour 
primary NAAQS for NO2 at a level of 100 parts per billion 
(ppb), based on a 3-year average of the 98th percentile of the yearly 
distribution of 1-hour daily maximum concentrations. States were 
required to submit infrastructure SIP submissions for the 2010 
NO2 NAAQS to EPA no later than January 2013.

e. 2010 SO2 NAAQS

    On June 22, 2010 (75 FR 35520), EPA promulgated a revised primary 
SO2 NAAQS to an hourly standard of 75 ppb based on a 3-year 
average of the annual 99th percentile of 1-hour daily maximum 
concentrations. States were required to submit infrastructure SIPs for 
the 2010 1-hour SO2 NAAQS to EPA no later than June 22, 
2013.

f. 2012 PM2.5 NAAQS

    On December 14, 2012, EPA revised the primary annual 
PM2.5 NAAQS to 12.0 [mu]g/m\3\. See 78 FR 3086 (January 15, 
2013). An area meets the standard if the three-year average of its 
annual average PM2.5 concentration (at each monitoring site 
in the area) is less than or equal to 12.0 [mu]g/m\3\. States were 
required to submit infrastructure SIP submissions for the 2012 
PM2.5 NAAQS to EPA no later than December 14, 2015.

II. What is EPA's analysis of how Alabama addressed the state board 
requirements of section 128?

    On October 24, 2017, Alabama submitted a SIP submission to include 
SIP provisions to address the requirements of CAA section 128, and 
thereby to meet the related infrastructure SIP requirements of section 
110(a)(2)(E)(ii). The October 24, 2017, SIP submission includes changes 
to rules 335-1-1-.03 and 335-1-1-.04 of ADEM's Administrative Code for 
Division 1 to incorporate into Alabama's SIP certain conflict of 
interest provisions that apply to the boards, bodies and executive 
agency personnel with approval authority for CAA permits and 
enforcement. Rule 335-1-1-.03, Organization and Duties of the 
Commission, is amended to include language for incorporation into the 
SIP mandating that members of the Alabama Environmental Management 
Commission (EMC) meet all requirements of the state ethics law and the 
conflict of interest provisions of applicable Federal laws, which 
includes section 128. Rule 335-1-1-.04, Organization of the Department 
is amended to include language for incorporation into the SIP mandating 
that the ADEM Director, Deputy Director, Division Chiefs, and all ADEM 
personnel meet all requirements of the state ethics law and the 
conflict of interest provisions of applicable Federal laws, which 
includes section 128. ADEM and the EMC are the entities that have the 
authority to issue and approve CAA permits and enforcement orders. The 
ADEM Air Director has the authority to approve permits and enforcement 
orders for Alabama. In the case of appeal, permits and enforcement 
orders are sent to the EMC and the EMC has final approval authority.
    If a state has a board or body that approves CAA permits or 
enforcement orders, section 128(a)(1) requires that a majority of such 
board or body represent the public interest and not derive a 
significant portion of income from persons subject to such permits and 
enforcement orders.\3\ Under section 128(a)(2), the members of any such 
board or body, or the head of an executive agency with similar power to 
approve permits or enforcement orders under the CAA, are required to 
disclose any potential conflict of interest adequately.
---------------------------------------------------------------------------

    \3\ EPA's September 13, 2013, memorandum entitled ``Guidance on 
Infrastructure State Implementation Plan (SIP) Elements under Clean 
Air Act Sections 110(a)(1) and 110(a)(2)'' provides that SIPs are 
only required to meet the section 128(a)(1) majority requirements if 
the state has a multi-member board or body with CAA permit or order 
approval authority.
---------------------------------------------------------------------------

    In 1978, EPA issued guidance recommending potential ways that 
states might elect to meet the requirements of section 128, including 
suggested interpretations of key terms.\4\ In this guidance, EPA 
recognized that states may have a variety of procedures and special 
concerns that may warrant differing approaches to implementation of 
section 128 and made clear that the guidance does not create a 
requirement that all SIPs must include the suggested definitions 
verbatim, or that definitions per se must be included in SIPs. EPA 
provided further guidance with respect to these statutory requirements 
in its 2013 infrastructure guidance.\5\ In the 2013 guidance, EPA 
clarified that provisions to implement section 128 need to be contained 
within the SIP. Therefore, EPA will not approve an infrastructure SIP 
submission that addresses the requirements of section 128 only by 
providing a narrative

[[Page 5597]]

description or references existing state laws or requirements that are 
not contained within the SIP. EPA has also provided certain 
interpretations of the statutory requirements of section 128 in its 
actions on infrastructure SIP submissions from various states, based on 
the facts and circumstances of those actions.\6\ In several actions, 
EPA has approved state law requirements that closely track or mirror 
the explicit statutory language of section 128.\7\
---------------------------------------------------------------------------

    \4\ ``Guidance to States for Meeting Conflict of Interest 
Requirements of Section 128,'' Memorandum from David O. Bickart, 
Deputy General Counsel, to Regional Air Directors, March 2, 1978.
    \5\ ``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.
    \6\ Id. at 43-44.
    \7\ See, e.g., EPA proposed rule on Montana's SIP/infrastructure 
requirements, 81 FR 4225, 4233, finalized at 81 FR 23180; EPA's 
final approval of Georgia's infrastructure requirements, 77 FR 
65125, proposed at 77 FR 35909.
---------------------------------------------------------------------------

    The legislative history of the 1977 amendments to the CAA also 
indicates that states have some flexibility to determine the specific 
provisions needed to satisfy the requirements of section 128, so long 
as the statutory requirements are met.\8\ Also, section 128 explicitly 
provides that states may adopt any requirements respecting conflicts of 
interest for such boards or bodies or heads of executive agencies, or 
any other entities which are more stringent than the requirements of 
paragraphs (1) and (2), and that the Administrator shall approve any 
such more stringent requirements submitted as part of an implementation 
plan.
---------------------------------------------------------------------------

    \8\ Specifically, the conference committee for the 1977 
amendments stated that ``it is the responsibility of each state to 
determine the specific requirements to meet the general requirements 
of [section 128].'' H.R. Rep. 95-564 (1977), reprinted in 
Legislative History of the Clean Air Act Amendments of 1977, 526-527 
(1978).
---------------------------------------------------------------------------

    EPA is proposing to approve Alabama's October 24, 2017 SIP 
submission as meeting the requirements of section 128 because we 
believe it complies with the statutory requirements and is consistent 
with EPA's guidance. The State has submitted certain regulatory 
provisions for incorporation into its SIP, and these provisions 
explicitly require the EMC and ADEM personnel with CAA permit or order 
approval authority to comply with applicable federal conflict interest 
laws and regulations. As explained in the submission, these provisions 
encompass the majority composition and income requirements of section 
128(a)(1) for the multi-member EMC and the conflict of interest 
disclosure requirements of section 128(a)(2) for both the EMC members 
and the ADEM Director and designees.
    As noted above, EPA has determined that state requirements that 
closely track or mirror the section 128 requirements satisfy CAA 
requirements. Likewise, EPA believes state law provisions that cross 
reference or incorporate these federal conflict of interest 
requirements satisfy the requirements of the CAA. With the 
incorporation of these specific regulatory requirements to comply with 
the relevant CAA requirements into the SIP, EPA believes that Alabama 
will meet the requirements of section 128 of the CAA.

III. What is EPA's analysis of how Alabama addressed the requirements 
of section 110(a)(2)(E)(ii)?

    The State also specifically submitted the October 24, 2017, 
submission to address the infrastructure requirements of section 
110(a)(2)(E)(ii), and the related section 128 requirements, for the 
1997, 2006, and 2012 PM2.5, 2008 8-hour Ozone, 2008 Lead, 
2010 NO2, and 2010 SO2 NAAQS. Section 
110(a)(2)(E)(ii) of the CAA requires states to have SIP provisions that 
comply with the requirements of CAA section 128. Because EPA is 
proposing to approve provisions into Alabama's SIP to meet the 
requirements of section 128 as discussed above, it is also proposing to 
approve the SIP submission with respect to the related requirements of 
section 110(a)(2)(E)(ii) for the NAAQS previously mentioned. EPA notes 
that section 128 is not NAAQS-specific, and thus once a state has met 
the requirements of section 128 it will continue to do so for purposes 
of future NAAQS, unless the state makes any changes to the approved SIP 
provisions, in which case the changed provisions may require further 
evaluation to ensure that they still meet the requirements of section 
128.
    For the 2012 PM2.5 NAAQS, ADEM submitted an 
infrastructure SIP submission on December 9, 2015, to address the state 
board requirements of section 110(a)(2)(E)(ii). EPA has already 
approved, or will consider in separate actions, all other 
infrastructure SIP elements for the 2012 PM2.5 NAAQS, but 
has not taken any prior action on the December 9, 2015 submission for 
section 110(a)(2)(E)(ii). With the SIP revision to address sections 128 
and 110(a)(2)(E)(ii) in the December 24, 2017 submission, EPA is 
proposing to approve the December 9, 2015 submission for purposes of 
section 110(a)(2)(E)(ii) in this action.

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 ADEM's Rule 335-1-1-.03, Organization and Duties of the 
Commission and Rule 335-1-1-.04, Organization of the Department, 
effective December 8, 2017, which revise Alabama's SIP to include 
language that mandates members of the Alabama Environmental Management 
Commission and the ADEM Director, Deputy Director, Division Chiefs and 
all ADEM personnel meet all requirements of the state ethics law and 
the conflict of interest provisions of applicable Federal laws and 
regulations. 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

    As described above, EPA is proposing to approve that Alabama's SIP 
meets the state board requirements of 128 of the CAA, and is proposing 
to approve that the Alabama SIP meets the requirements for the section 
110(a)(2)(E)(ii) for the 2012 PM2.5 NAAQS. In this action, 
EPA is also proposing to conclude that, if Alabama's October 24, 2017, 
SIP revision is approved, the section 110(a)(2)(E)(ii) requirements are 
met for the 1997 and 2006 PM2.5, 2008 8-hour Ozone, 2008 
Lead, 2010 NO2, and 2010 SO2 NAAQS. Consequently, 
if EPA finalizes approval of this action, the deficiencies identified 
in the previous partial disapprovals of Alabama's infrastructure SIP 
submissions related to the state board requirements for the 1997 and 
2006 PM2.5, 2008 8-hour Ozone, 2008 Lead, 2010 
NO2, and 2010 SO2 NAAQS will be cured.

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. This 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);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.

[[Page 5598]]

     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

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

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

    Dated: January 25, 2018.
Onis ``Trey'' Glenn, III,
Regional Administrator, Region 4.
[FR Doc. 2018-02146 Filed 2-7-18; 8:45 am]
 BILLING CODE 6560-50-P
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