Membership: The members of the Regional Enforcement Working Group were chosen from nominations submitted in response to the Department of Energy's call for nominations published in the Federal Register on June 13, 2014 in 79 FR 33870. The selections are designed to ensure a broad and balanced array of stakeholder interests and expertise on the negotiating working group for the purpose of developing a rule that is legally and economically justified, technically sound, fair to all parties, and in the public interest. All meetings are open to all stakeholders and the public, and participation by all is welcome within boundaries as required by the orderly conduct of business. The members of the Regional Enforcement Group are as follows:

Docket: The docket is available for review at www.regulations.gov , including Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials. All documents in the docket are listed in the www.regulations.gov index. However, not all documents listed in the index may be publicly available, such as information that is exempt from public disclosure.

The Secretary of Energy has approved publication of today's notice of proposed rulemaking.

Membership: The members of the Manufactured Housing Working Group were chosen from nominations submitted in response to the Department of Energy's call for nominations published in the Federal Register on June 13, 2014 in 79 FR 33873. The selections are designed to ensure a broad and balanced array of stakeholder interests and expertise on the negotiating working group for the purpose of developing a rule that is legally and economically justified, technically sound, fair to all parties, and in the public interest. All meetings are open to all stakeholders and the public, and participation by all is welcome within boundaries as required by the orderly conduct of business. The members of the Manufactured Housing Working Group are as follows:

Docket: The docket is available for review at www.regulations.gov , including Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials. All documents in the docket are listed in the www.regulations.gov index. However, not all documents listed in the index may be publicly available, such as information that is exempt from public disclosure.

The Secretary of Energy has approved publication of today's notice of proposed rulemaking.

Comments Invited

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive on or before the closing date for comments. We may change these special conditions based on the comments we receive.

On December 10, 2009, Bombardier Aerospace applied for a type certificate for their new Models BD-500-1A10 and BD-500-1A11 series airplanes (hereafter collectively referred to as “CSeries”). The CSeries airplanes are swept-wing monoplanes with an aluminum alloy fuselage sized for 5-abreast seating. Passenger capacity is designated as 110 for the Model BD-500-1A10 and 125 for the Model BD-500-1A11. Maximum takeoff weight is 131,000 pounds for the Model BD-500-1A10 and 144,000 pounds for the Model BD-500-1A11.

Conventional airplanes with aluminum skin and structure provide a well-understood level of safety during post-crash fire scenarios with respect to fuel tanks. This is based on service history and extensive full-scale fire testing. The CSeries airplanes will not be fabricated primarily with aluminum for the fuel tank structure. Instead, they will be fabricated using predominantly composite structure and skin for the wings and fuel tanks. Composites may or may not have the equivalent capability of aluminum, and current regulations do not provide objective performance requirements for wing and fuel tank structure with respect to post-crash fire safety. Because the use of composite structure is novel and unusual with respect to the designs envisioned when the applicable regulations were promulgated, additional tests and analyses substantiation will be required to show that the CSeries airplanes will provide an acceptable level of safety with respect to the performance of the wings and fuel tanks during an external fuel-fed fire.

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Bombardier Aerospace must show that the CSeries airplanes meet the applicable provisions of 14 CFR part 25 as amended by Amendments 25-1 through 25-129.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the CSeries airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the CSeries airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.17(a)(2).

The CSeries airplanes will incorporate the following novel or unusual design features: The structural elements and skin of the wings and fuel tanks will be fabricated using predominantly composite materials rather than conventional aluminum.

Transport category airplanes in operation today have traditionally been designed with aluminum materials. Conventional airplanes with aluminum skin and structure provide a well-understood level of safety during post-crash fires with respect to fuel tanks. Current regulations were developed and have evolved under the assumption that wing construction would be of aluminum materials.

Aluminum has the following properties with respect to fuel tanks and fuel-fed external fires:

• Aluminum is highly thermally conductive and readily transmits the heat of a fuel-fed external fire to fuel in the tank. This has the benefit of rapidly driving the fuel tank ullage to exceed the upper flammability limit of fuel vapors prior to fuel tank skin burn-through or heating of the wing upper surface above the auto-ignition temperature, thus greatly reducing the threat of fuel tank explosion.

• Aluminum panels at thicknesses previously used in wing lower surfaces of large transport category airplanes have been fire resistant as defined in 14 CFR 1.1 and AC 20-135,

• Heat absorption capacity of aluminum and fuel prevent burn-through or wing collapse for a time interval that generally exceed the passenger evacuation time.

The ability of aluminum wing surfaces to withstand post-crash fire conditions when wetted by fuel on their interior surface has been demonstrated by tests conducted at the FAA Technical Center. Results of these tests have verified adequate dissipation of heat across wetted aluminum fuel tank surfaces so that localized hot spots do not occur, thus minimizing the threat of explosion. This inherent capability of aluminum to dissipate heat also allows the wing lower surface to retain its load-carrying characteristics during a fuel-fed ground fire and significantly delay wing collapse or burn-through for a time interval that usually exceeds evacuation times. In addition, as an aluminum fuel tank is heated with significant quantities of fuel inside, fuel vapor accumulates in the ullage space, exceeding the upper flammability limit relatively quickly and thus reducing the threat of a fuel tank explosion prior to fuel tank burn-through.

Fuel tanks constructed with composite materials may or may not have equivalent properties. Advisory Circular (AC) 20-107B (Change 1), Composite Aircraft Structure, section 11b, “Fire Protection, Flammability and Thermal Issues,” states: “Wing and fuselage applications should consider the effects of composite design and construction on the resulting passenger safety in the event of in-flight fires or emergency landing conditions, which combine with subsequent egress when a fuel-fed fire is possible.” Pertinent to the wing structure, post-crash fire passenger survivability is dependent on the time available for passenger evacuation prior to fuel tank breach or structural failure. Structural failure can be a result of degradation in load-carrying capability in the upper or lower wing surface caused by a fuel-fed ground fire and also as a result of over-pressurization caused by ignition of fuel vapors in the fuel tank.

For the CSeries airplanes, composite materials will be used to fabricate the majority of wing fuel tank. Hence, the current regulations may not be adequate for the certification of the CSeries airplanes featuring wing fuel tanks fabricated with composite material. Therefore, Bombardier must present additional confirmation by test and analysis that the CSeries airplanes' design provides an acceptable level of safety with respect to the performance of the wing fuel tanks when exposed to the direct effects of post-crash ground fire or under-wing fuel-fed fires.

These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to the Models BD-500-1A10 and BD-500-1A11 series airplanes. Should Bombardier Aerospace apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on two model series of airplanes. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Bombardier Aerospace Models BD-500-1A10 and BD-500-1A11 series airplanes.

1. The wing fuel tank structure must withstand an external fuel-fed pool fire for a minimum of 5 minutes.

2. The integrity of the wing fuel tank structure must be demonstrated at:

• Minimum fuel load, not less than reserve fuel level;

• Maximum fuel load equal to the maximum range fuel quantity; and

• Any other critical fuel loads.

3. The demonstration must consider fuel tank flammability, burn-through resistance, wing structural strength retention properties, and auto-ignition threats from localized heating of composite structure, fasteners, or any other feature that may produce an ignition source during a ground fire event for the required time duration.

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2014-0448; Directorate Identifier 2013-NM-055-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2013-0058, dated March 11, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A300 series airplanes; Airbus Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Airbus Model A310 series airplanes. The MCAI states:

Airbus has issued Service Bulletins:

• A300-32-0464, dated July 17, 2012 (for Model A300 airplanes);

• A300-32-6110, dated July 17, 2012 (for Model A300-600 airplanes); and

• A310-32-2146, dated July 17, 2012 (for Model A310 airplanes).

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

Since late 2006, we have included a standard paragraph titled “Airworthy Product” in all MCAI ADs in which the FAA develops an AD based on a foreign authority's AD.

The MCAI or referenced service information in an FAA AD often directs the owner/operator to contact the manufacturer for corrective actions, such as a repair. Briefly, the Airworthy Product paragraph allowed owners/operators to use corrective actions provided by the manufacturer if those actions were FAA-approved. In addition, the paragraph stated that any actions approved by the State of Design Authority (or its delegated agent) are considered to be FAA-approved.

In another NPRM, Directorate Identifier 2012-NM-101-AD (78 FR 78285, December 26, 2013), we proposed to prevent the use of repairs that were not specifically developed to correct the unsafe condition, by requiring that the repair approval provided by the State of Design Authority or its delegated agent specifically refer to the FAA AD. This change was intended to clarify the method of compliance and to provide operators with better visibility of repairs that are specifically developed and approved to correct the unsafe condition. In addition, we proposed to change the phrase “its delegated agent” to include a design approval holder (DAH) with State of Design Authority design organization approval (DOA), as applicable, to refer to a DAH authorized to approve required repairs for the proposed AD.

One commenter to the other NPRM, Directorate Identifier 2012-NM-101-AD (78 FR 78285, December 26, 2013), stated the following: “The proposed wording, being specific to repairs, eliminates the interpretation that Airbus messages are acceptable for approving minor deviations (corrective actions) needed during accomplishment of an AD mandated Airbus service bulletin.”

This comment has made the FAA aware that some operators have misunderstood or misinterpreted the Airworthy Product paragraph to allow the owner/operator to use messages provided by the manufacturer as approval of deviations during the accomplishment of an AD-mandated action. The Airworthy Product paragraph does not approve messages or other information provided by the manufacturer for deviations to the requirements of the AD-mandated actions. The Airworthy Product paragraph only addresses the requirement to contact the manufacturer for corrective actions for the identified unsafe condition and does not cover deviations from other AD requirements. However, deviations to AD-required actions are addressed in 14 CFR 39.17, and anyone may request the approval for an alternative method of compliance to the AD-required actions using the procedures found in 14 CFR 39.19.

To address this misunderstanding and misinterpretation of the Airworthy Product paragraph, we have changed that paragraph and retitled it “Contacting the Manufacturer.” This paragraph now clarifies that for any requirement in this proposed AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the FAA, the European Aviation Safety Agency (EASA), or Airbus's EASA DOA.

The Contacting the Manufacturer paragraph also clarifies that, if approved by the DOA, the approval must include the DOA-authorized signature. The DOA signature indicates that the data and information contained in the document are EASA-approved, which is also FAA-approved. Messages and other information provided by the manufacturer that do not contain the DOA-authorized signature approval are not EASA-approved, unless EASA directly approves the manufacturer's message or other information.

This clarification does not remove flexibility previously afforded by the Airworthy Product paragraph. Consistent with long-standing FAA policy, such flexibility was never intended for required actions. This is also consistent with the recommendation of the Airworthiness Directive Implementation Aviation Rulemaking Committee to increase flexibility in complying with ADs by identifying those actions in manufacturers' service instructions that are “Required for Compliance” with ADs. We continue to work with manufacturers to implement this recommendation. But once we determine that an action is required, any deviation from the requirement must be approved as an alternative method of compliance.

We estimate that this proposed AD affects 128 airplanes of U.S. registry.

We also estimate that it would take about 4 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $43,520, or $340 per product.

In addition, we estimate that any necessary follow-on actions would take up to 9 work-hours and require parts costing up to $42,000, for a cost of $42,765 per product. We have no way of determining the number of aircraft that might need these actions.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2014-0472; Directorate Identifier 2013-SW-040-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2013-0118, dated June 3, 2013, to correct an unsafe condition for Agusta Model A109K2, A109E, A119, and AW119MKII helicopters. EASA advises that during an overhaul of an A119 main transmission, part number (P/N) 109-0400-05-103, a crack on the Gleason crown, P/N 109-0403-07-103, was found. EASA further states that an investigation by Agusta revealed that the crack originated from the bottom of one of the 40 threaded holes in the Gleason crown, and that this part-numbered Gleason crown is also installed on Model A109 helicopters. EASA states that this condition, if not corrected, could cause damage to or loss of the main rotor drive and loss of control of the helicopter. To correct this unsafe condition, EASA AD No. 2013-0118 requires repetitive magnetic particle inspections of the Gleason crown and, if there is a crack, replacing the Gleason crown with a different part-numbered Gleason crown. EASA AD No. 2013-0118 also prohibits installing a Gleason crown, P/N 109-0403-07-103, or a Gleason crown assembly, P/N 109-0401-27-101 or P/N 109-0401-27-109, on any helicopter, as Gleason crown, P/N 109-0403-07-103, is a component of these assemblies.

We reviewed Agusta Bollettino Tecnico (BT) No. 109EP-128 for Model A109E helicopters, Agusta BT No. 109K-57 for Model A109K2 helicopters, and Agusta BT No. 119-058 for Model A119 and AW119MKII helicopters, each Revision A and dated May 28, 2013. Each BT describes procedures for performing a magnetic particle inspection on the Gleason crown, P/N 109-0403-07-103, for a crack. If there is a crack, each BT specifies replacing the Gleason crown assembly with a Gleason crown assembly, P/N 109-0401-27-107.

We also reviewed Agusta BT No. 109EP-126 for Model A109E helicopters, Agusta BT No. 109K-56 for Model A109K2 helicopters, and Agusta BT No. 119-053 for Model A119 and AW119MKII helicopters, each dated December 20, 2012. These BTs contain procedures for upgrading the transmission system by replacing the Gleason crown assembly with a Gleason crown assembly, P/N 109-0401-27-107.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.

This proposed AD would require, for helicopters with a main transmission, P/N 109-0400-03-109, with 2,400 or more hours time-in-service (TIS), performing a magnetic particle inspection of the Gleason crown, P/N 109-0403-07-103, within 200 hours TIS, and thereafter at intervals not exceeding 1,600 hours TIS. If there is a crack, this proposed AD would require replacing the Gleason crown assembly with a different part-numbered assembly before further flight. The proposed AD would also prohibit installing on any helicopter a Gleason crown, P/N 109-0403-07-103, or a Gleason crown assembly, P/N 109-0401-27-101 or P/N 109-0401-27-109.

This proposed AD requires compliance within 200 hours TIS for main transmissions with 2,400 or more hours. The EASA AD requires different compliance times, depending on the number of flight hours the transmission has accumulated.

We estimate that this proposed AD affects 218 helicopters of U.S. registry. We estimate the following costs to comply with this proposed AD. At an average labor rate of $85 per hour, magnetic particle inspecting the Gleason crown would require about 24 work-hours, for an estimated cost per helicopter of $2,040, and a total cost of $444,720 for the U.S. fleet, per inspection cycle.

If required, replacing the Gleason crown assembly would require about 24 work-hours, and required parts would cost $29,000, for a cost per helicopter of $31,040.

According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2013-0177, dated August 8, 2013, to correct an unsafe condition for Agusta Model AB139 and AW139 helicopters. EASA advises that leaking hydraulic system flexible hoses have been reported on in-service helicopters. An investigation indicated that single braided flexible hydraulic hoses, which are part of the original design for Model AB139 and AW139 helicopters, may not be strong enough to cope with the hydraulic system pressure over long periods. If not corrected, this condition could lead to other hydraulic system leaks, possibly resulting in loss of hydraulic power and reduced control of the helicopter, EASA advises. EASA consequently requires that the flexible single-braided hydraulic hoses be replaced with flexible double-braided hydraulic hoses.

These helicopters have been approved by the aviation authority of Italy and are approved for operation in the United States. Pursuant to our bilateral agreement with Italy, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of the same type design.

AgustaWestland Bolletino Tecnico No. 139-307, dated June 19, 2013 (BT), calls for replacing certain single braided flexible hydraulic hoses with double braided flexible hydraulic hoses for Model AB139 and AW139 helicopters. The BT states that the replacement should be conducted within 300 flight hours or six months from receipt of the BT, whichever comes first, to prevent in-service leaks.

This proposed AD would require, within 300 hours time-in-service (TIS), replacing the flexible single-braided hydraulic hose with a flexible double-braided hydraulic hose. The AD would also prohibit installing the single-braided flexible hydraulic hose on any helicopter.

The EASA AD requires replacing the flexible single-braided hydraulic hoses within 300 flight hours or 6 months, whichever occurs first. This proposed AD requires that the flexible single-braided hydraulic hoses be replaced within 300 hours TIS. TIS and flight hours are synonymous.

We estimate that this proposed AD would affect 115 helicopters of U.S. Registry and that labor costs average $85 per work-hour. Based on these estimates, we expect that replacing the flexible single-braided hydraulic hoses with flexible double-braided hydraulic flexible hoses would require 6 work-hours for a labor cost of $510. Parts would cost $3,089 for a total cost of $3,599 per helicopter, and $413,885 for the U.S. fleet.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

On August 21, 2013, we issued AD 2013-18-01, amendment 39-17574 (78 FR 56599, September 13, 2013) for Eurocopter France Model EC 155B, EC155B1, SA-365N, SA-365N1, AS-365N2, AS 365 N3, and SA-366G1 helicopters, except helicopters with modification (MOD) 0767B5 installed. AD 2013-18-01 requires inspecting the collective pitch lever for correct unlocking with a spring scale, and if required, adjusting the collective pitch lever restraining tab and, for certain models, adjusting the collective link rods. AD 2013-18-01 also requires inspecting the collective pitch lever for the risk of inadvertent locking by measuring the clearance between the locking pin of the collective pitch lever and the L-section of the restraining tab, and if required, modifying the tab with a slight bend to the tab.

AD 2013-18-01 was prompted by AD No. 2011-0154, dated August 22, 2011, issued by EASA, which is the Technical Agent for the Member States of the European Union. EASA issued AD 2011-0154 to correct an unsafe condition for Eurocopter Model EC 155B, EC155B1, SA-365N, SA-365N1, AS-365N2, AS 365 N3, and SA-366G1 helicopters. EASA advises that two occurrences have been reported of inadvertent locking and unlocking of the collective pitch lever. One inadvertent collective pitch lever locking occurred when moving the collective pitch lever to the low-pitch position, and one inadvertent collective pitch lever unlocking occurred during engine start. To address this unsafe condition, Eurocopter issued AS 365 Alert Telex No. 67.00.10, SA 366 Alert Telex No. 67.05, and EC 155 Alert Telex No. 67A007, which describe procedures to inspect the collective pitch lever for correct locking and unlocking conditions. This inspection was mandated by Direction Générale de l'Aviation Civile (DGAC) France AD No. F-2005-127, dated July 20, 2005. DGAC subsequently revised its AD, No. F-2005-127 R1, dated February 1, 2006 (DGAC AD F-2005-127 R1), after Eurocopter issued Alert Service Bulletins containing the same inspection procedures and bearing the same numbers as the Alert Telexes. Since the issuance of DGAC AD F-2005-127 R1 Eurocopter developed an assembly comprised of a blade, a hinge, and a return spring to replace the flexible collective lever locking blade as terminating action for the inspection required by the AD. EASA then issued AD No. 2011-0154, which superseded DGAC AD F-2005-127 R1, retaining the inspection procedures for the collective pitch lever and removing from the applicability helicopters with the hinged, spring-loaded collective lever locking blade installed, designated as MOD 0767B65.

As published, the AD number after the amendatory language section of AD 2013-18-01 is incorrect. The AD number was published as “2013-18-11.” The MOD number in paragraph (a), Applicability, of the AD is incorrect. The correct MOD number is 0767B65. Also, since we issued AD 2013-18-01, the type certificate holder's name for the affected models has changed from Eurocopter France to Airbus Helicopters. No other part of the regulatory information would be changed.

These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of the same type design.

We reviewed Eurocopter (now Airbus Helicopters) Alert Service Bulletin (ASB) No. 67.00.10 for Model AS365 helicopters, ASB No. 67.05 for Model SA366 helicopters, and ASB No. 67A007 for Model EC155 helicopters. All three ASBs are Revision 1 and are dated February 25, 2009. These ASBs describe procedures for inspecting and adjusting the collective pitch lever for correct locking and unlocking conditions.

Eurocopter has also issued ASB No. 67.00.12, Revision 0, dated February 25, 2009, for Model AS365 helicopters; ASB No. 67.07, Revision 0, dated February 25, 2009, for Model AS366 helicopters; and ASB No. 67-009, Revision 1, dated July 19, 2010, for Model EC 155 helicopters. These ASBs contain the procedures for MOD 0767B65.

This proposed AD would retain all of the inspection and adjustment requirements of AD 2013-18-01. It would also would correct the AD number after the amendatory language, correct the MOD number in paragraph (a), and reflect the current type certificate holder's name and contact information.

We estimate that this proposed AD would affect 32 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this proposed AD. Inspecting and adjusting the collective pitch lever would require about 1 work hour at an average labor rate of $85 per hour, for a total cost per helicopter of $85 and a cost to U.S. operators of $2,720.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The Treasury Regulations appearing at 31 CFR part 100, subpart C, are promulgated under 31 U.S.C. 5120, and provide for the exchange of uncurrent, bent, partial, fused, and mixed coins. The last amendment to 31 CFR part 100, was on August 23, 1999 (64 FR 39919, July 23, 1999). Since then, the United States Mint has identified portions of the regulation in need of revision to update redemption rates and procedures, and to resolve an apparent contradiction in the regulation. In accordance with Executive Order 13563, appearing at 76 FR 3821 (January 21, 2011), the United States Mint proposes to amend the regulation to improve its consistency and accuracy.

The first category of proposed significant amendments relates to the redemption rates for uncurrent coins (31 CFR 100.10) and bent and partial coins (31 CFR 100.11) that have been withdrawn from circulation. For uncurrent coins, the proposed rule clarifies the procedure for redemption by instructing the public to deposit the uncurrent coins with a financial institution that will accept them, or with a depository institution that has a direct relationship with a Federal Reserve Bank. The proposed amendment also makes clear that a Federal Reserve Bank will redeem uncurrent coins based on the policies described in the Federal Reserve's Operating Circular 2.

For redemption of bent and partial coins, the proposed rule updates the redemption rates of certain coins to reflect current values and compositions of coins being redeemed. For example, in the current regulation, the rate for one-cent coins is $1.4585 per pound; this rate was derived from the weight of brass one-cent coins (3.11 grams or 0.1097 ounces each), which the United States Mint has not minted and issued since 1982. The weight of the current copper-plated zinc one-cent coins (2.50 grams or 0.0882 ounces each), however, makes their redemption rate $1.8100 per pound. The proposed rule revises the redemption rate for unmixed quantities of these copper-plated zinc one-cent coins.

The second category of proposed amendments resolves an apparent contradiction in the existing regulation. As currently drafted, 31 CFR 100.12(b) states, “The United States Mint will not accept fused or mixed coins for redemption.” 31 CFR 100.12(d), however, states, “Fused and mixed coins will be redeemed only at the United States Mint, P.O. Box 400, Philadelphia, PA 19105.” The issue of whether the United States Mint should accept fused and mixed coins for redemption was the subject of the 1999 amendment to 31 CFR part 100. At that time, the United States Mint notified the public, at 64 FR 4063 (January 27, 1999), of its intention to discontinue acceptance of fused and mixed coins for redemption because the bureau ordinarily cannot reliably ascertain the value of, nor use mechanical methods of destruction or reclamation on, deliveries containing coins of mixed alloy categories. To resolve this apparent contradiction and clarify the intended meaning of the 1999 amendment, which became effective on August 23, 1999, the United States Mint proposes to amend 31 CFR 100.12 to eliminate any suggestion that the bureau will accept fused or mixed coins for redemption.

The proposed rule does not meet the criteria for a “significant regulatory action” as defined in Executive Order 12866.

It is hereby certified that the proposed rule will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required. Although the United States Mint does not maintain records that consistently indicate the business or personal nature of the transactions conducted by individuals or entities tendering coins for redemption, the majority of coins presented for redemption were submitted by individuals transacting with the United States Mint in their own names. Even if each such individual were a “small entity” within the meaning of 5 U.S.C. 604(a), the United States Mint does not believe that the quantity of coin redemption transactions indicates that the proposed amendment will have a significant economic impact on a substantial number of small entities.

Before the proposed amendments to the Treasury Regulations at 31 CFR part 100, subpart C, are adopted as final regulations, the United States Mint will consider any comments that are submitted timely to the bureau as prescribed in this preamble under the ADDRESSES heading. The United States Mint and the Department of the Treasury request comments on all aspects of the proposed amendments.

For the reasons set forth in the preamble, the United States Mint proposes to amend 31 CFR part 100 substantially as follows:

Since 1870, the Copyright Office has recorded documents pertaining to works under copyright, such as assignments, licenses, and grants of security interests. The process of recordation entails (1) receiving copyright-related documents from remitters for recordation; (2) reviewing the documents to ensure they are eligible for recordation; (3) indexing information contained in the documents for the public record; (4) making copies of the documents so they are available for public inspection; and (5) returning documents marked as recorded to remitters. Congress has encouraged the submission of documents for recordation by providing certain legal entitlements as a consequence of recordation. For instance, recordation provides constructive notice of the facts stated in the recorded document when certain conditions are met. See 17 U.S.C. 205(c). In addition, recordation is a condition for the legal effectiveness of notices of terminations of transfer. See id. 203(a)(4)(A). Thus, the Office has an important interest in ensuring that the public record of copyright transactions is as timely, complete, and as accurate as possible.

Over the past several years, the Copyright Office has sought public input on technological upgrades to the recordation function. See 78 FR 17722 (Mar. 22, 2013); 79 FR 2696 (Jan. 15, 2014). In addition to seeking written comments, the Office has held focused discussions with copyright owners, users of copyright records, technical experts, public interest organizations, lawyers, and professional and industry associations regarding the same. See 79 FR 6636 (Feb. 4, 2014). Participants in these processes have expressed a number of concerns about the current recordation system, including frustration with the submission process, the amount of time the Office requires to record remitted documents, and the searchability of the public record. These problems are related in part to the fact that recordation remains a paper-driven process (in contrast to most registration transactions, which occur electronically). 1

In response to these concerns, the Office is currently developing a strategic plan for the improvement of both recordation services and the quality of resulting information provided to the public. See 79 FR 2696 (Jan. 15, 2014). 2 The Office recognizes that, as it continues to develop its strategy for modernizing and improving recordation services via a comprehensive reengineering, there could nonetheless be immediate benefits if certain process changes were made within the existing regime. To this end, the proposed rules implement targeted amendments that are designed to speed the processing of remitted documents under the current system and alleviate concerns regarding the Office's receipt of submissions.

The first change to the Copyright Office's regulations set forth in this proposed rule is purely administrative. The Office currently provides an optional Recordation Document Cover Sheet (Form DCS) to assist with processing. See 37 CFR 204.1(b). 3 Remitters using Form DCS are instructed to include two copies of the form with their document submissions. If the Office receives Form DCS with a submission, the form becomes part of the public record and is associated with the recorded document. The Office also returns a copy of the form to the remitter at the completion of the recordation process along with the corresponding recorded document and certificate of recordation. The returned Form DCS serves as a summary of the newly created record and helps facilitate better recordkeeping and communication between the Office and remitters. 4 Form DCS also contains an acceptable certification statement that may be used to satisfy the sworn certification requirement when applicable. See 17 U.S.C. 205(a); 37 CFR 201.4(a)(3)(i). Though the form would still not be a requirement for recordation itself, the Office has proposed amending its regulations to reflect the fact that Form DCS may be included with remitters' submissions, and must be included if the remitter wants a return receipt. Form DCS will be amended to conform to the new procedures proposed here ( e.g., by adding a checkbox to allow a remitter to indicate that it is requesting a return receipt, as described below).

Currently, recordation specialists must review paper documents and manually transcribe selected information from the documents into an electronic format to permit indexing in the Office's Public Catalog database. Among the information that must be transcribed are the titles of copyrighted works associated with the document submitted for recordation, which are typically presented in a list appended to the document, referred to informally as a “title appendix.” A title appendix associated with a document can include hundreds, or even thousands, of titles. At present, long processing times associated with document recordation stem in large part from manual entry of these titles.

To speed processing and clear the current backlog of large title entries, the Office proposes a rule to permit (but not require) the submission of title appendices in electronic format, in addition to paper format, where the total titles in a submission number 100 or more. This includes the situation where multiple title lists associated with a document contain, in the aggregate, 100 or more titles. The proposed electronic title submission rule will be added to subsection 201.4(c), which will be retitled “Document submission contents and process.”

Under the proposed rule, the list of titles set forth in the paper submission must be submitted in a table in Excel (.xls) format, or an equivalent electronic format approved by the Office. The electronic entries may only contain letters, numbers, and printable characters that appear in the ASCII 128-character set. Each table must contain four columns respectively entitled Article, Title, Authorship Information, and Registration Number(s). Each title and its corresponding information must appear in a separate row of the electronic table:

Article: If the title begins with one of a specified list of articles, the article should be separated from the title and placed in this first column. Separating out these leading articles from the rest of the title assists with the sorting function of the Public Catalog. The following articles are to be separated:

For example, if the title of the work is “A Hard Day's Night,” the Article field should have the word “A”; similarly, if the title of the work is “The Fly,” this field should have the word “The.” If the title does not begin with an article identified above, the column should be included and this field should remain blank. Note that the words “These,” “Those,” “Some,” and “Any” are not considered articles and are not to be separated. In addition, the proposed rule does not require that remitters separate out articles in languages other than the ones listed.

Title: This second column should set forth the title of the work, not including any leading article (which, as explained above, should be placed in the Article column). For example, if the title of the work is “A Hard Day's Night,” the Title field should have the remainder of the title, “Hard Day's Night”; the Title field for “The Fly,” should have the remainder of the title, “Fly.”

Authorship Information: This third column should include the word “By” followed by the name of the author or authors of the work, e.g., “By John Lennon and Paul McCartney,” or “By Paul Hewson, Dave Evans, Adam Clayton, and Larry Mullen”. If the author's name includes a designation such as “performer known as” or “also known as,” this designation should be included in the Authorship Information field. If using the abbreviated form of such a designation, the abbreviation should be included without punctuation between the letters. For example, “By Ella Yelich-O'Connor pka Lorde” (but not “By Ella Yelich-O'Connor p/k/a Lorde”).

Registration Number(s): The fourth column should set forth the copyright registration number or numbers associated with the work if the remitter chooses to supply them. While this field is optional, the column should be included and the field left blank even if registration numbers are not supplied. Registration numbers included in the electronic list must be twelve characters long, must include a two- or three-letter prefix, and must not include spaces or hyphens. If a given registration number consists of fewer than twelve characters, the remitter should add leading zeroes to the numeric portion of the registration number before adding it to the list. For example, if a published work has the registration number “SR-320-918,” it should be transcribed into the electronic list submitted for recordation as “sr0000320918.” Similarly, if an unpublished work has the registration number “VAu-598-764,” it should be transcribed into the electronic list submitted for recordation as “vau000598764.”

The electronic list must be stored on a compact disc, flash drive, or other digital storage medium approved by the Copyright Office that is clearly labeled with the following information: The name of the remitting party, the name of the first party listed in the paper document, the first title listed in the paper document, the number of titles included in the paper document, and the date the remitting party mailed or delivered the paper document. The storage medium on which the electronic list is stored must be included in the same package as the paper document to be recorded, unless the Office agrees to an alternative arrangement. The allowance for alternative arrangements will facilitate the submission of electronic title lists for documents submitted prior to the effective date of this rule.

By allowing remitters the option of submitting title appendices in electronic format, the Office will eliminate inefficiencies associated with the manual transcription of title information from paper to electronic format, thus significantly reducing the time and labor spent on creating these records, cutting down on inaccuracies, and providing a shorter wait time for remitters to receive their recorded documents and certificates of recordation.

The proposed rule permits electronic submission only in cases where there are 100 or more titles associated with a document. This is because the steps required to process shorter title appendices could actually take longer than processing them in the ordinary course. The Office believes that electronic submission will prove more efficient only when indexing 100 or more titles.

The Office has also considered how to handle any discrepancies between a paper document and the electronically formatted titles accompanying that paper document. In this regard, the Office has weighed the need for an accurate public record against the need to process large title submissions in a timely fashion and has come to a preliminary conclusion that the burden of creating an accurate record for the purposes of indexing in the Public Catalog must be placed on the remitter. The Copyright Office does not intend to cross-check electronic lists of titles against paper title appendices.

The Office notes that there may be legal consequences that flow from a remitter's failure to submit an accurate electronic list of titles. For example, the Copyright Act provides that recordation of a document gives “all persons constructive notice of the facts stated in the recorded document, but only if . . . the document, or material attached to it, specifically identifies the work to which it pertains so that, after the document is indexed by the Register of Copyrights, it would be revealed by a reasonable search under the title or registration number of the work.” 17 U.S.C. 205(c). Since the Office will be relying on the electronic list of titles for purposes of indexing submitted documents, inaccuracies in such electronic lists could affect the ability to later claim that the public had constructive notice of the facts in the document. Thus, the omission of a title from the electronic list could negate constructive notice with respect to that title, even if the title appears in the paper document that is recorded, because the title would not be indexed. At the same time, if a title appears in the electronic list but is not included in the paper document that is actually recorded, the paper document will control.

An additional consideration is that, under the statute, constructive notice can be provided where the document would be revealed “by a reasonable search under the title or registration number of the work.” Id. (emphasis added). Thus, although a remitter need not provide registration numbers when recording a document, inclusion of such numbers can help to ensure that the public is on notice of the facts contained in the document. At the same time, it is important to note that the Office will not verify the accuracy of registration numbers submitted (whether on paper or electronically). A remitting party's failure to include an accurate registration number in an electronic list, coupled with the failure to include an accurate title name, would likely prevent the title from being indexed such that the associated document would be “revealed by a reasonable search under the title or registration number of the work,” thus negating constructive notice. Id.

Remitters should thus ensure that the electronic list of titles fully and accurately reflects the titles contained in the paper document. If an electronic submission is inconsistent with the information contained in the paper document, such discrepancies will result in corresponding inaccuracies in the Public Catalog, and the remitter will bear the legal consequences of such inaccuracies.

Many remitters have expressed to the Copyright Office their concern that after they submit their documents for recordation, it may take several months or longer before they receive any word on the status of their submission. The Office recognizes the benefits of the Office's acknowledgment of receipt of a submission, even if the submission awaits processing. The Office thus proposes a new, optional receipt confirmation system under which a remitter may request that the Office provide a return receipt. Remitters seeking a return receipt must complete and enclose the required two copies of Form DCS, making sure to check the box (to be added to the form) indicating that they want a return receipt. In addition, they must include a self-addressed, postage-paid envelope in the package. Upon opening the package, the Office will attach a date-stamped return receipt to one of the cover sheets and mail it back to the remitter via the self-addressed, postage-paid envelope.

It is important to realize that a return receipt will establish only that the Office has received a submission as of the date indicated, and will not establish that a document is eligible for recordation, or provide a date of recordation. Only the certificate of recordation will provide the date of recordation. At this time, the Office will provide return receipts free of charge.

For the reasons set forth in the preamble, the Copyright Office proposes to amend part 201 to Chapter II of Title 37 of the Code of Federal Regulations as follows:

For the purpose of this document, we are giving meaning to certain words or initials as follows:

1. Submitting Confidential Business Information (CBI). Do not submit this information to EPA through www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register , date, and page number);

• Follow directions and organize your comments;

• Explain why you agree or disagree;

• Suggest alternatives and substitute language for your requested changes;

• Describe any assumptions and provide any technical information and/or data that you used;

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced;

• Provide specific examples to illustrate your concerns, and suggest alternatives;

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats; and

• Make sure to submit your comments by the comment period deadline identified.

In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain enforceable emission limitations and, in accordance with the definition of “emission limitations” in CAA section 302(k), such emission limitations must be continuous. In addition, under CAA section 304(a), any person may bring a civil action against any person alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of an “emission standard or limitation” under the CAA. For the purposes of section 304, “emission standard or limitation” is defined in section 304(f) and includes SIP emission limitations. Thus, SIP emission limitations can be enforced in a section 304 action and so must be capable of enforcement. SIP provisions that create exemptions such that excess emissions during startup, shutdown, malfunctions (SSM) and other conditions are not violations of the applicable emission limitations are inconsistent with these fundamental requirements of the CAA with respect to emission limitations in SIPs.

NDAC 33-15-03-04.4 created exemptions from a number of cross-referenced opacity limits “where the limits specified in this article cannot be met because of operations and processes such as, but not limited to, oil field service and drilling operations, but only so long as it is not technically feasible to meet said specifications.” NDAC 33-15-05-01.2.a(1) created an implicit exemption from particulate matter emissions limits for “temporary operational breakdowns or cleaning of air pollution equipment” if the source met certain conditions. Because these provisions contemplated outright exemptions from the otherwise applicable SIP emission limits, they were inconsistent with CAA requirements. In addition, NDAC 33-15-03-04.4 had inherent ambiguities that called into question its basic enforceability.

On June 30, 2011, the Sierra Club filed with the EPA Administrator a petition for rulemaking concerning states' treatment of excess emissions from sources during SSM events (the Petition). 1 In the Petition, the Sierra Club identified existing SIP provisions in 39 states that the Sierra Club considered inconsistent with the CAA, including provisions in the North Dakota SIP. Specifically, the Sierra Club argued that NDAC 33-15-03-04.4 and NDAC 33-15-05-01.2.a(l) were contrary to the CAA because these provisions did not consider each instance of excess emissions a violation of the applicable standard, and because these provisions could be construed to preclude EPA and citizen enforcement.

On February 22, 2013, EPA published a proposed rulemaking in which (among other things) we proposed to grant the Petition as it pertained to NDAC 33-15-03-04.4 and NDAC 33-15-05-01.2.a(l). 78 FR 12460, 12531-12532. We concurred with Sierra Club's assertion that both provisions are inconsistent with the requirements of the CAA. In our proposed rulemaking, we also proposed to find that NDAC 33-15-03-04.3 was inconsistent with the requirements of the CAA. We proposed to find that all three of these provisions (NDAC 33-15-03-04.3, NDAC 33-15-03-04.4 and NDAC 33-15-05-01.2.a(l)) are substantially inadequate to meet CAA requirements, and concurrently proposed to issue a SIP call for all three provisions.

On January 23, 2013, the Governor of North Dakota submitted to EPA SIP revisions that included the removal of both NDAC 33-15-03-04.4 and NDAC 33-15-05-01.2.a(l), as well as additional revisions to the North Dakota SIP. We will act on the remaining revisions from the January 23, 2013 submittal (aside from NDAC 33-15-03-04.4 and NDAC 33-15-05-01.2.a(l)) in separate rulemakings. The January 23, 2013 submittal did not revise NDAC 33-15-03-04.3.

Under CAA section 107, states have the primary authority and responsibility to develop and implement SIPs that provide for attainment, maintenance, and enforcement of the National Ambient Air Quality Standards and meet other CAA requirements. Under CAA section 110(k), EPA has the authority and responsibility to review state SIP submissions to assure that they meet all applicable requirements. CAA section 110(l) prohibits EPA from approving a SIP revision that (among other things) would interfere with any applicable requirement of the CAA.

In this instance, the State has elected to revise its existing SIP by removing two previously approved provisions that created exemptions from otherwise applicable emission limits in the SIP. As noted, the State removed both NDAC 33-15-03-04.4 and NDAC 33-15-05-01.2.a(l) from the North Dakota SIP in its January 23, 2013 submission.

We consider the removal of these provisions sufficient to correct the inadequacies contained within them and to be consistent with the requirements of the CAA. 2 As a result of their removal from the SIP, the improper exemptions from emissions limits contained within these provisions will no longer be available to sources. EPA's proposed approval of these two revisions is also consistent with CAA section 110(l) because approval will not interfere with any applicable requirement of the CAA. Specifically, removal of the exemptions will not relax the existing emission limitations in the SIP and will in fact be more protective. Furthermore, these revisions will render the revised emission limitations consistent with the requirements of the CAA for SIP provisions by making them continuously applicable and more enforceable. Therefore, we are proposing to approve the removal of these provisions from the SIP. 3

We are proposing to approve the removal of NDAC 33-15-03-04.4 and NDAC 33-15-05-01.2.a(l) from the North Dakota SIP, as reflected in the January 23, 2013 SIP submission.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 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 Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 USC 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 USC 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 USC 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 does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

Throughout this document whenever “we,” “us,” or “our” is used, we refer to EPA. This section provides additional information by addressing the following questions:

Section 110(a)(1) of the CAA requires, in part, that states make a SIP submission to EPA to implement, maintain and enforce each of the NAAQS promulgated by EPA after reasonable notice and public hearings. Section 110(a)(2) includes a list of specific elements that such infrastructure SIP submissions must address. SIPs meeting the requirements of sections 110(a)(1) and (2) are to be submitted by states within three years after promulgation of a new or revised NAAQS. These SIP submissions are commonly referred to as “infrastructure” SIPs.

On October 15, 2008, EPA substantially strengthened the primary and secondary Pb NAAQS (hereafter the 2008 Pb NAAQS). The level of the primary (health-based) standard was revised to 0.15 micrograms per cubic meter (μg/m 3 ), measured as total suspended particles (TSP) and not to be exceeded with an averaging time of a rolling 3-month period. EPA also revised the secondary (welfare-based) standard to be identical to the primary standard (73 FR 66964). 1

For the 2008 Pb NAAQS, states typically have met many of the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous NAAQS. Nevertheless, pursuant to section 110(a)(1), states have to review and revise, as appropriate, their existing SIPs to ensure that the SIPs are adequate to address the 2008 Pb NAAQS. To assist states in meeting this statutory requirement, EPA issued guidance on October 14, 2011, addressing the infrastructure SIP elements required under sections 110(a)(1) and (2) for the 2008 Pb NAAQS. 2 EPA will address these elements below under the following headings: (A) Emission limits and other control measures; (B) Ambient air quality monitoring/data system; (C) Program for enforcement of control measures (prevention of significant deterioration)(PSD)), New Source Review for nonattainment areas, and construction and modification of all stationary sources); (D) Interstate and international transport; (E) Adequate authority, resources, implementation, and oversight; (F) Stationary source monitoring system; (G) Emergency authority; (H) Future SIP revisions; (I) Nonattainment areas; (J) Consultation with government officials, public notification, PSD, and visibility protection; (K) Air quality and modeling/data; (L) Permitting fees; and (M) Consultation/participation by affected local entities.

EPA is acting upon the January 13, 2012, SIP submission from Kansas that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 Pb NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions. 3 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 Act, which specifically address nonattainment SIP requirements. 4 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. 5 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 sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action. 6 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission. 7

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, for example 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. 8

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements. 9 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance). 10 EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. While today's proposed action relies on the specific guidance issued for the 2008 Pb NAAQS, we have also considered this more recent 2013 guidance where applicable (although not specifically issued for the 2008 Pb NAAQS) and have found no conflicts between the issued guidance and review of Kansas' SIP submission. Within the 2013 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. 11 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program ( e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and New Source Review (NSR) pollutants, including greenhouse gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM 2.5 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 that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions. 12 It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA. 13 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions. 14 Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action. 15

EPA Region 7 received Kansas' infrastructure SIP submission for the 2008 Pb standard on January 13, 2012. This SIP submission became complete as a matter of law on July 13, 2012. EPA has reviewed Kansas' infrastructure SIP submission and the applicable statutory and regulatory authorities and provisions referenced in those submissions or referenced in Kansas' SIP. Below is EPA's evaluation of how the state addressed the relevant elements of section 110(a)(2) for the 2008 Pb NAAQS.

(A) Emission limits and other control measures: Section 110(a)(2)(A) requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance and other related matters as needed to implement, maintain and enforce each NAAQS. 16

The State of Kansas' statutes and regulations authorize the Kansas Department of Health and Environment (KDHE) to regulate air quality and implement air quality control regulations. KDHE's statutory authority can be found in chapter 65, article 30 of the Kansas Statutes Annotated (KSA), otherwise known as the Kansas Air Quality Act. KSA section 65-3003 places the responsibility for air quality conservation and control of air pollution with the Secretary of Health and Environment (“Secretary”). The Secretary in turn administers the Kansas Air Quality Act through the Division of Environment within KDHE. Air pollution is defined in KSA section 65-3002(c) as the presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as is, or tends significantly to be, injurious to human health or welfare, animal or plant life, or property, or would unreasonably interfere with the enjoyment of life or property, or would contribute to the formation of regional haze.

KSA section 65-3005(a)(1) provides authority to the Secretary to adopt, amend and repeal rules and regulations implementing the Kansas Air Quality Act. It also gives the Secretary the authority to establish ambient air quality standards for the State of Kansas as a whole or for any part thereof. KSA section 65-3005(a)(12). The Secretary has the authority to promulgate rules and regulations to ensure that Kansas is in compliance with the provisions of the Act, in furtherance of a policy to implement laws and regulations consistent with those of the Federal government. KSA section 65-3005(b). The Secretary also has the authority to establish emission control requirements as appropriate to facilitate the accomplishment of the purposes of the Kansas Air Quality Act. KSA section 65-3010(a).

Based upon review of the state's infrastructure SIP submission for the 2008 Pb NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that the Kansas SIP adequately addresses the requirements of section 110(a)(2)(A) for the 2008 Pb NAAQS and is proposing to approve this element of the January 13, 2012, SIP submission.

(B) Ambient air quality monitoring/data system: Section 110(a)(2)(B) requires SIPs to include provisions to provide for establishment and operation of ambient air quality monitors, collection and analysis of ambient air quality data, and making these data available to EPA upon request.

To address this element, KSA section 65-3007 provides the enabling authority necessary for Kansas to fulfill the requirements of section 110(a)(2)(B). This provision gives the Secretary the authority to classify air contaminant sources which, in his or her judgment, may cause or contribute to air pollution. Furthermore, the Secretary has the authority to require such air contaminant sources to monitor emissions, operating parameters, ambient impacts of any source emissions, and any other parameters deemed necessary. The Secretary can also require these sources to keep records and make reports consistent with the Kansas Air Quality Act. KSA section 65-3007(b).

Kansas has an air quality monitoring network operated by KDHE and local air quality agencies that collects air quality data that are compiled, analyzed, and reported to EPA. KDHE's Web site contains up-to-date information about air quality monitoring, including a description of the network and information about the monitoring of Pb. See, generally, http://www.kdheks.gov/bar/air-monitor/indexMon.html . KDHE also conducts five-year monitoring network assessments, including the Pb monitoring network, as required by 40 CFR 58.10(d). On December 3, 2013, EPA approved Kansas' 2013-2014 Ambient Air Monitoring Network Plan. This plan includes, among other things, the location for the Pb monitoring network in Kansas. Specifically, KDHE operates one lead monitor in Salina near the Exide Technologies facility in accordance with the source-oriented lead monitoring requirements of 40 CFR part 58, appendix D, paragraph 4.5(a). Population-based monitoring is also conducted at the JFK NCore (National Core Network) site in Kansas City, Kansas. Data gathered by the monitors is submitted to EPA's Air Quality System, which in turn determines if the network site monitor is in compliance with the NAAQS.

Within KDHE, the Bureau of Air and Radiation implements these requirements. Along with its other duties, the Monitoring and Planning Section collects air monitoring data, quality assures the results, and reports the data. The data is then used to develop the appropriate regulatory or outreach strategies to reduce air pollution.

Based upon review of the state's infrastructure SIP submission for the 2008 Pb NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that the Kansas SIP adequately addresses the requirements of section 110(a)(2)(B) for the 2008 Pb NAAQS and is proposing to approve this element of the January 13, 2012, SIP submission.

(C) Program for enforcement of control measures (PSD, New Source Review for nonattainment areas, and construction and modification of all stationary sources): Section 110(a)(2)(C) requires states to include the following three elements in the SIP: (1) A program providing for enforcement of all SIP measures described in section 110(a)(2)(A); (2) a program for the regulation of the modification and construction of stationary sources as necessary to protect the applicable NAAQS (i.e., state-wide permitting of minor sources); and (3) a permit program to meet the major source permitting requirements of the CAA (for areas designated as attainment or unclassifiable for the NAAQS in question). 17

(1) Enforcement of SIP Measures. With respect to enforcement of requirements of the SIP, KSA section 65-3005(a)(3) gives the Secretary the authority to issue orders, permits and approvals as may be necessary to effectuate the purposes of the Kansas Air Quality Act and enforce the Act by all appropriate administrative and judicial proceedings. Pursuant to KSA section 65-3006, the Secretary also has the authority to enforce rules, regulations and standards to implement the Kansas Air Quality Act and to employ the professional, technical and other staff to effectuate the provisions of the Act. In addition, if the Secretary or the director of the Division of Environment finds that any person has violated any provision of any approval, permit or compliance plan or any provision of the Kansas Air Quality Act or any rule or regulation promulgated thereunder, he or she may issue an order directing the person to take such action as necessary to correct the violation. KSA section 65-3011.

KSA section 65-3018 gives the Secretary or the Director of the Division of Environment the authority to impose a monetary penalty against any person who, among other things, either violates any order or permit issued under the Kansas Air Quality Act, or violates any provision of the Act or rule or regulation promulgated thereunder. Section 65-3028 provides for criminal penalties for knowing violations.

(2) Minor New Source Review. Section 110(a)(2)(C) also requires that the SIP include measures to regulate construction and modification of stationary sources to protect the NAAQS. With respect to smaller sources that meet the criteria listed in KAR 28-19-300(b) “Construction Permits and Approvals,” Kansas has a SIP-approved permitting program. Any person proposing to conduct a construction or modification at such a source must obtain approval from KDHE prior to commencing construction or modification. If KDHE determines that air contaminant emissions from a source will interfere with attainment or maintenance of the NAAQS, it cannot issue an approval to construct or modify that source (KAR 28-19-301(d) “Construction Permits and Approvals; Application and Issuance”).

In this action, EPA is proposing to approve Kansas' infrastructure SIP for the 2008 Pb standard with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP that regulates the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved. In this action, EPA is not proposing to approve or disapprove the state's existing minor NSR program to the extent that it is inconsistent with EPA's regulations governing this program. EPA has maintained that the CAA does not require that new infrastructure SIP submissions correct any defects in existing EPA-approved provisions of minor NSR programs in order for EPA to approve the infrastructure SIP for element (C) ( e.g., 76 FR 41076-41079).

(3) Prevention of Significant Deterioration (PSD) permit program. Kansas also has a program approved by EPA as meeting the requirements of part C, relating to prevention of significant deterioration of air quality. In order to demonstrate that Kansas has met this sub-element, this PSD program must cover requirements not just for the 2008 Pb NAAQS, but for all other regulated NSR pollutants as well. As stated in the October 14, 2011, Pb Infrastructure SIP guidance, EPA has not proposed to amend the PSD regulations with regard to the Pb NAAQS because it believes that, generally, there is sufficient guidance and regulations already in place to fully implement the revised Pb NAAQS.

In a previous action on June 20, 2013, EPA determined that Kansas has a program in place that meets all the PSD requirements related to all other required pollutants (78 FR 37126). Therefore, Kansas has adopted all necessary provisions to ensure that its PSD program covers the requirements for the Pb NAAQS and all other regulated NSR pollutants.

Based upon review of the state's infrastructure SIP submission for the 2008 Pb NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that the Kansas SIP adequately addresses the requirements of section 110(a)(2)(C) for the 2008 Pb NAAQS and is proposing to approve this element of the January 13, 2012 SIP submission.

(D) Interstate and international transport: Section 110(a)(2)(D)(i) includes four requirements referred to as prongs 1 through 4. Prongs 1 and 2 are provided at section 110(a)(2)(D)(i)(I); Prongs 3 and 4 are provided at section 110(a)(2)(D)(i)(II). Section 110(a)(2)(D)(i)(I) requires SIPs to include adequate provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment, or interfering with maintenance, of any NAAQS in another state. Section 110(a)(2)(D)(i)(II) requires SIPs to include adequate provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required of any other state to prevent significant deterioration of air quality or to protect visibility.

With respect to prongs 1 and 2, the physical properties of Pb prevent Pb emissions from experiencing a significant degree of travel in the ambient air. No complex chemistry is needed to form Pb or Pb compounds in the ambient air; therefore, concentrations of Pb are typically highest near Pb sources. More specifically, there is a sharp decrease in Pb concentrations as the distance from a source increases. According to EPA's report entitled Our Nation's Air: Status and Trends Through 2010, Pb concentrations that are not near a source of Pb are approximately eight times less than the typical concentrations near the source ( http://www.epa.gov/airtrends/2011/report/fullreport.pdf ). EPA believes that the requirements of prongs 1 and 2 can be satisfied through a state's assessment as to whether a Pb source located within its state in close proximity to a state border has emissions that contribute significantly to the nonattainment or interfere with maintenance of the NAAQS in the neighboring state.

Kansas has one Pb nonattainment area with sources of Pb emissions over 0.5 tons per year (tpy). The Pb nonattainment area is identified as portions of Saline County, Kansas, and the sources contributing to nonattainment are Exide Technologies and Metlcast. These sources are located in central Kansas and therefore do not have an impact on any other state.

With respect to the PSD requirements of section 110(a)(2)(D)(i)(II)—prong 3, EPA notes that Kansas' satisfaction of the applicable infrastructure SIP PSD requirements for attainment/unclassifiable areas of the 2008 Pb NAAQS have been detailed in the section addressing section 110(a)(2)(C). EPA also notes that the proposed action in that section related to PSD is consistent with the proposed approval related to PSD for section 110(a)(2)(D)(i)(II).

With regard to the applicable requirements for visibility protection of section 110(a)(2)(D)(i)(II)—prong 4, significant impacts from Pb emissions from stationary sources are expected to be limited to short distances from the source and most, if not all Pb stationary sources are located at distances from Class I areas such that visibility impacts would be negligible. Although Pb can be a component of coarse and fine particles, Pb generally comprises a small fraction of coarse and fine particles. Furthermore, when evaluating the extent that Pb could impact visibility, Pb-related visibility impacts were found to be insignificant (e.g., less than 0.10%). 18

Nevertheless, Kansas meets this requirement through EPA's final approval of Kansas' regional haze plan on December 27, 2011 (76 FR 80754). In this final approval, EPA determined that the Kansas SIP met requirements of the CAA, for states to prevent any future and remedy any existing anthropogenic impairment of visibility in Class I areas caused by emissions of air pollutants located over a wide geographic area. Therefore, EPA is proposing to fully approve this aspect of the submission.

Section 110(a)(2)(D)(ii) also requires that the SIP insure compliance with the applicable requirements of sections 126 and 115 of the CAA, relating to interstate and international pollution abatement, respectively.

Section 126(a) of the CAA requires new or modified sources to notify neighboring states of potential impacts from sources within the state. The Kansas regulations address abatement of the effects of interstate pollution. For example, KAR 28-19-350(k)(2) “Prevention of Significant Deterioration (PSD) of Air Quality” requires KDHE, prior to issuing any construction permit for a proposed new major source or major modification, to notify EPA, as well as: Any state or local air pollution control agency having jurisdiction in the air quality control region in which the new or modified installation will be located; the chief executives of the city and county where the source will be located; any comprehensive regional land use planning agency having jurisdiction where the source will be located; and any state, Federal land manager, or Indian governing body whose lands will be affected by emissions from the new source or modification. 19 See also KAR 28-19-204 “General Provisions; Permit Issuance and Modification; Public Participation” for additional public participation requirements. In addition, no Kansas source or sources have been identified by EPA as having any interstate impacts under section 126 in any pending actions relating to any air pollutant.

Section 115 of the CAA authorizes EPA to require a state to revise its SIP under certain conditions to alleviate international transport into another country. There are no final findings under section 115 of the CAA against Kansas with respect to any air pollutant. Thus, the state's SIP does not need to include any provisions to meet the requirements of section 115.

Based upon review of the state's infrastructure SIP submissions for the 2008 Pb NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that Kansas has the adequate infrastructure needed to address sections 110(a)(2)(D)(i)—Prongs 1 through 4 and 110 (a)(2)(D)(ii) for the 2008 Pb NAAQS and is proposing to approve this element of the January 13, 2012, submission.

(E) Adequate authority, resources, implementation, and oversight: Section 110(a)(2)(E) requires that SIPs provide for the following: (1) Necessary assurances that the state (and other entities within the state responsible for implementing the SIP) will have adequate personnel, funding, and authority under state or local law to implement the SIP, and that there are no legal impediments to such implementation; (2) requirements that the state comply with the requirements relating to state boards, pursuant to section 128 of the CAA; and (3) necessary assurances that the state has responsibility for ensuring adequate implementation of any plan provision for which it relies on local governments or other entities to carry out that portion of the plan.

(1) Section 110(a)(2)(E)(i) requires states to establish that they have adequate personnel, funding and authority. With respect to adequate authority, we have previously discussed Kansas' statutory and regulatory authority to implement the 2008 Pb NAAQS, primarily in the discussion of section 110(a)(2)(A) above. Neither Kansas nor EPA has identified any legal impediments in the state's SIP to implementation of the NAAQS.

With respect to adequate resources, KDHE asserts that it has adequate personnel to implement the SIP. The Kansas statutes provide the Secretary the authority to employ technical, professional and other staff to effectuate the purposes of the Kansas Air Quality Act from funds appropriated and available for these purposes. See KSA section 65-3006(b). Within KDHE, the Bureau of Air and Radiation implements the Kansas Air Quality Act. This Bureau is further divided into the Air Compliance and Enforcement Section, Air Permit Section; the Monitoring and Planning Section; and the Radiation and Asbestos Control Section.

With respect to funding, the Kansas Legislature annually approves funding and personnel resources for KDHE to implement the air program. The annual budget process provides a periodic update that enables KDHE and the local agencies to adjust funding and personnel needs. In addition, the Kansas statutes grant the Secretary authority to establish various fees for sources, to cover any and all parts of administering the provisions of the Kansas Air Quality Act. For example, KSA section 65-3008(f) grants the Secretary authority to fix, charge, and collect fees for construction approvals and permits (and the renewals thereof). KSA section 65-3024 grants the Secretary the authority to establish annual emissions fees. These emission fees, along with any moneys recovered by the state under the provisions of the Kansas Air Quality Act, are deposited into an air quality fee fund in the state treasury. Moneys in the air quality fee fund can only be used for the purpose of administering the Kansas Air Quality Act.

Kansas also uses funds in the non-Title V subaccounts, along with General Revenue funds and EPA grants under, for example, sections 103 and 105 of the Act, to fund the programs. EPA conducts periodic program reviews to ensure that the state has adequate resources and funding to, among other things, implement the SIP.

(2) Conflict of interest provisions—section 128. Section 110(a)(2)(E)(ii) requires that each state SIP meet the requirements of section 128, relating to representation on state boards and conflicts of interest by members of such boards. Section 128(a)(1) requires that any board or body which approves permits or enforcement orders under the CAA must have at least a majority of members who represent the public interest and do not derive any “significant portion” of their income from persons subject to permits and enforcement orders under the CAA. Section 128(a)(2) requires that members of such a board or body, or the head of an agency with similar powers, adequately disclose any potential conflicts of interest.

On June 20, 2013, EPA approved Kansas' SIP revision addressing the section 128 requirements (78 FR 37126). For a detailed discussion on EPA's analysis of how Kansas meets the section 128 requirements, see EPA's April 17, 2013, proposed approval of Kansas' 1997 and 2006 PM 2.5 infrastructure SIP (78 FR 22827).

(3) With respect to assurances that the state has responsibility to implement the SIP adequately when it authorizes local or other agencies to carry out portions of the plan, KSA section 65-3005(a)(8) grants the Secretary authority to encourage local units of government to handle air pollution problems within their own jurisdictions and to provide technical and consultative assistance therefor. The Secretary may also enter into agreements with local units of government to administer all or part of the provisions of the Kansas Air Quality Act in the units' respective jurisdictions. In fact, KSA section 65-3016 allows for cities and/or counties (or combinations thereof) to form local air quality conservation authorities. These authorities will then have the authority to enforce air quality rules and regulations adopted by the Secretary and adopt any additional rules, regulations and standards as needed to maintain satisfactory air quality within their jurisdictions.

At the same time, the Kansas statutes also retain authority in the Secretary to carry out the provisions of the state air pollution control law. KSA section 65-3003 specifically places responsibility for air quality conservation and control of air pollution with the Secretary. The Secretary shall then administer the Kansas Air Quality Act through the Division of Environment. As an example of this retention of authority, KSA section 65-3016 only allows for the formation of local air quality conservation authorities with the approval of the Secretary. In addition, although these authorities can adopt additional air quality rules, regulations and standards, they may only do so if those rules, regulations and standards are in compliance with those set by the Secretary for that area. Currently, KDHE oversees the following local agencies that implement that Kansas Air Quality Act: The City of Wichita Office of Environmental Health, Johnson County Department of Health and Environment, Shawnee County Health Agency, and Unified Government of Wyandotte County—Kansas City, Kansas Public Health Department.

Based upon review of the state's infrastructure SIP submission for the 2008 Pb NAAQS and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that Kansas has the adequate infrastructure needed to address section 110(a)(2)(E) for the 2008 Pb NAAQS and is proposing to approve this element of the January 13, 2012, submission.

(F) Stationary source monitoring system: Section 110(a)(2)(F) requires states to establish a system to monitor emissions from stationary sources and to submit periodic emission reports. Each SIP shall require the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources, to monitor emissions from such sources. The SIP shall also require periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and requires that the state correlate the source reports with emission limitations or standards established under the CAA. These reports must be made available for public inspection at reasonable times.

To address this element, KSA section 65-3007 gives the Secretary the authority to classify air contaminant sources which, in his or her judgment, may cause or contribute to air pollution. The Secretary shall require air contaminant emission sources to monitor emissions, operating parameters, ambient impact of any source emissions, and any other parameters deemed necessary. Furthermore, the Secretary may require these emissions sources to keep records and make reports consistent with the purposes of the Kansas Air Quality Act.

In addition, KAR 28-19-12(A) “Measurement of Emissions” states that KDHE may require any person responsible for the operation of an emissions source to make or have tests made to determine the rate of contaminant emissions from the source whenever it has reason to believe that existing emissions exceed limitations specified in the Kansas air quality regulations. At the same time, KDHE may also conduct its own tests of emissions from any source. KAR 28-19-12(B). The Kansas regulations also require that all Class I operating permits include requirements for monitoring of emissions (KAR 28-19-512(a)(9) “Class I Operating Permits; Permit Content”).

Kansas makes all monitoring reports (as well as compliance plans and compliance certifications) submitted as part of a construction permit or Class I or Class II permit application publicly available. See KSA section 65-3015(a); KAR 28-19-204(c)(6) “General Provisions; Permit Issuance and Modification; Public Participation.” KDHE uses this information to track progress towards maintaining the NAAQS, developing control and maintenance strategies, identifying sources and general emission levels, and determining compliance with emission regulations and additional EPA requirements. Although the Kansas statutes allow a person to request that records or information reported to KDHE be regarded and treated as confidential on the grounds that it constitutes trade secrets, emission data is specifically excluded from this protection. See KSA section 65-3015(b).

Based upon review of the state's infrastructure SIP submission for the 2008 Pb NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that Kansas has the adequate infrastructure needed to address section 110(a)(2)(F) for the 2008 Pb NAAQS and is proposing to approve this element of the January 13, 2012, submission.

(G) Emergency authority: Section 110(a)(2)(G) requires SIPs to provide for authority to address activities causing imminent and substantial endangerment to public health or welfare or the environment (comparable to the authorities provided in section 303 of the CAA), and to include contingency plans to implement such authorities as necessary. Based on EPA's experience to date with the Pb NAAQS and designated Pb nonattainment areas, EPA expects that such an event would be unlikely and, if it were to occur, would be the result of a malfunction or other emergency situation at a relatively large source of Pb.

Nevertheless, KSA section 65-3012(a) states that whenever the Secretary receives evidence that emissions from an air pollution source or combination of sources presents an imminent and substantial endangerment to public health or welfare or to the environment, he or she may issue a temporary order directing the owner or operator, or both, to take such steps as necessary to prevent the act or eliminate the practice. Upon issuance of this temporary order, the Secretary may then commence an action in the district court to enjoin these acts or practices.

KAR 28-19-56 “Episode Criteria” allows the Secretary to proclaim an air pollution alert, air pollution warning, or air pollution emergency whenever he or she determines that the accumulation of air contaminants at any sampling location has attained levels which could, if such levels are sustained or exceeded, threaten the public health. KAR 28-19-57 “Emission Reduction Requirements” imposes restrictions on emission sources in the event one of these three air pollution episode statuses is declared.

Based upon review of the state's infrastructure SIP submissions for the 2008 Pb NAAQS, and relevant statutory and regulatory authorities and provisions referenced in those submissions or referenced in Kansas' SIP, EPA believes that the Kansas SIP adequately addresses section 110(a)(2)(G) for the 2008 Pb NAAQS and is proposing to approve this element of the January 13, 2012, submission.

(H) Future SIP revisions: Section 110(a)(2)(H) requires states to have the authority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for attaining the NAAQS, or in response to an EPA finding that the SIP is substantially inadequate to attain the NAAQS.

KSA section 65-3005(b) specifically states that it is the policy of the state of Kansas to regulate the air quality of the state and implement laws and regulations that are applied equally and uniformly throughout the state and consistent with that of the Federal government. Therefore, the Secretary has the authority to promulgate rules and regulations to ensure that Kansas is in compliance with the provisions of the Federal CAA. KSA 65-3005(b)(1).

As discussed previously, KSA section 65-3005(a)(1) provides authority to the Secretary to adopt, amend and repeal rules and regulations implementing and consistent with the Kansas Air Quality Act. The Secretary also has the authority to establish ambient air quality standards for the state of Kansas or any part thereof. KSA section 65-3005(a)(12). Therefore, as a whole, the Secretary has the authority to revise rules as necessary to respond to any necessary changes in the NAAQS.

Based upon review of the state's infrastructure SIP submission for the 2008 Pb NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that Kansas has adequate authority to address section 110(a)(2)(H) for the 2008 Pb NAAQS and is proposing to approve this element of the January 13, 2012, submission.

(I) Nonattainment areas: Section 110(a)(2)(I) requires that in the case of a plan or plan revision for areas designated as nonattainment areas, states must meet applicable requirements of part D of the CAA, relating to SIP requirements for designated nonattainment areas.

As noted earlier, EPA does not expect infrastructure SIP submissions to address subsection (I). The specific SIP submissions for designated nonattainment areas, as required under CAA title I, part D, are subject to different submission schedules than those for section 110 infrastructure elements. Instead, EPA will take action on part D attainment plan SIP submissions through a separate rulemaking governed by the requirements for nonattainment areas, as described in part D.

(J) Consultation with government officials, public notification, PSD and visibility protection: Section 110(a)(2)(J) requires SIPs to meet the applicable requirements of the following CAA provisions: (1) Section 121, relating to interagency consultation regarding certain CAA requirements; (2) section 127, relating to public notification of NAAQS exceedances and related issues; and (3) part C of the CAA, relating to prevention of significant deterioration of air quality and visibility protection.

(1) With respect to interagency consultation, the SIP should provide a process for consultation with general-purpose local governments, designated organizations of elected officials of local governments, and any Federal Land Manager having authority over Federal land to which the SIP applies. KSA section 65-3005(a)(14) grants the Secretary the authority to advise, consult and cooperate with other agencies of the state, local governments, other states, interstate and interlocal agencies, and the Federal government. Furthermore, as noted earlier in the discussion on section 110(a)(2)(D), Kansas' regulations require that whenever it receives a construction permit application for a new source or a modification, KDHE must notify state and local air pollution control agencies, as well as regional land use planning agencies and any state, Federal land manager, or Indian governing body whose lands will be affected by emissions from the new source or modification. See KAR 28-19-350(k)(2) “Prevention of Significant Deterioration (PSD) of Air Quality.”

(2) With respect to the requirements for public notification in section 127, the infrastructure SIP should provide citations to regulations in the SIP requiring the air agency to regularly notify the public of instances or areas in which any NAAQS are exceeded; advise the public of the health hazard associated with such exceedances; and enhance public awareness of measures that can prevent such exceedances and of ways in which the public can participate in the regulatory and other efforts to improve air quality.

As discussed previously with element (G), KAR 28-19-56 “Episode Critera” contains provisions that allow the Secretary to proclaim an air pollution alert, air pollution warning, or air pollution emergency status whenever he or she determines that the accumulation of air contaminants at any sampling location has attained levels which could, if such levels are sustained or exceeded, threaten the public health. Any of these emergency situations can also be declared by the Secretary even in the absence of issuance of a high air pollution potential advisory or equivalent advisory from a local weather bureau meteorologist, if deemed necessary to protect the public health. In the event of such an emergency situation, public notification will occur through local weather bureaus.

In addition, information regarding air pollution and related issues is provided on a KDHE Web site, http://www.kdheks.gov/bar/. This information includes air quality data, information regarding the NAAQS, health effects of poor air quality, and links to the Kansas Air Quality Monitoring Network. KDHE also has an “Outreach and Education” Web page ( http://www.kdheks.gov/bar/air_outreach/air_quality_edu.htm ) with information on how individuals can take measures to reduce emissions and improve air quality in daily activities.

(3) With respect to the applicable requirements of part C of the CAA, relating to PSD of air quality and visibility protection, as noted in above under element (C), the Kansas SIP meets the PSD requirements, incorporating the Federal rule by reference. With respect to the visibility component of section 110(a)(2)(J), EPA recognizes that states are subject to visibility and regional haze program requirements under part C of the CAA. However, when EPA establishes or revises a NAAQS, these visibility and regional haze requirements under part C do not change. EPA believes that there are no new visibility protection requirements under part C as a result of a revised NAAQS. Therefore, there are no newly applicable visibility protection obligations pursuant to element J after the promulgation of a new or revised NAAQS.

Nevertheless, as noted above in section D, EPA has already approved Kansas' Regional Haze Plan and determined that it met the CAA requirements for preventing future and remedying existing impairment of visibility caused by air pollutants.

Based upon review of the state's infrastructure SIP submission for the 2008 Pb NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that Kansas has met the applicable requirements of section 110(a)(2)(J) for the 2008 Pb NAAQS in the state and is therefore proposing to approve this element of the January 13, 2012, submission.

(K) Air quality and modeling/data: Section 110(a)(2)(K) requires that SIPs provide for performing air quality modeling, as prescribed by EPA, to predict the effects on ambient air quality of any emissions of any NAAQS pollutant, and for submission of such data to EPA upon request.

Kansas has authority to conduct air quality modeling and report the results of such modeling to EPA. KSA section 65-3005(a)(9) gives the Secretary the authority to encourage and conduct studies, investigations and research relating to air contamination and air pollution and their causes, effects, prevention, abatement and control. As an example of regulatory authority to perform modeling for purposes of determining NAAQS compliance, the regulations at KAR 28-19-350 “Prevention of Significant Deterioration (PSD) of Air Quality” incorporate EPA modeling guidance in 40 CFR part 51, appendix W for the purposes of demonstrating compliance or non-compliance with a NAAQS.

The Kansas statutes and regulations also give KDHE the authority to require that modeling data be submitted for analysis. KSA section 65-3007(b) grants the Secretary the authority to require air contaminant emission sources to monitor emissions, operating parameters, ambient impact of any source emissions or any other parameters deemed necessary. The Secretary may also require these sources to keep records and make reports consistent with the purposes of the Kansas Air Quality Act. These reports could include information as may be required by the Secretary concerning the location, size, and height of contaminant outlets, processes employed, fuels used, and the nature and time periods or duration of emissions, and such information as is relevant to air pollution and available or reasonably capable of being assembled. KSA section 65-3007(c).

Based upon review of the state's infrastructure SIP submission for the 2008 Pb NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that Kansas has the adequate infrastructure needed to address section 110(a)(2)(K) for the 2008 Pb NAAQS and is proposing to approve this element of the January 13, 2012, submission.

(L) Permitting Fees: Section 110(a)(2)(L) requires SIPs to require each major stationary source to pay permitting fees to the permitting authority, as a condition of any permit required under the CAA, to cover the cost of reviewing and acting upon any application for such a permit, and, if the permit is issued, the costs of implementing and enforcing the terms of the permit. The fee requirement applies until a fee program established by the state pursuant to Title V of the CAA, relating to operating permits, is approved by EPA.

KSA section 65-3008(f) allows the Secretary to fix, charge, and collect fees for approvals and permits (and the renewals thereof). KSA section 65-3024 grants the Secretary the authority to establish annual emissions fees. Fees from the construction permits and approvals are deposited into the Kansas state treasury and credited to the state general fund. Emissions fees are deposited into an air quality fee fund in the Kansas state treasury. Moneys in the air quality fee fund can only be used for the purpose of administering the Kansas Air Quality Act.

Kansas' Title V program, found at KAR 28-19-500 to 28-19-564, was approved by EPA on January 30, 1996 (61 FR 2938). EPA reviews the Kansas Title V program, including Title V fee structure, separately from this proposed action. Because the Title V program and associated fees legally are not part of the SIP, the infrastructure SIP action we are proposing today does not preclude EPA from taking future action regarding Kansas' Title V program.

Based upon review of the state's infrastructure SIP submission for the 2008 Pb NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that the requirements of section 110(a)(2)(L) are met and is proposing to approve this element of the January 13, 2012, submission.

(M) Consultation/participation by affected local entities: Section 110(a)(2)(M) requires SIPs to provide for consultation and participation by local political subdivisions affected by the SIP.

KSA section 65-3005(a)(8)(A) gives the Secretary the authority to encourage local units of government to handle air pollution problems within their respective jurisdictions and on a cooperative basis and to provide technical and consultative assistance therefor. The Secretary may also enter into agreements with local units of government to administer all or part of the provisions on the Kansas Air Quality Act in the units' respective jurisdiction. The Secretary also has the authority to advise, consult, and cooperate with local governments. KSA section 65-3005(a)(14). He or she may enter into contracts and agreements with local governments as is necessary to accomplish the goals of the Kansas Air Quality Act. KSA section 65-3005(a)(16).

Currently, KDHE's Bureau of Air and Radiation has signed state and/or local agreements with the Department of Air Quality from the Unified Government of Wyandotte County—Kansas City, Kansas; the Wichita Office of Environmental Health; the Shawnee County Health Department, the Johnson County Department of Health and Environment; and the Mid-America Regional Council. These agreements establish formal partnerships between the Bureau of Air and Radiation and these local agencies to work together to develop and annually update strategic goals, objectives and strategies for reducing emissions and improving air quality.

In addition, as previously noted in the discussion about section 110(a)(2)(J), Kansas' statutes and regulations require that KDHE consult with local political subdivisions for the purposes of carrying out its air pollution control responsibilities.

Based upon review of the state's infrastructure SIP submission for the 2008 Pb NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that Kansas has the adequate infrastructure needed to address section 110(a)(2)(M) for the 2008 Pb NAAQS and is proposing to approve this element of the January 13, 2012, submission.

EPA is proposing to approve the January 13, 2012, infrastructure SIP submission from Kansas which addresses the requirements of CAA sections 110(a)(1) and (2) as applicable to the 2008 Pb NAAQS. Specifically, EPA is proposing to approve the following infrastructure elements, or portions thereof: 110(a)(2)(A), (B), (C), (D)(i)(I), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). As discussed in each applicable section of this rulemaking, EPA is not proposing action on section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions Under Part D and on the visibility protection portion of section 110(a)(2)(J).

Based upon review of the state's infrastructure SIP submissions and relevant statutory and regulatory authorities and provisions referenced in that submission or referenced in Kansas' SIP, EPA believes that Kansas has the infrastructure to address all applicable required elements of sections 110(a)(1) and(2) (except otherwise noted) to ensure that the 2008 Pb NAAQS are implemented in the state.

We are hereby soliciting comment on this proposed action. Final rulemaking will occur after consideration of any comments.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 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 action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• 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).

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The statutory authority for this action is provided by section 110 of the CAA, as amended (42 U.S.C. 7410).

Throughout this document whenever “we,” “us,” or “our” is used, we refer to EPA. This section provides additional information by addressing the following questions:

Section 110(a)(1) of the CAA requires, in part, that states make a SIP submission to EPA to implement, maintain and enforce each of the NAAQS promulgated by EPA after reasonable notice and public hearings. Section 110(a)(2) includes a list of specific elements that such infrastructure SIP submissions must address. SIPs meeting the requirements of sections 110(a)(1) and (2) are to be submitted by states within three years after promulgation of a new or revised NAAQS. These SIP submissions are commonly referred to as “infrastructure” SIPs.

On March 12, 2008, EPA promulgated a revised NAAQS for ozone based on 8-hour average concentrations. The level of the 2008 8-Hour ozone NAAQS (hereafter the 2008 O 3 NAAQS) was revised from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436).

For the 2008 O 3 NAAQS, states typically have met many of the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous NAAQS. Nevertheless, pursuant to section 110(a)(1), states have to review and revise, as appropriate, their existing SIPs to ensure that the SIPs are adequate to address the 2008 O 3 NAAQS. To assist states in meeting this statutory requirement, EPA issued guidance on September 13, 2013 (2013 Guidance), addressing the infrastructure SIP elements required under section 110 (a)(1) and (2) for the 2008 O 3 NAAQS. 1 EPA will address these elements below under the following headings: (A) Emission limits and other control measures; (B) Ambient air quality monitoring/data system; (C) Program for enforcement of control measures (prevention of significant deterioration) (PSD)), New Source Review for nonattainment areas, and construction and modification of all stationary sources); (D) Interstate and international transport; (E) Adequate authority, resources, implementation, and oversight; (F) Stationary source monitoring system; (G) Emergency authority; (H) Future SIP revisions; (I) Nonattainment areas; (J) Consultation with government officials, public notification, prevention of significant deterioration (PSD), and visibility protection; (K) Air quality and modeling/data; (L) Permitting fees; and (M) Consultation/participation by affected local entities.

EPA is acting upon the March 19, 2013 and May 9, 2013, SIP submissions from Kansas that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 O 3 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions. 2 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 Act, which specifically address nonattainment SIP requirements. 3 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. 4 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 sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action. 5 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission. 6

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, for example 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. 7

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements. 8 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance). 9 EPA developed the 2013 Guidance document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within the 2013 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. 10 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program ( e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and New Source Review (NSR) pollutants, including greenhouse gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM 2.5 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 that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions. 11 It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA. 12 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions. 13 Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action. 14

EPA Region 7 received Kansas' infrastructure SIP submission for the 2008 O 3 standard on March 19, 2013, with a supplemental revision May 9, 2013. The SIP submissions became complete as a matter of law on September 19, 2013. EPA has reviewed Kansas' infrastructure SIP submission and the applicable statutory and regulatory authorities and provisions referenced in those submissions or referenced in Kansas' SIP. Below is EPA's evaluation of how the state addressed the relevant elements of section 110(a)(2) for the 2008 O 3 NAAQS.

(A) Emission limits and other control measures: Section 110(a)(2)(A) requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance and other related matters as needed to implement, maintain and enforce each NAAQS. 15

The State of Kansas' statutes and regulations authorize the Kansas Department of Health and Environment (KDHE) to regulate air quality and implement air quality control regulations. KDHE's statutory authority can be found in chapter 65, article 30 of the Kansas Statutes Annotated (KSA), otherwise known as the Kansas Air Quality Act. KSA section 65-3003 places the responsibility for air quality conservation and control of air pollution with the Secretary of Health and Environment (“Secretary”). The Secretary in turn administers the Kansas Air Quality Act through the Division of Environment within KDHE. Air pollution is defined in KSA section 65-3002(c) as the presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as is, or tends significantly to be, injurious to human health or welfare, animal or plant life, or property, or would unreasonably interfere with the enjoyment of life or property, or would contribute to the formation of regional haze.

KSA section 65-3005(a)(1) provides authority to the Secretary to adopt, amend and repeal rules and regulations implementing the Kansas Air Quality Act. It also gives the Secretary the authority to establish ambient air quality standards for the State of Kansas as a whole or for any part thereof. KSA section 65-3005(a)(12). The Secretary has the authority to promulgate rules and regulations to ensure that Kansas is in compliance with the provisions of the Act, in furtherance of a policy to implement laws and regulations consistent with those of the Federal government. KSA section 65-3005(b). The Secretary also has the authority to establish emission control requirements as appropriate to facilitate the accomplishment of the purposes of the Kansas Air Quality Act. KSA section 65-3010(a).

Based upon review of the state's infrastructure SIP submission for the 2008 O 3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that the Kansas SIP adequately addresses the requirements of section 110(a)(2)(A) for the 2008 O 3 NAAQS and is proposing to approve this element of the March 19, 2013, and May 9, 2013, SIP submissions.

(B) Ambient air quality monitoring/data system: Section 110(a)(2)(B) requires SIPs to include provisions to provide for establishment and operation of ambient air quality monitors, collection and analysis of ambient air quality data, and making these data available to EPA upon request.

To address this element, KSA section 65-3007 provides the enabling authority necessary for Kansas to fulfill the requirements of section 110(a)(2)(B). This provision gives the Secretary the authority to classify air contaminant sources which, in his or her judgment, may cause or contribute to air pollution. Furthermore, the Secretary has the authority to require such air contaminant sources to monitor emissions, operating parameters, ambient impacts of any source emissions, and any other parameters deemed necessary. The Secretary can also require these sources to keep records and make reports consistent with the Kansas Air Quality Act. KSA section 65-3007(b).

Kansas has an air quality monitoring network operated by KDHE and local air quality agencies that collects air quality data that are compiled, analyzed, and reported to EPA. KDHE's Web site contains up-to-date information about air quality monitoring, including a description of the network and information about the monitoring of O 3 . See, generally, http://www.kdheks.gov/bar/air-monitor/indexMon.html. KDHE also conducts five-year monitoring network assessments, including the O 3 monitoring network, as required by 40 CFR 58.10(d). On December 3, 2013, EPA approved Kansas' 2013-2014 Ambient Air Monitoring Network Plan. This plan includes, among other things, the location for the O 3 monitoring network in Kansas. Specifically, KDHE operates nine ozone monitors in the state in accordance with the source-oriented ozone monitoring requirements of 40 CFR part 58, appendix D, paragraph 4.1(a). Data gathered by the monitors is submitted to EPA's Air Quality System, which in turn determines if the network site monitors are in compliance with the NAAQS.

Within KDHE, the Bureau of Air and Radiation implements these requirements. Along with its other duties, the Monitoring and Planning Section collects air monitoring data, quality assures the results, and reports the data. The data is then used to develop the appropriate regulatory or outreach strategies to reduce air pollution.

Based upon review of the state's infrastructure SIP submission for the 2008 O 3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that the Kansas SIP adequately addresses the requirements of section 110(a)(2)(B) for the 2008 O 3 NAAQS and is proposing to approve this element of the March 19, 2013, and May 9, 2013, SIP submissions.

(C) Program for enforcement of control measures (PSD, New Source Review for nonattainment areas, and construction and modification of all stationary sources): Section 110(a)(2)(C) requires states to include the following three elements in the SIP: (1) A program providing for enforcement of all SIP measures described in section 110(a)(2)(A); (2) a program for the regulation of the modification and construction of stationary sources as necessary to protect the applicable NAAQS (i.e., state-wide permitting of minor sources); and (3) a permit program to meet the major source permitting requirements of the CAA (for areas designated as attainment or unclassifiable for the NAAQS in question). 16

(1) Enforcement of SIP Measures. With respect to enforcement of requirements of the SIP, KSA section 65-3005(a)(3) gives the Secretary the authority to issue orders, permits and approvals as may be necessary to effectuate the purposes of the Kansas Air Quality Act and enforce the Act by all appropriate administrative and judicial proceedings. Pursuant to KSA section 65-3006, the Secretary also has the authority to enforce rules, regulations and standards to implement the Kansas Air Quality Act and to employ the professional, technical and other staff to effectuate the provisions of the Act. In addition, if the Secretary or the director of the Division of Environment finds that any person has violated any provision of any approval, permit or compliance plan or any provision of the Kansas Air Quality Act or any rule or regulation promulgated thereunder, he or she may issue an order directing the person to take such action as necessary to correct the violation. KSA section 65-3011.

KSA section 65-3018 gives the Secretary or the Director of the Division of Environment the authority to impose a monetary penalty against any person who, among other things, either violates any order or permit issued under the Kansas Air Quality Act, or violates any provision of the Act or rule or regulation promulgated thereunder. Section 65-3028 provides for criminal penalties for knowing violations.

(2) Minor New Source Review. Section 110(a)(2)(C) also requires that the SIP include measures to regulate construction and modification of stationary sources to protect the NAAQS. With respect to smaller sources that meet the criteria listed in KAR 28-19-300(b) “Construction Permits and Approvals,” Kansas has a SIP-approved permitting program. Any person proposing to conduct a construction or modification at such a source must obtain approval from KDHE prior to commencing construction or modification. If KDHE determines that air contaminant emissions from a source will interfere with attainment or maintenance of the NAAQS, it cannot issue an approval to construct or modify that source (KAR 28-19-301(d) “Construction Permits and Approvals; Application and Issuance”).

In this action, EPA is proposing to approve Kansas' infrastructure SIP for the 2008 O 3 standard with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP that regulates the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved. In this action, EPA is not proposing to approve or disapprove the state's existing minor NSR program to the extent that it is inconsistent with EPA's regulations governing this program. EPA has maintained that the CAA does not require that new infrastructure SIP submissions correct any defects in existing EPA-approved provisions of minor NSR programs in order for EPA to approve the infrastructure SIP for element (C) ( e.g., 76 FR 41076-41079).

(3) Prevention of Significant Deterioration (PSD) permit program. Kansas also has a program approved by EPA as meeting the requirements of part C, relating to prevention of significant deterioration of air quality. In order to demonstrate that Kansas has met this sub-element, this PSD program must cover requirements not just for the 2008 O 3 NAAQS, but for all other regulated NSR pollutants as well.

In a previous action on June 20, 2013, EPA determined that Kansas has a program in place that meets all the PSD requirements related to all other required pollutants (78 FR 37126). Therefore, Kansas has adopted all necessary provisions to ensure that its PSD program covers the requirements for the O 3 NAAQS and all other regulated NSR pollutants.

Based upon review of the state's infrastructure SIP submission for the 2008 O 3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that the Kansas SIP adequately addresses the requirements of section 110(a)(2)(C) for the 2008 O 3 NAAQS and is proposing to approve this element of the March 19, 2013, and May 9, 2013, SIP submissions.

(D) Interstate and international transport: Section 110(a)(2)(D)(i) includes four requirements referred to as prongs 1 through 4. Prongs 1 and 2 are provided at section 110(a)(2)(D)(i)(I); Prongs 3 and 4 are provided at section 110(a)(2)(D)(i)(II). Section 110(a)(2)(D)(i)(I) requires SIPs to include adequate provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment, or interfering with maintenance, of any NAAQS in another state. Section 110(a)(2)(D)(i)(II) requires SIPs to include adequate provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required of any other state to prevent significant deterioration of air quality or to protect visibility.

In this notice, we are not proposing to take any actions related to the interstate transport requirements of section 110(a)(2)(D)(i)(I)—prongs 1 and 2. At this time, there is no SIP submission from Kansas relating to 110(a)(2)(D)(i)(I) for the 2008 O 3 NAAQS pending before the Agency.

With respect to the PSD requirements of section 110(a)(2)(D)(i)(II)—prong 3, EPA notes that Kansas' satisfaction of the applicable infrastructure SIP PSD requirements for attainment/unclassifiable areas of the 2008 O 3 NAAQS have been detailed in the section addressing section 110(a)(2)(C). EPA also notes that the proposed action in that section related to PSD is consistent with the proposed approval related to PSD for section 110(a)(2)(D)(i)(II).

With regard to the applicable requirements for visibility protection of section 110(a)(2)(D)(i)(II)—prong 4, states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). The 2013 Guidance states that these requirements can be satisfied by an approved SIP addressing reasonably attributable visibility impairment, if required, and an approved SIP addressing regional haze.

Kansas meets this requirement through EPA's final approval of Kansas' regional haze plan on December 27, 2011 (76 FR 80754). In this final approval, EPA determined that the Kansas SIP met requirements of the CAA, for states to prevent any future and remedy any existing anthropogenic impairment of visibility in Class I areas caused by emissions of air pollutants located over a wide geographic area. Therefore, EPA is proposing to fully approve this aspect of the submission.

Section 110(a)(2)(D)(ii) also requires that the SIP insure compliance with the applicable requirements of sections 126 and 115 of the CAA, relating to interstate and international pollution abatement, respectively.

Section 126(a) of the CAA requires new or modified sources to notify neighboring states of potential impacts from sources within the state. The Kansas regulations address abatement of the effects of interstate pollution. For example, KAR 28-19-350(k)(2) “Prevention of Significant Deterioration (PSD) of Air Quality” requires KDHE, prior to issuing any construction permit for a proposed new major source or major modification, to notify EPA, as well as: any state or local air pollution control agency having jurisdiction in the air quality control region in which the new or modified installation will be located; the chief executives of the city and county where the source will be located; any comprehensive regional land use planning agency having jurisdiction where the source will be located; and any state, Federal land manager, or Indian governing body whose lands will be affected by emissions from the new source or modification. 17 See also KAR 28-19-204 “General Provisions; Permit Issuance and Modification; Public Participation” for additional public participation requirements. In addition, no Kansas source or sources have been identified by EPA as having any interstate impacts under section 126 in any pending actions relating to any air pollutant.

Section 115 of the CAA authorizes EPA to require a state to revise its SIP under certain conditions to alleviate international transport into another country. There are no final findings under section 115 of the CAA against Kansas with respect to any air pollutant. Thus, the state's SIP does not need to include any provisions to meet the requirements of section 115.

Based upon review of the state's infrastructure SIP submissions for the 2008 O 3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that Kansas has the adequate infrastructure needed to address sections 110(a)(2)(D)(i)(II)—Prongs 3 and 4 and 110 (a)(2)(D)(ii) for the 2008 O 3 NAAQS and is proposing to approve this element of the March 19, 2013, and May 9, 2013, submissions.

(E) Adequate authority, resources, implementation, and oversight: Section 110(a)(2)(E) requires that SIPs provide for the following: (1) Necessary assurances that the state (and other entities within the state responsible for implementing the SIP) will have adequate personnel, funding, and authority under state or local law to implement the SIP, and that there are no legal impediments to such implementation; (2) requirements that the state comply with the requirements relating to state boards, pursuant to section 128 of the CAA; and (3) necessary assurances that the state has responsibility for ensuring adequate implementation of any plan provision for which it relies on local governments or other entities to carry out that portion of the plan.

(1) Section 110(a)(2)(E)(i) requires states to establish that they have adequate personnel, funding and authority. With respect to adequate authority, we have previously discussed Kansas' statutory and regulatory authority to implement the 2008 O 3 NAAQS, primarily in the discussion of section 110(a)(2)(A) above. Neither Kansas nor EPA has identified any legal impediments in the state's SIP to implementation of the NAAQS.

With respect to adequate resources, KDHE asserts that it has adequate personnel to implement the SIP. The Kansas statutes provide the Secretary the authority to employ technical, professional and other staff to effectuate the purposes of the Kansas Air Quality Act from funds appropriated and available for these purposes. See KSA section 65-3006(b). Within KDHE, the Bureau of Air and Radiation implements the Kansas Air Quality Act. This Bureau is further divided into the Air Compliance and Enforcement Section, Air Permit Section; the Monitoring and Planning Section; and the Radiation and Asbestos Control Section.

With respect to funding, the Kansas Legislature annually approves funding and personnel resources for KDHE to implement the air program. The annual budget process provides a periodic update that enables KDHE and the local agencies to adjust funding and personnel needs. In addition, the Kansas statutes grant the Secretary authority to establish various fees for sources, to cover any and all parts of administering the provisions of the Kansas Air Quality Act. For example, KSA section 65-3008(f) grants the Secretary authority to fix, charge, and collect fees for construction approvals and permits (and the renewals thereof). KSA section 65-3024 grants the Secretary the authority to establish annual emissions fees. These emission fees, along with any moneys recovered by the state under the provisions of the Kansas Air Quality Act, are deposited into an air quality fee fund in the state treasury. Moneys in the air quality fee fund can only be used for the purpose of administering the Kansas Air Quality Act.

Kansas also uses funds in the non-Title V subaccounts, along with General Revenue funds and EPA grants under, for example, sections 103 and 105 of the Act, to fund the programs. EPA conducts periodic program reviews to ensure that the state has adequate resources and funding to, among other things, implement the SIP.

(2) Conflict of interest provisions—section 128. Section 110(a)(2)(E)(ii) requires that each state SIP meet the requirements of section 128, relating to representation on state boards and conflicts of interest by members of such boards. Section 128(a)(1) requires that any board or body which approves permits or enforcement orders under the CAA must have at least a majority of members who represent the public interest and do not derive any “significant portion” of their income from persons subject to permits and enforcement orders under the CAA. Section 128(a)(2) requires that members of such a board or body, or the head of an agency with similar powers, adequately disclose any potential conflicts of interest.

On June 20, 2013, EPA approved Kansas' SIP revision addressing the section 128 requirements (78 FR 37126). For a detailed discussion on EPA's analysis of how Kansas meets the section 128 requirements, see EPA's April 17, 2013, proposed approval of Kansas' 1997 and 2006 PM 2.5 infrastructure SIP (78 FR 22827).

(3) With respect to assurances that the state has responsibility to implement the SIP adequately when it authorizes local or other agencies to carry out portions of the plan, KSA section 65-3005(a)(8) grants the Secretary authority to encourage local units of government to handle air pollution problems within their own jurisdictions and to provide technical and consultative assistance therefor. The Secretary may also enter into agreements with local units of government to administer all or part of the provisions of the Kansas Air Quality Act in the units' respective jurisdictions. In fact, KSA section 65-3016 allows for cities and/or counties (or combinations thereof) to form local air quality conservation authorities. These authorities will then have the authority to enforce air quality rules and regulations adopted by the Secretary and adopt any additional rules, regulations and standards as needed to maintain satisfactory air quality within their jurisdictions.

At the same time, the Kansas statutes also retain authority in the Secretary to carry out the provisions of the state air pollution control law. KSA section 65-3003 specifically places responsibility for air quality conservation and control of air pollution with the Secretary. The Secretary shall then administer the Kansas Air Quality Act through the Division of Environment. As an example of this retention of authority, KSA section 65-3016 only allows for the formation of local air quality conservation authorities with the approval of the Secretary. In addition, although these authorities can adopt additional air quality rules, regulations and standards, they may only do so if those rules, regulations and standards are in compliance with those set by the Secretary for that area. Currently, KDHE oversees the following local agencies that implement that Kansas Air Quality Act: The City of Wichita Office of Environmental Health, Johnson County Department of Health and Environment, Shawnee County Health Agency, and Unified Government of Wyandotte County—Kansas City, Kansas Public Health Department.

Based upon review of the state's infrastructure SIP submission for the 2008 O 3 NAAQS and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that Kansas has the adequate infrastructure needed to address section 110(a)(2)(E) for the 2008 O 3 NAAQS and is proposing to approve this element of the March 19, 2013, and May 9, 2013, submissions.

(F) Stationary source monitoring system: Section 110(a)(2)(F) requires states to establish a system to monitor emissions from stationary sources and to submit periodic emission reports. Each SIP shall require the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources, to monitor emissions from such sources. The SIP shall also require periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and requires that the state correlate the source reports with emission limitations or standards established under the CAA. These reports must be made available for public inspection at reasonable times.

To address this element, KSA section 65-3007 gives the Secretary the authority to classify air contaminant sources which, in his or her judgment, may cause or contribute to air pollution. The Secretary shall require air contaminant emission sources to monitor emissions, operating parameters, ambient impact of any source emissions, and any other parameters deemed necessary. Furthermore, the Secretary may require these emissions sources to keep records and make reports consistent with the purposes of the Kansas Air Quality Act.

In addition, KAR 28-19-12(A) “Measurement of Emissions” states that KDHE may require any person responsible for the operation of an emissions source to make or have tests made to determine the rate of contaminant emissions from the source whenever it has reason to believe that existing emissions exceed limitations specified in the Kansas air quality regulations. At the same time, KDHE may also conduct its own tests of emissions from any source. KAR 28-19-12(B). The Kansas regulations also require that all Class I operating permits include requirements for monitoring of emissions (KAR 28-19-512(a)(9) “Class I Operating Permits; Permit Content”).

Kansas makes all monitoring reports (as well as compliance plans and compliance certifications) submitted as part of a construction permit or Class I or Class II permit application publicly available. See KSA section 65-3015(a); KAR 28-19-204(c)(6) “General Provisions; Permit Issuance and Modification; Public Participation.” KDHE uses this information to track progress towards maintaining the NAAQS, developing control and maintenance strategies, identifying sources and general emission levels, and determining compliance with emission regulations and additional EPA requirements. Although the Kansas statutes allow a person to request that records or information reported to KDHE be regarded and treated as confidential on the grounds that it constitutes trade secrets, emission data is specifically excluded from this protection. See KSA section 65-3015(b).

Based upon review of the state's infrastructure SIP submission for the 2008 O 3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that Kansas has the adequate infrastructure needed to address section 110(a)(2)(F) for the 2008 O 3 NAAQS and is proposing to approve this element of the March 19, 2013, and May 9, 2013, submissions.

(G) Emergency authority: Section 110(a)(2)(G) requires SIPs to provide for authority to address activities causing imminent and substantial endangerment to public health or welfare or the environment (comparable to the authorities provided in section 303 of the CAA), and to include contingency plans to implement such authorities as necessary.

KSA section 65-3012(a) states that whenever the Secretary receives evidence that emissions from an air pollution source or combination of sources presents an imminent and substantial endangerment to public health or welfare or to the environment, he or she may issue a temporary order directing the owner or operator, or both, to take such steps as necessary to prevent the act or eliminate the practice. Upon issuance of this temporary order, the Secretary may then commence an action in the district court to enjoin these acts or practices.

KAR 28-19-56 “Episode Criteria” allows the Secretary to proclaim an air pollution alert, air pollution warning, or air pollution emergency whenever he or she determines that the accumulation of air contaminants at any sampling location has attained levels which could, if such levels are sustained or exceeded, threaten the public health. KAR 28-19-57 “Emission Reduction Requirements” imposes restrictions on emission sources in the event one of these three air pollution episode statuses is declared.

Based upon review of the state's infrastructure SIP submissions for the 2008 O 3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in those submissions or referenced in Kansas' SIP, EPA believes that the Kansas SIP adequately addresses section 110(a)(2)(G) for the 2008 O 3 NAAQS and is proposing to approve this element of the March 19, 2013, and May 9, 2013, submissions.

(H) Future SIP revisions: Section 110(a)(2)(H) requires states to have the authority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for attaining the NAAQS, or in response to an EPA finding that the SIP is substantially inadequate to attain the NAAQS.

KSA section 65-3005(b) specifically states that it is the policy of the state of Kansas to regulate the air quality of the state and implement laws and regulations that are applied equally and uniformly throughout the state and consistent with that of the Federal government. Therefore, the Secretary has the authority to promulgate rules and regulations to ensure that Kansas is in compliance with the provisions of the Federal CAA. KSA 65-3005(b)(1).

As discussed previously, KSA section 65-3005(a)(1) provides authority to the Secretary to adopt, amend and repeal rules and regulations implementing and consistent with the Kansas Air Quality Act. The Secretary also has the authority to establish ambient air quality standards for the state of Kansas or any part thereof. KSA section 65-3005(a)(12). Therefore, as a whole, the Secretary has the authority to revise rules as necessary to respond to any necessary changes in the NAAQS.

Based upon review of the state's infrastructure SIP submission for the 2008 O 3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that Kansas has adequate authority to address section 110(a)(2)(H) for the 2008 O 3 NAAQS and is proposing to approve this element of the March 19, 2013, and May 19, 2013, submissions.

(I) Nonattainment areas: Section 110(a)(2)(I) requires that in the case of a plan or plan revision for areas designated as nonattainment areas, states must meet applicable requirements of part D of the CAA, relating to SIP requirements for designated nonattainment areas.

As noted earlier, EPA does not expect infrastructure SIP submissions to address subsection (I). The specific SIP submissions for designated nonattainment areas, as required under CAA title I, part D, are subject to different submission schedules than those for section 110 infrastructure elements. Instead, EPA will take action on part D attainment plan SIP submissions through a separate rulemaking governed by the requirements for nonattainment areas, as described in part D.

(J) Consultation with government officials, public notification, PSD and visibility protection: Section 110(a)(2)(J) requires SIPs to meet the applicable requirements of the following CAA provisions: (1) Section 121, relating to interagency consultation regarding certain CAA requirements; (2) section 127, relating to public notification of NAAQS exceedances and related issues; and (3) part C of the CAA, relating to prevention of significant deterioration of air quality and visibility protection.

(1) With respect to interagency consultation, the SIP should provide a process for consultation with general-purpose local governments, designated organizations of elected officials of local governments, and any Federal Land Manager having authority over Federal land to which the SIP applies. KSA section 65-3005(a)(14) grants the Secretary the authority to advise, consult and cooperate with other agencies of the state, local governments, other states, interstate and interlocal agencies, and the Federal government. Furthermore, as noted earlier in the discussion on section 110(a)(2)(D), Kansas' regulations require that whenever it receives a construction permit application for a new source or a modification, KDHE must notify state and local air pollution control agencies, as well as regional land use planning agencies and any state, Federal land manager, or Indian governing body whose lands will be affected by emissions from the new source or modification. See KAR 28-19-350(k)(2) “Prevention of Significant Deterioration (PSD) of Air Quality.”

(2) With respect to the requirements for public notification in section 127, the infrastructure SIP should provide citations to regulations in the SIP requiring the air agency to regularly notify the public of instances or areas in which any NAAQS are exceeded; advise the public of the health hazard associated with such exceedances; and enhance public awareness of measures that can prevent such exceedances and of ways in which the public can participate in the regulatory and other efforts to improve air quality.

As discussed previously with element (G), KAR 28-19-56 “Episode Critera” contains provisions that allow the Secretary to proclaim an air pollution alert, air pollution warning, or air pollution emergency status whenever he or she determines that the accumulation of air contaminants at any sampling location has attained levels which could, if such levels are sustained or exceeded, threaten the public health. Any of these emergency situations can also be declared by the Secretary even in the absence of issuance of a high air pollution potential advisory or equivalent advisory from a local weather bureau meteorologist, if deemed necessary to protect the public health. In the event of such an emergency situation, public notification will occur through local weather bureaus.

In addition, information regarding air pollution and related issues is provided on a KDHE Web site, http://www.kdheks.gov/bar/ . This information includes air quality data, information regarding the NAAQS, health effects of poor air quality, and links to the Kansas Air Quality Monitoring Network. KDHE also has an “Outreach and Education” Web page ( http://www.kdheks.gov/bar/air_outreach/air_quality_edu.htm ) with information on how individuals can take measures to reduce emissions and improve air quality in daily activities.

(3) With respect to the applicable requirements of part C of the CAA, relating to PSD of air quality and visibility protection, as noted in above under element (C), the Kansas SIP meets the PSD requirements, incorporating the Federal rule by reference. With respect to the visibility component of section 110(a)(2)(J), EPA recognizes that states are subject to visibility and regional haze program requirements under part C of the CAA. However, when EPA establishes or revises a NAAQS, these visibility and regional haze requirements under part C do not change. EPA believes that there are no new visibility protection requirements under part C as a result of a revised NAAQS. Therefore, there are no newly applicable visibility protection obligations pursuant to element J after the promulgation of a new or revised NAAQS.

Nevertheless, as noted above in section D, EPA has already approved Kansas' Regional Haze Plan and determined that it met the CAA requirements for preventing future and remedying existing impairment of visibility caused by air pollutants.

Based upon review of the state's infrastructure SIP submission for the 2008 O 3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that Kansas has met the applicable requirements of section 110(a)(2)(J) for the 2008 O 3 NAAQS in the state and is therefore proposing to approve this element of the March 19, 2013, and May 9, 2013, submissions.

(K) Air quality and modeling/data: Section 110(a)(2)(K) requires that SIPs provide for performing air quality modeling, as prescribed by EPA, to predict the effects on ambient air quality of any emissions of any NAAQS pollutant, and for submission of such data to EPA upon request.

Kansas has authority to conduct air quality modeling and report the results of such modeling to EPA. KSA section 65-3005(a)(9) gives the Secretary the authority to encourage and conduct studies, investigations and research relating to air contamination and air pollution and their causes, effects, prevention, abatement and control. As an example of regulatory authority to perform modeling for purposes of determining NAAQS compliance, the regulations at KAR 28-19-350 “Prevention of Significant Deterioration (PSD) of Air Quality” incorporate EPA modeling guidance in 40 CFR part 51, appendix W for the purposes of demonstrating compliance or non-compliance with a NAAQS.

The Kansas statutes and regulations also give KDHE the authority to require that modeling data be submitted for analysis. KSA section 65-3007(b) grants the Secretary the authority to require air contaminant emission sources to monitor emissions, operating parameters, ambient impact of any source emissions or any other parameters deemed necessary. The Secretary may also require these sources to keep records and make reports consistent with the purposes of the Kansas Air Quality Act. These reports could include information as may be required by the Secretary concerning the location, size, and height of contaminant outlets, processes employed, fuels used, and the nature and time periods or duration of emissions, and such information as is relevant to air pollution and available or reasonably capable of being assembled. KSA section 65-3007(c).

Based upon review of the state's infrastructure SIP submission for the 2008 O 3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that Kansas has the adequate infrastructure needed to address section 110(a)(2)(K) for the 2008 O 3 NAAQS and is proposing to approve this element of the March 19, 2013, and May 9, 2013, submissions.

(L) Permitting Fees: Section 110(a)(2)(L) requires SIPs to require each major stationary source to pay permitting fees to the permitting authority, as a condition of any permit required under the CAA, to cover the cost of reviewing and acting upon any application for such a permit, and, if the permit is issued, the costs of implementing and enforcing the terms of the permit. The fee requirement applies until a fee program established by the state pursuant to Title V of the CAA, relating to operating permits, is approved by EPA.

KSA section 65-3008(f) allows the Secretary to fix, charge, and collect fees for approvals and permits (and the renewals thereof). KSA section 65-3024 grants the Secretary the authority to establish annual emissions fees. Fees from the construction permits and approvals are deposited into the Kansas state treasury and credited to the state general fund. Emissions fees are deposited into an air quality fee fund in the Kansas state treasury. Moneys in the air quality fee fund can only be used for the purpose of administering the Kansas Air Quality Act.

Kansas' Title V program, found at KAR 28-19-500 to 28-19-564, was approved by EPA on January 30, 1996 (61 FR 2938). EPA reviews the Kansas Title V program, including Title V fee structure, separately from this proposed action. Because the Title V program and associated fees legally are not part of the SIP, the infrastructure SIP action we are proposing today does not preclude EPA from taking future action regarding Kansas' Title V program.

Based upon review of the state's infrastructure SIP submission for the 2008 O 3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that the requirements of section 110(a)(2)(L) for the 2008 O 3 NAAQS are met and is proposing to approve this element of the March 13, 2013, and May 9, 2013, submissions.

(M) Consultation/participation by affected local entities: Section 110(a)(2)(M) requires SIPs to provide for consultation and participation by local political subdivisions affected by the SIP.

KSA section 65-3005(a)(8)(A) gives the Secretary the authority to encourage local units of government to handle air pollution problems within their respective jurisdictions and on a cooperative basis and to provide technical and consultative assistance therefor. The Secretary may also enter into agreements with local units of government to administer all or part of the provisions on the Kansas Air Quality Act in the units' respective jurisdiction. The Secretary also has the authority to advise, consult, and cooperate with local governments. KSA section 65-3005(a)(14). He or she may enter into contracts and agreements with local governments as is necessary to accomplish the goals of the Kansas Air Quality Act. KSA section 65-3005(a)(16).

Currently, KDHE's Bureau of Air and Radiation has signed state and/or local agreements with the Department of Air Quality from the Unified Government of Wyandotte County—Kansas City, Kansas; the Wichita Office of Environmental Health; the Shawnee County Health Department, the Johnson County Department of Health and Environment; and the Mid-America Regional Council. These agreements establish formal partnerships between the Bureau of Air and Radiation and these local agencies to work together to develop and annually update strategic goals, objectives and strategies for reducing emissions and improving air quality.

In addition, as previously noted in the discussion about section 110(a)(2)(J), Kansas' statutes and regulations require that KDHE consult with local political subdivisions for the purposes of carrying out its air pollution control responsibilities.

Based upon review of the state's infrastructure SIP submission for the 2008 O 3 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submission or referenced in Kansas' SIP, EPA believes that Kansas has the adequate infrastructure needed to address section 110(a)(2)(M) for the 2008 O 3 NAAQS and is proposing to approve this element of the March 19, 2013, and May 9, 2013, submissions.

EPA is proposing to approve the infrastructure SIP submissions from Kansas which address the requirements of CAA sections 110(a)(1) and (2) as applicable to the 2008 O 3 NAAQS. Specifically, EPA is proposing to approve the following infrastructure elements, or portions thereof: 110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). As discussed in each applicable section of this rulemaking, EPA is not proposing action on section 110(a)(2)(D)(i)(I), section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions Under Part D, and on the visibility protection portion of section 110(a)(2)(J).

Based upon review of the state's infrastructure SIP submissions and relevant statutory and regulatory authorities and provisions referenced in that submission or referenced in Kansas' SIP, EPA believes that Kansas has the infrastructure to address all applicable required elements of sections 110(a)(1) and (2) (except otherwise noted) to ensure that the 2008 O 3 NAAQS are implemented in the state.

We are hereby soliciting comment on this proposed action. Final rulemaking will occur after consideration of any comments.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 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 action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The statutory authority for this action is provided by section 110 of the CAA, as amended (42 U.S.C. 7410).

Throughout this document wherever “we,” “us” or “our” is used, it is intended to refer to the EPA. Information is organized as follows:

On July 18, 1997, the EPA promulgated a new 24-hour and a new annual NAAQS for fine particulate matter (PM 2.5 ) (62 FR 38652). More recently, on October 17, 2006, the EPA revised the standards for PM 2.5 , tightening the 24-hour PM 2.5 standard from 65 micrograms per cubic meter (µ/m 3 ) to 35 µ/m 3 , and retaining the current annual PM 2.5 standard at 15 µ/m 3 (71 FR 61144). In addition, on March 12, 2008, the EPA revised the levels of the primary and secondary 8-hour ozone standards to 0.075 parts per million (73 FR 16436).

The CAA requires SIPs meeting the requirements of sections 110(a)(1) and (2) be submitted by states within three years after promulgation of a new or revised standard. Sections 110(a)(1) and (2) require states to address basic SIP requirements, so-called “infrastructure” elements. To assist states, the EPA issued several guidance documents. On October 2, 2007, the EPA issued guidance to address infrastructure SIP elements for the 1997 ozone and 1997 PM 2.5 NAAQS. 1 On September 25, 2009, the EPA issued guidance to address infrastructure SIP elements for the 2006 24-hour PM 2.5 NAAQS. 2 On September 13, 2013, the EPA issued guidance to address infrastructure SIP elements for multiple pollutants, including the 2008 ozone NAAQS. 3 As noted in the guidance documents, to the extent an existing SIP already meets the CAA section 110(a)(2) requirements, states may certify that fact via a letter to the EPA.

On July 9, 2012, the Alaska Department of Environmental Conservation (ADEC) submitted to the EPA a certification that Alaska's SIP meets the infrastructure requirements for multiple NAAQS, including the 1997 ozone, 1997 PM 2.5 , 2006 PM 2.5 , 2008 ozone, and 2008 lead NAAQS. The certification included an analysis of Alaska's SIP as it relates to each section of the infrastructure requirements at CAA section 110(a)(2). The State provided notice of public comment and an opportunity for public hearing on the submission from March 4, 2012, through April 10, 2012. Notices were published in the Anchorage Daily News on March 4 and March 5, 2012, the Fairbanks Daily News-Miner on March 5 and March 6, 2012, and the Juneau Empire on March 6, 2012. The State extended the comment period to April 24, 2012, and provided notice of the extension in the same publications. The EPA has evaluated the State's July 9, 2012, submission and determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA.

Previously, on March 29, 2011, Alaska submitted the “Alaska Interstate Transport of Pollution SIP” to address the requirements of CAA section 110(a)(2)(D)(i) for the 2006 PM 2.5 and 2008 ozone NAAQS. The State provided notice and an opportunity for public comment on the submission from October 7, 2010, through November 19, 2010. A notice of public hearing was published in the Anchorage Daily News and the Fairbanks Daily News-Miner on October 9, October 10, and October 11, 2010, and the Peninsula Clarion on October 25, October 26, and October 27, 2010. The State extended the comment period to December 6, 2010, and provided notice of the extension in the same publications. The State held a public hearing on November 16, 2010, in Anchorage, Alaska. The EPA has evaluated the State's March 29, 2011, submission and determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA.

At this time, the EPA is acting on the Alaska submissions for 110(a)(2) required elements as they relate to the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS. This action does not address the CAA infrastructure requirements with respect to the 1997 ozone NAAQS, which we approved on October 22, 2012 (77 FR 64425). This action also does not address the CAA infrastructure requirements of the 2008 lead NAAQS, which we intend to address in a separate action. This action also does not address the interstate transport requirements of CAA section 110(a)(2)(D)(i) for the 1997 PM 2.5 NAAQS, which we previously approved on October 15, 2008 (73 FR 60955), nor the interstate transport requirements of 110(a)(2)(D)(i)(I) for the 2006 PM 2.5 and 2008 ozone NAAQS which we are addressing in a separate action (proposed April 28, 2014, 79 FR 23303). Finally, this action does not address the emergency episode requirements of 110(a)(2)(G) for the 1997 PM 2.5 and 2006 PM 2.5 NAAQS. We intend to address them in a separate action.

CAA section 110(a)(1) provides the procedural and timing requirements for SIP submissions after a new or revised NAAQS is promulgated. CAA section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. These requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements, with their corresponding CAA subsection, are listed below:

• 110(a)(2)(A): Emission limits and other control measures.

• 110(a)(2)(B): Ambient air quality monitoring/data system.

• 110(a)(2)(C): Program for enforcement of control measures.

• 110(a)(2)(D): Interstate transport.

• 110(a)(2)(E): Adequate resources.

• 110(a)(2)(F): Stationary source monitoring system.

• 110(a)(2)(G): Emergency power.

• 110(a)(2)(H): Future SIP revisions.

• 110(a)(2)(I): Areas designated nonattainment and meet the applicable requirements of part D.

• 110(a)(2)(J): Consultation with government officials; public notification; and Prevention of Significant Deterioration (PSD) and visibility protection.

• 110(a)(2)(K): Air quality modeling/data.

• 110(a)(2)(L): Permitting fees.

• 110(a)(2)(M): Consultation/participation by affected local entities.

The EPA's guidance clarified that two elements identified in CAA section 110(a)(2) are not governed by the three year submission deadline of CAA section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather due at the time the nonattainment area plan requirements are due pursuant to CAA section 172 and the various pollutant specific subparts 2-5 of part D. These requirements are: (i) Submissions required by CAA section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D, title I of the CAA, and (ii) submissions required by CAA section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, title I of the CAA. As a result, this action does not address infrastructure elements related to CAA section 110(a)(2)(C) with respect to nonattainment new source review (NSR) or CAA section 110(a)(2)(I). Furthermore, the EPA interprets the CAA section 110(a)(2)(J) provision on visibility as not being triggered by a new NAAQS because the visibility requirements in part C, title I of the CAA are not changed by a new NAAQS.

The EPA is acting upon the SIP submissions from Alaska that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon the EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

The EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, the 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 the EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions. 4 The 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, the 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 the 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 the 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. 5 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 the 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. 6 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, the EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether the 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, the 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, the EPA can elect to act on such submissions either individually or in a larger combined action. 7 Similarly, the EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, the EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission. 8

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, the 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, for example 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. 9

The EPA notes that interpretation of section 110(a)(2) is also necessary when the EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, the EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), the 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, the 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, the 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, the 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. 10 The EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance). 11 The EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, the 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. The EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions. 12 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, the EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, the 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, the 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 the EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program ( e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in the 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, the EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and the EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including greenhouse gases. By contrast, structural PSD program requirements do not include provisions that are not required under the EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM 2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions the EPA considers irrelevant in the context of an infrastructure SIP action.

For other section 110(a)(2) elements, however, the 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, the EPA evaluates whether the state has an EPA-approved minor new source review program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, the 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, the EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and the EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by the EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of the EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007). Thus, the EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions. 13 It is important to note that the 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.

The EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. The EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and the 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 the EPA evaluates adequacy of the infrastructure SIP submission. The EPA believes that a better approach is for states and the 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, the 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, the EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow the EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes the EPA to issue a “SIP call” whenever the EPA determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA. 14 Section 110(k)(6) authorizes the EPA to correct errors in past actions, such as past approvals of SIP submissions. 15 Significantly, the 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 the 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, the EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action. 16

The July 9, 2012, submission summarizes ADEC's statutory and regulatory authority to act on behalf of the State of Alaska in any matter pertaining to the state air quality control plan. The submission lists specific provisions of the Alaska Statute (AS) Title 46 Water, Air Energy and Environmental Conservation, Chapter 03 Environmental Conservation and Chapter 14 Air Quality Control; Alaska Administrative Code (AAC) Title 18 Environmental Conservation (18 AAC 50); and the Alaska SIP. The specific sections are listed below, with a discussion of how the Alaska SIP meets the requirements. We note that on May 5, 2014, we proposed to approve a number of revisions to the Alaska SIP, including revisions to update the SIP to reflect changes to the NAAQS and Federal prevention of significant deterioration (PSD) permitting requirements associated with the NAAQS (79 FR 25533). Final action on this infrastructure SIP is contingent upon the EPA first taking final action on the May 5, 2014, proposed approval of those separately submitted revisions to the Alaska SIP to implement the NAAQS and Federal PSD permitting requirements. Final action on those SIP revisions will be addressed in a separate action.

CAA section 110(a)(2)(A) requires SIPs to include enforceable emission limits and other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the CAA.

State submission: The July 9, 2012, submission cites Alaska environmental and air quality laws set forth at AS 46.03 and AS 46.14 and State regulations set forth at 18 AAC 50. AS 46.03.020 “Powers of the department” provides authority for ADEC to adopt regulations providing for control, prevention, and abatement of air, water, land or subsurface land pollution. AS 46.03.860 “Inspection warrant” provides authority for ADEC to investigate actual or suspected sources of pollution or contamination, or to ascertain compliance or noncompliance. AS 46.14.010 “Emission control regulations” provides authority for ADEC to adopt regulations establishing ambient air quality standards, emission standards, or exemptions to implement a state air quality control program. AS 46.14.240 “Permit administration fees” and AS 46.14.250 “Emission fees” provide authority to assess permit administration fees and emission fees to sources. AS 46.14.515 “Inspection” provides authority to inspect regulated sources, including records, emissions units, monitoring equipment or methods, and to sample any emissions the source is required to sample.

The regulations cited by ADEC include statewide ambient air quality standards, major and minor permits, emission limits for specific sources, transportation conformity and fees. The relevant regulations are listed below:

• 18 AAC 50.005: Purpose and Applicability of Chapter.

• 18 AAC 50.010: Ambient Air Quality Standards.

• 18 AAC 50.035: Documents, Procedures, and Methods Adopted by Reference.

• 18 AAC 50.040: Federal Standards Adopted by Reference.

• 18 AAC 50.045: Prohibitions.

• 18 AAC 50.050: Incinerator Emission Standards.

• 18 AAC 50.055: Industrial Processes and Fuel Burning Equipment.

• 18 AAC 50.060: Pulp Mills.

• 18 AAC 50.065: Open Burning.

• 18 AAC 50.070: Marine Vessel Visible Emission Standards.

• 18 AAC 50.075: Wood Fired Heating Devices Visible Emission Standards.

• 18 AAC 50.201: Ambient Air Quality Investigation.

• 18 AAC 50.302: Construction Permits.

• 18 AAC 50.306: Prevention of Significant Deterioration Permits.

• 18 AAC 50.345: Construction and Operating Permits: Standard Permit Conditions.

• 18 AAC 50.400-18 AAC 50.499: User Fees.

• 18 AAC 50.502: Minor Permits for Air Quality Protection.

• 18 AAC 50.540: Minor Permit Application.

• 18 AAC 50.542: Minor Permit Review and Issuance.

• 18 AAC 50.544: Minor Permits: Content.

• 18 AAC 50.700-18 AAC 50.735: Conformity.

• 18 AAC 50.990: Definitions.

EPA analysis: Alaska generally regulates emissions of PM 2.5 and its precursors, and ozone precursors through its SIP-approved major and minor new source review (NSR) permitting programs, in addition to other rules described below. We note that the EPA does not consider SIP requirements triggered by the nonattainment area mandates in part D, title I of the CAA to be governed by the submission deadline of CAA section 110(a)(1). Regulations and other control measures for purposes of attainment planning under part D, title I of the CAA are due on a different schedule than infrastructure SIPs.

Alaska's major NSR program generally incorporates the Federal PSD and nonattainment NSR programs by reference into the Alaska SIP. The EPA most recently proposed approval of revisions to Alaska's major and minor NSR permitting programs on May 5, 2014 (79 FR 25533). After finalizing the May 5, 2014, proposed action, the Alaska SIP will incorporate by reference Federal PSD requirements at 40 CFR 52.21 and 40 CFR 51.166 revised as of July 1, 2011.

With respect to Alaska's minor NSR permitting program, at 18 AAC 50.502-18 AAC 50.544, we have determined that the program regulates minor sources for purposes of the 1997 and 2006 PM 2.5 NAAQS and the 2008 ozone NAAQS. In addition to Alaska's major and minor NSR permitting programs, Alaska's SIP contains rules that establish various controls on emissions of particulate matter and its precursors. These controls include incinerator emission standards, emission limits for specific industrial processes and fuel burning equipment, emission limits for pulp mills, open burning controls, and visible emission limits on marine vessel emissions and wood-fired heating devices.

Based on the foregoing, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(A) for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS. Final action is contingent upon the EPA first taking final action on the May 5, 2014, proposed approval of revisions to the Alaska SIP to reflect changes to the NAAQS and Federal PSD permitting requirements.

In this action, we are not proposing to approve or disapprove any existing state provisions with regard to excess emissions during startup, shutdown, or malfunction (SSM) of operations at a facility. The EPA believes that a number of states may have SSM provisions that are contrary to the CAA and existing EPA guidance  17 and the EPA plans to address such state regulations in the future. In the meantime, we encourage any state having a deficient SSM provision to take steps to correct it as soon as possible.

In addition, we are not proposing to approve or disapprove any existing State rules with respect to director's discretion or variance provisions. The EPA believes that a number of states may have such provisions that are contrary to the CAA and existing EPA guidance (November 24, 1987, 52 FR 45109), and the EPA plans to take action in the future to address such state regulations. In the meantime, we encourage any state having a director's discretion or variance provision that is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.

CAA section 110(a)(2)(B) requires SIPs to include provisions to provide for establishment and operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to the EPA upon request.

State submission: The July 9, 2012, submission references Alaska statutory and regulatory authority to conduct ambient air monitoring investigations. AS 46.03.020 “Powers of the department” paragraph (5) provides authority to undertake studies, inquiries, surveys, or analyses essential to the accomplishment of the purposes of ADEC. AS 46.14.180 “Monitoring” provides authority to require sources to monitor emissions and ambient air quality to demonstrate compliance with applicable permit program requirements. 18 AAC 50.201 “Ambient Air Quality Investigation” provides authority to require a source to do emissions testing, reduce emissions, and apply controls to sources.

The submission also describes Memoranda of Understanding between ADEC and the Municipality of Anchorage (MOA) and Fairbanks North Star Borough (FNSB) to operate air quality control programs in their respective jurisdictions. ADEC's Air Non-Point Mobile Source Program and Air Monitoring & Quality Assurance Program work with MOA and FNSB to prepare Alaska's annual ambient air monitoring network plan, the most recent of which is the 2012 Alaska Air Monitoring Network Plan. Alaska collects and validates State and Local Air Monitoring Stations and Special Purpose Monitoring ambient air quality monitoring data and electronically reports these data to the EPA through the Air Quality System (AQS) on a quarterly basis. ADEC's revised “Quality Assurance Project Plan for the State of Alaska Air Monitoring and Quality Assurance Program” was adopted by reference into the State Air Quality Control Plan on October 29, 2010.

EPA analysis: A comprehensive air quality monitoring plan, intended to meet requirements of 40 CFR part 58 was submitted by Alaska to the EPA on January 18, 1980 (40 CFR 52.70) and approved by the EPA on April 15, 1981. This air quality monitoring plan has been subsequently updated and approved by the EPA on March 10, 2014. This plan includes, among other things, the locations for ozone and particulate matter monitoring. Alaska makes this plan available for public review at http://www.dec.state.ak.us/air/am/index.htm. Based on the foregoing, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(B) for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS.

CAA section 110(a)(2)(C) requires states to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources, including a program to meet PSD and nonattainment NSR requirements.

State submission: The July 9, 2012, submission refers to ADEC's statutory authority to regulate stationary sources via an air permitting program established in AS 46.14 “Air Quality Control,” Article 01 “General Regulations and Classifications” and Article 02 “Emission Control Permit Program.” The submission states that ADEC's PSD/NSR programs were approved by the EPA on August 14, 2007 (72 FR 45378). The submission references the following regulations:

• 18 AAC 50.045: Prohibitions.

• 18 AAC 50.302: Construction Permits.

• 18 AAC 50.306: Prevention of Significant Deterioration Permits.

• 18 AAC 50.345: Construction and Operating Permits: Standard Permit Conditions.

• 18 AAC 50.508: Minor Permits Requested by the Owner or Operator.

• 18 AAC 50.540: Minor Permit: Application.

• 18 AAC 50.542: Minor Permit Review and Issuance.

• 18 AAC 50.542(c): Screening Ambient Air Quality Analysis.

The submission states that a violation of the prohibitions in the regulations above, or any permit condition, can result in civil actions (AS 46.03.760 “Civil action for pollution; damages”), administrative penalties (AS 46.03.761 “Administrative penalties”), or criminal penalties (AS 46.03.790 “Criminal penalties”). In addition, Alaska refers to regulations pertaining to compliance orders and enforcement proceedings found at 18 AAC Chapter 95 “Administrative Enforcement.” Finally, AS 46.03.820 “Emergency Powers” provides ADEC with emergency order authority where there is an imminent and present danger to health or welfare.

EPA analysis: With respect to the requirement to have a program providing for enforcement of all SIP measures, we are proposing to find that Alaska statute provides ADEC with authority to enforce air quality regulations, permits, and orders promulgated pursuant to AS 46.03 and AS 46.14. ADEC staffs and maintains an enforcement program to ensure compliance with SIP requirements. ADEC has emergency order authority when there is an imminent or present danger to health or welfare or potential for irreversible or irreparable damage to natural resources or the environment. Enforcement cases may be referred to the State Department of Law. Therefore, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(C) related to enforcement for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS.

To generally meet the requirements of CAA section 110(a)(2)(C) with respect to the regulation of construction of new or modified stationary sources, the State is required to have PSD, nonattainment NSR, and minor NSR permitting programs adequate to implement the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS. As explained above, we are not evaluating nonattainment related provisions, such as the nonattainment NSR program required by part D, title I of the CAA.

The EPA originally approved Alaska's PSD/NSR program on February 16, 1995 (60 FR 8943), and we most recently proposed revisions on May 5, 2014 (79 FR 25533). These revisions, among other things, update the Alaska PSD program for fine particulate matter implementation in attainment and unclassifiable areas. Previously on February 9, 2011, we approved a revision to the Alaska SIP to provide authority to implement the PSD permitting program with respect to greenhouse gas emissions (76 FR 7116). Alaska's PSD program generally incorporates by reference the Federal PSD program requirements at 40 CFR 52.21. In some cases, ADEC adopted provisions of 40 CFR 51.166 rather than the comparable provisions of 40 CFR 52.21 because 40 CFR 51.166 was a better fit for a SIP-approved PSD program.

Upon finalization of the May 5, 2014, proposed approval of revisions to the Alaska PSD program, the State's Federally-approved SIP will incorporate by reference PSD requirements at 40 CFR 52.21 and 40 CFR 51.166 revised as of July 1, 2011. Therefore, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(C) with respect to PSD for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS. Final action is contingent upon the EPA first taking final action on the May 5, 2014, proposed approval of revisions to the Alaska SIP to reflect changes to the NAAQS and Federal PSD permitting requirements.

We note that on January 4, 2013, the U.S. Court of Appeals in the District of Columbia, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), issued a judgment that remanded two of the EPA's rules implementing the 1997 PM 2.5 NAAQS, including the “Implementation of New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 ),” (73 FR 28321, May 16, 2008) (2008 PM 2.5 NSR Implementation Rule). The court ordered the EPA to “repromulgate these rules pursuant to Subpart 4 consistent with this opinion.” Id. at 437. Subpart 4 of part D, title I of the CAA establishes additional provisions for particulate matter nonattainment areas. The 2008 PM 2.5 NSR Implementation Rule addressed by the court's decision promulgated NSR requirements for implementation of PM 2.5 in both nonattainment areas (nonattainment NSR) and attainment/unclassifiable areas (PSD). As the requirements of subpart 4 only pertain to nonattainment areas, the EPA does not consider the portions of the 2008 PM 2.5 NSR Implementation Rule that address requirements for PM 2.5 attainment and unclassifiable areas to be affected by the court's opinion. Moreover, the EPA does not anticipate the need to revise any PSD requirements promulgated in the 2008 PM 2.5 NSR Implementation Rule in order to comply with the court's decision. Accordingly, the EPA's proposed approval of elements 110(a)(2)(C), (D)(i)(II), and (J), with respect to the PSD requirements, does not conflict with the court's opinion. The EPA interprets the CAA section 110(a)(1) and (2) infrastructure submissions due three years after adoption or revision of a NAAQS to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which are due by the dates statutorily prescribed under subparts 2 through 5 under part D, extending as far as ten years following designations for some elements.

In addition, on January 22, 2013, the U.S. Court of Appeals for the District of Columbia, in Sierra Club v. EPA, 703 F.3d 458 (D.C. Cir. 2013), issued a judgment that, inter alia, vacated the provisions adding the PM 2.5 Significant Monitoring Concentration (SMC) to the Federal regulations, at 40 CFR 51.166(i)(5)(i)( c ) and 52.21(i)(5)(i)( c ), that were promulgated as part of the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less than 2.5 Micrometers (PM 2.5 )—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC); Final Rule,” (75 FR 64864, October 10, 2010) (2010 PSD PM 2.5 Implementation Rule). In its decision, the court held that the EPA did not have the authority to use SMCs to exempt permit applicants from the statutory requirement in section 165(e)(2) of the CAA that ambient monitoring data for PM 2.5 be included in all PSD permit applications. Thus, although the PM 2.5 SMC was not a required element of a state's PSD program, were a state PSD program that contains such a provision to use that provision to issue new permits without requiring ambient PM 2.5 monitoring data, such application of the vacated SMC would be inconsistent with the court's opinion and the requirements of section 165(e)(2) of the CAA.

This decision also, at the EPA's request, vacated and remanded to the EPA for further consideration the portions of the 2010 PSD PM 2.5 Implementation Rule that revised 40 CFR 51.166 and 40 CFR 52.21 related to Significant Impact Levels (SILs) for PM 2.5 . The EPA requested this vacatur and remand of two of the three provisions in the EPA regulations that contain SILs for PM 2.5 , because the wording of these two SIL provisions (40 CFR 51.166(k)(2) and 40 CFR 52.21(k)(2)) is inconsistent with the explanation of when and how SILs should be used by permitting authorities that we provided in the preamble to the Federal Register publication when we promulgated these provisions. The third SIL provision (40 CFR 51.165(b)(2)) was not vacated and remains in effect. The court's decision does not affect the PSD increments for PM 2.5 promulgated as part of the 2010 PSD PM 2.5 Implementation Rule.

We note that the EPA recently amended its regulations to remove the vacated PM 2.5 SILs and SMC provisions from PSD regulations on December 9, 2013 (78 FR 73698). In addition, the EPA will initiate a separate rulemaking in the future regarding the PM 2.5 SILs that will address the court's remand. In the meantime, we are advising states to begin preparations to remove the vacated provisions from state PSD regulations.

Because of the vacatur of the EPA regulations as they relate to the PM 2.5 SILs and SMC, and the EPA's December 9, 2013, rulemaking action, Alaska withdrew the rule revisions that would have implemented these vacated provisions. Please see our proposed action on May 5, 2014 (79 FR 25533). Therefore, in this action we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(C), (D)(i)(II) and (J) as those elements relate to a comprehensive PSD program.

Turning to the minor NSR requirement, we have determined that the Alaska minor NSR program regulates minor sources for purposes of the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS. Based on the foregoing, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(C) for the 1997 PM 2.5, 2006 PM 2.5 , and 2008 ozone NAAQS. Final action is contingent upon the EPA first taking final action on the May 5, 2014, proposed approval of revisions to the Alaska SIP to reflect changes to the NAAQS and Federal PSD permitting requirements.

CAA section 110(a)(2)(D)(i) requires state SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment, or interfering with maintenance of the NAAQS in another state (CAA section 110(a)(2)(D)(i)(I)). Further, this section requires state SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration (PSD) of air quality, or from interfering with measures required to protect visibility (i.e. measures to address regional haze) in any state (CAA section 110(a)(2)(D)(i)(II)). As noted above, this action also does not address the requirements of CAA section 110(a)(2)(D)(i) for the 1997 PM 2.5 NAAQS which we previously approved on October 15, 2008 (73 FR 60955). In addition, this action does not address the requirements of 110(a)(2)(D)(i)(I) for the 2006 PM 2.5 and 2008 ozone NAAQS, which we are addressing in a separate action (proposed April 28, 2014, 79 FR 23303). In this action, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(D)(i)(II) for the 2006 PM 2.5 and 2008 ozone NAAQS, and CAA section 110(a)(2)(D)(ii) for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS.

State submission: On March 29, 2011, Alaska submitted the “Alaska Interstate Transport of Pollution SIP” to address interstate transport requirements for multiple NAAQS, including the 2006 PM 2.5 and 2008 ozone NAAQS. For purposes of CAA section 110(a)(2)(D)(i)(II), the submission referenced the State's SIP-approved PSD program and the State's Regional Haze Plan. As a result of the State's analysis and consultation, Alaska concluded that emissions of fine particulate matter and its precursors and ozone precursors from sources in Alaska do not interfere with other states' efforts to prevent significant air quality degradation and protect visibility.

EPA analysis: As noted above, this action also does not address the requirements of CAA section 110(a)(2)(D)(i) for the 1997 PM 2.5 NAAQS which we previously approved on October 15, 2008 (73 FR 60955). In addition, this action does not address the requirements of 110(a)(2)(D)(i)(I) for the 2006 PM 2.5 and 2008 ozone NAAQS, which we are addressing in a separate action (proposed April 28, 2014, 79 FR 23303). In this action, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(D)(i)(II) for the 2006 PM 2.5 and 2008 ozone NAAQS, and CAA section 110(a)(2)(D)(ii) for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS.

CAA section 110(a)(2)(D)(i)(II) requires state SIPs to contain adequate provisions prohibiting emissions which will interfere with any other state's required measures to prevent significant deterioration (PSD) of its air quality (prong 3), and adequate provisions prohibiting emissions which will interfere with any other state's required measures to protect visibility (prong 4).

To address whether emissions from sources in Alaska interfere with any other state's required measures to prevent significant deterioration of air quality, the March 29, 2011, and July 9, 2012, submissions referenced the State's Federally-approved PSD program. The EPA originally approved Alaska's PSD program on February 16, 1995 (60 FR 8943), and most recently proposed approval of revisions on May 5, 2014 (79 FR 25533). Upon finalization of our May 5, 2014, proposed approval of revisions to the Alaska PSD program, the Alaska SIP will incorporate by reference Federal PSD requirements as of July 1, 2011. We believe that our proposed approval of element 110(a)(2)(D)(i)(II) is not affected by recent court vacaturs of EPA PSD implementing regulations. Please see our discussion at section 110(a)(2)(C). Therefore, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(D)(i)(II) with respect to PSD (prong 3) for the 2006 PM 2.5 and 2008 ozone NAAQS. Final action is contingent upon the EPA first taking final action on the May 5, 2014, proposed approval of revisions to the Alaska SIP to reflect changes to the NAAQS and Federal PSD permitting requirements.

To address whether emissions from sources in Alaska interfere with any other state's required measures to protect visibility, Alaska's submissions reference the Alaska Regional Haze SIP, which was submitted to the EPA on March 29, 2011. The Alaska Regional Haze SIP addresses visibility impacts across states within the region. On February 14, 2013, the EPA approved the Alaska Regional Haze SIP, including the requirements for best available retrofit technology (78 FR 10546).

The EPA believes, as noted in the September 13, 2013, infrastructure guidance, that with respect to the CAA section 110(a)(2)(D)(i)(II) visibility sub-element, where a state's regional haze SIP has been approved as meeting all current obligations, a state may rely upon those provisions in support of its demonstration that it satisfies the requirements of CAA section 110(a)(2)(D)(i)(II) as it relates to visibility. Because the Alaska Regional Haze SIP was found to meet Federal requirements, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(D)(i)(II) as it applies to visibility for the 2006 PM 2.5 and 2008 ozone NAAQS (prong 4).

CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions insuring compliance with the applicable requirements of CAA sections 126 and 115 (relating to interstate and international pollution abatement). Specifically, CAA section 126(a) requires new or modified major sources to notify neighboring states of potential impacts from the source.

State submission: The July 9, 2012, submission references the State's Federally-approved PSD program. The submission also references SIP revisions submitted by ADEC for purposes of implementing PM 2.5 requirements in the Alaska PSD program.

EPA analysis: The EPA originally approved Alaska's PSD program on February 16, 1995 (60 FR 8943), and most recently proposed approval of revisions on May 5, 2014 (79 FR 25533). In general, ADEC incorporates by reference the Federal PSD rules at 40 CFR 52.21. In some cases, ADEC adopted provisions of 40 CFR 51.166, rather than the comparable provisions of 40 CFR 52.21, because 40 CFR 51.166 was a better fit for a SIP-approved PSD program.

At 18 AAC 50.306(b), Alaska's Federally-approved SIP incorporates by reference the general provisions of 40 CFR 51.166(q)(2) to describe the public participation procedures for PSD permits, including requiring notice to states whose lands may be affected by the emissions of sources subject to PSD. As a result, Alaska's PSD regulations provide for notice consistent with the requirements of the EPA PSD program. Alaska also has no pending obligations under section 115 or 126(b) of the CAA. Therefore, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(D)(ii) for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS. Final action is contingent upon the EPA first taking final action on the May 5, 2014, proposed approval of revisions to the Alaska SIP to reflect changes to the NAAQS and Federal PSD permitting requirements.

CAA section 110(a)(2)(E) requires each state to provide (i) necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out the SIP (and is not prohibited by any provision of Federal or state law from carrying out the SIP or portion thereof), (ii) requirements that the state comply with the requirements respecting state boards under CAA section 128 and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any SIP provision, the state has responsibility for ensuring adequate implementation of such SIP provision.

State submission: The July 9, 2012, submission states that ADEC maintains adequate personnel, funding, and authority to implement the SIP. The submission refers to AS 46.14.030 “State Air Quality Control Plan” which provides ADEC statutory authority to act for the state and adopt regulations necessary to implement the State air plan. The submission also references 18 AAC 50.030 “State Air Quality Control Plan” which provides regulatory authority to implement and enforce the SIP.

With respect to CAA section 110(a)(2)(E)(ii), the submission states that Alaska's regulations on “conflict of interest” are found in Title 2-Administration, Chapter 50 Alaska Public Offices Commission: Conflict of Interest, Campaign Disclosure, Legislative Financial Disclosure, and Regulations of Lobbying (2 AAC 50.010—2 AAC 50.920). Regulations concerning financial disclosure are found in Title 2, Chapter 50, Article 1—Public Official Financial Disclosure. There are no state air quality boards in Alaska, however, the ADEC commissioner, as an appointed official and the head of an executive agency, is required to file a financial disclosure statement annually by March 15th of each year with the Alaska Public Offices Commission (APOC). These disclosures are publicly available through APOC's Anchorage office. Alaska's Public Officials Financial Disclosure Forms and links to Alaska's financial disclosure regulations can be found at the APOC Web site: http://doe.alaska.gov/apoc/home.html. Additional links to Alaska's ethics statutes and regulations are found at http://law.alaska.gov/doclibrary/ethics.html.

With respect to CAA section 110(a)(2)(E)(iii) and assurances that the state has responsibility for ensuring adequate implementation of the plan where the state has relied on local or regional government agencies, the submission states that ADEC insures local programs have adequate resources and documents this in the appropriate SIP section. Statutory authority for establishing local air pollution control programs is found at AS 46.14.400 “Local air quality control programs.”

The submission also states that ADEC provides technical assistance and regulatory oversight to the Municipality of Anchorage (MOA), Fairbanks North Star Borough (FNSB) and other local jurisdictions to ensure that the State Air Quality Control Plan and SIP objectives are satisfactorily carried out. ADEC has a Memorandum of Understanding with the MOA and FNSB that allows them to operate air quality control programs in their respective jurisdictions. The South Central Clean Air Authority has been established to aid the MOA and the Matanuska-Susitna Borough in pursuing joint efforts to control emissions and improve air quality in the air-shed common to the two jurisdictions. In addition, ADEC indicates the department works closely with locals on nonattainment plans.

EPA analysis: We are proposing to find that the Alaska SIP meets the adequate personnel, funding and authority requirements of CAA section 110(a)(2)(E)(i). Alaska receives sections 103 and 105 grant funds from the EPA and provides state matching funds necessary to carry out SIP requirements. For purposes of CAA section 110(a)(2)(E)(ii), we previously approved Alaska's conflict of interest disclosure and ethics regulations as meeting the requirements of CAA section 128 on October 22, 2012 (77 FR 64427). In addition, we are proposing to find that the State has provided necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any SIP provision, the State has responsibility for ensuring adequate implementation of the SIP with respect to the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS as required by CAA section 110(a)(2)(E)(iii). Therefore we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(E) for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS.

CAA section 110(a)(2)(F) requires (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to the CAA, which reports shall be available at reasonable times for public inspection.

State submission: The July 9, 2012, submission states that ADEC has general statutory authority to regulate stationary sources via an air permitting program which includes permit reporting requirements, completeness determinations, administrative actions, and stack source monitoring requirements. The submission states ADEC has regulatory authority to determine compliance with these statutes via information requests and ambient air quality investigations. Monitoring protocols and test methods for stationary sources have been adopted by reference including the Federal reference and interpretation methods for particulate matter.

The submission references the State's Federally-approved PSD program originally approved on February 16, 1995 (60 FR 8943) and more recently approved on August 14, 2007 (72 FR 45378). Ambient air quality and meteorological data that are collected for PSD purposes by stationary sources are reported to ADEC on a quarterly and annual basis.

The submission refers to the following statutory and regulatory provisions which provide authority and requirements for source emissions monitoring, reporting, and correlation with emission limits or standards:

• AS 46.14.140: Emission control permit program regulations.

• AS 46.14.180: Monitoring.

• 18 AAC 50.035: Documents, Procedures, and Methods Adopted by Reference.

• 18 AAC 50.040: Federal Standards Adopted by Reference.

• 18 AAC 50.200: Information Requests.

• 18 AAC 50.201: Ambient Air Quality Investigation.

• 18 AAC 50.220: Enforceable test methods.

• 18 AAC 50.306: Prevention of Significant Deterioration Permits.

• 18 AAC 50.345: Construction and Operating Permits: Standard Permit Conditions.

EPA analysis: The Alaska SIP establishes compliance requirements for sources subject to major and minor source permitting to monitor emissions, keep and report records, and collect ambient air monitoring data. 18 AAC 50.200 “Information Requests” provides ADEC authority to issue information requests to an owner, operator, or permittee for purposes of ascertaining compliance. 18 AAC 50.201 “Ambient Air Quality Investigations” provides authority to require an owner, operator, or permittee to evaluate the effect emissions from the source have on ambient air quality. In addition, 18 AAC 50.306 “Prevention of Significant Deterioration Permits” and 18 AAC 50.544 “Minor Permits: Content” provide for establishing permit conditions to require the permittee to install, use and maintain monitoring equipment, sample emissions, provide source test reports, monitoring data, emissions data, and information from analysis, keep records and make periodic reports on process operations and emissions. This information is made available to the public through public processes outlined in these SIP-approved rules.

Additionally, the State is required to submit emissions data to the EPA for purposes of the National Emissions Inventory (NEI). The NEI is the EPA's central repository for air emissions data. The EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through the EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and their associated precursors—nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. The EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html.

Based on the above analysis, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS.

CAA section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial endangerment to public health, including contingency plans to implement the emergency episode provisions in their SIPs.

State submission: The July 9, 2012, submission cites AS 46.03.820 “Emergency powers” which provides ADEC with emergency order authority where there is an imminent or present danger to the health or welfare of the people of the state or would result in or be likely to result in irreversible or irreparable damage to the natural resources or environment. The submission also refers to18 AAC 50.245 “Air Episodes and Advisories” which authorizes ADEC to declare an air alert, air warning, or air advisory to notify the public and prescribe and publicize curtailment action. The submission states that ADEC is working to update this rule for purposes of PM 2.5.

The three major municipalities in Alaska (Anchorage, Fairbanks, and Juneau) also have ordinances, codes, or regulations that enable them to declare emergencies in the case of poor air quality due to forest fires, volcanoes, wood smoke or other air quality problem. ADEC is working with the FNSB to develop an Emergency Episode Contingency Plan for PM 2.5 for the FNSB nonattainment area as outlined in 40 CFR subpart H—Prevention of Air Pollution Emergency Episodes, and in Appendix L to subpart 51 “Example Regulations for Prevention of Air Pollution Emergency Episodes.” ADEC personnel remain in close contact with each municipality when an air emergency is declared, assisting with air monitoring and analysis, and implementing safety and control measures, as needed.

EPA analysis: Section 303 of the CAA provides authority to the EPA Administrator to restrain any source from causing or contributing to emissions which present an “imminent and substantial endangerment to public health or welfare, or the environment.” The EPA finds that AS 46.03.820 “Emergency Powers” provides emergency order authority comparable to CAA Section 303. We also find that Alaska's emergency episode rule at 18 AAC 50.245 “Air Episodes and Advisories,” most recently approved by the EPA on August 14, 2007 (72 FR 45378), is consistent with the requirements of 40 CFR part 51 subpart H (prevention of air pollution emergency episodes, sections 51.150 through 51.153) for purposes of the 2008 ozone NAAQS. Because Alaska's SIP revision for PM 2.5 emergency episode planning is in development and has not yet been submitted to the EPA, we are deferring action on this element for purposes of the 1997 and 2006 PM 2.5 NAAQS. We will address the requirements in a separate action.

Based on the foregoing, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 2008 ozone NAAQS.

CAA section 110(a)(2)(H) requires that SIPs provide for revision of such plan (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii), except as provided in paragraph 110(a)(3)(C), whenever the Administrator finds on the basis of information available to the Administrator that the SIP is substantially inadequate to attain the NAAQS which it implements or to otherwise comply with any additional requirements under the CAA.

State submission: The July 9, 2012, submission refers to statutory authority to adopt regulations in order to implement the CAA and the state air quality control program at AS 46.03.020(10)(A) “Powers of the Department” and AS 46.14.010(a) “Emission Control Regulations.” The submission also refers to regulatory authority to implement provisions of the CAA at 18 AAC 50.010 “Ambient Air Quality Standards.” The submission affirms that ADEC regularly update the Alaska SIP as new NAAQS are promulgated by the EPA.

EPA analysis: As cited above, the Alaska SIP provides for revisions, and in practice, Alaska regularly submits SIP revisions to the EPA to take into account revisions to the NAAQS and other Federal regulatory changes. On May 5, 2014, the EPA proposed to approve numerous revisions to the Alaska SIP, including updates to Alaska's rules to reflect recent Federal changes to the NAAQS and permitting requirements (79 FR 25533). We previously approved revisions to the Alaska SIP on August 9, 2013 (78 FR 48611), May 9, 2013 (78 FR 27071) and January 7, 2013 (78 FR 900). We are proposing to approve the Alaska SIP as meeting the requirements of section 110(a)(2)(H) for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS.

EPA analysis: There are two elements identified in CAA section 110(a)(2) not governed by the three-year submission deadline of CAA section 110(a)(1), because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but are rather due at the time of the nonattainment area plan requirements pursuant to section 172 and the various pollutant specific subparts 2-5 of part D. These requirements are: (i) Submissions required by CAA section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D, title I of the CAA, and (ii) submissions required by CAA section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, title I of the CAA. As a result, this action does not address infrastructure elements related to CAA section 110(a)(2)(C) with respect to nonattainment NSR or CAA section 110(a)(2)(I).

CAA section 110(a)(2)(J) requires states to provide a process for consultation with local governments and Federal Land Managers carrying out NAAQS implementation requirements pursuant to Section 121. CAA section 110(a)(2)(J) further requires states to notify the public if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances. Lastly, CAA section 110(a)(2)(J) requires states to meet applicable requirements of part C, title I of the CAA related to prevention of significant deterioration and visibility protection.

State submission: The July 9, 2012, submission refers to statutory authority to consult and cooperate with officials of local governments, state and Federal agencies, and non-profit groups found at AS 46.030.020 “Powers of the department” paragraphs (3) and (8). The submission states that municipalities and local air quality districts seeking approval for a local air quality control program shall enter into a cooperative agreement with ADEC according to AS 46.14.400 “Local air quality control programs” paragraph (d). ADEC can adopt new CAA regulations only after a public hearing as per AS 46.14.010 “Emission control regulations” paragraph (a). In addition, the submission states that public notice and public hearing regulations for SIP submission and air quality discharge permits are found at 18 AAC 15.050 and 18 AAC 15.060. Finally, the submission also references the Federally-approved Alaska PSD program originally approved on February 16, 1995 (60 FR 8943), and Alaska's Regional Haze SIP submitted to the EPA on March 29, 2011.

EPA analysis: The EPA finds that the Alaska SIP contains provisions for consulting with government officials as specified in CAA section 121, including the Alaska rules for major source permitting. Alaska's PSD program provides opportunity and procedures for public comment and notice to appropriate Federal, state and local agencies. We most recently proposed approval of revisions to the Alaska PSD program on May 5, 2014 (79 FR 25533). In addition, the EPA approved the Alaska rules that define transportation conformity consultation on December 29, 1999 (64 FR 72940). Finally, on February 14, 2013, we approved the Alaska Regional Haze SIP (78 FR 10546).

ADEC routinely coordinates with local governments, states, Federal land managers and other stakeholders on air quality issues including transportation conformity and regional haze, and provides notice to appropriate agencies related to permitting actions. Alaska regularly participates in regional planning processes including the Western Regional Air Partnership which is a voluntary partnership of states, tribes, Federal land managers, local air agencies and the EPA whose purpose is to understand current and evolving regional air quality issues in the West. Therefore, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(J) for consultation with government officials for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS.

Section 110(a)(2)(J) also requires the public be notified if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances. ADEC is a partner in the EPA's AIRNOW and Enviroflash Air Quality Alert programs, which provide air quality information to the public for five major air pollutants regulated by the CAA: ground-level ozone, particulate matter, carbon monoxide, sulfur dioxide, and nitrogen dioxide. Alaska also provides real-time air monitoring information to the public on the ADEC air quality Web site at http://dec.alaska.gov/applications/air/envistaweb/ , in addition to air advisory information. During the summer months, the Fairbanks North Star Borough prepares a weekly Air Quality forecast for the Fairbanks area. The forecast is on their Web site ( http://co.fairbanks.ak.us/airquality/ ).

We are therefore proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(J) for public notification for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS.

Turning to the requirement in CAA section 110(a)(2)(J) that the SIP meet the applicable requirements of part C of title I of the CAA, we have evaluated this requirement in the context of CAA section 110(a)(2)(C) with respect to permitting. The EPA originally approved Alaska's PSD program on February 16, 1995 (60 FR 8943), and most recently proposed to approve revisions on May 5, 2014 (79 FR 25533). Alaska's PSD program generally incorporates by reference the Federal PSD program requirements at 40 CFR 52.21. In some cases, ADEC adopted provisions of 40 CFR 51.166, rather than the comparable provisions of 40 CFR 52.21, because 40 CFR 51.166 was a better fit for a SIP-approved PSD program. Upon finalization of our May 5, 2014 proposed approval, the State's Federally-approved SIP will incorporate by reference PSD requirements at 40 CFR 52.21 and 40 CFR 51.166 revised as of July 1, 2011. We are therefore proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(J) for PSD for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS. Final action is contingent upon the EPA first taking final action on the May 5, 2014, proposed approval of revisions to the Alaska SIP to reflect changes to the NAAQS and Federal PSD permitting requirements. We note that we believe that our proposed approval of element 110(a)(2)(J) with respect to PSD is not affected by recent court vacaturs of the EPA's PSD implementing regulations. Please see our discussion above regarding section 110(a)(2)(C).

With respect to the applicable requirements for visibility protection, the EPA recognizes that states are subject to visibility and regional haze program requirements under part C of the CAA. In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus we find that there is no new applicable requirement related to visibility triggered under CAA section 110(a)(2)(J) when a new NAAQS becomes effective.

Based on the analysis above, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 1997 PM 2.5 , 2006 p.m. 2.5, and 2008 ozone NAAQS. Final action is contingent upon the EPA first taking final action on the May 5, 2014, proposed approval of revisions to the Alaska SIP to reflect changes to the NAAQS and Federal PSD permitting requirements.

CAA section 110(a)(2)(K) requires that SIPs provide for (i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a national ambient air quality standard, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator.

State submission: The July 9, 2012, submission states that air quality modeling is regulated under 18 AAC 50.215(b) “Ambient Air Quality Analysis Methods.” Estimates of ambient concentrations and visibility impairment must be based on applicable air quality models, databases, and other requirements specified in the “EPA's Guideline on Air Quality Models” which is adopted by reference in 18 AAC 50.040 “Federal Standards Adopted by Reference.” Baseline dates and maximum allowable increases are found in Table 2 and Table 3, respectively, at 18 AAC 50.020 “Baseline Dates and Maximum Allowable Increases.”

EPA analysis: On May 5, 2014, we proposed to approve revisions to 18 AAC 50.215 “Ambient Air Quality Analysis Methods” and 18 AAC 50.040(f) “Federal Standards Adopted by Reference” (79 FR 25533). After finalizing our May 5, 2014, action, 18 AAC 50.040(f) “Federal Standards Adopted by Reference” will incorporate by reference the EPA regulations at 40 CFR Part 51, Appendix W (Guidelines on Air Quality Models) revised as of July 1, 2011. In addition, as an example of Alaska's modeling capacity, the State submitted the Fairbanks Carbon Monoxide Maintenance Plan to the EPA on June 21, 2004, supported by air quality modeling. The maintenance plan and supporting modeling was approved by the EPA as a SIP revision on July 27, 2004 (69 FR 44605). Therefore, we are proposing to approve the Alaska SIP as meeting the requirements of CAA Section 110(a)(2)(K) for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS.

CAA section 110(a)(2)(L) requires SIPs to require each major stationary source to pay permitting fees to cover the cost of reviewing, approving, implementing and enforcing a permit.

State submission: The July 9, 2012, submission states that ADEC's statutory authority to assess and collect permit fees is established in AS 46.14.240 “Permit Administration Fees” and AS 46.14.250 “Emission Fees.” The permit fees for title V stationary sources are assessed and collected by the Air Permits Program according to 18 AAC 50, Article 4. ADEC is required to evaluate emission fee rates at least every four years and provide a written evaluation of the findings (AS 46.14.250(g); 18 AAC 50.410). The submission states that ADEC's most recent emission fee evaluation report was completed in October 2010 and that the next emission fee review is scheduled for 2014.

EPA analysis: The EPA fully approved Alaska's title V program on July 26, 2001 (66 FR 38940) with an effective data of September 24, 2001. While Alaska's operating permit program is not formally approved into the SIP, it is a legal mechanism the State can use to ensure that ADEC has sufficient resources to support the air program, consistent with the requirements of the SIP. Before the EPA can grant full approval, a state must demonstrate the ability to collect adequate fees. The Alaska title V program included a demonstration the state will collect a fee from title V sources above the presumptive minimum in accordance with 40 CFR 70.9(b)(2)(i). In addition, Alaska regulations at 18 AAC 50.306(d)(2) and 18 AAC 50.311(d)(2) require fees for purposes of major NSR permitting as specified in 18 AAC 50.400 through 18 AAC 50.499. Therefore, we are proposing to conclude that Alaska has satisfied the requirements of CAA section 110(a)(2)(L) for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS.

CAA section 110(a)(2)(M) requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP.

State submission: The July 9, 2012, submission states that ADEC has authority to consult and cooperate with officials and representatives of any organization in the state; and persons, organization, and groups, public and private using, served by, interested in, or concerned with the environment of the state. Alaska refers to AS 46.030.020 “Powers of the department” paragraphs (3) and (8) which provides authority to ADEC to consult and cooperate with affected state and local entities. In addition, AS 46.14.400 “Local air quality control programs” paragraph (d) provides authority for local air quality control programs and requires cooperative agreements between ADEC and local air quality control programs that specify the respective duties, funding, enforcement responsibilities, and procedures.

EPA analysis: The EPA finds that the Alaska provisions cited above provide for local and regional authorities to participate and consult in the SIP development process. Therefore we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(M) for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS.

We are proposing to approve the Alaska SIP as meeting the following CAA section 110(a)(2) infrastructure elements for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS: (A), (B), (C), (D)(ii), (E), (F), (H), (J), (K), (L), and (M). We are also proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(D)(i)(II) as it applies to prevention of significant deterioration and visibility for the 2006 PM 2.5 and 2008 ozone NAAQS. In addition, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 2008 ozone NAAQS. As discussed above, final action is contingent upon the EPA first taking final action on the May 5, 2014, proposed approval of revisions to the Alaska SIP to reflect changes to the NAAQS and Federal PSD permitting requirements (79 FR 25533).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves the state's law as meeting Federal requirements and does not impose additional requirements beyond those imposed by the state's 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 Order 12866 (58 FR 51735, October 4, 1993);

• 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 it does not involve technical standards; and

• Does not provide the 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 rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in Alaska, and the EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

Definitions

For the purpose of this document, we are giving meaning to certain words or initials as follows:

1. Submitting Confidential Business Information (CBI). Do not submit this information to EPA through www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register , date, and page number);

• Follow directions and organize your comments;

• Explain why you agree or disagree;

• Suggest alternatives and substitute language for your requested changes;

• Describe any assumptions and provide any technical information and/or data that you used;

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced;

• Provide specific examples to illustrate your concerns, and suggest alternatives;

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats; and

• Make sure to submit your comments by the comment period deadline identified.

In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain enforceable emission limitations and, in accordance with the definition of “emission limitations” in CAA section 302(k), such emission limitations must be continuous. In addition, under CAA section 304(a), any person may bring a civil action against any person alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of an “emission standard or limitation” under the CAA. For the purposes of section 304, “emission standard or limitation” is defined in section 304(f) and includes SIP emission limitations. Thus, SIP emissions limitations can be enforced in a section 304 action and so must be capable of enforcement. SIP provisions that create exemptions such that excess emissions during startup, shutdown, malfunctions (SSM) and other conditions are not violations of the applicable emission limitations are inconsistent with these fundamental requirements of the CAA with respect to emission limitations in SIPs.

WAQSR Chapter 3, section 2(d) created an exemption for particulate matter emissions in excess of a 30 percent opacity standard from diesel engines during startup, malfunction, and maintenance. Because this provision allowed exemptions from the otherwise applicable SIP emission limit, it was inconsistent with CAA requirements.

On June 30, 2011, the Sierra Club filed with the EPA Administrator a petition for rulemaking concerning states' treatment of excess emissions from sources during SSM events (the Petition). 1 In the Petition, the Sierra Club identified existing SIP provisions in 39 states that the Sierra Club considered inconsistent with the CAA, including one provision in the Wyoming SIP. Specifically, the Sierra Club argued that WAQSR Chapter 3, “General Emission Standards,” section 2, “Emission standards for particulate matter,” subsection (d) “is contrary to EPA policy for source category specific rules for startup and shutdown.”  2

On February 22, 2013, EPA published a proposed rulemaking in which (among other things) we proposed to grant the Petition as it pertained to WAQSR Chapter 3, section 2(d). 78 FR 12460, 12533. We concurred with Sierra Club's assertion that this provision is inconsistent with the requirements of the CAA. For this reason, we proposed to find that WAQSR Chapter 3, section 2(d) is substantially inadequate to meet CAA requirements, and concurrently proposed to issue a SIP call for this provision.

On February 10, 2014, WDEQ submitted to EPA SIP revisions that included the removal of the problematic language in WAQSR Chapter 3, section 2(d), as well as updates to the State's incorporation by reference (IBR) of federal regulations. The State's IBR updates will be acted upon in a separate rulemaking.

Under CAA section 107, states have the primary authority and responsibility to develop and implement SIPs that provide for attainment, maintenance, and enforcement of the National Ambient Air Quality Standards and meet other CAA requirements. Pursuant to CAA section 110(k), EPA has the authority and responsibility to review state SIP submissions to assure that they meet all applicable requirements. CAA section 110(l) prohibits EPA from approving a SIP revision that (among other things) would interfere with any applicable requirement of the CAA. In this instance, the State has elected to revise its existing SIP by editing a previously approved provision that created exemptions from otherwise applicable emission limitations in the SIP.

The State made two edits to WAQSR Chapter 3, section 2(d). Notably, the sentence that read “This limitation shall not apply during a reasonable period of warmup following a cold start or where undergoing repairs and adjustment following malfunction” was struck from the provision.

We consider this change sufficient to correct the provision's inadequacy and to meet the requirements of the CAA. 3 As a result of the removal of the problematic language from WAQSR Chapter 3, section 2(d), the improper exemptions from the emissions limitation contained within this provision will no longer be available to sources. EPA's proposed approval is also consistent with CAA section 110(l) because approval will not interfere with any applicable requirement of the CAA. Specifically, removal of the exemptions will not relax the existing emission limitation in the SIP and will in fact be more protective. Furthermore, this revision will render the revised emissions limitation consistent with the requirements of the CAA for SIP provisions by making it continuously applicable and more enforceable. Therefore, we are proposing to approve the removal of this language from the provision. 4

Wyoming also added language to WAQSR Chapter 3, section 2(d) clarifying that the provision applies to both stationary and portable diesel engines. EPA finds no issue with this clarifying language and therefore proposes to approve this change as well.

We are proposing to approve the revisions to WAQSR Chapter 3, section 2(d) of the Wyoming SIP, as reflected in the State's February 10, 2014 submission.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 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 Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 USC 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 USC 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 USC 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 does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

Invitation to Comment

The Department invites you to submit comments regarding these proposed regulations. To ensure that your comments have maximum effect in developing the final regulations, the Department urges you to identify clearly the specific section or sections of the proposed regulations that each of your comments addresses and to arrange your comments in the same order as the proposed regulations.

The Department invites you to assist us in complying with the specific requirements of Executive Order 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department's programs and activities.

During and after the comment period, you may inspect all public comments about these proposed regulations by accessing Regulations.gov. You may also inspect the comments in person in Room 7172, Potomac Center Plaza, 550 12th Street SW., Washington, DC, between 8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of each week except Federal holidays. Please contact the person listed under FOR FURTHER INFORMATION CONTACT .

Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record: On request we will provide an appropriate accommodation or auxiliary aid to any individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT .

The uniform regulation for the procurement of supplies and services by Federal Departments and Agencies, the FAR, was promulgated on September 19, 1983 (48 FR 42102). The FAR is codified in title 48, chapter 1, of the Code of Federal Regulations. The Department promulgated the EDAR to implement the FAR on May 23, 1988 (53 FR 19119).

The EDAR (title 48, chapter 34 of the Code of Federal Regulations) is prescribed under 5 U.S.C. 301 and the general authorization in FAR 1.301. The last revision of the EDAR was published in the Federal Register on March 8, 2011 (76 FR 12796).

We discuss substantive issues under the sections of the proposed regulations to which they pertain. Generally, we do not address proposed regulatory changes that are technical or otherwise minor in effect.

These proposed regulations would amend the EDAR as follows:

Accordingly, the Secretary proposes to amend title 48 of the Code of Federal Regulations, chapter 34 as follows:

The Delaware Fish and Wildlife Department (DFW) requested that the Mid-Atlantic Fishery Management Council designate five artificial reef sites, currently permitted by the U.S. Corps of Engineers in the Exclusive Economic Zone (EEZ), as Special management Zones (SMZs) under the regulations implementing the Council's Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP). The SMZ request noted that the DFW has received complaints from hook-and-line anglers regarding fouling of their fishing gear in commercial pots and lines on ocean reef sites for more than 10 years. It also noted that the U.S. Fish and Wildlife Service (FWS) Sportfish Restoration Program had notified DFW that these gear conflicts are not consistent with the objectives of the Sportfish Restoration Program, which provides funding for the building and maintenance of the artificial reefs. In order to comply with the goals of the Sportfish Restoration Program, the FWS is requiring that state artificial reef programs be able to limit gear conflicts by state regulations in state waters or by SMZs for sites in the EEZ.

After considering the DFW request, the Council recommended that all five artificial reefs be established as SMZs through a regulatory amendment. The action, as proposed, would allow only hook-and-line and spear fishing (including the taking of fish by hand) in the artificial reef designated areas, and these measures should be implemented with a 500-yard (457.2-m) enforcement buffer around each artificial reef site. In response to the Council's recommendation, NMFS developed a Draft Environmental Assessment and a proposed rule to implement the SMZs measures, as recommended by the Council, published in the Federal Register on June 19, 2014, (79 FR 35141), with a 45-day comment period that closes August 4, 2014.

Summer flounder, scup, and black sea bass are managed jointly by the Council and Atlantic States Marine Fisheries Commission. The comment period on the proposed rule is scheduled to close on August 4, 2014, the day before the start of the next meeting of the Commission, and a week before the next Council meeting. In order to provide further opportunity for the Commission and Council to formulate comments, and give more opportunity for the public to review and provide comments on the proposed rule to implement SMZs for five Delaware artificial reefs, NMFS is extending the comment period on the proposed rule until August 19, 2014.