[Federal Register Volume 77, Number 140 (Friday, July 20, 2012)]
[Proposed Rules]
[Pages 42682-42686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17768]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0343; FRL-9701-8]


Approval and Promulgation of Air Quality Implementation Plan; 
Alabama; Disapproval of 110(a)(2)(E)(ii) Infrastructure Requirement for 
the 1997 Annual and 2006 24-Hour PM2.5 Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove a portion of the State 
Implementation Plan (SIP) submissions, submitted by the State of 
Alabama, through the Alabama Department of Environmental Management 
(ADEM), on July 25, 2008, and on September 23, 2009, to demonstrate 
that the State meets requirements of sections 110(a)(1) and (2) of the 
Clean Air Act (CAA or Act) for the 1997 annual and 2006 24-hour fine 
particulate matter (PM2.5) national ambient air quality 
standards (NAAQS). Section 110(a) of the CAA requires that each state 
adopt and submit a SIP for the implementation, maintenance and 
enforcement of each NAAQS promulgated by EPA, which is commonly 
referred to as an ``infrastructure'' SIP. Specifically, EPA is 
proposing to disapprove sub-element 110(a)(2)(E)(ii) that requires the 
State to comply with section 128 of the CAA. EPA is taking a separate 
action to address all the other infrastructure elements for the 1997 
annual and 2006 24-hour PM2.5 NAAQS.

DATES: Comments must be received on or before August 20, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0343 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (404) 562-9019.
    4. Mail: EPA-R04-OAR-2012-0343, Regulatory Development Section, Air 
Planning Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief, 
Regulatory Development Section, Air Planning Branch, Air, Pesticides 
and Toxics Management Division, U.S. Environmental Protection Agency, 
Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Such 
deliveries are only accepted during the Regional Office's normal hours 
of operation. The Regional Office's official hours of business are 
Monday through Friday, 8:30 to 4:30, excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2012-0343.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit through

[[Page 42683]]

www.regulations.gov or email, information that you consider to be CBI 
or otherwise protected. The www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to EPA without 
going through www.regulations.gov, your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 
562-9043. Mr. Lakeman can be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: This section provides additional information 
by addressing the following questions:

I. What action is EPA proposing in today's rulemaking?
II. What is the background for this proposed action?
III. What is EPA's analysis of Alabama's submission for section 
110(a)(2)(E)(ii) for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. What action is EPA proposing in today's rulemaking?

    On July 25, 2008, and on September 23, 2009, the State of Alabama, 
through ADEM, provided submissions to EPA certifying that the Alabama 
SIP meets the requirements of sections 110(a)(1) and (2) of the CAA for 
the 1997 annual and 2006 24-hour PM2.5 NAAQS.\1\ 
Specifically, Alabama certified that its current SIP adequately 
addresses the elements of CAA section 110(a)(2)(E)(ii) for the 1997 
annual and 2006 24-hour PM2.5 NAAQS. CAA section 
110(a)(2)(E)(ii) requires that states comply with the requirements 
respecting state boards pursuant to section 128 of the Act. In today's 
action, EPA is proposing to disapprove the portion of Alabama's July 
25, 2008, and September 23, 2009, submissions related to the 
requirements respecting state boards for the 1997 annual and 2006 24-
hour PM2.5 NAAQS because EPA has made the preliminary 
determination that these submissions do not meet the requirements of 
section 110(a)(2)(E)(ii) of the CAA for this NAAQS. EPA's rationale for 
this proposed disapproval is provided in the Section III of this 
rulemaking.
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    \1\ Alabama's July 25, 2008, and September 23, 2009, submissions 
explained that Alabama's current SIP sufficiently addresses 
requirements of section 110(a)(2) for the 1997 annual and 2006 24-
hour PM2.5 NAAQS, however, today's proposed action only 
relates to the section 110(a)(2)(E)(ii) requirements for the 1997 
annual and 2006 24-hour PM2.5 NAAQS. EPA is addressing 
the other section 110(a)(2) requirements for the 1997 annual and 
2006 24-hour PM2.5 NAAQS in relation to Alabama's SIP in 
rulemaking separate from today's proposed rulemaking.
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II. What is the background for this proposed action?

    On July 18, 1997 (62 FR 38652), EPA established an annual 
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\) 
based on a 3-year average of annual mean PM2.5 
concentrations. At that time, EPA also established a 24-hour NAAQS of 
65 [mu]g/m\3\. See 40 CFR 50.7. On October 17, 2006 (71 FR 61144), EPA 
retained the 1997 annual PM2.5 NAAQS at 15.0 [mu]g/m\3\ 
based on a 3-year average of annual mean PM2.5 
concentrations, and promulgated a new 24-hour NAAQS of 35 [mu]g/m\3\ 
based on a 3-year average of the 98th percentile of 24-hour 
concentrations. By statute, 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. Sections 110(a)(1) and 
(2) require states to address basic SIP requirements, including 
emissions inventories, monitoring, and modeling to assure attainment 
and maintenance of the NAAQS. States were required to submit such SIPs 
to EPA no later than July 2000 for the 1997 annual PM2.5 
NAAQS, no later than October 2009 for the 2006 24-hour PM2.5 
NAAQS.
    On March 4, 2004, Earthjustice submitted a notice of intent to sue 
related to EPA's failure to issue findings of failure to submit related 
to the ``infrastructure'' requirements for the 1997 annual 
PM2.5 NAAQS. On March 10, 2005, EPA entered into a consent 
decree with Earthjustice which required EPA, among other things, to 
complete a Federal Register notice announcing EPA's determinations 
pursuant to section 110(k)(1)(B) as to whether each state had made 
complete submissions to meet the requirements of section 110(a)(2) for 
the 1997 PM2.5 NAAQS by October 5, 2008. In accordance with 
the consent decree, EPA made completeness findings for each state based 
upon what the Agency received from each state for the 1997 
PM2.5 NAAQS as of October 3, 2008.
    On October 22, 2008, EPA published a final rulemaking entitled 
``Completeness Findings for Section 110(a) State Implementation Plans 
Pertaining to the Fine Particulate Matter (PM2.5) NAAQS'' 
making a finding that each state had submitted or failed to submit a 
complete SIP that provided the basic program elements of section 
110(a)(2) necessary to implement the 1997 PM2.5 NAAQS (see 
73 FR 62902). For those states that did receive findings, the findings 
of failure to submit for all or a portion of a state's implementation 
plan established a 24-month deadline for EPA to promulgate a federal 
implementation plan (FIP) to address the outstanding SIP elements 
unless, prior to that time, the affected states submitted, and EPA 
approved, the required SIPs. The findings that all or portions of a 
state's submission are complete established a 12-month deadline for EPA 
to take action upon the complete SIP elements in accordance with 
section 110(k).

[[Page 42684]]

    Alabama's infrastructure submissions were received by EPA on July 
25, 2008, for the 1997 annual PM2.5 NAAQS, and on September 
23, 2009, for the 2006 24-hour PM2.5 NAAQS. The submissions 
were determined to be complete on January 25, 2009, and March 23, 2010, 
respectively. Alabama was among other states that did not receive 
findings of failure to submit because it had provided a complete 
submission to EPA to address the infrastructure elements for the 1997 
PM2.5 NAAQS by October 3, 2008.
    On July 6, 2011, WildEarth Guardians and Sierra Club filed an 
amended complaint related to EPA's failure to take action on the SIP 
revision related to the ``infrastructure'' requirements for the 2006 
24-hour PM2.5 NAAQS. On October 20, 2011, EPA entered into a 
consent decree with WildEarth Guardians and Sierra Club which required 
EPA, among other things, to complete a Federal Register notice of the 
Agency's final action either approving, disapproving, or approving in 
part and disapproving in part the Alabama 2006 24-hour PM2.5 
NAAQS Infrastructure SIP revision addressing the applicable 
requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for section 
110(a)(2)(C), the nonattainment area requirements and section 
110(a)(2)(D)(i), interstate transport requirements, by September 30, 
2012.
    Today's action is proposing to disapprove the portion of Alabama's 
July 25, 2008, and September 23, 2009, submissions which was intended 
to meet the requirement to address sub-element 110(a)(2)(E)(ii) for the 
1997 annual and 2006 24-hour PM2.5 NAAQS.

III. What is EPA's analysis of Alabama's submission for section 
110(a)(2)(E)(ii) for the 1997 annual and 2006 24-hour PM2.5 
NAAQS?

    On July 25, 2008, and on September 23, 2009, the State of Alabama, 
through ADEM, provided letters to EPA certifying that Alabama's SIP 
meets the requirements of sections 110(a)(1) and (2) of the CAA for the 
1997 annual and 2006 24-hour PM2.5 NAAQS. Specifically, for 
sub-element 110(a)(2)(E)(ii) Alabama's July 25, 2008, submission states 
that ``Requirements dictating the roles of local or regional 
governments (local programs) are derived from Ala Code Sec.  22-28-11 
(2006 Rplc.Vol), as amended * * *'' and the September 23, 2009, 
submission states that ``This requirement is met through Ala Code Sec.  
22-22A-6(j) which ensures that the state comply with section 128 of the 
CAA.''
    Section 110(a)(2)(E)(ii) requires that each implementation plan 
provide that states comply with the requirements respecting state 
boards pursuant to section 128 of the Act. Section 128 requires that: 
(1) The majority of members of the state board or body which approves 
permits or enforcement orders represent the public interest and do not 
derive any significant portion of their income from persons subject to 
permitting or enforcement orders under the CAA; and (2) any potential 
conflicts of interest by such board or body, or the head of an 
executive agency with similar powers be adequately disclosed. After 
reviewing Alabama's SIP, EPA has made the preliminary determination 
that the State's implementation plan does not contain provisions to 
comply with section 128 of the Act, and thus Alabama's July 25, 2008, 
and on September 23, 2009, submissions do not meet the requirements of 
the Act. While Alabama has state statutes that may address, in whole or 
part, requirements related to state boards at the state level, these 
provisions are not included in the SIP as required by the CAA.
    Based on an evaluation of the federally-approved Alabama SIP, EPA 
is proposing to disapprove Alabama's certification that its SIP meets 
the requirements of 110(a)(2)(E)(ii) of the CAA for the 1997 annual and 
2006 24-hour PM2.5 NAAQS. The submitted provisions which 
purport to address 110(a)(2)(E)(ii) are severable from the other 
infrastructure elements. Therefore, EPA is proposing to disapprove 
those provisions which relate only to sub-element 110(a)(2)(E)(ii).

IV. Proposed Action

    EPA is proposing to disapprove the portion of Alabama's July 25, 
2008, and September 23, 2009, submissions, relating to section 
110(a)(2)(E)(ii). This proposed disapproval is based on EPA's 
preliminary determination that Alabama's SIP does not satisfy these 
requirements for the 1997 annual and 2006 24-hour PM2.5 
NAAQS because provisions required by section 128 of the CAA are not 
approved in the Alabama SIP. Today's proposed action only relates to 
the section 110(a)(2)(E)(ii) requirements for the 1997 annual and 2006 
24-hour PM2.5 NAAQS. EPA is addressing the other section 
110(a)(2) requirements for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS for Alabama's SIP in a rulemaking separate from 
today's proposed rulemaking.
    Under section 179(a) of the CAA, final disapproval of a submittal 
that addresses a requirement of a CAA Part D Plan or is required in 
response to a finding of substantial inadequacy as described in CAA 
section 110(k)(5) (SIP call) starts a sanctions clock. Section 
110(a)(2)(E)(ii) provisions (the provisions being proposed for 
disapproval in today's notice) were not submitted to meet requirements 
for Part D or a SIP call, and therefore, if EPA takes final action to 
disapprove this submittal, no sanctions will be triggered. However, if 
this disapproval action is finalized, that final action will trigger 
the requirement under section 110(c) that EPA promulgate a FIP no later 
than 2 years from the date of the disapproval unless the State corrects 
the deficiency, and EPA approves the plan or plan revision before EPA 
promulgates such FIP.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to act on state law as meeting 
federal requirements and does not impose additional requirements beyond 
those imposed by state law.

A. Executive Order 12866, Regulatory Planning and Review

    This 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 the Executive Order.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq, 
because this proposed SIP disapproval under section 110 of the CAA will 
not in-and-of itself create any new information collection burdens but 
simply disapproves certain state requirements for inclusion into the 
SIP. Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to conduct a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions. For purposes of 
assessing the impacts of today's rule on small entities, small entity 
is defined as: (1) A small business as defined by the Small Business 
Administration's regulations at

[[Page 42685]]

13 CFR 121.201; (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; and (3) a small organization 
that is any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This rule does not 
impose any requirements or create impacts on small entities. This 
proposed SIP disapproval under section 110 of the CAA will not in-and-
of itself create any new requirements but simply disapproves certain 
state requirements for inclusion into the SIP. Accordingly, it affords 
no opportunity for EPA to fashion for small entities less burdensome 
compliance or reporting requirements or timetables or exemptions from 
all or part of the rule. The fact that the CAA prescribes that various 
consequences (e.g., higher offset requirements) may or will flow from 
this disapproval does not mean that EPA either can or must conduct a 
regulatory flexibility analysis for this action. Therefore, this action 
will not have a significant economic impact on a substantial number of 
small entities. EPA continues to be interested in the potential impacts 
of this proposed rule on small entities and welcome comments on issues 
related to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. EPA has determined that the proposed disapproval action does 
not include a federal mandate that may result in estimated costs of 
$100 million or more to either state, local, or tribal governments in 
the aggregate, or to the private sector. This action proposes to 
disapprove pre-existing requirements under state or local law, and 
imposes no new requirements. Accordingly, no additional costs to state, 
local, or tribal governments, or to the private sector, result from 
this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects 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.''
    This action does not have federalism implications. It will not have 
substantial direct effects 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, as 
specified in Executive Order 13132, because it merely disapproves 
certain state requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the CAA. Thus, Executive Order 13132 
does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
EPA is proposing to disapprove would not 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. Thus, 
Executive Order 13175 does not apply to this action.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it is not an 
economically significant regulatory action based on health or safety 
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). 
This proposed SIP disapproval under section 110 the CAA will not in-
and-of itself create any new regulations but simply disapproves certain 
state requirements for inclusion into the SIP.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001) because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA, Public Law 104-113, section 12(d) (15 
U.S.C. 272 note) directs EPA to use voluntary consensus standards in 
its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through the Office of Management and Budget, 
explanations when the Agency decides not to use available and 
applicable voluntary consensus standards. EPA believes that this action 
is not subject to requirements of Section 12(d) of NTTAA because 
application of those requirements would be inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this proposed action. In reviewing SIP submissions, EPA's 
role is to approve or disapprove state choices based on the criteria of 
the CAA. Accordingly, this action merely proposes to disapprove certain 
state requirements for inclusion into the SIP under section 110 the CAA 
and will not in-and-of itself create any new requirements. Accordingly, 
it 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Particulate matter, and

[[Page 42686]]

Reporting and recordkeeping requirements.

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

    Dated: July 12, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-17768 Filed 7-19-12; 8:45 am]
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