[Federal Register Volume 77, Number 199 (Monday, October 15, 2012)]
[Rules and Regulations]
[Pages 62449-62452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25149]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0343; FRL-9739-3]


Approval and Promulgation of Implementation Plans; Alabama; 
Disapproval of 110(a)(2)(E)(ii) Infrastructure Requirement for the 1997 
and 2006 Fine Particulate Matter National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action 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 September 23, 2009, which were intended 
to meet the requirement of the Clean Air Act (CAA or the Act). 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. Alabama certified 
that the Alabama SIP contains provisions that ensure the 1997 annual 
and 2006 24-hour fine particulate matter (PM2.5) national 
ambient air quality standards (NAAQS) are implemented, enforced and 
maintained in the State. Specifically, EPA is disapproving the State's 
submissions that requires the

[[Page 62450]]

State to comply with the CAA. EPA is taking a separate action to 
address the other applicable infrastructure elements for the 1997 
annual and 2006 24-hour PM2.5 NAAQS.

DATES: This rule will be effective November 14, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2012-0343. All documents in the docket 
are listed on the  www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information 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 through 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: 

Table of Contents

I. Background
II. EPA's Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and 
(2) of the CAA require states to make a SIP submission to address basic 
SIP requirements, including emissions inventories, monitoring, and 
modeling to assure attainment and maintenance for that new NAAQS. On 
July 18, 1997 (62 FR 36852), EPA promulgated a new annual 
PM2.5 NAAQS and on October 17, 2006 (71 FR 61144), EPA 
promulgated a new 24-hour NAAQS. On July 20, 2012, EPA proposed to 
disapprove Alabama's July 25, 2008, and September 23, 2009, 
infrastructure submissions related to the requirements respecting state 
boards for the for the 1997 annual and 2006 24-hour PM2.5 
NAAQS. See 77 FR 42682. A summary of the background for today's final 
action is provided below. See EPA's July 20, 2012, proposed rulemaking 
at 77 FR 42682 for more detail.
    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 1997 annual and 2006 24-hour 
PM2.5 NAAQS, states typically have met the basic program 
elements required in section 110(a)(2) through earlier SIP submissions 
in connection with previous PM NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. Among the elements that states 
must address is section 110(a)(2)(E)(ii), which in turn refers to the 
specific requirements of section 128. Section 128 explicitly provides 
that state SIPs ``shall contain requirements'' as described in sections 
128(a)(1) and (2). In addition, states may adopt any additional 
requirements that are ``more stringent'' than those explicitly required 
in section 128. EPA issued guidance to states making recommendations 
concerning compliance with section 128.\1\
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    \1\ See ``Guidance to States for Meeting Conflict of Interest 
Requirements of section 128'' from David O. Bickert, Deputy General 
Counsel, to Regional Air Directors, dated March 2, 1978.
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    In this action, EPA is only addressing sub-element 
110(a)(2)(E)(ii). In taking final action on the proposed disapproval, 
EPA is responding to an adverse comment received on EPA's July 20, 
2012, proposed disapproval of Alabama's July 25, 2008, and September 
23, 2009, infrastructure submissions for sub-element 110(a)(2)(E)(ii). 
EPA is taking a separate action to address the other applicable 
infrastructure elements for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS. See, e.g., 77 FR 34288.

II. EPA's Response to Comments

    The following is EPA's response to the adverse comment received on 
EPA's July 20, 2012, proposed disapproval of Alabama's July 25, 2008, 
and September 23, 2009, infrastructure submissions as they relate to 
section 110(a)(2)(E)(ii) of the CAA.
    Comment: On August 20, 2012, ADEM commented on EPA's proposed 
action and requested that EPA withdraw its proposed disapproval of 
section 110(a)(2)(E)(ii). ADEM suggested in their comment that EPA 
approve a conflict of interest protocol submitted for inclusion in the 
SIP in connection with the State's 2008 ozone NAAQS infrastructure 
submission. ADEM submitted this conflict of interest protocol as an 
attachment to its adverse comment on the proposal action. ADEM asserted 
that with the inclusion of this protocol in the SIP, EPA would be able 
to approve Alabama's 1997 annual and 2006 24-hour PM2.5 
infrastructure SIP for sub-element 110(a)(2)(E)(ii).
    Response: 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.
    In its July 20, 2012, proposed rulemaking (77 FR 42682), EPA 
preliminarily determined that the State's implementation plan did not 
contain provisions to comply with section 128 of the Act, and thus, 
Alabama's July 25, 2008, and September 23, 2009, submissions do not 
meet the requirements of the Act with respect to section 
110(a)(2)(E)(ii).\2\ Alabama's

[[Page 62451]]

comment on that proposal, which contends that EPA should not finalize 
the proposed disapproval based upon a conflict of interest disclosure 
protocol included with the comment for incorporation into the SIP, does 
not address the underlying basis for the proposed disapproval of 
element 110(a)(2)(E)(ii). The basis for EPA's disapproval, as discussed 
in the proposed rule for today's action, is that the SIP presently 
fails to include any requirements to address the applicable 
requirements of section 128 of the CAA.
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    \2\ Prior to EPA's proposed disapproval for this sub-element, 
ADEM and EPA engaged in a numerous communications regarding this 
infrastructure SIP deficiency (see, e.g., EPA's comment to ADEM's 
proposed SIP submittal addressing infrastructure requirements for 
the 2008 ozone NAAQS which was attached to ADEM's adverse comment 
and is available in the docket for today's action.)
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    EPA considered the State's comment and has determined the comments 
do not adequately address the requirements for the following procedural 
and substantive reasons. With respect to procedural issues, an adverse 
comment letter on a proposed action does not meet the statutory and 
regulatory requirements for a SIP submission. Section 110(a)(1), 
section 110(a)(2), and section 110(l), all provide that a state's 
implementation plan submission must undergo reasonable notice and 
opportunity for comment. In addition, EPA regulations at Part 51, 
Appendix V, set forth additional criteria for a SIP submission. EPA has 
determined that the conflict of interest disclosure protocol attached 
to the State's adverse comment letter does not constitute such a SIP 
submission for a number of reasons including, but not limited to, the 
fact that the State has not provided information that the submission 
has undergone the requisite public notice or a demonstration that the 
protocol has been adopted and is in final form as submitted. In 
addition, the protocol was not signed, stamped and dated by an 
appropriate official to indicate that it is fully enforceable by the 
State.
    Substantively, were it an official submission, it would not be 
sufficient to satisfy the requirements of section 128 necessary for EPA 
to approve Alabama's infrastructure submissions as they relate to 
section 110(a)(2)(E)(ii). As noted in the proposed rule for today's 
action, 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.
    Alabama provides no explanation as to how its conflict of interest 
disclosure protocol would satisfy the public interest and significant 
portion of income requirements applicable to the majority of a state 
board or body subject to section 128(a)(1). Alabama's response to EPA's 
comments on the State's draft 2008 8-hour ozone infrastructure 
submission (included with Alabama's comment on today's rulemaking) 
notes that certain ADEM officials are charged with responsibilities for 
issuing permits or enforcement orders. EPA has interpreted the ``board 
or body'' requirements of section 128(a)(1) as not applying to 
individuals tasked with authority to approve permits or enforcement 
orders. However, where appeals of such permits or enforcement orders 
are resolved by boards or bodies, those entities are subject to the 
majority requirements of section 128(a)(1). Alabama's comment does not 
describe how appeals of permits or enforcement order are handled in the 
State. In order for EPA to determine that the requirements of section 
128(a)(1) are not applicable in Alabama, the State must provide this 
information. If a board or body does review appeals of permit or 
enforcement orders, the SIP must require that such board or board be 
subject to the 128(a)(1) majority requirements in order for EPA to 
approve Alabama's section 110(a)(2)(E)(ii) infrastructure submittals. 
Based upon the information protocol described by Alabama, the State's 
approach fails to address the majority requirements of section 128.
    In addition to the issues noted above regarding the section 
128(a)(1) requirements, the question of whether a board or body handles 
appeals of permits or enforcement orders is also relevant to 
sufficiency of the State's protocol with respect to the section 
128(a)(2) requirements. To the extent a board or body decides appeals 
of permits or enforcement orders, the SIP must require that members of 
such board or body be subject to the section 128(a)(2) conflict of 
interest disclosure requirements. The State's conflict of interest 
disclosure protocol, as submitted, would appear to only apply to three 
specified officials within ADEM. Alabama has failed to demonstrate how 
the submitted protocol would provide adequate disclosure consistent 
with the requirements section 128(a)(2).
    EPA also notes that Alabama's conflict of interest disclosure 
protocol, at footnote 3, asserts that ``EPA defines `significant 
portion of income' as 50% or more of gross personal income for a 
calendar year if the recipient is over 60 years of age and is receiving 
that portion under retirement, pension, or similar arrangement. This 
information need only be provided if the recipient falls in this 
category.'' This statement is incomplete. The complete suggested 
definition for ``Significant Portion of Income'' recommended in EPA's 
1978 Guidance to States for Meeting Conflict of Interest Requirements 
of Section 128 is ``10 percent or more of gross personal income for a 
calendar year, including retirement benefits, consultation fees, and 
stock dividends, except that it shall mean 50 percent [or more] of 
gross personal income for a calendar year if the recipient is over 60 
years of age and is receiving such portion pursuant to retirement, 
pension, or similar arrangement.'' Alabama's protocol omits the 
generally applicable 10 percent standard.\3\
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    \3\ EPA notes that this suggested definition is provided in a 
guidance document as an example to states of how to define 
significant portions of income, therefore, states may propose a 
different standard as constituting a ``significant portion of 
income.'' However, as noted in the guidance, EPA views the substance 
of the suggested definitions as representing the minimum level of 
stringency necessary to meet the requirements of section 128.
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    EPA is finalizing disapproval of Alabama's infrastructure 
submissions as they relate to sub-element 110(a)(2)(E)(ii) because, as 
described above, the SIP presently does not contain provisions to 
address the requirements of section 128 of the CAA. Consistent with the 
obligations under the CAA, EPA intends to continue working with the 
State to resolve this SIP deficiency.

III. Final Action

    EPA is taking final action to disapprove the portion of Alabama's 
July 25, 2008, and September 23, 2009, submissions which was intended 
to meet the requirement to address element 110(a)(2)(E)(ii) for the 
1997 annual and 2006 24-hour PM2.5 NAAQS. EPA has made the 
determination that Alabama's SIP does not satisfy the requirement for 
element 110(a)(2)(E)(ii) for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS. In today's action, EPA is not taking any action 
on the remaining elements of the submission, including other section 
110(a)(2) infrastructure elements.
    Under section 179(a) of the CAA, final disapproval of a submittal 
that addresses a requirement of a Part D Plan (42 U.S.C. 7501-7515) or 
is required in response to a finding of substantial inadequacy as 
described in section 7410(k)(5) (SIP call) starts a sanctions clock. 
Section 110(a)(2)(E)(ii) provisions (the provisions being disapproved 
in today's notice) were not submitted to meet requirements for Part D, 
and

[[Page 62452]]

therefore, no sanctions will be triggered. This final action triggers 
the requirement under section 110(c) that EPA promulgate a Federal 
Implementation Plan (FIP) no later than 2 years from the date of the 
disapproval unless the State corrects the deficiency, and the 
Administrator approves the plan or plan revision before the 
Administrator promulgates such FIP.

IV. 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 approve state choices, 
provided that they meet the criteria of the CAA. Accordingly this final 
action disapproves state law because it does not meet federal 
requirements. For that reason, this 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 Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 14, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

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

    Dated: September 27, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart B--Alabama

0
2. Section 52.62 is amended by adding paragraph (e), to read as 
follows:


Sec.  52.62  Control strategy: Sulfur oxides and particulate matter.

* * * * *
    (e) Disapproval. EPA is disapproving portions of Alabama's 
Infrastructure SIP for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS addressing section 110(a)(2)(E)(ii) that 
requires the State to comply with section 128 of the CAA.

[FR Doc. 2012-25149 Filed 10-12-12; 8:45 am]
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